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Sentencing

2026-04-12T23:37:00Z

Sysop: /* Resentencing */

“In a criminal case, judgment is rendered when the trial court orally pronounces sentence.” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.)

==Charging==
Penal Code Section 12022.1
This is a two-year enhancement for committing a crime while released on bail or
own recognizance. Subdivision (c) specifically states that the allegation may be
pleaded in a Complaint, but need not be proved at the preliminary hearing. The
allegation must, however, be pleaded in the Information or Indictment.
2. Prior Convictions
Prior convictions, which are status enhancements, may be added to the Information
or Indictment whenever it is discovered that not all prior convictions have been
alleged. (Pen. Code § 969a; Miranda v. Superior Court of Los Angeles County (1995)
38 Cal.App.4th 902; Thompson v. Superior Court of Los Angeles County (2001)
91 Cal.App.4th 144; People v. Casillas (2001) 92 Cal.App.4th 171.)

==Admissible evidence==

“A probation report is required following every felony conviction in this state. [Citation.] [California Rules of Court, r]ule 4.411.5 details the contents of presentence reports, and contemplates that police reports will be used to prepare crime summaries contained therein. (Rule 4.411.5(a)(7)(i).) Defendants are required by statute to have an opportunity to review and challenge inaccuracies in the presentence report. [Citations.] [Defendant] does not contend he failed to receive such an opportunity in the underlying criminal prosecution. [¶] Superior courts consider and rely upon hearsay statements contained in a presentence report to determine whether to place a defendant on probation, and to evaluate his [or her] level of culpability when selecting an appropriate sentence. [Citations.]” (People v. Otto (2001) 26 Cal.4th 200, 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061 (Otto ).) “A sentencing judge ‘may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the convicted person's life and characteristics.’ [Citation.]” (People v. Arbuckle (1978) 22 Cal.3d 749, 754, 150 Cal.Rptr. 778, 587 P.2d 220.) The court may also consider and rely upon hearsay statements contained in a probation report, including the police reports used to prepare the crime summaries contained in the report. (Otto, at p. 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061.)

By stating in section 1204 that mitigating evidence must be presented through “the testimony of witnesses examined in open court” rather than verbal representations, the Legislature has declared that a criminal defendant wishing to make an oral statement to the court in mitigation of punishment must do so through testimony given under oath.6 (A defendant may also provide an unsworn written statement either by submitting the statement to the probation officer for inclusion in the probation report (Cal. Rules of Court, rule 4.411.5(a)(4)), if one is prepared; or by including such a statement in a “written report” filed by the defense that “presents a study of his background and personality and suggests a rehabilitation program” (§ 1204).) People v. Evans (2008) 44 Cal.4th 590, 598

==Granting probation==

“The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation....” (People v. Welch (1993) 5 Cal.4th 228, 233, 19 Cal.Rptr.2d 520, 851 P.2d 802.)

“The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]” (People v. Birmingham (1990) 217 Cal.App.3d 180, 185, 265 Cal.Rptr. 780.)

In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rule 4.406(b)(2); rule 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.)
67 “The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance **27 of the evidence. [Citations.]” (People v. Leung (1992) 5 Cal.App.4th 482, 506, 7 Cal.Rptr.2d 290.) Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. (Id. at pp. 506–507, 7 Cal.Rptr.2d 290.)

People v. Weaver (2007) 149 Cal.App.4th 1301, 1313 disapproved of by People v. Cook (2015) 60 Cal.4th 922 on other grounds

Note: Allegations that mandate probation denial, or the facts that support them, must be
alleged and proved, for example, Penal Code section 1203(k); however, allegations that
merely create a presumptive denial of probation, do not. (People v. Lo Cicero (1969) 71
Cal.2d 1186; In re Varnell (2003) 30 Cal.4th 1132; People v. Lara (2012) 54 Cal.4th 896;
McKissick, supra.)

(People v. Hood (2014) 223 Cal.App.4th 1356 [depublished].)

===Mandatory inelgibile===

===Presumptive ineligible===
There is likewise broad discretion to determine whether a given case is “unusual” and entitles the defendant to probation in the interests of justice. (People v. Superior Court (Du ) (1992) 5 Cal.App.4th 822, 831, 7 Cal.Rptr.2d 177.

A VC20001 hit-and-run is not "a deadly weapon," to make one presumptively eligible under PC1203(e)(2). (People v. Nuno (2018) 26 Cal.App.5th 43.)

And it does not apply the criteria in rule 4.414 to determine whether to grant probation unless it first finds any statutory presumption against probation is rebutted. (Rule 4.413(b); **584 People v. Superior Court (Dorsey ) (1996) 50 Cal.App.4th 1216, 1229, 58 Cal.Rptr.2d 165.)

===Statement of reasons===
“Generally speaking, the trial court must state reasons for granting or denying probation.” (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

"At an initial sentencing hearing, when the court has the discretion to grant probation, the decision to grant probation is a sentence choice which requires a statement of reasons." (§ 1170, subd. (c); Cal. Rules of Court, rule 405(f)Court, rule 405(f). (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792.)

"The denial of probation, in and of itself, is not a sentence choice requiring a statement of reasons. (People v. Gopal (1985) 171 Cal.App.3d 524, 547–549, 217 Cal.Rptr. 487, cert. den. 476 U.S. 1105, 106 S.Ct. 1949, 90 L.Ed.2d 359; People v. Crouch (1982) 131 Cal.App.3d 902, 904, 182 Cal.Rptr. 701.) The rationale is that the denial of probation is not the ultimate disposition of the case, but rather is part and parcel of the concomitant decision to sentence to state prison, and that is the sentence choice which requires a statement of reasons. (People v. Butler (1980) 107 Cal.App.3d 251, 254–255, 165 Cal.Rptr. 709; accord People v. Golliver, supra, 219 Cal.App.3d at p. 1616, fn. 2, 269 Cal.Rptr. 191.) (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792, fn. 2)

But it need not provide reasons for declining to find a case “unusual” so as to rebut any presumptive ineligibility for probation. (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

==Prison sentencing==

PC1170.1(c)

McCart

''People v. Roseberry'' (2020) 57 Cal.App.5th 543

5y sentence for PC273.5. Commit PC4573 and sentenced to full consecutive 3 years. New offense of PC4530 escape.

Being released on parole, breaks up the chain for McCart issues. (''People v. Reed'' (1993) 17 Cal.App.4th 302.)'
1981-4y sentence
1984-while serving sentence, sentenced to full 2y consecutive for PC4501.5
Paroled
1991-PC4501.5 while at Pelican Bay.
1991-not under McCart.

People v. Brantley (2019) 43 Cal.App.5th 917. section 1170.1, subdivision (c) “does not apply [when a] defendant completed the prison term he was serving *549 before being sentenced **508 on the” in-prison offense. (People v. Brantley (2019) 43 Cal.App.5th 917, 920 [257 Cal.Rptr.3d 98] (Brantley), italics added; see id. at p. 922 [“a reading of the plain language of subdivision (c) makes apparent that this provision does not apply once the prisoner has completed the sentence he or she was serving when the in-prison crime was committed”].)

Credits. In re Rojas (1979) 23 Cal.3d 152; People v. Phoenix (2014) 231 Cal.App.4th 1119

In re Sims (1981) 117 Cal.App.3d 309

In re Brown (2024) 104 Cal.App.5th 969

In re Thompson (1985) 172 Cal.App.3d 256

In jail for out-to-court is still in prison. People v. White (1988) 202 Cal.App.3d 862

Thompson term doesn't inherit violent nature. (In re Tate (2006) 135 Cal.App.4th 756.)

==Misdemeanor sentencing==

"A trial court in a misdemeanor case may properly look for guidance to what the rules consider to be aggravating and mitigating." (People v. Faber (2017) 15 Cal.App.5th Supp. 41, 48.)

A misdemeanor can be a full-boat consecutive in jail after a prison term. (''People v. Endelsen'' (1996) 46 Cal.App.4th 86.) A misdemeanor can be a full-boat consecutive in jail after a PC1170(h) jail sentence. (''People v. Brown (2016) 247 Cal.App.4th 1430.)

People v. Brown (2016) 247 Cal.App.4th 1430

People v. Erdelan (1996) 46 Cal.App.4th 86

People v. Murray (1994) 23 Cal.App.4th 1783

In re Valenti (1986) 178 Cal.App.3d 470

In re Eric J. (1979) 25 Cal.3d 522

==Sentencing error==

===Failing to state reasons===

Rule 4.403

People v. Dixon (1993) 20 Cal.App.4th 1029, 1037, found it reversible error, when failing to state reasons for consecutive sentences.

Sentencing can't just incorporate by reference, such as just the probation report. People v. Pierce (1995) 40 Cal.App.4th 1317; People v. Fernandez (1990) 226 Cal.App.3d 669; People v. Deloach (1989) 207 Cal.App.3d 323; People v. Davis (1980) 103 Cal.App.3d 270; People v. Turner (1978) 87 Cal.App.3d 244

==Housing under PC1170(h)==

Unstricken juvenile strike priors keep defendants out of county jail. (''People v. Delgado'' (2013) 214 Cal.App.4th 914.)

But what about juvenile strike priors and PC1170(f)?

==Enhancements==

An enhancement is defined as an additional term of imprisonment or penalty added to the
base term. (People v. Smith (1985) 163 Cal.App.3d 908; Sentencing Rules for Superior Court,
California Rules of Court, Rule 4.405(3).) An enhancement is not, however, a separate crime.
(People v. Muhammad (2007) 157 Cal.App.4th 484; People v. Wims (1995) 10 Cal.4th 293;
People v. Mustafaa (1994) 22 Cal.App.4th 1305; People v. White (1976) 16 Cal.3d 791.) Thus, it
is inextricably bound to the underlying crime, and the facts that are relied upon to establish the
enhancement must have occurred during the time of the offense. (People v. Walls (1978)
85 Cal.App.3d 447; People v. Dozier (1979) 90 Cal.App.3d 174.)

Because enhancements are not crimes, the corpus delicti rule does not apply to them. (People v.
Shoemake (1993) 16 Cal.App.4th 243.)

Generally, with determinate term sentences, a conduct enhancement is added to the base term
set for each offense, and a status enhancement is added once at the end of the determinate term
calculation. (People v. Jefferson (1999) 21 Cal.4th 86.) [Note: Enhancements for prior convictions
are added to each indeterminate term. (People v. Williams (2004) 34 Cal.4th 397.)] Penal Code
section 1170.11 lists specific enhancements that relate to the circumstances of the crime.
Enhancement allegations are not considered part of the accusatory pleading for purposes of
defining lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92; People v. Richmond
(1991) 2 Cal.App.4th 610.) Nor may they be considered when applying the multiple conviction
rule—the rule prohibiting multiple convictions based on necessarily included offenses. (People v.
Izaguirre (2007) 42 Cal.4th 126.) Further, Penal Code section 805(a) provides that enhancements
are disregarded when determining the applicable statute of limitations. In other words, the
enhancement is not part of the maximum punishment calculation.

Enhancements apply equally to juveniles as they do to adults. (Welf. & Inst. § 726(d); In re Jovan B. (1993) 6 Cal.4th 801.

Relevant enhancements should be attached to each applicable underlying offense. (Pen. Code
§ 1170.1(d).) Subject to Penal Code sections 654 and 1170.1, enhancements may be imposed for
each separate crime for which the enhancement is found true. In other words, the law does not
limit charging or imposing enhancements only once for a criminal event; rather enhancements
should be charged and imposed for each crime during that event. (See People v. King (1993)
5 Cal.4th 59, overruling the rule in In re Culbreth (1976) 17 Cal.3d 330.)

All enhancements must be pled and either admitted by the defendant or proved to the trier
of fact beyond a reasonable doubt. (Pen. Code § 1170.1(e); Apprendi v. New Jersey (2000)
Defendant Conduct Enhancements (2015) 3
530 U.S. 466; People v. Sengpadychith (2001) 26 Cal.4th 316; People v. Mancebo (2002)
27 Cal.4th 735.)
Conduct enhancements should be pled in the criminal Complaint and proved at the
preliminary hearing. An enhancement may be included on the Information, even if not
initially alleged in the Complaint, provided sufficient evidence to support the enhancement
was presented at the preliminary hearing. Otherwise, the defendant may challenge the
sufficiency of an enhancement allegation by way of a Penal Code section 995 motion.
(People v. Superior Court of Marin County (Mendella) (1983) 33 Cal.3d 754.)
If the incorrect code section is pled or the enhancement is attached to the wrong count, the
court may still apply the enhancement. (People v. McKissick (1984) 151 Cal.App.3d 439;
People v. Riva (2003) 112 Cal.App.4th 981; Pen. Code § 960.)

Burden of Proof
Enhancement allegations must be proved beyond a reasonable doubt. (Apprendi, supra;
People v. Sloan (2007) 42 Cal.4th 110.)

Plea Bargaining
When the defendant enters into a plea bargain that includes an enhancement that the
defendant knows is unauthorized by law, in exchange for a lesser sentence than could
otherwise be imposed, the defendant will be estopped from attacking the imposition
of sentence for the enhancement. (People v. Ellis (1987) 195 Cal.App.3d 334; People v.
Otterstein (1987) 189 Cal.App.3d 1548; People v. Jones (1989) 210 Cal.App.3d 124.)

“During the Commission” Defined
Most enhancements require the prohibited conduct to be “during the commission” or “in
the commission” of a crime. The phrase “in the commission” has been given an expansive
interpretation and means more than simply “while committing” or “while engaged in.”
(People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.].) The following cases
illustrate this concept:
• People v. Canela (2014) 224 Cal.App.4th 703 [cert. for part. pub.]—The defendant
was “in the commission” of a robbery when he was in flight from officers and struck a
pedestrian.
• People v. Elder (2014) 227 Cal.App.4th 411 [cert. for part. pub.]—The robbery
victim sustained GBI while trying to push the fleeing defendant from a van.
• People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.]—A GBI
enhancement may apply to leaving the scene of an accident in violation of Vehicle
Code section 20001(a) if the injury was inflicted as part of one continuous transaction,
but not if the injury was inflicted prior to the flight.
• People v. Frausto (2009) 180 Cal.App.4th 890—The phrase “in the commission of”
in Penal Code section 12022.53(d) has the same meaning as identical or equivalent
language in sections 667.61, 12022.3, 12022.5, and the felony-murder statutes. Thus,
a firearm is discharged “in the commission of” a felony within the meaning of Penal
Code section 12022.53(d) if the underlying felony and the discharge of the firearm
are part of one continuous transaction, including flight after the felony to a place of
temporary safety.
• People v. Pitto (2008) 43 Cal.4th 228—Whenever (1) the defendant knows of the
presence and location of a firearm near the drugs, (2) the gun’s proximity to the drugs
is not “accidental or coincidental,” and (3) the defendant is in a position to use the gun
offensively or defensively to aid in the commission of the offense, the gun facilitates
that crime and has the requisite purpose or effect with respect to its commission.
• People v. Carrasco (2006) 137 Cal.App.4th 1050—With a gun use enhancement
“during the commission” of a robbery, the robbery may be spread over a considerable
distance and varying periods of time. A robbery begins with the commission of any of
the elements and concludes after all the elements have been satisfied and the defendant
has reached a place of relative safety. The gun use enhancement applies if the “use” aids
in completing any of the essential elements of the crime.
• People v. Alvarado (2001) 87 Cal.App.4th 178—For the purpose of Penal Code
section 667.61(e)(2), “during the commission of a burglary” refers to that period of
time between the burglar’s initial entry with the requisite intent and the burglar’s escape
to a place of temporary safety
People v. Jones (2001) 25 Cal.4th 98—In the case of a weapons-use enhancement,
such use may be deemed to occur “in the commission of” the offense if it occurred
before, during, or after the technical completion of the felonious sex act. The operative
question is whether the sex offense posed a greater threat of harm, i.e., was more
culpable because the defendant used a deadly weapon to threaten or maintain control
over the victim.
• People v. Becker (2000) 83 Cal.App.4th 294 [cert. for part. pub.]—A defendant’s
sentence may be enhanced for arming as long as he [or she] has a weapon available for
use at any point during the course of a continuing offense (conspiracy).
• People v. Masbruch (1996) 13 Cal.4th 1001—In this case, the defendant initially
used a firearm to subdue the two female victims and tie them up. He then committed
robbery, rape, sodomy, false imprisonment, and torture. The defendant appealed the
enhancement for gun use in the sex crimes, claiming that he only displayed the gun at
the outset of the crime spree. The court held that the firearm use enhancement liability
continued for as long as the defendant “utilized a gun at least as an aid in completing
an essential element of a subsequent crime.” The court explained:
In considering whether a gun use occurred, the jury may consider a
“video” of the entire encounter; it is not limited to a “snapshot” of
the moments immediately preceding a sex offense. Thus, a jury could
reasonably conclude that although defendant’s presence with the victims
was sporadic, the control and fear created by his initial firearm display
continued throughout the encounter. (Id. at 1011.)
[Note: This case has an excellent and extensive discussion on the definition of “use” of a
firearm.]
• People v. Taylor (1995) 32 Cal.App.4th 578—For the purpose of Penal Code
section 12022.5, the use of a firearm during escape from the crime scene is a use during
the commission of the crime. The defendant had left the burglary scene with a police
officer in pursuit, but his companion was detained at the scene, and the defendant
used the weapon when he returned to free her. The companion had stolen items on her
person and could implicate the defendant in the burglary. Thus, the burglary had not
been completed.
• People v. Heston (1991) 1 Cal.App.4th 471 [cert. for part. pub.]—Penal Code
section 12022.4 creates an enhancement for furnishing a firearm during the
commission of a crime. Although the defendant actually furnished it before the crime,
the court held that the statutory language must be read as contemplating a time frame
other than simply the time of the actual act element of the felony.
• People v. Mixon (1990) 225 Cal.App.3d 1471—Infliction of injury on the victim
after removal from a burglary situs is “during the commission” of the burglary.
• People v. Walls (1978) 85 Cal.App.3d 447—During a burglary, the defendant used a
gun and inflicted GBI. (Pen. Code § 12022.7.) On appeal he urged that the burglary
was complete upon entry with the requisite intent and that the alleged enhancement
conduct did not occur “during the commission” of the burglary. This was rejected by
the court, which held that the burglary continued after entry.

The court does not need to state a reason for imposing an enhancement that was found
true (Pen. Code § 1170(d); Rule 4.428); however, the court must state reasons for striking
the enhancement. (In re Renfrow (2008) 164 Cal.App.4th 1251.)
Enhancements imposed on attempted crimes are not reduced by half the normal term for
the enhancement. (In re Anthony H. (1980) 108 Cal.App.3d 494.

However, only one
weapon enhancement (the greatest) and only one injury enhancement (the greatest) may be
imposed for a single victim on a single crime. (Pen. Code § 1170.1(f) and (g); Rule 4.447;
People v. Ahmed (2011) 53 Cal.4th 156; People v. Mercado (2013) 216 Cal.App.4th 67.)
1. Multiple Firearm and Weapon Use on a Single Crime—Penal Code
Section 1170.1(f)
The defendant’s use of a firearm or weapon during the commission of a crime
may implicate several enhancements (e.g., Pen. Code §§ 12022.5 and 12022.53);
however, only the greatest may be imposed for each crime. (Pen. Code § 1170.1(f);
People v. Rodriguez (2009) 47 Cal.4th 501.) This rule applies even if the defendant
uses two weapons during the commission of the crime. (People v. Jones (2000)
82 Cal.App.4th 485.)
2. Multiple Weapon Enhancements on Multiple Crimes
When the defendant uses a weapon during the commission of multiple crimes, a
weapons enhancement is permitted for each crime. (King, supra; People v. Palacios
(2007) 41 Cal.4th 720.)
3. Multiple Injury Enhancements on the Same Victim on a Single Crime—
Penal Code Section 1170.1(g)
The defendant’s infliction of injury during the commission of a crime may result in
the filing of several injury enhancements (e.g., Pen. Code § 12022.7(a) and (b));
however, only the greatest may be imposed. (Pen. Code § 1170.1(g); People v. Eck
(1999) 76 Cal.App.4th 759 [cert. for part. pub.].)
4. Multiple Injury Enhancements for Multiple Victims
Where multiple victims are injured, multiple injury enhancements are permitted.
(People v. Arndt (1999) 76 Cal.App.4th 387; People v. Ausbie (2004) 123 Cal.App.
4th 855 [cert. for part. pub.].)

he court can strike almost all enhancements—or just the additional punishment
for the enhancement—with stated reasons based on the general provisions of Penal
Code section 1385. (People v. Meloney (2003) 30 Cal.4th 1145; People v. Luckett
(1996) 48 Cal.App.4th 1214; Rule 4.406(b)(7) and (b)(10); see also former Pen.
Code § 1170.1(h) [pre-Jan. 1, 1998].) The court can strike an enhancement with
respect to one count but not another. (People v. Torres (2008) 163 Cal.App.4th
1420 [cert. for part. pub.].)

Example: The defendant is convicted of robbery with an enhancement for the
personal infliction of GBI. As nothing limits or prohibits the imposition of this
enhancement, it must be imposed or stricken, not stayed. (Pen. Code §§ 1170.1(d)
and 1385(c); People v. Langston (2004) 33 Cal.4th 1237; Vega, supra.)

his issue was addressed in the context of multiple firearm enhancements pursuant
to Penal Code sections 12022.5 and 12022.53(b) and (c) attached to a single
underlying crime. In reviewing the statutory construction of section 12022.53,
and harmonizing that statute with the rationale of section 654 and Rule 4.447,
the California Supreme Court held that an enhancement whose imposition is
prohibited should be stayed, not stricken. (People v. Gonzalez (2008) 43 Cal.4th
1118.)
Should the court wish to avoid the additional prison term for the enhancement
but retain the offense as a serious or violent felony for “strike” or credit limitation
purposes, the court should impose the enhancement and dismiss only the
additional punishment. (Pen. Code § 1385(c); Pope, supra; In re Pacheco (2007)
155 Cal.App.4th 1439; In re Borlik (2011) 194 Cal.App.4th 30.)

===PC12022(a) firearm +1===

“Armed” is knowingly carrying a firearm as a means of offense or defense.
Bland, supra, 10 Cal.4th 991, held that a defendant convicted of a possessory
drug offense is subject to the “armed with a firearm” enhancement when he or
she possesses both drugs and a gun, and keeps them together, but is not present
when the police seize them. (People v. Hayes (1990) 52 Cal.3d 577; People v.
Wandick (1991) 227 Cal.App.3d 918; Alvarado, supra, 146 Cal.App.4th 993;
Pen. Code § 1203.06(b)(3).)
• Applies to completed and attempted crimes.
• Vicarious liability is permitted for all principals. Two people can be personally
armed with one gun. (People v. Mendival (1992) 2 Cal.App.4th 562 [cert. for
part. pub.].)
• “Firearm” is defined as “a device, designed to be used as a weapon, from which
is expelled through a barrel a projectile by the force of an explosion or other
form of combustion.” (See Pen. Code § 16520(a).) This does not include the
mere “receiver.” (People v. Gailord (1993) 13 Cal.App.4th 1643.) The fact that
the object is a firearm can be established by direct or circumstantial evidence
(People v. Law (2011) 195 Cal.App.4th 976 [cert. for part. pub.]); however, toy
guns, pellet guns, and BB guns do not qualify as firearms. (People v. Monjaras
(2008) 164 Cal.App.4th 1432 [cert. for part. pub.].)
• The firearm need not be loaded or operable. (Masbruch, supra; People v. Nelums
(1982) 31 Cal.3d 355; People v. Steele (1991) 235 Cal.App.3d 788.)
• There is no requirement to prove that the defendant knew or should have
known that the crime partner was armed. (People v. Overten (1994)
28 Cal.App.4th 1497.)
• Not applicable if arming is an element of the offense.

===PC12022(b) Assault Weapon +3===

Applies to completed or attempted crimes.
• “Assault weapon” defined. (Pen. Code § 30510.) “Machine gun” defined.
(Pen. Code §§ 30530 and 16880.)
• Applies even if arming is an element of the offense.
Defendant Conduct Enhancements (2015) 13
• Vicarious liability is permitted for all principals.
• There must be proof the defendant knew or reasonably should have known the
weapon was an assault weapon. (In re Jorge M. (2000) 23 Cal.4th 877.)

===PC12022(c) Armed while having controlled substances +3-4-5===
Personally armed” refers to the person who acts, not that person’s action.
Hence, two people can be personally armed with the same weapon if it is
equally available for use to both. (People v. Superior Court of San Diego County
(Pomilia) (1991) 235 Cal.App.3d 1464; Mendival, supra; People v. Gonzales
(1992) 8 Cal.App.4th 1658.)
• In the commission or attempted commission of violating Health and Safety
Code section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5,
11379, 11379.5, or 11379.6.
• There must be proof that the defendant had knowledge of the presence of the
firearm. (People v. Singh (2004) 119 Cal.App.4th 905 [cert. for part. pub.].)

===PC12022(d) Vicariously armed +1-2-3===
Penal Code section 12022(c) applies to those who actually and knowingly have
a firearm available for use, and section 12022(d) applies to those who do not,
but who know that one of their co-principals does. (People v. Smith (1992)
9 Cal.App.4th 196 [cert. for part. pub.].)

===PC30615 assault weapon +1===

===PC12022(b)(1) Deadly Weapon +1 Serious===

“Deadly or dangerous weapon” refers to any weapon, instrument, or object that
is inherently deadly or is used in such a way it is capable of causing and is likely
to cause great bodily injury or death. (CALCRIM 3145; People v. Reid (1982)
133 Cal.App.3d 354). Examples:
- BB gun (In re Bartholomew D. (2005) 131 Cal.App.4th 317 [cert. for part.
pub.]; People v. Brown (2012) 210 Cal.App.4th 1)
- Dirk or blackjack (People v. Aguilar (1997) 16 Cal.4th 1023)
- Knife (People v. Smith (1963) 223 Cal.App.2d 431)
- Broken glass or bottle (People v. Neal (1984) 159 Cal.App.3d 69 [cert. for
part. pub.]; People v. Zermeno (1999) 21 Cal.4th 927)
- Dog (People v. Frazier (2009) 173 Cal.App.4th 613 [cert. for part. pub.])
- Car (Calderon, supra)
• Personal use is required; there is no vicarious liability.
• The enhancement is not applicable if use of a deadly or dangerous weapon is an
element of the offense. (People v. McGee (1993) 15 Cal.App.4th 107 [cert. for
part. pub.] [interpreting former Pen. Code § 245].)
• This enhancement qualifies the underlying crime as a serious felony (Pen. Code
§ 1192.7(c)(23)), but not a violent felony

===PC12022.5 Firearms +3-4-10===

Applies to completed and attempted crimes.
• The court cannot strike this enhancement. (Pen. Code § 12022.5(c); Thomas,
supra.)
• The requirement of use of a firearm does not create a specific intent to injure
or assault the victim; however, the use must be intentional. (In re Tameka C.
(2000) 22 Cal.4th 190; Johnson, supra, 38 Cal.App.4th 1315.)
• The firearm may be used as a bludgeon. (Walls, supra; People v. Miceli (2002)
104 Cal.App.4th 256 [cert. for part. pub.].)
• Personal use is required; there is no vicarious liability. (People v. Walker (1976)
18 Cal.3d 232; People v. Hays (1983) 147 Cal.App.3d 534.)
• The enhancement is applicable if the defendant who personally uses the firearm
is vicariously liable for the underlying offense. (In re Antonio R. (1990)
226 Cal.App.3d 476 [cert. for part. pub.]; Berry, supra; Thiessen, supra.)
• The firearm need not be loaded or operable. (Nelums, supra.) See definition of
“firearm” in Section V.A.1.
• This enhancement is not applicable (Pen. Code § 12022.5(d)) if the use of a
firearm is an element of the offense, except if the offense is:
- any violation of Penal Code section 245, or
- murder perpetrated by means of shooting a firearm from a motor vehicle
intentionally at another person outside of the vehicle with the intent to
inflict GBI or death. (People v. Joachim (1995) 38 Cal.App.4th 1526;
People v. Johnson (1996) 51 Cal.App.4th 1329.)
• Mandatory state prison (Pen. Code § 1203.06(a)(1)) for most violent crimes.
• Multiple enhancements are permitted for multiple crimes committed
on a single occasion (King, supra); however, if multiple types of firearm
enhancements are alleged for a single crime, only the greatest may be imposed
(Pen. Code § 1170.1(f)). See discussion in Section IV.C.
• Qualifies the underlying crime as a serious felony (Pen. Code § 1192.7(c)(8))
and violent felony (Pen. Code § 667.5(c)(8)); therefore, conduct credits for the
aggregate term are limited to 15 percent. (Pen. Code § 2933.1; Reeves, supra.)
• Gang implications: The court cannot impose both a Penal Code section
12022.5 and a section 186.22(b)(1) enhancement if the gun is what makes the
crime a serious or violent felony. (Rodriguez, supra.)

===PC12022.5(b) assault weapons +5-6-10===

===PC21022.53 10-20-life===

* Section 187 (murder)
* Section 203 or 205 (mayhem)
* Section 207, 209, or 209.5 (kidnapping)
* Section 211 (robbery)
* Section 215 (carjacking)
* Section 220 (assault with intent to commit a specified felony)
* Section 245(d) (assault with a firearm on a peace officer or firefighter)
* Section 261 or 262 (rape)
* Section 264.1 (rape or sexual penetration in concert)
* Section 286 (sodomy)
* Section 288 or 288.5 (lewd act on a child
* Section 288a (oral copulation)
* Section 289 (sexual penetration)
* Section 4500 (assault by a life prisoner)
* Section 4501 (assault by a prisoner)
* Section 4503 (holding hostage by a prisoner)
* Any felony punishable by death or imprisonment in the state prison for life.
* Any attempt to commit a listed crime other than an assault.

===PC12022.55 Discharge of firearm from motor vehicle +5-6-10===

===PC12022.7 Great bodily injury +3===
Personal infliction is required. (People v. Cole (1982) 31 Cal.3d 568; People v.
Cross (2008) 45 Cal.4th 58.) Personal infliction can include “joint infliction”
when the defendant contributes to the GBI. (People v. Modiri (2006)
39 Cal.4th 481; People v. Dunkerson (2007) 155 Cal.App.4th 1413.) The
definition can include a failure to act if the defendant has a duty to act and
failure leads to GBI. (People v. Warwick (2010) 182 Cal.App.4th 788.)
• Applies to completed and attempted crimes.
• Specific intent to inflict injury is no longer required. Specific intent is required
for crimes committed prior to January 1, 1996. (People v. Fong (2013)
217 Cal.App.4th 263.)
• For the crimes listed in Penal Code section 1203.075, the infliction of GBI
means a mandatory denial of probation. It is no longer necessary to plead
and prove the section 1203.075 allegation together with the section 12022.7
enhancement. Prior to September 20, 2006, Penal Code section 1203.075
required intentional infliction so a separate probation denial allegation was
required when specific intent was deleted from the GBI enhancement itself.
Note: The probations denial allegation of Penal Code section 1203.075 does
apply to murder and should be alleged.
• Penal Code section 12022.7(f) defines GBI as “a significant or substantial
physical injury” beyond that inherent in the underlying felony. (People v.
Washington (2012) 210 Cal.App.4th 1042.) The California Supreme Court in
People v. Caudillo (1978) 21 Cal.3d 562 [overruled on another point in
People v. Escobar, infra, at 751, fn. 5] required that the injury be “severe or
protracted.” The California Supreme Court returned to the code section
standard of “significant or substantial physical injury” in People v. Escobar
(1992) 3 Cal.4th 740. Consequently, the injury sustained under the new
standard need not be as serious as that required by Caudillo. The injuries that
qualified as GBI in Escobar were: “extensive bruises and abrasions over the
victim’s legs, knees and elbows, injury to her neck and soreness in her vaginal
area of such severity that it significantly impaired her ability to walk.” (Escobar,
supra, at 750.)
• Other cases with examples of GBI:
- People v. Mendias (1993) 17 Cal.App.4th 195. Gunshot wound to upper
thigh. The victim was released from the hospital the next day, but the bullet
was not removed. At the trial five months later, the victim said the bullet
moves, but is not painful.
- People v. Wallace (1993) 14 Cal.App.4th 651. Two victims, one with cuts on
wrists and ankles from being flex-tied. One victim’s finger had no feeling
for two months. The other victim’s wrists were burned from flex-ties and
bandaged for two days. Insecticide-like substance caused “really, really bad”
burning in her eyes, vagina, and anus for 24 hours.
- People v. Bustos (1994) 23 Cal.App.4th 1747, 1755. The wounds inflicted
by this defendant (not including fatal stab wounds inflicted by another)
were contusions to the nose, left elbow, and left thigh; lacerations to the left
upper lip; and abrasions to the right elbow, left knee, and anus.
- People v. Le (2006) 137 Cal.App.4th 54. Soft tissue and muscular injury to
both legs caused by gunshot wound causing pain and restricted mobility for
weeks.
• Additional examples of GBI were discussed and approved using the more
stringent standard set forth in Caudillo, supra (pre-Escobar law):
- Knocked unconscious, numerous cuts with scars still evident at trial,
intense headaches
- Prolonged loss of consciousness
- Severe concussion
- Protracted loss of any bodily member or organ
- Protracted impairment of function of any bodily member or organ or bone
- A wound or wounds requiring extensive suturing
- Serious disfigurement
- Severe physical pain inflicted by torture
[Note: These categories were included in the section as originally enacted,
but were deleted by an amendment in 1977.]
• Other examples of GBI:
- Multiple contusions, swelling, and discoloration of the body. (People v.
Jaramillo (1979) 98 Cal.App.3d 830.)
- A broken hand swollen to twice its normal size. (People v. Kent (1979)
96 Cal.App.3d 130.
- A fractured jaw. (People v. Johnson (1980) 104 Cal.App.3d 598.)
- Hot grease in face. “Blistering 2nd burns … visible discoloration and
disfigurement for a month at least.” (People v. Harvey (1992)
7 Cal.App.4th 823.)
- Six sutures to the vagina for a cut of 2.5 cm. (People v. Brown (1985)
174 Cal.App.3d 762.)
• The jury need not unanimously agree on which injury or injuries support the
GBI. It is a “measuring function.” The jury determines whether the victim
suffered that quantum of injury that is defined as GBI. (People v. Robbins
(1989) 209 Cal.App.3d 261 [cert. for part. pub.].)
• The enhancement is not applicable if GBI is an element of the offense.
(Pen. Code § 12022.7(g).) Penal Code section 243(d), Battery with “Serious
Bodily Injury” is “Great Bodily Injury,” and the enhancement is not applicable.
(People v. Hawkins (1993) 15 Cal.App.4th 1373.) The enhancement is
inapplicable to mayhem as well. (People v. Hill (1994) 23 Cal.App.4th 1566.)
The code section specifically exempts murder, manslaughter, or arson.
(People v. Martinez (2014) 226 Cal.App.4th 1169; but see People v. Weaver
(2007) 149 Cal.App.4th 1301; Pen. Code § 12022.7 applies to additional
injured victims in a vehicular manslaughter case.) This enhancement does apply
to attempted murder or attempted manslaughter. (Allen, supra; People v. Lewis
(1994) 21 Cal.App.4th 243.)
• Qualifies the underlying crime as a serious felony (Pen. Code § 1192.7(c)(8))
and a violent felony (Pen. Code § 667.5(c)(8)); therefore, conduct credits for
the aggregate term are limited to 15 percent. (Pen. Code § 2933.1; Reeves,
supra.)
• If multiple GBI enhancements are attached to the underlying crime, only the
greatest may be imposed. (Pen. Code § 1170.1(g); Eck, supra.)

===PC12022.1 OR enhancement +3===
Enhancement for Offenses Committed While Released on Bail / Own Recognizance—
Penal Code Section 12022.1 [+ 3 years]
Any person convicted of a felony offense (secondary offense) committed while the
defendant was released from custody on bail or on his or her own recognizance (O.R.) for
another offense (primary offense), before the judgment became final for that other offense,
including the disposition of any appeal, must have his or her sentence for the secondary
offense enhanced by two years.
“Primary offense” refers to the felony offense for which a person was released on bail / O.R.
prior to final judgment. Conviction for the primary offense is not an element of Penal
Code section 12022.1, but is a prerequisite to the imposition of the enhancement on the
secondary offense. (People v. Johnson (2012) 208 Cal.App.4th 1092 [cert. for part. pub.].)
“Secondary offense” refers to the felony offense committed by the defendant while released
on the primary offense.
Whenever there is a conviction for the secondary offense and the enhancement is proved,
and the person is sentenced on the secondary offense prior to the conviction of the primary
offense, the court for the secondary offense may strike the enhancement or imposition of
the enhancement must be stayed, pending sentencing for the primary offense per Penal
Code § 12022.1(d). The sentencing court on the primary offense will lift any stay of the
enhancement. (Meloney, supra.)
If the person is convicted of a felony for the primary offense, is sentenced to state prison for
the primary offense, and is convicted of a felony for the secondary offense, then any state
prison sentence for the secondary offense must be consecutive to the primary sentence.
(Pen. Code § 12022.1(e); People v. Sanchez (1991) 230 Cal.App.3d 768.)
If the person is convicted of a felony for the primary offense, is granted probation for
the primary offense, and is convicted of a felony for the secondary offense, then any state
prison sentence for the secondary offense must be enhanced by an additional term of two
years. (Pen. Code § 12022.1(f).)
If the primary offense conviction is reversed on appeal, the enhancement shall be
suspended pending retrial of that felony. On retrial and reconviction, the enhancement
must be re-imposed. If the person is no longer in custody for the secondary offense
on reconviction of the primary offense, the court may, at its discretion, re-impose the
enhancement and order the defendant to custody. (Pen. Code § 12022.1(g).)
• Multiple enhancements are possible if the defendant is released on multiple cases.
(People v. Mackabee (1989) 214 Cal.App.3d 1250 [cert. for part. pub.].) But only one
enhancement is permitted if there are multiple secondary offenses and one primary
offense. (People v. McNeely (1994) 28 Cal.App.4th 739.)
• Imposing this enhancement and a prior conviction enhancement for the same
primary offense is not a violation of Penal Code section 654. (People v. Juarez (1993)
21 Cal.App.4th 318 [cert. for part. pub.].)
• The enhancement is applicable to juvenile proceedings. (In re Jovan B., supra.) This
includes a “general release” of a juvenile. (In re Rottanak K. (1995) 37 Cal.App.4th
260.)
• The enhancement need not be proved at the preliminary hearing. (Pen. Code
§ 12022.1(c).)
• The defendant is not entitled to a jury trial on the allegation. (Johnson, supra, 208 Cal.
App.4th 1092.)
• Applicable to Penal Code section 1320.5 [felony failure to appear]. (People v. Walker
(2002) 29 Cal.4th 577 [cert. for part. pub.].) The enhancement does not apply to
release pursuant to Penal Code section 1000. (People v. Ormiston (2003)
105 Cal.App.4th 676 [cert. for part. pub.].)

Impersonating a peace officer.
Penal Code section 667.17 [+ 1 year]: Impersonating a peace officer in violation of
Penal Code section 538d during the commission of a felony.

Penal Code section 667.85 [+ 5 years]: Kidnapping a child under 14 with the intent to permanently deprive the parent or legal guardian of custody.

==Rules of Court==

===Rule 4.410 General objectives in sentencing===

(a) General objectives of sentencing include:

(1) Protecting society;

(2) Punishing the defendant;

(3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses;

(4) Deterring others from criminal conduct by demonstrating its consequences;

(5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration;

(6) Securing restitution for the victims of crime;

(7) Achieving uniformity in sentencing; and

(8) Increasing public safety by reducing recidivism through community-based corrections programs and evidence-based practices.

(b) Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by
statutory statements of policy, the criteria in these rules, and any other facts and circumstances relevant to the case.

===Rule 4.413. Grant of probation when defendant is presumptively ineligible for probation===

(a) Consideration of eligibility
The court must determine whether the defendant is eligible for probation. In most cases, the defendant is presumptively eligible for probation; in some cases, the defendant is presumptively ineligible; and in some cases, probation is not allowed.

(b) Probation in cases when defendant is presumptively ineligible
If the defendant comes under a statutory provision prohibiting probation “except in unusual cases where the interests of justice would best be served,” or a substantially equivalent provision, the court should apply the criteria in

(c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation.

(c) Factors overcoming the presumption of ineligibility
The following factors may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate:

(1) Factors relating to basis for limitation on probation
A factor or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including:

(A) The factor or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and

(B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense.

(2) Factors limiting defendant's culpability
A factor or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including:

(A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence;

(B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and

(C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.

(3) Results of risk/needs assessment

Along with all other relevant information in the case, the court may consider the results of a risk/needs assessment of the defendant, if one was performed. The weight of a risk/needs assessment is for the court to consider in its sentencing discretion.

Victim “[v]ulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act.” (People v. Smith (1979) 94 Cal.App.3d 433, 436, 156 Cal.Rptr. 502 [describing that term in the context of rule 4.421(a)(3) ].

People v. Weaver (2007) 149 Cal.App.4th 1301, 1314 disapproved of by People v. Cook (2015) 60 Cal.4th 922

===Rule 4.421 Circumstances in aggravation===

Circumstances in aggravation include factors relating to the crime and factors relating to the defendant.
(a) Factors relating to the crime
Factors relating to the crime, whether or not charged or chargeable as enhancements include that:
(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
(2) The defendant was armed with or used a weapon at the time of the commission of the crime;
(3) The victim was particularly vulnerable;
(4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission;
(5) The defendant induced a minor to commit or assist in the commission of the crime;
(6) The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;
(7) The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;
(8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism;
(9) The crime involved an attempted or actual taking or damage of great monetary value;
(10) The crime involved a large quantity of contraband; and
(11) The defendant took advantage of a position of trust or confidence to commit the offense.
(12) The crime constitutes a hate crime under section 422.55 and:
(A) No hate crime enhancements under section 422.75 are imposed; and
(B) The crime is not subject to sentencing under section 1170.8.
(b) Factors relating to the defendant
Factors relating to the defendant include that:
(1) The defendant has engaged in violent conduct that indicates a serious danger to society;
(2) The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
(3) The defendant has served a prior term in prison or county jail under section 1170(h);
(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.
(c) Other factors
Any other factors statutorily declared to be circumstances in aggravation or that reasonably relate to the defendant or the circumstances under which the crime was committed.
Credits
(Formerly Rule 421, adopted, eff. July 1, 1977. As amended, eff. Jan. 1, 1991. Renumbered Rule 4.421, eff. Jan. 1, 2001. As amended, eff. Jan. 1, 2007; May 23, 2007; Jan. 1, 2017; Jan. 1, 2018.)

====Comment====
ADVISORY COMMITTEE COMMENT

Circumstances in aggravation may justify imposition of the middle or upper of three possible terms of imprisonment. (Section 1170(b).)
The list of circumstances in aggravation includes some facts that, if charged and found, may be used to enhance the sentence. This rule does not deal with the dual use of the facts; the statutory prohibition against dual use is included, in part, in the comment to rule 4.420.

Conversely, such facts as infliction of bodily harm, being armed with or using a weapon, and a taking or loss of great value may be circumstances in aggravation even if not meeting the statutory definitions for enhancements or charged as an enhancement.

Facts concerning the defendant's prior record and personal history may be considered. By providing that the defendant's prior record and simultaneous convictions of other offenses may not be used both for enhancement and in aggravation, section 1170(b) indicates that these and other facts extrinsic to the commission of the crime may be considered in aggravation in appropriate cases.

Refusal to consider the personal characteristics of the defendant in imposing sentence may raise serious constitutional questions. The California Supreme Court has held that sentencing decisions must take into account “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (In re Rodriguez (1975) 14 Cal.3d 639, 654, quoting In re Lynch (1972) 8 Cal.3d 410, 425.) In Rodriguez the court released petitioner from further incarceration because “it appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment.” (Id. at p. 655, fn. omitted, italics added.) “For the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” (Pennsylvania ex rel. Sullivan v. Ashe (1937) 302 U.S. 51, 55, quoted with approval in Gregg v. Georgia (1976) 428 U.S. 153, 189.)

Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion. Some of the cases that had relied on that circumstance in aggravation were reversed on appeal because there was only a single victim in a particular count.

Old age or youth of the victim may be circumstances in aggravation; see section 1170.85(b). Other statutory circumstances in aggravation are listed, for example, in sections 422.76, 1170.7, 1170.71, 1170.8, and 1170.85.

==Resentencing==

[https://www.courts.ca.gov/opinions/documents/C090767.PDF People v. McMurray (Mar. 30, 2022, C090767)]

Appellate jurisdiction

People v. Scarbrough (2015) 240 Cal.App.4th 916
People v. Nelms (2008) 165 Cal.App.4th 1465
People v. Acosta (1996) 48 Cal.App 4th 411, 427

The trial court has no jurisdiction to vacate or modify the judgment after the defendant has commenced service of the sentence. (See People v. Clinton (1966) 243 C.A.2d 284, 288, 52 C.R. 221; People v. Hartsell (1973) 34 C.A.3d 8, 13, 109 C.R. 627, citing the text.)

In People v. Heinold (1971) 16 C.A.3d 958, 94 C.R. 538, defendant was serving a sentence in federal prison at the time he pleaded guilty in state court to selling marijuana. He was sentenced to state prison, the term to run concurrently with his federal sentence, and was remanded to federal custody, although the abstract of judgment showed that he was also remanded to the sheriff for delivery to the Director of Corrections. About a year later, defendant moved the trial court to vacate the sentence, because the federal authorities were willing to parole him if a state detainer were recalled. On his own motion, the trial judge vacated the judgment and placed defendant on probation. The prosecution appealed. Held, order reversed.
(a) Execution of defendant's sentence had begun before the judgment was vacated. The abstract directed the sheriff to deliver defendant to the Director of Corrections at the place which the director designated, but did not identify the place. The court's order directed defendant to be remanded to the federal authorities for confinement in a federal prison, and this was done. Thus, the trial judge did not retain actual or constructive custody over defendant. Defendant's state sentence actually began on his return to federal prison, because the Director of Corrections had accepted defendant as a prisoner, had designated a federal prison as the place for his reception under P.C. 2900, and had requested (through the detainer) that defendant be delivered to a state institution on his release from federal prison. (16 C.A.3d at 963.)
(b) The claimed failure of the Director of Corrections to designate a place of imprisonment did not prevent defendant from beginning his state sentence on being returned to federal prison. Under P.C. 2900, the sentence imposed in California begins to run when a defendant is returned to the place where he is imprisoned by another jurisdiction. (16 C.A.3d at 964.)
(c) A 1963 amendment to P.C. 2900 disposed of defendant's argument, based on earlier authority, that a concurrent sentence imposed by a California court on a federal prisoner did not begin to run until he was delivered to the Director of Corrections at a place in this state on release from federal prison. The obsolete practice had allowed for credit on the state sentence but has been superseded in a constitutional manner. (16 C.A.3d at 964.)

In Cano v. Superior Court (1999) 72 C.A.4th 1310, 85 C.R.2d 774, an attempt to save time went awry. Under the provisions of a one-stop disposition program, a defendant could plead guilty at the felony preliminary hearing, on which the magistrate would immediately certify the plea to the superior court. Acting in the superior court as a cross-assigned judge, the same bench officer would accept the plea and, on the defendant's waivers, would immediately sentence the defendant to state prison. The defendant would begin to serve the sentence. At the same hearing, the case would be set on a nonappearance calendar, at which time a probation report would be reviewed. If the report revealed significant new material, the trial court could call the defendant back, set aside the plea, and put the case back on track for trial and sentencing. Held, this procedure was invalid, because the trial court lost jurisdiction when the defendant's sentence commenced. Under the normal plea sentencing procedure, the trial court's approval of the bargain would have been conditional and could have been withdrawn if review of the probation report showed new material. Here, the probation report showed four prior convictions, instead of one. (72 C.A.4th at 1314.)

In People v. Borja (2002) 95 C.A.4th 481, 115 C.R.2d 728, defendant pleaded guilty to driving under the influence and was advised that his plea could result in deportation. He was granted probation for 5 years, conditioned on serving 365 days in jail. At the time that he received the immigration advice, the Attorney General could, and often did, grant waiver of deportation for persons in defendant's position. However, before his term of probation had expired, statutory and case law changes made it mandatory that he be deported. After defendant had served his year in jail and the probationary period had expired, he sought and obtained a nunc pro tunc order retroactively modifying his sentence to 364 days of incarceration, so that he would no longer qualify for deportation. Held, this was error.
(a) A nunc pro tunc order is generally used to correct clerical errors, and this case does not involve a clerical error, i.e., whether the court or defendant's attorney had a duty to anticipate changes in the law that in the future might require deportation was not a clerical question. (95 C.A.4th at 485.)
(b) The change here involved a federal statute and a United States Supreme Court decision. Hence, whether the change should be applied retroactively had to be addressed to a federal, not a state, court. (95 C.A.4th at 486.)
(c) “To permit a court, years after a person has pleaded guilty and the term has been served, to obtain a retroactive order altering the record in a manner so that the conviction could not be later used, violates that Legislature's clear intent and the rulings of the federal courts that prior convictions be available for future use.” (95 C.A.4th at 487.)

People v. Superior Court (Cornelius) (1995) 31 C.A.4th 343, 347, 37 C.R.2d 156 [trial court sentenced defendant to state prison, ordered her remanded into custody “forthwith,” and then set appeal bond, which defendant posted; held, trial court lost jurisdiction to modify sentence when it remanded defendant into custody; fact that defendant was immediately released on appeal bond and never delivered to prison was not determinative].

People v. Mendoza (2009) 171 C.A.4th 1142, 1149, 90 C.R.3d 315 [while defendant was on 5-year term of probation after pleading guilty to felony grand theft, trial court lacked authority to resentence defendant to reduce 365-day county jail term imposed as condition of probation, after defendant had already served full jail term].

People v. Turrin (2009) 176 C.A.4th 1200, 1205, 98 C.R.3d 471 [trial court lacked jurisdiction to consider defendant's motion to modify restitution fine after execution of his sentence had begun; claim of insufficient evidence of ability to pay did not seek correction of clerical error and involved factual, rather than legal, question].

People v. Dynes (2018) 20 C.A.5th 523, 528, 229 C.R.3d 133 [defendant sought relief under constitutional provision governing parole consideration for nonviolent felonies (Proposition 57; see 3 Cal. Crim. Law (5th), Punishment, § 846); in contrast to resentencing initiatives, Proposition 57, did not create or authorize substantial right to be resentenced or provide remedy by way of statutory postjudgment motion, and trial court lacked jurisdiction to modify sentence after commencement; defendant must seek relief through Department of Corrections and Rehabilitation].

Sannmann v. Department of Justice (2020) 47 C.A.5th 676, 682, 683, 260 C.R.3d 894 [court exceeded its limited authority to modify clerical errors by issuing second set-aside order nunc pro tunc that acted to remove firearm restriction established in earlier set-aside order].)

==Upper term==

===Upper term imposed before passage of SB567===

''People v. Berdoll'' (2022) 85 Cal.App.5th 159

''People v. Mitchell'' (2022) 83 Cal.App.5th 1051, review granted, S277314

==Split-sentence==

''People v. Camp'' (2015) 233 Cal.App.4th 461

''People v. Arce'' (2017) 11 Cal.App.5th 613

Search and Seizure

2026-03-30T02:28:34Z

Sysop:

A custodial arrest for a fine-only offense does not violate the Fourth Amendment. (''People v. McKay'' (2002) 27 Cal.4th 601, 606.)

Violation of state statutes for arrest does not violate the Fourth Amendment. (''People v. McKay'' (2002) 27 Cal.4th 601, 606.)

==Motion to Suppress==

PC991 motion cannot be used to suppress evidence. (Barajas v. Appellate Division (2019) 40 Cal.App.5th 944.)

As a rule, a defendant is allowed only one pretrial evidentiary hearing and the court is without jurisdiction to authorize a second evidentiary hearing. (People v. Nelson, 126 Cal. App. 3d 978, 981, 179 Cal. Rptr. 195 (1st Dist. 1981); see also, Madril v. Superior Court, 15 Cal. 3d 73, 77-78, 123 Cal. Rptr. 465, 539 P.2d 33 (1975); People v. Dubose, 17 Cal. App. 3d 43, 47, 94 Cal. Rptr. 376 (1st Dist. 1971); People v. Superior Court, 10 Cal. App. 3d 477, 480-481, 89 Cal. Rptr. 223 (2d Dist. 1970)). This rule is often referred to as “one bite at the apple.”

A defendant may use both a post-PX 1538.5(i) and a 995 to challenge a motion to suppress denied at preliminary hearing. (''People v. Kidd'' (2019) 36 Cal.App.5th 12, overruled on another ground in People v. Tacardon (2022) 14 Cal.5th 235.)

PC1510 only requires the motion be made, not heard, within the timeline. (''Rodriguez v. Superior Court'' (1988) 199 Cal.App.3d 1453.)

==Hearing on Motion to Suppress==

Hearsay rules apply during a motion to suppress.

There are two exceptions to hearsay in hearings under Pen. Code, § 1538.5 that frequently arise: (1) hearsay and opinion are admissible if they relate to a witness's relevant and subjective state of mind (see, for example, People v. Conrad, 31 Cal. App. 3d 308, 320–321, 107 Cal. Rptr. 421 (2d Dist. 1973); and (2) hearsay is admissible on the issue of probable cause (see, for example. People v. Magana, 95 Cal. App. 3d 453, 460–461, 157 Cal. Rptr. 173 (2d Dist. 1979); Brinegar v. U.S., 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949)).

==Detention==

Shining a spotlight on a parked car is not a detention. (''People v. Tacardon (2022) 14 Cal.5th 235.)

A detention may occur for a future crime that is about to occur. (''People v. Ellis'' (1993) 14 Cal.App.4th 1198; ''People v. Aldridge'' (1984) 35 Cal.3d 473, 478.)

Fact analysis vs consensual encounter. (''People v. Paul'' (Feb. 14, 2022, B320488))

Penal Code 833.5:

(a) In addition to any other detention permitted by law, if a peace officer has reasonable cause to believe that a person has a firearm or other deadly weapon with him or her in violation of any provision of law relating to firearms or deadly weapons the peace officer may detain that person to determine whether a crime relating to firearms or deadly weapons has been committed.
For purposes of this section, “reasonable cause to detain” requires that the circumstances known or apparent to the officer must include specific and articulable facts causing him or her to suspect that some offense relating to firearms or deadly weapons has taken place or is occurring or is about to occur and that the person he or she intends to detain is involved in that offense. The circumstances must be such as would cause any reasonable peace officer in like position, drawing when appropriate on his or her training and experience, to suspect the same offense and the same involvement by the person in question.

==Officer Safety==

Pennslyvania v. Mimms 434 US 106

Wilson 519 US 408

==Detention facilities==

A visitor to a detention facility consents to a lesser expectation of privacy. ([https://scholar.google.com/scholar_case?case=821110223886794804&q=199+Cal.App.4th+761&hl=en&as_sdt=2006''People v. Boutler'' (2011) 199 Cal.App.4th 761, 769-772.])

==Ruse==

''People v. Colt'' (2004) 118 Cal.App.4th 1404

==Return of property==

The proper avenue of redress is through a petition for writ of mandate, not an appeal. (People v. $25,000 United States Currency, supra, 131 Cal.App.4th at p. 132, 31 Cal.Rptr.3d 637; see also People v. Gershenhorn, supra, 225 Cal.App.2d. at p. 126, 37 Cal.Rptr. 176.) Alternatively, the individual may seek return of his or her property in a civil action for recovery of property with an attendant right to appeal from any adverse civil judgment. (See, e.g., Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 123, 113 Cal.Rptr. 102, 520 P.2d 726; People v. Superior Court (1972) 28 Cal.App.3d 600, 611, 104 Cal.Rptr. 876.) (''People v. Hopkins'' (2009) 171 Cal.App.4th 305, 308.)

People v. Hopkins, 171 Cal. App. 4th 305, 89 Cal. Rptr. 3d 744 (4th Dist. 2009)

Chavez v. Superior Court, 123 Cal. App. 4th 104, 20 Cal. Rptr. 3d 21 (4th Dist. 2004)

People v. Lamonte, 53 Cal. App. 4th 544, 61 Cal. Rptr. 2d 810 (4th Dist. 1997).

Franklin v. Municipal Court, 26 Cal. App. 3d 884, 103 Cal. Rptr. 354 (1st Dist. 1972) (conversion)

Ligda v. Edmunds, 16 Cal. App. 3d 715, 94 Cal. Rptr. 234 (1st Dist. 1971) (replevin or claim and delivery).

CAJUR CLPRE § 606

==Crime==

(1) P.C. 146 makes it a misdemeanor for a public officer, or an impersonator of a public officer, to seize or levy on property or dispossess anyone of land, without the authority to do so. (P.C. 146(b) and (c).)

(2) P.C. 146a deals with persons who falsely represent a state deputy or clerk (P.C. 146a(a)), or a public officer, investigator, or inspector (P.C. 146a(b)), and in those assumed roles search another's property or obtain anything of value. A person violating P.C. 146a(a) is subject to imprisonment in a county jail for not more than 6 months, a fine of not more than $2,500, or both. (P.C. 146a(a).) A person violating P.C. 146a(b) is subject to imprisonment in a county jail for not more than 1 year, a fine of not more than $2,500, or both, or imprisonment under P.C. 1170(h) (felony punishment). (P.C. 146a(b).)

2 Witkin, Cal. Crim. Law 5th Crimes--Property § 309 (2025)

==Trying to suppress a PC148, PC69, or VC2800==

The exclusionary rule should not apply if the effect would be to immunize a defendant from prosecution for a crime of violence committed on a peace officer even if the officer was engaged in an unlawful search or seizure. A criminal defendant who is charged with a crime of violence committed on a peace officer may move to suppress the officer's testimony pursuant to Penal Code § 1538.5. An evidentiary hearing should be conducted (see § 3:16), even though suppression of the officer's testimony about the defendant's violence or resistance is inappropriate. As we explain below, there is authority that 1538.5 does not always mandate an evidentiary hearing. (People v. Chavez, 54 Cal. App. 5th 477, 268 Cal. Rptr. 3d 726 (2d Dist. 2020)). Despite this authority, we would urge the trial court err in permitting an evidentiary hearing. A defendant who successfully convinces the court the officer was not lawfully engaged in the performance of his or her duties (because, for example, the officer was making an unlawful arrest or detention) will have considerably enhanced his or her negotiating position. Indeed, such a finding may result in the People's motion to dismiss the charge(s) involving violence or resistance committed upon the officer.
For any crime of violence committed upon an officer, the “engaged in the performance of duties” element is part of the corpus delicti of the offense. As such, the People must prove this fact at trial beyond a reasonable doubt. If a magistrate at the hearing on the motion to suppress finds the officer was not engaged in the performance of his or her duties when the defendant allegedly used violence upon the officer, it would be highly unlikely the same evidence would be sufficient to convince a jury at the much higher standard of “beyond a reasonable doubt.” Further, as discussed below in People v. Hernandez, 45 Cal. 4th 295, 86 Cal. Rptr. 3d 105, 196 P.3d 806 (2008), even if the People can convince a jury beyond a reasonable doubt the officer was lawfully engaged in the performance of duties at the time of the defendant's resistance, an appellate court may disagree and reverse the conviction.

“There are limitations to the exclusionary rule that are largely based on common sense. One such limitation is that the rule does not immunize crimes of violence committed on a peace officer, even if they are preceded by a Fourth Amendment violation.” (In re Richard G., 173 Cal. App. 4th 1252, 1260–1261, 93 Cal. Rptr. 3d 506 (2d Dist. 2009).)

The minor in Richard G. contended the court erred in not suppressing the testimony of the arresting officer. The minor argued, unsuccessfully, he was not lawfully detained and patted down and therefore, since the detention was unlawful, the court had to suppress the evidence of his resisting. The court affirmed the denial of the motion to suppress and, albeit dictum, held even if the officer conducted an unlawful seizure, suppression would not extend to include the officer's testimony describing the defendant's unlawful conduct. Even if the officer is acting in excess of the fourth amendment, without reasonable suspicion or probable cause or a lawful arrest or search warrant, a citizen has a duty to not “delay, obstruct or resist” or use force or violence upon the officer.
Beginning with § 1:25, we consider the “fruit of the poisonous tree” line of cases, including how the taint of an illegal search can be dissipated or attenuated. In Richard G., the officer's testimony did not “result from” nor was it “caused by” a fourth amendment violation. Instead, the testimony concerning the defendant's resistance arose from the defendant's intervening, independent conduct. The commission of crime of violence breaks the casual link between an alleged constitutional violation and evidence (testimony) of that crime.

Similar reasoning may be found in People v. Cox, 168 Cal. App. 4th 702, 85 Cal. Rptr. 3d 716 (3d Dist. 2008). In this case, the officer sought to detain the defendant for violating a municipal code ordinance that prohibited walking in the street when a sidewalk was available. The appellate court found the California Vehicle Code had preempted the ordinance and therefore the officer lacked reasonable suspicion to support the detention. However, the defendant's resistance to the unlawful detention “dissipated” the taint. “But it would be a curious use of language to say that the officers' detention of defendant (illegal though it might have been) procured the officers' subsequent observations of his resistance to arrest.” A defendant who chooses to flee, or flee and forcefully resist, is exercising a voluntary choice that is independent of the unlawful detention.

In People v. Hernandez, 45 Cal. 4th 295, 86 Cal. Rptr. 3d 105, 196 P.3d 806 (2008), a Sacramento Sheriff's Deputy observed a vehicle driven by the defendant. The vehicle did not have a license plate but did display a temporary operator's permit. Based on his experience, the officer had the opinion such permits were often either forged or was for a different vehicle. He initiated a traffic stop and the defendant was asked if he was on probation or parole. The defendant admitted he was on probation. The officer ordered him out of the vehicle. When the defendant refused, he was physically removed and, in the process, fought the deputy. Hernandez was charged with felony and misdemeanor resisting arrest, being under the influence of methamphetamine, and driving while under the influence of drugs. He moved to suppress. His argument was that since the stop was unlawful (he had a valid temporary operator's permit), the evidence should be suppressed. The magistrate denied the motion and the defendant was convicted. Hernandez appealed.

The Court of Appeal reversed the conviction. The officer did not have a reasonable suspicion the defendant was violating the law. The conviction for resisting must be reversed since the officer was not lawfully engaged in the performance of his duties. On its own motion, the California Supreme Court granted review thus superseding the intermediate appellate court opinion. However, the state Supreme Court reached the same conclusion as the intermediate appellate court.
Unfortunately, the California Supreme Court in Hernandez chose not to address whether the sanction of suppression of the officer's testimony concerning the defendant's violent resistance was even applicable. Instead, the court determined the officer was not lawfully engaged in the performance of his duties when he made the traffic stop since he lacked a reasonable suspicion the motorist was in violation of the law. The defendant's motion to suppress was denied by the trial court and the jury found him guilty of both Penal Code § 69 and 148(a)(1). The issue on appeal was whether the officer was acting lawfully when the defendant used force and violence upon him; since the stop was unlawful, the conviction for resisting was reversed. (See also, In re Chase C., 243 Cal. App. 4th 107, 196 Cal. Rptr. 3d 381 (4th Dist. 2015).)

Penal Code § 148.9 provides in part: “(a) Any person who falsely represents or identifies himself or herself as another person or a fictitious person to any peace officer …; , upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor.” (Italics added.) Hence, as part of the corpus delicti of the offense, the People must prove the officer was acting lawfully at the time the defendant allegedly provided false identification. In the case of In re Voeurn O., 35 Cal. App. 4th 793, 41 Cal. Rptr. 2d 549 (4th Dist. 1995) (review denied), a police officer was dispatched to an apartment complex to investigate a call concerning “suspicious juveniles loitering.” The officer saw the minor lying on the grass in the middle of the complex and began questioning him. The minor said he was waiting for a friend but could not provide the friend's address. He also gave the officer a false name and address and denied being in a gang. He was released and arrested three weeks later when the police discovered his true identity.
At the start of his jurisdictional hearing, the minor moved to suppress the false statements on the ground they were the product of an unlawful detention. The juvenile court judge denied the motion finding the minor was not detained at the time he gave the false identification. The judge sustained the petition and the minor appealed. On appeal, the minor did not of course challenge the judge's finding. Indeed, because he was not detained when he gave the false name, he could not be “convicted” of violating Penal Code § 148.9! The Court of Appeal agreed and reversed the judgment sustaining the petition.
If the juvenile court judge had found the officer had indeed detained the minor and the detention was without reasonable suspicion (see §§ 4:13 et seq.), would the exclusionary rule apply to suppress the officer's testimony concerning the false identification? As we explain below, unlike crimes of violence committed upon the officer, the officer's testimony should be suppressed.
In People v. Walker, 210 Cal. App. 4th 1372, 152 Cal. Rptr. 3d 424 (6th Dist. 2012) (review denied Jan. 30, 2013), the defendant was arrested for violation of Pen. Code § 148.9 (providing false identification). In Walker, a deputy Sheriff stopped the defendant because he generally matched the description of the perpetrator in a recent sexual battery at a light rail station. Walker was asked to provide proof that he had paid fare and he responded by asking why the deputy was singling him out. The deputy indicated to Walker he had the right to ask the defendant for proof of fare and that he resembled a suspect in a sexual battery investigation. The deputy then asked Walker for identification. Walker said he had none. Two other uniformed officers arrived at that time and Walker was looking around. The deputy thought he might run, so he asked Walker to have a seat on a bench on the platform. The defendant was again asked for identification, and he produced a San Jose State University student body card in the name of “Aalim Moor.” The deputy had one of his partners run the name for a warrant check. As a result, the deputies learned Walker had provided false identification and he was arrested for violation of Pen. Code § 148.9. A search of the defendant incident to arrest produced a valid driver's license in Walker's identity.
Walker moved to suppress the evidence he presented false identification to the officer. Because the officer did not have a reasonable suspicion to support the detention, the false identification should have been suppressed. The trial court denied the motion; the intermediate appellate court reversed. The statute criminalizes a person's false identification of himself or herself to a peace officer “upon a lawful detention or arrest of (that) person.” (Pen. Code, § 148.9.) Since the defendant was not lawfully detained, the production of the false documentation should have been suppressed.
In People v. Gerberding, 50 Cal. App. 5th Supp. 1, 263 Cal. Rptr. 3d 702 (Cal. App. Dep't Super. Ct. 2020), a Fresno police officer assigned to the Homeless Task Force, encountered the defendant next to a public sidewalk. Defendant had parked a shopping cart with his personal items on the sidewalk. The officer ordered Geberding to move the cart from the sidewalk based upon a municipal code section. The defendant refused and was arrested for P.C. § 148(a). The defendant was convicted and appealed to the Appellate Division. His conviction was reversed. The officer was mistaken about the law, which clearly applied to “persons” and not possessions hindering or obstructing passage. His mistake of law was not reasonable and hence Geberding's passive resistance to his unlawful arrest was lawful. The officer was not lawfully engaged in the performance of his duties.
In People v. Chavez, 54 Cal.App.5th 477, 268 Cal.Rptr.3d 726 (2d Dist. 2020), review denied (Dec. 23, 2020) the trial court ruled the defendant was not entitled to an evidentiary hearing on his motion to suppress. The evidence defendant sought to suppress was obtained as a result of the defendant's resistance to a detention. The trial court held even if the detention was unlawful, an evidentiary hearing was unnecessary if the evidence was obtained as a result of a new and distinct crime committed by the defendant. We discuss Chavez further in § 3:14 and § 3:16. As we explained above, we urge the magistrate hearing a motion to suppress err on the side of allowing the hearing to proceed. Chavez has not been cited as authority in any published opinions.
The question addressed in People v. Williams, 26 Cal. App. 5th 71, 236 Cal. Rptr. 3d 587 (6th Dist. 2018) was whether a defendant may be convicted of violating Penal Code § 148(a)(1) if the officer uses excessive force after the completed offense of delaying, obstructing, or resisting an officer who is engaged in the lawful performance of his or her duties. The appellate court answered the question affirmatively: if the defendant delays, obstructs or resists an officer (who is lawfully engaged in the performance of his or her duties), the defendant may be convicted of violating § 148(a)(1) even if the officer uses excessive force after the completed violation. In accord, see Flynn v. City of Santa Clara, 388 F. Supp. 3d 1158 (N.D. Cal. 2019).
Finally, another word of caution. In People v. Southard, 62 Cal. App. 5th 424, 276 Cal. Rptr. 3d 656 (1st Dist. 2021), the defendant was charged with various offenses including Penal Code § 69 and § 148(a). The prosecutor persuaded the judge to include a special instruction that was based upon both Cox and In re Richard G. The instruction read, “An individual’s decision to commit a new and distinct crime, even if made during or immediately after an unlawful detention, is an intervening act sufficient to purge the ‘taint’ of a theoretically illegal detention. If you believe that the defendant was acting lawfully and that the police detained him unlawfully, a defendant’s subsequent conduct in obstructing, resisting, or delaying the officers, if it occurred, can be an independent act that dissipated the taint from the initial unlawful seizure. If there was unlawful detention, you may conclude that a choice to flee or to resist arrest are independent intervening acts sufficiently distinct from an illegal detention to dissipate the taint of an illegal detention.” The appellate court was not impressed. The language was a misstatement of the law in the context of this case. Use of language from a decision involving a motion to suppress as a basis for a special jury instruction was to “court disaster.”

The Facetious and Specious Guide to Speedy Trial Rights

2026-03-27T02:57:35Z

Sysop: /* Penal Code section 1203.2a */

==Good cause==

===Witnesses===
Owens v. Superior Court (1980) 28 Cal.3d 238

(Brown v. Superior Court (1987) 189 Cal.App.3d 250; People v. Avila (2005) 131 Cal.App.4th 163.)

===Courtroom availability===

People v. Hajjaj (2010) 50 Cal.4th 1184, and People v. Engram (2010) 50 Cal.4th 1131

==Statutory right under Penal Code section 1382==

===Time waivers===

====No time waiver====

====Limited time waiver====

====General time waiver====

==Statutory right under Penal Code section 859b==

Time waivers

No time waiver

Limited time waiver

General time waiver

==Constitutional Rights==

===Pre-Accusation Delay===

Pre-accusation delay is considered a violation of a defendant’s Due Process rights.

===Post-Accusation Delay===

==Defendants with other cases==

''People v. Gutierrez'' (1995) 30 Cal.App.4th 105

''People v. Hyatt'' (Mar. 14, 2025, G063126)

===Penal Code section 1381===

===Penal Code section 1381.5===

===Penal Code section 1203.2a===

the purpose of section 1203.2a is to provide a mechanism for ordering execution of sentence without a formal probation revocation hearing in cases where the defendant is imprisoned for a new offense, in order to give the defendant the opportunity to receive concurrent sentences

In re Mancillas (2016) 2 Cal.App.5th 896, 910 [206 Cal.Rptr.3d 514, 524]

Preliminary Hearing

2026-03-24T04:18:06Z

Sysop: /* Exclusion of witnesses */

A '''preliminary hearing''' or '''preliminary examination''', often abbreviated as prelim, PX, or PH, is a hearing in felony cases in which a magistrate decides if there is enough evidence that the case can go to trial.

==Hearsay under Prop 115==

Under Penal Code section 872:

:(b) Notwithstanding Section 1200 of the Evidence Code, the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer or honorably retired law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted. An honorably retired law enforcement officer may only relate statements of declarants made out of court and offered for the truth of the matter asserted that were made when the honorably retired officer was an active law enforcement officer. Any law enforcement officer or honorably retired law enforcement officer testifying as to hearsay statements shall either have five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training that includes training in the investigation and reporting of cases and testifying at preliminary hearings.
:(c) For purposes of subdivision (b), a law enforcement officer is any officer or agent employed by a federal, state, or local government agency to whom all of the following apply:
::(1) Has either five years of law enforcement experience or who has completed a training course certified by the Commission on Peace Officer Standards and Training that includes training in the investigation and reporting of cases and testifying at preliminary hearings.
::(2) Whose primary responsibility is the enforcement of any law, the detection and apprehension of persons who have violated any law, or the investigation and preparation for prosecution of cases involving violation of laws.

So the requirements are 1) five years of law enforcement experience or 2) completing a POST-certified course that includes training in the investigation and reporting of cases and testifying at preliminary hearings. If an officer doesn’t have five years experience, which happens a lot in this county, then they need to testify to the course using the exact words “training in the investigation and reporting of cases and testifying at preliminary hearings,” and the court was POST-Certified. An officer just can’t say it was a Prop 115 course. Hollowell v. Superior Court (1992) 3 Cal.App.4th 391, held the foundation wasn’t met when the officer said it was a Prop 115 course. The Hollowell Court said: “While the inference might be made that the training concerned ‘the investigation and reporting of cases and testifying at a preliminary hearing,’ this testimony does not establish that the course had been certified by POST.” (Hollowell v. Superior Court (1992) 3 Cal.App.4th 391, 395.)

A correctional officer with more than 5 years of experience is qualified to testify as to hearsay at a preliminary hearing. (''People v. Silver'' (1995) 35 Cal.App.4th 1023, 1027–1028.)

Furthermore, officers testifying as to hearsay must have some “personal involvement” with the case. (People v. Silver (1995) 35 Cal.App.4th 1023, 1026.)

Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1073, has a lengthy discussion about “reader” officers.

When officers are testifying as to hearsay about experts, Hosek v. Superior Court ( ) 10 Cal.App.4th 605 and Curry v. Superior Court (2013) 217 Cal.App.4th 580.) There’s usually a checklist of foundations required for an officer to testify as to scientific evidence.

It’s also fair to question the officer about the credibility of declarants. The hearsay provisions of 872 contemplate “that the testifying officer will be capable of using his or her experience and expertise to assess the circumstances under which the statement is made and to accurately describe those circumstances.” (Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1074.)

And many many cases say PC872(b) only allows for one layer of hearsay. (Shannon v. Superior Court (1992) 5 Cal.App.4th 767; Tu v. Superior Court (1992) 5 Cal.App.4th 1617; People v. Wimberly (1992) 5 Cal.App.4th 439; Monetz v. Superior Court (1992) 4 Cal.App.4th 577.)

Also, if you’re running a 1538.5 simultaneously with the preliminary hearing, the hearsay exception under PC872 for PX doesn’t apply to the 1538.5. (People v. Hawkins (2012) 211 Cal.App.4th 194, 199.)

Hearsay exception under PC872 for PX doesn’t apply to concurrent probation hearing. (See People v. Best (1997) 54 Cal.App.4th 41, 46.)

Prop 115 hearsay exception does apply to defense witness and defendant's statements. (Nienhouse v. Superior Court (1996) 42 Cal.App.4th 83.)

==Confrontation==

''People v. Gonzalez'' (2012) 54 Cal.4th 1234, 1267.

''Whitman v. Superior Court'' (1991) 54 Cal.3d 1063.

''People v. Adams'' (1993) 19 Cal.App.4th 412, 432.

''People v. Johns'' (1997) 56 Cal.App.4th 550, 554.

Penal Code 1347

==Defense witnesses==

===Defendant===

A defendant who takes the stand to testify does not waive the privilege against self-incrimination except as to matters within the scope **742 of relevant cross-examination. (People v. Tealer, 48 Cal.App.3d 598, 604, 122 Cal.Rptr. 144; see Evid. Code, ss 761, 772(d); Witkin, Cal. Evidence (2d ed. 1966) ss 911, 1204, pp. 845, 1112.) Thus, if the accused testifies only as to the facts concerning his or her receipt of a request for restitution, the prosecutor could not cross-examine the accused with respect to any other matter. People v. Crudgington (1979) 88 Cal.App.3d 295, 302 [151 Cal.Rptr. 737, 741–742]

==Kicking people out of the courtroom==

===Exclusion of witnesses===
The language of the statute seems to indicate it applies only to people who are witnesses for the preliminary hearing, not to people who could be witnesses at trial or other hearings. The Judges' Benchguide states this unequivocally.

Evidence Code section 777, subdivision (c)

Penal Code sections 857, 858

The word “person” includes a “public entity” (Evid.Code, § 175) such as the People of the State of California. Therefore, the deputy district attorney, the attorney for the People, could designate an officer or employee who was “entitled to be present.” The deputy district attorney designated Detective Rodriguez. Accordingly, Detective Rodriguez was entitled to be present. (People ex rel. Curtis v. Peters (1983) 143 Cal.App.3d 597, 192 Cal.Rptr. 70 [excluding the People's investigating officer was prejudicial error].) People v. Gonzalez (2006) 38 Cal.4th 932, 951 [44 Cal.Rptr.3d 237, 251, 135 P.3d 649, 660]

===Right to a public trial===
Separate from whether witnesses can be excluded is the issue of non-witnesses attending. The defendant has a statutory right under PC868 to a public preliminary examination. (''People v. Pompa-Ortiz'' (1980) 27 Cal.3d 519.) It is a substantial right, as important as the right to counsel, to cross-examine, or to present a defense, so denial of that right is an illegal commitment and subject to a PC995 motion. (''Id''. at p. 526)

Stroud v. Superior Court (2000) 23 Cal.4th 952 fn. 4.

==Discovery==

Preliminary Hearing is not for discovery. (Pen. Code 866, subd. (b); Curry v. Superior Court (2013) 217 Cal.App.4th 580; Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1080-1081.)

==What needs to be proven up at PX==

The court must find sufficient cause for the special circumstance allegation but does not have to find the predicate was committed in the first degree. (People v. Buckley, 185 Cal. App. 3d 512, 521-522, 228 Cal. Rptr. 329 (1st Dist. 1986).)

The People must plead and prove, and the court must find sufficient cause to believe, a special circumstance allegation is true. (Ramos v. Superior Court, 32 Cal. 3d 26, 33, 184 Cal. Rptr. 622 (Cal. 1982); Ghent v. Superior Court, 90 Cal. App. 3d 944, 954-955, 153 Cal. Rptr. 720 (1st Dist. 1979).

The People must prove and the court must find sufficient cause for certain enhancements, such as:
• Use of a weapon. (Pen. Code, § 12022.53.)
• Great bodily injury. (Pen. Code, § 12022.7.)
• Gang enhancements. (Pen. Code, § 186.22.)
• Priors that are elements of the offense. (People v. Baird, 12 Cal. 4th 126, 129, 130, 48 Cal. Rptr. 2d 65, 906 P.2d 1220 (1995) [felon in possession].)

The People must plead and prove, and the court must find sufficient cause to believe, the defendant was convicted of a prior that is an element of the offense. (Levy v. Superior Court, 31 Cal. App. 3d 427, 429, 107 Cal. Rptr. 384 (2d Dist. 1973) [“When a prior conviction is an element of an offense sought to be charged in the information and there is no evidence of such a conviction before the magistrate, there simply is no statutory authority for including the charge in the information.”].) Some common examples are:
• Felon in possession. (People v. Baird, 12 Cal. 4th 126, 129, 130, 48 Cal. Rptr. 2d 65, 906 P.2d 1220 (1995).)
• Felony DUI. (People v. Casillas, 92 Cal. App. 4th 71, 184, 111 Cal. Rptr. 2d 651 (5th Dist. 2001) [“pleading and proof at the preliminary hearing of three ‘separate violations … which resulted in convictions’ of DUI is a constitutional and statutory condition precedent to prosecution and punishment of a fourth DUI as a felony”]; Dietrick v. Superior Court, 220 Cal. App. 4th 1472, 1474, 163 Cal. Rptr. 3d 789 (3d Dist. 2013) [“pleading and proof of the prior, to elevate the substantive counts to felonies, was required as a matter of due process”].)

The People need not prove and the court need not make findings concerning:
• Prior convictions. (if not an element of the offense). (People v. Superior Court (Mendella), 33 Cal. 3d 754, 191 Cal. Rptr. 1, 661 P.2d 1081 (1983).) (if not an element of the offense or used to elevate a misdemeanor to a felony). (People v. Superior Court (Mendella), 33 Cal. 3d 754, 764, fn. 9, 191 Cal. Rptr. 1, 661 P.2d 1081 (1983) (superseded by statute on other grounds by, In re Jovan B., 6 Cal. 4th 801, 814, fn. 8, 25 Cal. Rptr. 2d 428 (Cal. 1993).)

• A strike prior. (Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 150 (2d Dist. 2001); Miranda v. Superior Court (1995) 38 Cal. App. 4th 902, 906, 45 Cal. Rptr. 2d 498 (2d Dist. 1995).)

• Whether the defendant was on bail at the time of the offense. ( Penal Code § 12022.1(c) [“the enhancement allegation may be pleaded in a complaint but need not be proved at the preliminary hearing or grand jury hearing”].)

==995 vs review on appeal==

''People v. Matthews'' (1986) 183 Cal.App.3d 458
''Moon v. Superior Court'' (2005) 134 Cal.App.4th 152
''People v. Coleman'' (1988) 46 Cal.3d 749

Thus, a writ of prohibition is preferable to review on appeal. (People v. Anderson (2015) 234 Cal.App.4th 1411.
Serrato v. Superior Court (1978) 76 Cal.App.3d 459.

Penal Code 859c: Procedures under this code that provide for superior court review of a challenged ruling or order made by a superior court judge or a magistrate shall be performed by a superior court judge other than the judge or magistrate who originally made the ruling or order, unless agreed to by the parties.

==Shackling==

“[W]e hold that, as at trial, shackling should not be employed at a preliminary hearing absent some showing of necessity for their use. Nevertheless, while the dangers of unwarranted shackling at the preliminary hearing are real, they are not as substantial as those presented during trial. Therefore, a lesser showing than that required at trial is appropriate.” (People v. Fierro (1991) 1 Cal.4th 173, 220.)

==Date and time of hearing==

===General time waiver===

Defendants can enter a general time waiver. Once general time waiver is given, it cannot be withdrawn. (''People v Love'' (2005) 132 Cal.App.4th 276, 283; ''People v. Alvarez'' (1989) 208 Cal.App.3d 567, 570.) Love was a waiver of 10-days and 60-days at arraignment, the defendant subsequently FTAs, was arrested and arraigned on warrant, and tried to demand a speedy preliminary hearing after the waiver. Alvarez was a waiver of only 10-days, but not 60-days, and preliminary hearing was continued twice but within 60 days.

===Limited Time waiver===

Defendant can give a limited time waiver of 10-day period to a date certain. (''Garcia v. Superior Court'' (2020) 47 Cal.App.5th 631.)

Defendant can give a limited time waiver of 60-day period to a date certain. (''People v. Superior Court (Arnold)'' (2021) 59 Cal.App.5th 923.)

===Good cause to continue past 10-days===

Jensen v. Superior Court (2008) 160 Cal.App.4th 266, held that the prosecution exercises due diligence for an officer witness when the agency has received and accepted the subpoena, even if the officer is not ultimately given the subpoena by the agency. The decision explicitly says prosecutors are not required to personally contact every police officer served with a subpoena, though of course it’s a very good idea to do so

===Continuance under PC1050.1===

Continuance past 10-days because of co-defendants' granted request for continuance will cause non-waiving defendant to remain in custody despite PC859b. (''In re Samano'' (1995) 31 Cal.App.4th 984.)

The 60-day rule requires dismissal even if there is good cause.

Joinder of other defendants who have agreed to waive time does not prevent dismissal of the non-waiving defendant. (''People v. Superior Court (Arnold)'' (2021) 59 Cal.App.5th 923; ''Ramos v. Superior Court'' (2007) 146 Cal.App.4th 189.)

In ''People v. Superior Court (Arnold)'' (2021) 59 Cal.App.5th 923, petitioners gave a limited time waiver, but wouldn't give a further time waiver when other co-defendants had.

People v. Alvarez 208 Cal.App.3d 567 (1989) 59 Cal.App.5th 777, the petitioner gave a limited time waiver as to the 60-days, agreeing that a certain day would be last day certain for preliminary hearing.

In General
Penal Code § 859b is supplementary to and a construction of the constitutional right to a speedy trial reflecting legislative intent to prevent prolonged incarceration. (People v. Luu, 209 Cal. App. 3d 1399, 258 Cal. Rptr. 10 (6th Dist. 1989).)
Trailing within the Period
No good cause is required to trail within the 10-day period, nor is a 1050 motion required. (Penal Code § 1050, subd. (k).) Both People and defense can trail within the period. (People v. Smith, 245 Cal. App. 4th 869, 875, 199 Cal. Rptr. 3d 922 (1st Dist. 2016).)
Time Waivers
Personal Time Waiver Required: Defendant must personally waive the 10/60-day clock. (People v. Figueroa, 11 Cal. App. 5th 665, 674, 218 Cal. Rptr. 3d 104 (6th Dist. 2017); People v. Kowalski, 196 Cal. App. 3d 174, 178, 242 Cal. Rptr. 32 (1st Dist. 1987); Garcia v. Superior Court of Los Angeles County, 47 Cal. App. 5th 631, 261 Cal. Rptr. 3d 161 (2d Dist. 2020), review denied, (July 29, 2020).)
10 Day Rule
The Rule: The preliminary hearing shall be held within 10 court days of the defendant's arraignment, plea, or reinstatement of criminal proceedings (Penal Code § 1367). (Penal Code § 859b.) The 10 day rule is mandatory and not discretionary. (People v. Standish, 38 Cal. 4th 858, 43 Cal. Rptr. 3d 785, 135 P.3d 32 (2006), as modified, (Aug. 23, 2006).)
Good Cause Continuances: The court may grant a continuance for good cause as provided in Penal Code § 1050. (Penal Code § 859b.)
People's Good Cause Continuance: No Dismissal But Mandatory OR Release: Defendant entitled to OR release unless one of six exceptions apply:
(1) Defendant requests continuance beyond the 10-day period.
(2) Defendant charged with a capital offense: proof is evident and presumption great.
(3) Necessary witness is unavailable due to Defendant's actions.
(4) Counsel is ill.
(5) Counsel unexpectedly engaged in a jury trial.
(6) Unforeseen conflict of interest requiring the appointment of new counsel.
(Penal Code § 859b, subd. (b); see People v. Standish, 38 Cal. 4th 858, 43 Cal. Rptr. 3d 785, 135 P.3d 32 (2006), as modified, (Aug. 23, 2006).)
No public safety exception to OR release: Court has no discretion to deny OR release after granting People's good cause continuance beyond the initial 10-day period. No public safety exception. (People v. Standish, 38 Cal. 4th 858, 43 Cal. Rptr. 3d 785, 135 P.3d 32 (2006), as modified, (Aug. 23, 2006).)
People's motion to continue is required for OR release: The OR release provision of 859b is premised on the People as the initiator of the continuance. (In re Samano, 31 Cal. App. 4th 984, 37 Cal. Rptr. 2d 491 (2d Dist. 1995).)
Exceptions/ Variations to 10 Day Rule (No Dismissal/No OR Release):
• Co-defendant's request to continue: A properly joined co-defendant's request for a good cause continuance shall be deemed a request by all jointly charged defendants, therefore, does not require dismissal or release OR. The magistrate has the discretion, but not the duty, to release the non-requesting defendant. (In re Samano, 31 Cal. App. 4th 984, 37 Cal. Rptr. 2d 491 (2d Dist. 1995).)
• Constitutional rights v. statutory rights: When defendant asserts right to preliminary hearing within 10 days and his right to counsel, the constitutional right to counsel must prevail. (This may apply to 60 day Rule.) (People v. Kowalski, 196 Cal. App. 3d 174, 242 Cal. Rptr. 32 (1st Dist. 1987).)
• Defense counsel's request to continue over defendant's objection: If defense counsel seeks reasonable time to prepare over defendant's objection, the delay is for defendant's benefit, and continuance over defendant's objection is justified. (People v. Lomax, 49 Cal. 4th 530, 112 Cal. Rptr. 3d 96, 234 P.3d 377 (2010); Lomax is a PC § 1382 case.)
60 Day Rule
The Rule: The magistrate shall dismiss the complaint if the preliminary examination is set or continued more than 60 [calendar] days from the date of the arraignment … , unless the defendant personally waives.” (Penal Code § 859b.)
No Good Cause Continuance: There is no good cause continuance exception to the 60-day rule. (Ramos v. Superior Court, 146 Cal. App. 4th 719, 53 Cal. Rptr. 3d 189 (2d Dist. 2007), as modified, (Feb. 5, 2007).)
Mandatory: 60 day rule is mandatory. (Ramos v. Superior Court, 146 Cal. App. 4th 719, 53 Cal. Rptr. 3d 189 (2d Dist. 2007), as modified, (Feb. 5, 2007).) 859b's 60-day rule is absolute and requires dismissal of a felony complaint against a non-consenting defendant whose preliminary hearing is set or continued more than 60 calendar days after arraignment. (Ramos v. Superior Court, 146 Cal. App. 4th 719, 53 Cal. Rptr. 3d 189 (2d Dist. 2007), as modified, (Feb. 5, 2007).)
Limited Time Waiver Preserves 60 Day Rule: ( People v. Superior Court of Los Angeles County, 59 Cal. App. 5th 923, 273 Cal. Rptr. 3d 777 (2d Dist. 2021), review denied, (Apr. 14, 2021); Favor v. Superior Court of San Bernardino County, 59 Cal. App. 5th 984, 993, 273 Cal. Rptr. 3d 824 (4th Dist. 2021), review denied, (Apr. 14, 2021).)
Triggering Events- New Time Period
The Rule: Defendant is entitled to a new clock after a triggering event. Triggering events include: arraignment or plea whichever comes later (PC § 859b); arraignment on amended complaint (Garcia v. Superior Court of Los Angeles County, 47 Cal. App. 5th 631, 261 Cal. Rptr. 3d 161 (2d Dist. 2020), review denied, (July 29, 2020)); reinstatement of criminal proceedings (Davis v. Superior Court, 18 Cal. App. 5th 1061, 1066, 227 Cal. Rptr. 3d 367 (1st Dist. 2017)).
• Re-Arrest is Not a Triggering Event: A defendant, released on OR who previously waived his/her 10 day rights, who bench warrants and is re-arrested, but not rearraigned, is not entitled to a new clock because the re-arrest, absent arraignment or plea, is not a triggering event. (People v. Love, 132 Cal. App. 4th 276, 34 Cal. Rptr. 3d 6 (1st Dist. 2005).) The prior waiver remains in effect.
• Prior Waivers Are Ineffective: Waivers taken prior to the reinstatement of criminal proceedings are ineffective. (Davis v. Superior Court, 18 Cal. App. 5th 1061, 1066, 227 Cal. Rptr. 3d 367 (1st Dist. 2017).) Waivers taken prior to the filing of an amended complaint are ineffective. (Garcia v. Superior Court of Los Angeles County, 47 Cal. App. 5th 631, 261 Cal. Rptr. 3d 161 (2d Dist. 2020), review denied, (July 29, 2020).)
• Immediate Refile per § 1387.2 is a Triggering Event: (Penal Code § 1387.2; see below.)
Dismissal
A non-statutory motion to dismiss premised upon the violation of the defendant's constitutional right to a speedy preliminary hearing requires an affirmative showing of prejudice. (People v. Martinez, 22 Cal. 4th 750, 94 Cal. Rptr. 2d 381, 996 P.2d 32 (2000).)
Refiling
If case is dismissed 859b, 861, 871 or 995, the dismissal (for purposes of the two-dismissal rule) is not a bar to prosecution if good cause is shown why the preliminary examination was not held within 60 days from the date of arraignment or plea. (Penal Code § 1387(c)(l); Ramos v. Superior Court, 146 Cal. App. 4th 719, 53 Cal. Rptr. 3d 189 (2d Dist. 2007), as modified, (Feb. 5, 2007).)
Immediate Refile
Upon express consent of both parties, the court may proceed on existing accusatory pleading. The action shall be deemed once terminated for purposes of Penal Code § 1387. Defendant shall be rearraigned. This is a triggering event commencing a new 10/60 day time period. (Penal Code § 1387.2.)

Both People and defense can trail within the period. (People v. Smith, 245 Cal. App. 4th 869, 875, 199 Cal. Rptr. 3d 922 (1st Dist. 2016)

Once time has been waived, no remedy for withdrawn waivers. (People v. Love (2005) 132 Cal.App.4th 276, 287.)

[“A defendant who is released is the captain of his own fate. If he appears for the hearing on a date to which he has consented, his matter is promptly adjudicated. A defendant who chooses to abscond, however, cannot have it both ways. By failing to appear and remaining at large until rearrested, he has created his own delay.”]; People v. Perez, 229 Cal. App. 3d 302, 314, 279 Cal. Rptr. 915 (2d Dist. 1991) [discussing the Sixth Amendment speedy trial right, the court stated “the fugitive, having done all he or she can do to avoid being brought to justice, cannot then claim that denial of the right to speedy trial resulted from the ensuing delay”].

===Excluded days===

A pending disqualification motion for the assigned magistrate will cause excluded days. (''People v. Lind'' (2014) 230 Cal.App.4th 709.)

==Probable cause only found for misdemeanors==

Traylor (2009) 46 Cal.4th 1205

People v. Hardin (1967) 256 6/ Cal.App.2d 954

Vandalism

2026-03-22T20:32:59Z

Sysop:

Vandalism

Vandalism is general intent crime. People v. Moore (2018) 19 Cal.App.5th 889

To commit vandalism a defendant must do an act “maliciously.” (§ 594, subd. (a).) However, as we have stated, a person acts maliciously **651 either when acting with “a wish to vex, annoy, or injure another person” or with the “intent to do a wrongful act.” (§ 7, item 4.) As our Supreme Court has explained, the first type of malice described in section 7, item 4, is known as “[m]alice in fact” and “consists of actual ill will or intent to injure.” (In re V.V. (2011) 51 Cal.4th 1020, 1028, 125 Cal.Rptr.3d 421, 252 P.3d 979.) However, the second type of malice described in section 7, item 4, is known as “malice in law.” (In re V.V., at p. 1028, 125 Cal.Rptr.3d 421, 252 P.3d 979.) “Malice in law may be ‘presumed’ or ‘implied’ from the intentional doing of the act without justification or excuse or mitigating circumstances.” (Ibid.)

People v. Kurtenbach
Court of Appeal, Fourth District, Division 1, California.April 12, 2012204 Cal.App.4th 1264139 Cal.Rptr.3d 63712 Cal. Daily Op. Serv. 40192012 Daily Journal D.A.R. 4635 (Approx. 36 pages)

People v. Kahanic (1987) 196 Cal.App.3d 461, 466 [241 Cal.Rptr. 722] [Pen. Code, § 594 includes damage by spouse to spousal community property].)

Super-strike

2026-03-13T05:59:12Z

Sysop:

{| class="wikitable"
|-
!colspan=3|Super-Strike
|-
!Code!!Crime!!Notes
|-
|PC187||Murder
|-
|PC191.5(a)||Gross vehicular manslaughter while intoxicated
|-
|PC191.5(b)||Vehicular manslaughter while intoxicated
|-
|PC664||Attempt of any of the above homicide offenses
|-
|PC207||Kidnapping committed with intent to violate PC261, PC262, PC264.1, PC286, PC288, PC288a, or PC289.
|-
|PC209||Kidnap for ransom committed with intent to violate PC261, PC262, PC264.1, PC286, PC288, PC288a, or PC289.
|-
|PC220||Assault committed with intent to violate PC261, PC262, PC264.1, PC286, PC288, PC288a, or PC289.
|-
|PC245(d)(3)||Assault with a machine gun on a peace officer or firefighter
|-
|PC261||Rape
|-
|PC262||Rape of spouse
|-
|PC264.1||Rape in concert
|-
|PC269||Aggravated sexual assault of a child
|-
|PC286||Sodomy
|-
|PC288||Lewd act on a child
|-
|PC288a||Oral copulation on a minor
|-
|PC288.5||Continuous sexual abuse
|-
|PC289||Sexual penetration
|-
|PC653f||Solicitation to commit murder
|-
|PC11418||Possession of a weapon of mass destruction
|}

Burglary

2026-03-07T18:17:27Z

Sysop: /* Inhabited */

'''Burglary'''

(Thorn, supra, 176 Cal.App.4th at p. 262 [“ ‘immediately contiguous’ requirement ... easily met” where carport area was “situated close to and directly underneath the occupied apartments themselves”]; People v. Harris (2014) 224 Cal.App.4th 86, 90 [“[a] garage sharing a roof and a wall with a residence is part of an inhabited dwelling” despite lack of “interior access”]; In re Christopher J. (1980) 102 Cal.App.3d 76, 80, 78 [“carport appurtenant to the dwelling house,” with a roof and a wall along one side, “was attached to and an integral part of the dwelling house”]; In re Edwardo V. (1999) 70 Cal.App.4th 591, 594–595 (Edwardo V.) [multi-unit apartment building's common garage constituted inhabited dwelling and citing cases].)

People v. Jimenez (Cal. Ct. App., Apr. 17, 2017, No. A146261) 2017 WL 1376368, at *4

==Elements==

===Inhabited===

A deceased person doesn't make it inhabited. ([https://scholar.google.com/scholar_case?case=12292735242889433203 ''People v. Ramos'' (1997) 54 Cal.App.4th 300.])

As defined in Penal Code, Section 460, a dwelling house is inhabited if a person resides therein even though it may be temporarily unoccupied. (People v. Gilbert, 188 Cal.App.2d 723, 726, 10 Cal.Rptr. 799; People v. Loggins, 132 Cal.App.2d 736, 738, 282 P.2d 961; People v. Allard, 99 Cal.App. 591, 592, 279 P. 182.) However, the dwelling house in the case at bar, at the time in question, was not the residence of a person who was temporarily absent. It was not the residence of the new tenant, of the landlord, or of the old tenant. It was not the dwelling house of either of them. For this reason, we conclude that it then was uninhabited and the verdict should have been limited to burglary in the second degree. People v. Valdez (1962) 203 Cal.App.2d 559, 563 [21 Cal.Rptr. 764, 767]

Hotel or motel room that is being used for temporary habitation. (People v. Villalobos (2006) 145 Cal. App. 4th 310, 321.)

Vacation homes and second homes remain inhabited even where they are used sporadically by their residents. (People v. DeRouen (1995) 38 Cal.App.4th 86, 90–92, disapproved on other grounds in People v. Allen (1999) 21 Cal.4th 846, 864–866.)

A house “remains inhabited even if the burglary occurs while the residents are away for an extended period of time.” (People v. Cardona (1983) 142 Cal.App.3d 481, 483.)

“A structure that was once used for dwelling purposes is no longer inhabited when its occupants permanently cease using it as living quarters, and no other person is using it as living quarters.” (People v. Rodriguez (2004) 122 Cal.App.4th 121, 132.)

Tent. (People v. Wilson (1992) 11 Cal. App. 4th 1483, 1489.)

Hospital room in a locked psychiatric hospital. (People v. Fond (1999) 71 Cal. App. 4th 127, 131-132.)

Inhabited RV. (People v. Trevino (2016) 1 Cal. App. 5th 120, 126.)

====Adjacent structures====

“‘In determining whether a structure is part of an inhabited dwelling, the essential inquiry is whether the structure is “functionally interconnected with and immediately contiguous to other portions of the house.” [Citation.]’ “‘”Functionally interconnected” means used in related or complementary ways. “Contiguous” means adjacent, adjoining, nearby or close. [Citations.]’” (People v. Thorn (2009) 176 Cal. App. 4th 255, 262.)

Apartment balcony. (People v. Yarbrough, 54 Cal. 4th 889, 894, 144 Cal. Rptr. 3d 164 (Cal. 2012) [“Whenever a private, residential apartment and its balcony are on the second or a higher floor of a building, and the balcony is designed to be entered only from inside the apartment (thus extending the apartment's living space), the balcony is part of the apartment. The railing of such a balcony marks the apartment's ‘outer boundary’”].)

Open carports located underneath apartment complex. (People v. Thorn, supra, 176 Cal. App. 4th at p. 263.)

Attached garage at rear of duplex shared by tenants, not accessible from either duplex and entered only through exterior door. (Thorn, supra, at p. 262.)

Garage used for storing garden tools and equipment, where garage shared roof with house but was not directly connected to it. (Thorn, supra, at p. 262.)
Storage rooms in basement under apartment building. (Thorn, supra, at 262.)

Laundry room on ground floor of two-story, U-shaped apartment section, where entry to individual apartments was through unlocked, open-air courtyard in middle of building. (Thorn, supra, at p. 262.)

Storeroom connected by breezeway to house. (People v. Coutu, 171 Cal. App. 3d 192, 193, 217 Cal. Rptr. 191 (1st Dist. 1985).)

Shed connected by breezeway and roof. (People v. Robertson, 2018 WL 2355925, *5 (Cal. App. 2d Dist. 2018), unpublished/noncitable (May 24, 2018).)
Storage shed located at back of apartment complex that shared common wall with apartment complex but could only be entered from exterior door. (People v. Duran, 2005 WL 2901836, *2-5 (Cal. App. 4th Dist. 2005), unpublished/noncitable (Nov. 4, 2005).)
Car parked in guest parking in underground condominium parking garage. (People v. Kasrawi, 65 Cal. App. 5th 751, 765, 280 Cal. Rptr. 3d 214 (4th Dist. 2021), review granted, see Cal. Rules of Court, rules 8.1105 and 8.1115, 282 Cal. Rptr. 3d 638, 493 P.3d 195 (Cal. 2021) (Case No. S270040), cited for persuasive authority pursuant to Cal. Rules of Court, rule 8.115).

Home office. "His residence and office were under the same roof and shared a common wall. The office was not used as living quarters and there was no interior door connecting the office to the residence. The office and the dwelling had exterior doors leading to the same driveway. The door to the office was four to five feet away from the door to the residence." (''People v. Rodriguez'' (2000) 77 Cal.App.4th 1101, 1105.)

" Accordingly, under sections 459 and 460, we find significant similarities between a garage, a storeroom, a laundry room, and a home office. Entry into a structure that is functionally related to and immediately contiguous to a dwelling qualifies for first degree burglary. This is so even though there is no connecting door to the residence and the structure serves as a storehouse, workshop, or office or serves some other need of the residents. The use of the area need not be limited to the storage or use of property ordinarily related to dwelling places. Whereas a garage or storage area next to a residence typically contains items related to the home and its maintenance (e.g., food, bicycles and other athletic equipment, gardening equipment, a washer and dryer, an extra refrigerator or furniture) and a home office generally contains office-related items (e.g., a computer, fax, phone, printer, desk, files, and bookshelves), we are satisfied the contents of the structure are not determinative. Thus, many of the reasons that make traditional inhabited dwelling burglaries dangerous are present when a home office attached to a main house is burglarized, even though the office is not connected to the home by an interior door. " ((''People v. Rodriguez'' (2000) 77 Cal.App.4th 1101, 1112.)

Commercial laundry room which defendant burglarized, located under same roof as and contiguous to occupied apartments, was an “inhabited dwelling” so as to support first-degree burglary charge; based on its physical placement and its use by tenants, laundry room was an integral part of building's living quarters. ?People v. Woods (App. 4 Dist. 1998) 75 Cal.Rptr.2d 917, 65 Cal.App.4th 345, modified on denial of rehearing, review denied. ?Burglary Key Number 4

Apartment tenants would reasonably expect protection from unauthorized intrusions into commercial laundry room, located in same building and under same roof, that defendant burglarized, and room therefore qualified as “inhabited dwelling” so as to support first-degree burglary charge; room was usually kept locked so that only tenants were permitted access by way of their own keys. ?People v. Woods (App. 4 Dist. 1998) 75 Cal.Rptr.2d 917, 65 Cal.App.4th 345, modified on denial of rehearing, review denied. ?Burglary Key Number 4

First-degree burglary charge arising from burglary of commercial laundry room that was contiguous to and under same roof as apartments in complex was not inconsistent with policy interests underlying the offense of residential burglary; safety and privacy expectations surrounding an inhabited dwelling house were present in the common area laundry room of complex. ?People v. Woods (App. 4 Dist. 1998) 75 Cal.Rptr.2d 917, 65 Cal.App.4th 345, modified on denial of rehearing, review denied. ?Burglary Key Number 4

==Statute==
===Penal Code § 459===
Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.

===Penal Code § 460===
(a)Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree.

(b) All other kinds of burglary are of the second degree.

(c) This section shall not be construed to supersede or affect Section 464 of the Penal Code.

===Penal Code § 461===
Burglary is punishable as follows:
:(a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years.
:(b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.

==CALCRIM Jury Instructions==

==Notable Cases==
"[C]ourts have explained that the term 'inhabited dwelling house' means a 'structure where people ordinarily live and which is currently
being used for dwelling purposes.'" (''People v. Cruz'' (1996) 13 Cal.4th 764, 776)

Factors relevant to determining whether a house is "inhabited" include whether the owner or occupant sleeps in the house, keeps personal belongings there, and intends to continue living there. (''People v. Hughes'' (2002) 27 Cal.4th 287, 354-355; ''People v. Aguilar'' (2010) 181 Cal.App.4th 966, 971-972; ''People v. Hernandez'' (1992) 9 Cal.App.4th 438, 442.)

An "open house" showing by a real estate agent does not change an inhabited residence into a commercial residence. (''People v. Little'' (2012) 206 Cal.App.4th 1364; ''People v. Tessman'' (Feb. 18, 2013, D062372) ___ Cal.4th ___ <http://www.courts.ca.gov/opinions/documents/D062372.PDF>.)

A burglary of a granny flat which is unoccupied, but attached to a main residence which is occupied, is a hot prowl. (''People v. Harris'' (Feb. 25, 2013, No. E058521) ___ Cal.App.4th ___ <http://www.courts.ca.gov/opinions/documents/E058521.PDF>

"an uninhabited outbuilding, such as a detached garage, is not an inhabited dwelling house.
Corona v. Superior Court (June 21, 2001, No. A161369) ___ Cal.App.4th ___ <https://www.courts.ca.gov/opinions/documents/A161369.PDF>

==Consent==

A juvenile was adjudicated, in the Superior Court, Ventura County, Lawrence Storch, J., to have committed burglary by his forced entry into his father's and stepmother's locked apartment without their consent to take food, a folding mattress, and a sleeping bag. Juvenile appealed. The Court of Appeal, Gilbert, J., held that: (1) there was substantial evidence of the requisite intent to commit burglary; (2) juvenile did not have a possessory claim of right in the particular items he took because his parents had a statutory duty to provide him with the necessaries of life; and (3) the parental obligation to provide for necessaries does not imply a possessory right in the parental residence. (In re Richard M. (1988) 205 Cal.App.3d 7.)

Driving under the influence

2026-03-07T04:11:03Z

Sysop: /* Prior convictions */

'''Driving under the influence''' or '''DUI''' also known as a '''deuce'''.

==Elements==

===Driving===

"[S]ection 23152 requires proof of volitional movement of a vehicle." (''Mercer v. Department of Motor Vehicles'' (1991) 53 Cal.3d 753, 769.) In Mercer, the Supreme Court compared California's DUI statute to other jurisdictions. California criminalizes "driving" as opposed to "operating". A person asleep and slumped over the driving wheel of an operable vehicle with the engine running is "operating," but not "driving" a car.

Steering the car while someone else works the gas and brakes is driving. (''In re Queen T.'' (1993) 14 Cal.App.4th 1143.)

===Partition ratio===

"For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (Veh. Code, § 23152, subd. (b).)

People v. Bransford (1994) 8 Cal.4th 885

People v. Ireland (1995) 33 Cal.App.4th 680

===Highway===

"The provisions of this chapter apply to vehicles upon the highways and elsewhere throughout the State unless expressly provided otherwise." (Veh. Code, § 23100.)

"Elsewhere throughout the State" means private property counts for DUI. (''People v. Malvitz'' (1992) 11 Cal.App.4th Supp. 9.)

But can only be DUI on a horse on a highway, because a horse is not a vehicle when not on a highway.

===Vehicle===

Off-road vehicle counts under Vehicle Code section 500.

===Impairment to an appreciable degree===

Veh. Code, § 312

People v. Enriquez (1996) 42 Cal.App.4th 661

People v. Benner (2010) 185 Cal.App.4th 791

People v. Torres (2009) 173 Cal.App.4th 977.

Hernandez v. County of Los Angeles (2014) 226 Cal.App.4th 1599

People v. Jimenez (2015) 242 Cal.App.4th 1337

People v. Gallardo (1994) 22 Cal.App.4th 489

People v. Anderson (1994) 26 Cal.App.4th 1241

===Drugs===

Delta-9 THC is the active ingredient of marijuana.
Delta-9 Carboxy THC is the inactive metabolite of marijuana.
11-Hydroxy THC is the active metabolite of marijuana.

==CALCRIM Jury Instructions==

==Enhancements==

===VC23153===

VC23153 requires a supporting offense. VC23152 cannot be the supporting offense. (''People v. Thurston'' (1963) 212 Cal.App.2d 713.) Reckless driving can be a supporting offense, but it must be more than a traffic infraction and not simply DUI.

VC10851 and VC20001 are not supporting offenses. (''People v. Captello'' (1990) 220 Cal.App.3d 211.)

Failing to use a seat belt under VC27315 is a supporting offense. (''People v. Weems'' (1997) 54 Cal.App.4th 854.)

====Injury====
''People v. Dakin'' (1988) 200 Cal.App.3d 10216

''People v. Lares'' (1968) 261 Cal.App.2d 657

''In re F.H. (2011) 192 Cal.App.4th 1465

Vehicle Code section 23558 [+ 1 year per victim (maximum 3 years)]:
Causing bodily injury or death to more than one victim in violating Vehicle
Code section 23153, or Penal Code section 191.5 or 192.5(a). The jury must
determine which persons are subject to the enhancement. (People v. Gibson
(1991) 229 Cal.App.3d 284.)

Vehicle Code section 23566(c) [+ 3 years]: Conviction of section 23153 with
four specified prior convictions within 10 years and proximate causation of
GBI.

===Vehicular Manslaughter===

Contributory negligence is not a defense. People v. Schmies (1996) 44 Cal.App.4th 38; (''People v. Wattier'' (1996) 51 Cal.App.4th 948 [exclusion of victim not wearing seatbelt proper]; ''People v. Autry'' (1995) 37 Cal.App.4th 351; ''People v. Marlin'' (2004) 124 Cal.App.4th 559; People v. Rodgers (1949) 94 Cal.App.2d 166; People v. Jackson [2021 WL 790330]; People v. Harris (1975) 52 Cal.App.3d 419; People v. Lett (1947) 77 Cal.App.2d 917.)

PC191.5(a) with gross negligence. Under 191.5(c)(1) 4-6-10 state prison straight felony.

PC191.5(a) with gross negligence with prior DUI conviction. Under 191.5(d), 15-to-life.

PC191.5(b) without gross negligence. 16-2-4 1170(h) wobbler.

PC192(c)(1) with gross negligence. PC193(c)(1) 2-4-6 state prison wobbler

PC192(c)(2) without gross negligence. PC193(c)(2) one-year max misdemeanor

§ 4:7. Second Degree Murder: Implied Malice Vehicular Murder (Watson Murder)

The appellate court in People v. Murphy, 80 Cal. App. 5th 713, 717-719, 733, 295 Cal. Rptr. 3d 887 (2d Dist. 2022) affirmed the conviction for implied malice vehicular murder, often referred to as Watson murder, named after People v. Watson, 30 Cal. 3d 290, 300, 179 Cal. Rptr. 43 (Cal. 1981). In Murphy, the defendant, after smoking marijuana, drove his car roughly 90 miles per hour through a red light and collided with another vehicle, killing its occupants. The court discussed the requisite standard as follows:
Murder is the unlawful killing of a human being with express or implied malice aforethought. Malice is “express” when a person manifested a deliberate intention to unlawfully take away the life of another human being; it is implied when there was no considerable provocation or when the circumstances attending the killing show an abandoned and malignant heart.

Implied malice has both a physical and mental component. The physical component is satisfied by the performance of an act, the natural consequences of which are dangerous to life. The mental component is the requirement that the defendant knows that his conduct endangers the life of another and acts with conscious disregard for life. That is, malice may be implied when the defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. Implied malice is determined by examining the defendant's subjective mental state to see if the defendant appreciated the risk of the defendant's actions. Malice may be found even if the act results in a death that is accidental. It is unnecessary that implied malice be proven by an admission or other direct evidence of the defendant's mental state; like all other elements of a crime, implied malice may be proven by circumstantial evidence.

To support a finding of implied malice, the evidence must establish the defendant deliberately committed an act, the natural consequences of which were dangerous to life, with knowledge of the act's danger to life and a conscious disregard of that danger. This conscious disregard for the danger to life distinguishes implied malice from gross negligence, which involves the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. Phrased in everyday language, the state of mind of a person who acts with conscious disregard for life is, ‘I know my conduct is dangerous to others, but I don't care if someone is hurt or killed.’ The state of mind of the person who acts with conscious indifference to the consequences is simply, ‘I don't care what happens.’ The standard for implied malice is subjective and requires the defendant appreciate the risk involved.
(Murphy, supra, 80 Cal. App. 5th at p. 726 (internal citations, quotes, and brackets omitted).)

Implied malice is

1) Intentionally committed an act

Intended to drink alcohol

Where was he drinking?

Who with

When did they make the plan

Intended to drive

Registration

2) natural and probable consequences of the act were dangerous to human life

Medical Examiner's Report

Collision Report

3) At the time he acted, he knew his act was dangerous to human life, and

Prior DUI conviction

Plead

Facts of prior

Sign form

Read form

Judge's admonishment

DUI class

12 hour educational component

Proof of completion of classes not required. (''People v. Johnson'' (1994) 30 Cal.App.4th 286.)

4) he deliberately acted with conscious disregard for human life.

Multidisciplinary accident investigation team

Traffic road report

Weather

Lightning

As recently summarized in People v. Talamantes (1992) 11 Cal.App. 4th 968, 973, 14 Cal.Rptr.2d 311, these cases have relied on some or all of the following factors in upholding such convictions: (1) blood alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving. (People v. Autry (1995) 37 Cal.App.4th 351, 358 [43 Cal.Rptr.2d 135, 138])

===Multiple convictions for same offense===

PC654 applies. (''People v. Duarte'' (1984) 161 Cal.App.3d 438.)

One punishment for multiple victims but only one driving. (''Wilkoff v. Superior Court'' (1985) 38 Cal.3d 345; ''People v. McFarland'' (1989) 47 Cal.3d 798; ''Poeple v. Subramani'' (1985) 173 Cal.App.3d 1106; ''People v. Newton'' (2007) 155 Cal.App.4th 1000.)

===Lesser-included offenses===

Driving under the influence of alcohol is not a lesser-included offense of driving under the influence of both alcohol and drugs. (See ''People v. Cady'' (2016) 7 Cal.App.5th 134 [VC23153(a) is not LIO of VC23153(f).)

==Prior convictions==

===Pleading and proof at preliminary examinations===

"Our analysis of California's historical framework for charging a felony by information persuades us that pleading and proof at the preliminary hearing of three 'separate violations .... which resulted in convictions' of DUI is a constitutional and statutory condition precedent to prosecution and punishment of a fourth DUI as a felony." (People v. Casillas (2001) 92 Cal.App.4th 171, 174.)

===Juvenile adjudicaitons===

Juvenile adjudications don't count.

Welf. & Inst. Code, § 203

''People v. Bernard'' (1988) 204 Cal.App.3d Supp. 16

===Sequence of priors===

====One prior need not be before the other====

"we observe that the statute, by its terms, permits a DUI offense to be charged as a felony if the violation occurred within seven years “of” three or more other separate DUI violations that resulted in convictions, thus allowing convictions for offenses that occurred before or after the offense underlying the present conviction to be used to trigger an enhanced penalty. It would seem that if the Legislature had intended to count only “separate violations” that occurred prior to the offense presently at issue, it would have used the word “after” rather than “of.”" (''People v. Snook'' (1997) 16 Cal.4th 1210, 1216.)

''People v. Baez'' (2008) 167 Cal.App.4th 197

====Pending priors====

Where the third prior is pending and has not yet resulted in conviction, it can't be used at prelim to make it a fourth and felony. (''People v. Casillas'' (2001) 92 Cal.App.4th 171.)

A common situation is that a defendant has two prior DUI convictions and two pending DUIs. Because the DUIs are pending and not convictions yet, the defendant doesn't have a third DUI prior to establish the requisite for felony DUI. The pending DUI can be charged as a prior in a complaint, even though it has not resulted in a conviction yet, though the conviction must be entered by time of sentencing. (People v. Albitre (1986) 184 Cal.App.3d 895.)

People v. Snook (1997) 16 Cal.4th 1210
People v. Superior Court (Alvarez) 207 Cal.App.3d 464
People v. Lettice (2014) 221 Cal.App.4th 139
People v. Valladoli
People v. Thomas (1994) 25 Cal.App.4th 921

Kernan v. Cuero (2017) 138 S.Ct. 4.

===Out-of-state priors===
====For sentencing purposes====
An out-of-state prior is priorable if it had been committed in California, the out-of-state prior would have been considered a DUI. (Veh. Code, § 23626.) Specifically:

:In the criminal context, a defendant whose prior conviction was suffered in another jurisdiction is subject to the same punishment as a person previously convicted of an offense involving the same conduct in California. (Citation.) Enhancement is only permissible when the conduct underlying the foreign conviction would meet all of the elements of the California offense. (Citation.) In making that determination, the trier of fact may look to the entire record of the conviction, but no further. (Citation.) . . .
:If the statutory definition of the crime in the foreign jurisdiction contains all of the necessary elements to meet the California definition, the inquiry ends. If the statutory definition of the crime in the foreign jurisdiction does not contain the necessary elements of the California offense, the court may consider evidence found within the record of the foreign conviction in determining whether the underlying conduct would have constituted a qualifying offense if committed in California, so long as the use of such evidence is not precluded by rules of evidence or other statutory limitation.
:(''People v. Crane'' (2006) 142 Cal.App.4th 425, 433.)

Note that many states punish merely "operating" a vehicle while California requires "driving," volitional movement. (''Mercer v. Department of Motor Vehicles'' (1991) 53 Cal.3d 753, 769.) For example, siting in the driver's seat with engine on but parked is operating a car, but not driving it. Operating is not the same as driving. (''Isaac v. Department of Motor Vehicles'' (2007) 155 Cal.App.4th 851.)

Also, DUI in California is "impairment to an appreciable degree," not "to the slightest degree, as in other states. (''People v. Crane'' (2006) 142 Cal.App.4th 425, 432.)

====Vehicle Code 23626====
A conviction of an offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada that, if committed in this state, would be a violation of Section 23152 or 23153 of this code, or Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, is a conviction of Section 23152 or 23153 of this code, or Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code for the purposes of this code.

====For DMV purposes====
For DMV purposes, for out-of-state priors to be priorable, they need only be substantially similar, and not exactly the same as a court would require. (Veh. Code, §§ 13363, subd. (b); 15023, subd. (c)). For example, a Colorado DUI law that punished driving impaired to the slightest degree was substantially similar to California's DUI law. (''McDonald v. Department of Motor Vehicles'' (2000) 77 Cal.App.4th 677) Operating is not substantially similar as driving. (''Isaac v. Department of Motor Vehicles'' (2007) 155 Cal.App.4th 851, 861.)

====49 State Table====
{| class="wikitable"
|-
!State!!Statute!!Priorable?||Caselaw||Notes
|-
|Alabama||
|-
|Alaska||
|-
|Arizona||ARS 28-1381||No||''People v. Self'' (2012) 204 Cal.App.4th 1054
|-
|Arkansas||
|-
|Colorado|| ||Probably||''People v. Crane'' (2006) 142 Cal.App.4th 425
|-
|Connecticut||
|-
|Delaware||
|-
|District of Columbia||
|-
|Florida||Florida 316.193||No||''Draeger v. Reed'' (1999) 69 Cal.App.4th 1511, 1522
|-
|Georgia||
|-
|Hawaii||
|-
|Idaho||
|-
|Illinois||
|-
|Indiana||
|-
|Iowa||
|-
|Kansas||
|-
|Kentucky||
|-
|Louisiana||
|-
|Maine||
|-
|Maryland||
|-
|Massachusetts||
|-
|Michigan||
|-
|Minnesota||
|-
|Mississippi||
|-
|Missouri||
|-
|Montana||
|-
|Nebraska||
|-
|Nevada||
|-
|New Hampshire||
|-
|New Jersey||
|-
|New Mexico||
|-
|New York||
|-
|North Carolina||
|-
|North Dakota||
|-
|Ohio
|-
|Oklahoma||
|-
|Oregon||
|-
|Pennsylvania||
|-
|Rhode Island||
|-
|South Carolina||
|-
|South Dakota||
|-
|Tennessee||
|-
|Texas||
|-
|Utah||
|-
|Vermont||
|-
|Virginia||
|-
|Washington||
|-
|West Virginia||
|-
|Wisconsin||
|-
|Wyoming||
|}

===Passengers under 18 in car===

====Penal Code § 273a====

====Veh. Code § 23572 for Passengers under 14====
*1st DUI, +48 hours
*2nd DUI, +10 days
*3rd DUI, +30 days
*4th DUI as misdemeanor, +90 days

(a) If any person is convicted of a violation of Section 23152 and a minor under 14 years of age was a passenger in the vehicle at the time of the offense, the court shall impose the following penalties in addition to any other penalty prescribed:

:(1) If the person is convicted of a violation of Section 23152 punishable under Section 23536, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted, no part of which shall be stayed.

:(2) If a person is convicted of a violation of Section 23152 punishable under Section 23540, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted, no part of which may be stayed.

:(3) If a person is convicted of a violation of Section 23152 punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 30 days in the county jail, whether or not probation is granted, no part of which may be stayed.

:(4) If a person is convicted of a violation of Section 23152 which is punished as a misdemeanor under Section 23550, the punishment shall be enhanced by an imprisonment of 90 days in the county jail, whether or not probation is granted, no part of which may be stayed.

(b) The driving of a vehicle in which a minor under 14 years of age was a passenger shall be pled and proven.

(c) No punishment enhancement shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident.

==Driving under the influence on federal land==
Under the Assimilative Crimes Act, 18 U.S.C. § 13, state law is incorporated into federal law on federal land where there is not a federal law on point. (''United States v. Carlson'' (1990) 900 F.2d 1346.)

An important point to remember that for a federal DUI, like all out-of-state DUIs, if the client wishes to have California driving privileges restored, the client will need to complete the DUI classes as required by VC13352. It doesn't matter that the federal court didn't require it; the federal DUI is treated as if it were a California DUI, with all the conditions that attach. (''Moomjian v. Zolin'' (1993) 12 Cal.App.4th 1606, 1613 [holding that a driver should have complied with California probation conditions for Georgia DUIs in order to have license re-instated].)

===National Park Service land===
DUIs on a National Park Service land are slightly different. There is an explicit federal offense under 36 CFR § 4.23 for DUI on National Park Service land. Like state DUI, there is a DUI count, 36 CFR § 4.23(a)(1), and a 0.08 per se count, 36 CFR § 4.23(a)(2). However, there are several important distinctions. First, the CFR criminalizes "operating or being in actual physical control of a motor vehicle," which covers a broader range of conduct than the Californian definition for driving, which is "volitional movement". (''Mercer v. Department of Motor Vehicles'' (1991) 53 Cal.3d 753, 769.) For example, siting in the driver's seat with engine on but parked is operating a car, but not driving it. Second, the CFR requires impairment that renders one "incapable of safe operation" while California only requires impairment "to an appreciable degree."

The CFRs have an implied consent law. (36 CFR § 4.23(c).)

==Motion to Suppress Issues==

===Field Sobriety Tests===

People v. Sudduth (1966) 65 Cal.2d 543

People v. Bury (1996) 41 Cal.App.4th 1194

Marvin v. DMV (1984) 161 Cal.App.3d 717

Rust v. DMV (1968) 267 Cal.App.2d 545

===Blood draws===

Blood draws are searches. (''People v. Robinson'' (2010) 47 Cal.4th 1104, 1119–1120.)

Blood draw must be in a reasonable manner. (''Schmerber v. California'' (1966) 384 U.S. 757, 771-772.)

Blood draws are not justified by exigent circumstances. (''Missouri v. McNeely'' (2013) 569 U.S. 141.)

Blood draws are not justified as a search incident to arrest. (''Birchfield v. North Dakota'' (2016) 479 U.S. ___, 136 S.Ct. 2160

Implied consent from getting a driver's license is not consent to a blood draw. (''People v. Mason'' (2016) 8 Cal.App.5th Supp. 11.)

(''People v. Harris'' (2014) 225 Cal.App.4th Supp. 1, 3.)

Search conditions expressly for alcohol for a probationer allow warrantless blood draws. (''People v. Cruz'' (2019) 34 Cal.App.5th 764.)

''Mitchell v. Wisconsin'' (2019) ___ U.S. ___ [139 S.Ct. 2525]

==Defenses==

===General defense===

* Quality of driving
**Other reasons for impairment
* Odor of alcohol
* Wet and watery eyes
* Slurred speech
* Poor balance and coordination
* Performance on field sobrety test
* Admission to drinking alcohl
* Officer opinion on impairment
* Expert's opinion on impairment

===Post-driving drinking===

Presumption of BAC within 3 hours.

===Legally prescribed drug===

Being under the influence of a legally prescribed drug or an over-the-counter drug is not a defense. (Veh. Code, § 23630.)

==Studies==

===Drugs===
Biasotti, A.A., Bloand, P., Mallory, C., Peck, R., and Reeve, VC, Marijuana
and Alcohol: A Driver Performance Study, A Final Report (Sacramento, CA: Cal. Dept. of Justice, 9/86);

Bates, Michael N., and Blakely, Tony A., "Role of Cannabis in Motor Vehicle Crashes,"
Epidemiological Review, 1999, vol. 21,--No evidence that cannabis alone increases the risk of culpability
for traffic crash fatalities or serious injuries.]

==Statutes==

===From past to 12/31/2013===

===From 01/01/2014 to 12/31/2016===

===From 01/01/2017 to present===

PC654

2026-03-07T04:09:45Z

Sysop: /* Driving Under the Influence */

PC654

==Statute==
(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.

(b) Notwithstanding subdivision (a), a defendant sentenced pursuant to subdivision (a) shall not be granted probation if any of the provisions that would otherwise apply to the defendant prohibits the granting of probation.

''(Amended by Stats. 1997, Ch. 410, Sec. 1. Effective January 1, 1998.)''

==Procedure==

The sentence imposed and stayed under PC654 is a normal full-term sentence, not a 1/3 middle-term consecutive. (People v. Cantrell (2009) 175 Cal.App.4th 1161.)

Rules of Court rule 4.412(b) also says that when a defendant agrees to a sentence, that the defendant is giving up any PC654 rights.

The California Supreme Court in People v. Deloza (1998) 18 Cal.4th 585, 591-592, said: “If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed.” The next sentence is “Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences.”

So a sentence under Penal Code 654 is imposed and stayed and is not concurrent. The sentence must be imposed, so a term must be selected. “A sentence must be imposed on each count, otherwise if the nonstayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid sentence will remain. … A trial court can impose sentence on all counts, and then stay execution of sentence as necessary to comply with section 654, that way, if the unstayed sentence is reversed, a valid sentence remains extant… to implement section 654, the trial court must impose sentence on all counts, but stay execution of sentence as necessary to prevent multiple punishment.” People v. Alford (2010) 180 Cal.App.4th 1463, 1469.

People v. Jones (2012) 54 Cal.4th 350, held that when a defendant had a single revolver, he could only be punished once under PC654, even though definitely was felon-in-possessing, carrying a concealed gun, and carrying a loaded gun in public. One punishment per firearm. But under Penal Code section 23510, if you have more than one firearm, then you can punish once for each firearm.

People v. Washington (2021) 61 Cal.App.5th 776, has an in-depth discussion of how PC654 works when you have HSC11370.1, felon-in-possession, and drug trafficking charges. Court said if you are punishing someone for possession for sales, you cannot punish the person for HSC11370.1. If you are punishing someone for felon-in-possession, you cannot punish the person for HSC11370.1. If you are not punishing the HSC11370.1, you can punish for both the sales and for the felon-in-possession.

The big CEB book has many pages on this at section 37.44 to 37.50.

CDAA also has a sentencing manual online at https://www.cdaa.org/wp-content/uploads/CDAA-Sentencing-Outline-Nickel-2022.pdf in which this is at pages 56 to 57.

Section 654 prohibits punishment for two or more offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1216).4 “ ‘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 the offenses but not more than one.’ ” (People v. Correa (2012) 54 Cal.4th 331, 336.) Section 654 is intended to ensure that the defendant is punished commensurate with his or her culpability. (People v. Harrison (1989) 48 Cal.3d 321, 335.) The defendant's intent and objective, not the temporal proximity of his or her offenses, determines whether multiple punishment is permissible. (Ibid.)
“ ‘Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.’ ” (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378.)
In People v. Mejia (2017) 9 Cal.App.5th 1036 (Mejia ), the defendant was convicted of spousal rape, infliction of corporal injury on a spouse, criminal threats, and torture. (Id. at p. 1039.) In determining whether section 654 applied to the torture and criminal threats counts the Mejia court noted that torture required the specific intent to inflict cruel or extreme physical pain or suffering and that “mentally or emotionally terrorizing the victim by means of threats is an objective separate from the intent to cause extreme physical pain.” (Id. at pp. 1046-1047.)
The reasoning of Mejia, supra, 9 Cal.App.5th 1036 applies here. Vanderwood could have caused Doe cruel or extreme physical pain and suffering without threatening to kill her. Doe testified that Vanderwood's threats to “kill” concerned her because “everything else that he had said he was going to do, he did or tried to do.” The trial court could have reasonably concluded that Vanderwood's objective in threatening to kill Doe was to place her in sustained fear for her life. Thus, even though Vanderwood's verbal threats and physical acts were otherwise parts of an indivisible course of conduct, the trial court properly imposed both sentences to punish Vanderwood commensurate with his increased culpability.

==Notable cases==

The phrase “act or omission” appears in section 654 proscribing multiple punishments. We learn an assault occurring in the course of a robbery is a separate act punishable by a term consecutive to that imposed for the robbery (People v. Williamson (1979) 90 Cal.App.3d 164, 153 Cal.Rptr. 48); assault and rape are separate offenses but part of indivisible **93 conduct (People v. Apodaca (1978) 76 Cal.App.3d 479, 142 Cal.Rptr. 830); assault with a deadly weapon and burglary are separate offenses but arise from a single act (People v. Radil (1977) 76 Cal.App.3d 702, 142 Cal.Rptr. 233); felony vehicular manslaughter and felony drunk driving are separate offenses arising out of different acts even though the victim was killed while the driver was under the influence (People v. Rocha (1978) 80 Cal.App.3d 972, 146 Cal.Rptr. 81); petty theft of purse and grand theft of a gun in the purse are separate offenses arising out of the same act (People v. Campbell (1976) 63 Cal.App.3d 599, 133 Cal.Rptr. 815).

People v. Sur. Ins. Co., 139 Cal. App. 3d 848, 853, 189 Cal. Rptr. 89, 92–93 (Ct. App. 1983)

==Driving Under the Influence==
A defendant can not be punished for both a violation of Vehicle Code section 23152(a) and Vehicle Code section 23152(b). (See ''People v. Subramani'' (1985) 173 Cal.App.3d 1106 [holding so for VC23153(a) and VC23153(b)].)

A defendant can be separately punished both VC23152 and VC14601.2 (''People v. Martinez'' (2007) 156 Cal.App.4th 851.)

==Firearms==
People v. Jones (2012) 54 Cal.4th 350, 357 held "that a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654." In Jones, police searched the defendant's car and found an unregistered revolver. The defendant was convicted of three counts: Felon in possession (former PC12021), concealed carry (former PC12025), and loaded firearm in public (former PC12031). The Supremes ruled that even if the possession of a single firearm is unlawful in multiple ways, if it was a single act, it can only be punished once. People v. Atencio (2012) 208 Cal.App.4th 1239, follows Jones, holding that grand theft of a firearm and being in possession of that same firearm the next day was subject to PC654. People v. Saunders

''People v. Spirlin'' (2000) 81 Cal.App.4th 119 - possession of a gun on three separate occasions over 32-days was one course of conduct.

Multiple firearms can mean multiple punishments. (''People v. Correa'' (2012) 54 Cal.4th 331.)

==Drugs==

People v. Chung (2015) 237 Cal.App.4th 462

People v. Monarrez (1998) 66 Cal.App.4th 710

People v. Lopez (1967) 251 Cal.App.2d 918

Credits

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Sysop: /* Presentence credits */

==Presentence credits==
PC2900.5

If a defendant gets picked up in other state on a California warrant, the defendant gets credits for the out-of-state custody. (''In re Watson'' (1977) 19 Cal.3d 646.) However, if a defendant gets picked up for reasons other than a California warrant, such as committing an out-of-state crime, then the defendant gets no credit for the time he is in custody due to the out-of-state stuff. (''In re Joyner'' (1989) 48 Cal.3d 487.)

Voluntary stay at residential rehab doesn't count for credits. (''People v. Billy'' (2024) 107 Cal.App.5th 246.)

===Credits for noncontinuous days===
''People v. Culp'' (2002) 100 Cal.App.4th 1278

''People v. Jackson'' (1986) 182 Cal.App.3d 439

''People v. Dailey'' (1992) 8 Cal.App.4th 1182

==Jail Conduct Credits==
[[PC4019]]
1-for-1
2-for-2

==Prison Credits==
[[PC2933]]

==Limitations on Credits==

===Murder and Sex Offenses===
People v. Moon (Cal. Ct. App. - March 29, 2011)
People v. Lara (Cal. Supreme Ct. - July 19, 2012)

===Violent Offenses===

If a defendant is sentenced on one count or one case on a violent case and is sentenced on a non-violent case, the non-violent count or non-violent case is also capped under PC2933.1 (''People v. Nunez'' (2008) 167 Cal.App.4th 761

===Three Strikes===

Pre-sentencing versus post-sentencing

People v. Jones (Feb. 27, 2023, B318732)

https://www.courts.ca.gov/opinions/documents/B318732.PDF

Driving under the influence

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Sysop: /* One prior need not be before the other */

'''Driving under the influence''' or '''DUI''' also known as a '''deuce'''.

==Elements==

===Driving===

"[S]ection 23152 requires proof of volitional movement of a vehicle." (''Mercer v. Department of Motor Vehicles'' (1991) 53 Cal.3d 753, 769.) In Mercer, the Supreme Court compared California's DUI statute to other jurisdictions. California criminalizes "driving" as opposed to "operating". A person asleep and slumped over the driving wheel of an operable vehicle with the engine running is "operating," but not "driving" a car.

Steering the car while someone else works the gas and brakes is driving. (''In re Queen T.'' (1993) 14 Cal.App.4th 1143.)

===Partition ratio===

"For purposes of this article and Section 34501.16, percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (Veh. Code, § 23152, subd. (b).)

People v. Bransford (1994) 8 Cal.4th 885

People v. Ireland (1995) 33 Cal.App.4th 680

===Highway===

"The provisions of this chapter apply to vehicles upon the highways and elsewhere throughout the State unless expressly provided otherwise." (Veh. Code, § 23100.)

"Elsewhere throughout the State" means private property counts for DUI. (''People v. Malvitz'' (1992) 11 Cal.App.4th Supp. 9.)

But can only be DUI on a horse on a highway, because a horse is not a vehicle when not on a highway.

===Vehicle===

Off-road vehicle counts under Vehicle Code section 500.

===Impairment to an appreciable degree===

Veh. Code, § 312

People v. Enriquez (1996) 42 Cal.App.4th 661

People v. Benner (2010) 185 Cal.App.4th 791

People v. Torres (2009) 173 Cal.App.4th 977.

Hernandez v. County of Los Angeles (2014) 226 Cal.App.4th 1599

People v. Jimenez (2015) 242 Cal.App.4th 1337

People v. Gallardo (1994) 22 Cal.App.4th 489

People v. Anderson (1994) 26 Cal.App.4th 1241

===Drugs===

Delta-9 THC is the active ingredient of marijuana.
Delta-9 Carboxy THC is the inactive metabolite of marijuana.
11-Hydroxy THC is the active metabolite of marijuana.

==CALCRIM Jury Instructions==

==Enhancements==

===VC23153===

VC23153 requires a supporting offense. VC23152 cannot be the supporting offense. (''People v. Thurston'' (1963) 212 Cal.App.2d 713.) Reckless driving can be a supporting offense, but it must be more than a traffic infraction and not simply DUI.

VC10851 and VC20001 are not supporting offenses. (''People v. Captello'' (1990) 220 Cal.App.3d 211.)

Failing to use a seat belt under VC27315 is a supporting offense. (''People v. Weems'' (1997) 54 Cal.App.4th 854.)

====Injury====
''People v. Dakin'' (1988) 200 Cal.App.3d 10216

''People v. Lares'' (1968) 261 Cal.App.2d 657

''In re F.H. (2011) 192 Cal.App.4th 1465

Vehicle Code section 23558 [+ 1 year per victim (maximum 3 years)]:
Causing bodily injury or death to more than one victim in violating Vehicle
Code section 23153, or Penal Code section 191.5 or 192.5(a). The jury must
determine which persons are subject to the enhancement. (People v. Gibson
(1991) 229 Cal.App.3d 284.)

Vehicle Code section 23566(c) [+ 3 years]: Conviction of section 23153 with
four specified prior convictions within 10 years and proximate causation of
GBI.

===Vehicular Manslaughter===

Contributory negligence is not a defense. People v. Schmies (1996) 44 Cal.App.4th 38; (''People v. Wattier'' (1996) 51 Cal.App.4th 948 [exclusion of victim not wearing seatbelt proper]; ''People v. Autry'' (1995) 37 Cal.App.4th 351; ''People v. Marlin'' (2004) 124 Cal.App.4th 559; People v. Rodgers (1949) 94 Cal.App.2d 166; People v. Jackson [2021 WL 790330]; People v. Harris (1975) 52 Cal.App.3d 419; People v. Lett (1947) 77 Cal.App.2d 917.)

PC191.5(a) with gross negligence. Under 191.5(c)(1) 4-6-10 state prison straight felony.

PC191.5(a) with gross negligence with prior DUI conviction. Under 191.5(d), 15-to-life.

PC191.5(b) without gross negligence. 16-2-4 1170(h) wobbler.

PC192(c)(1) with gross negligence. PC193(c)(1) 2-4-6 state prison wobbler

PC192(c)(2) without gross negligence. PC193(c)(2) one-year max misdemeanor

§ 4:7. Second Degree Murder: Implied Malice Vehicular Murder (Watson Murder)

The appellate court in People v. Murphy, 80 Cal. App. 5th 713, 717-719, 733, 295 Cal. Rptr. 3d 887 (2d Dist. 2022) affirmed the conviction for implied malice vehicular murder, often referred to as Watson murder, named after People v. Watson, 30 Cal. 3d 290, 300, 179 Cal. Rptr. 43 (Cal. 1981). In Murphy, the defendant, after smoking marijuana, drove his car roughly 90 miles per hour through a red light and collided with another vehicle, killing its occupants. The court discussed the requisite standard as follows:
Murder is the unlawful killing of a human being with express or implied malice aforethought. Malice is “express” when a person manifested a deliberate intention to unlawfully take away the life of another human being; it is implied when there was no considerable provocation or when the circumstances attending the killing show an abandoned and malignant heart.

Implied malice has both a physical and mental component. The physical component is satisfied by the performance of an act, the natural consequences of which are dangerous to life. The mental component is the requirement that the defendant knows that his conduct endangers the life of another and acts with conscious disregard for life. That is, malice may be implied when the defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. Implied malice is determined by examining the defendant's subjective mental state to see if the defendant appreciated the risk of the defendant's actions. Malice may be found even if the act results in a death that is accidental. It is unnecessary that implied malice be proven by an admission or other direct evidence of the defendant's mental state; like all other elements of a crime, implied malice may be proven by circumstantial evidence.

To support a finding of implied malice, the evidence must establish the defendant deliberately committed an act, the natural consequences of which were dangerous to life, with knowledge of the act's danger to life and a conscious disregard of that danger. This conscious disregard for the danger to life distinguishes implied malice from gross negligence, which involves the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. Phrased in everyday language, the state of mind of a person who acts with conscious disregard for life is, ‘I know my conduct is dangerous to others, but I don't care if someone is hurt or killed.’ The state of mind of the person who acts with conscious indifference to the consequences is simply, ‘I don't care what happens.’ The standard for implied malice is subjective and requires the defendant appreciate the risk involved.
(Murphy, supra, 80 Cal. App. 5th at p. 726 (internal citations, quotes, and brackets omitted).)

Implied malice is

1) Intentionally committed an act

Intended to drink alcohol

Where was he drinking?

Who with

When did they make the plan

Intended to drive

Registration

2) natural and probable consequences of the act were dangerous to human life

Medical Examiner's Report

Collision Report

3) At the time he acted, he knew his act was dangerous to human life, and

Prior DUI conviction

Plead

Facts of prior

Sign form

Read form

Judge's admonishment

DUI class

12 hour educational component

Proof of completion of classes not required. (''People v. Johnson'' (1994) 30 Cal.App.4th 286.)

4) he deliberately acted with conscious disregard for human life.

Multidisciplinary accident investigation team

Traffic road report

Weather

Lightning

As recently summarized in People v. Talamantes (1992) 11 Cal.App. 4th 968, 973, 14 Cal.Rptr.2d 311, these cases have relied on some or all of the following factors in upholding such convictions: (1) blood alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving. (People v. Autry (1995) 37 Cal.App.4th 351, 358 [43 Cal.Rptr.2d 135, 138])

===Multiple convictions for same offense===

PC654 applies. (''People v. Duarte'' (1984) 161 Cal.App.3d 438.)

One punishment for multiple victims but only one driving. (''Wilkoff v. Superior Court'' (1985) 38 Cal.3d 345; ''People v. McFarland'' (1989) 47 Cal.3d 798; ''Poeple v. Subramani'' (1985) 173 Cal.App.3d 1106; ''People v. Newton'' (2007) 155 Cal.App.4th 1000.)

===Lesser-included offenses===

Driving under the influence of alcohol is not a lesser-included offense of driving under the influence of both alcohol and drugs. (See ''People v. Cady'' (2016) 7 Cal.App.5th 134 [VC23153(a) is not LIO of VC23153(f).)

==Prior convictions==

===Juvenile adjudicaitons===

Juvenile adjudications don't count.

Welf. & Inst. Code, § 203

''People v. Bernard'' (1988) 204 Cal.App.3d Supp. 16

===Sequence of priors===

====One prior need not be before the other====

"we observe that the statute, by its terms, permits a DUI offense to be charged as a felony if the violation occurred within seven years “of” three or more other separate DUI violations that resulted in convictions, thus allowing convictions for offenses that occurred before or after the offense underlying the present conviction to be used to trigger an enhanced penalty. It would seem that if the Legislature had intended to count only “separate violations” that occurred prior to the offense presently at issue, it would have used the word “after” rather than “of.”" (''People v. Snook'' (1997) 16 Cal.4th 1210, 1216.)

''People v. Baez'' (2008) 167 Cal.App.4th 197

====Pending priors====

Where the third prior is pending and has not yet resulted in conviction, it can't be used at prelim to make it a fourth and felony. (''People v. Casillas'' (2001) 92 Cal.App.4th 171.)

A common situation is that a defendant has two prior DUI convictions and two pending DUIs. Because the DUIs are pending and not convictions yet, the defendant doesn't have a third DUI prior to establish the requisite for felony DUI. The pending DUI can be charged as a prior in a complaint, even though it has not resulted in a conviction yet, though the conviction must be entered by time of sentencing. (People v. Albitre (1986) 184 Cal.App.3d 895.)

People v. Snook (1997) 16 Cal.4th 1210
People v. Superior Court (Alvarez) 207 Cal.App.3d 464
People v. Lettice (2014) 221 Cal.App.4th 139
People v. Valladoli
People v. Thomas (1994) 25 Cal.App.4th 921

Kernan v. Cuero (2017) 138 S.Ct. 4.

===Out-of-state priors===
====For sentencing purposes====
An out-of-state prior is priorable if it had been committed in California, the out-of-state prior would have been considered a DUI. (Veh. Code, § 23626.) Specifically:

:In the criminal context, a defendant whose prior conviction was suffered in another jurisdiction is subject to the same punishment as a person previously convicted of an offense involving the same conduct in California. (Citation.) Enhancement is only permissible when the conduct underlying the foreign conviction would meet all of the elements of the California offense. (Citation.) In making that determination, the trier of fact may look to the entire record of the conviction, but no further. (Citation.) . . .
:If the statutory definition of the crime in the foreign jurisdiction contains all of the necessary elements to meet the California definition, the inquiry ends. If the statutory definition of the crime in the foreign jurisdiction does not contain the necessary elements of the California offense, the court may consider evidence found within the record of the foreign conviction in determining whether the underlying conduct would have constituted a qualifying offense if committed in California, so long as the use of such evidence is not precluded by rules of evidence or other statutory limitation.
:(''People v. Crane'' (2006) 142 Cal.App.4th 425, 433.)

Note that many states punish merely "operating" a vehicle while California requires "driving," volitional movement. (''Mercer v. Department of Motor Vehicles'' (1991) 53 Cal.3d 753, 769.) For example, siting in the driver's seat with engine on but parked is operating a car, but not driving it. Operating is not the same as driving. (''Isaac v. Department of Motor Vehicles'' (2007) 155 Cal.App.4th 851.)

Also, DUI in California is "impairment to an appreciable degree," not "to the slightest degree, as in other states. (''People v. Crane'' (2006) 142 Cal.App.4th 425, 432.)

====Vehicle Code 23626====
A conviction of an offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada that, if committed in this state, would be a violation of Section 23152 or 23153 of this code, or Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, is a conviction of Section 23152 or 23153 of this code, or Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code for the purposes of this code.

====For DMV purposes====
For DMV purposes, for out-of-state priors to be priorable, they need only be substantially similar, and not exactly the same as a court would require. (Veh. Code, §§ 13363, subd. (b); 15023, subd. (c)). For example, a Colorado DUI law that punished driving impaired to the slightest degree was substantially similar to California's DUI law. (''McDonald v. Department of Motor Vehicles'' (2000) 77 Cal.App.4th 677) Operating is not substantially similar as driving. (''Isaac v. Department of Motor Vehicles'' (2007) 155 Cal.App.4th 851, 861.)

====49 State Table====
{| class="wikitable"
|-
!State!!Statute!!Priorable?||Caselaw||Notes
|-
|Alabama||
|-
|Alaska||
|-
|Arizona||ARS 28-1381||No||''People v. Self'' (2012) 204 Cal.App.4th 1054
|-
|Arkansas||
|-
|Colorado|| ||Probably||''People v. Crane'' (2006) 142 Cal.App.4th 425
|-
|Connecticut||
|-
|Delaware||
|-
|District of Columbia||
|-
|Florida||Florida 316.193||No||''Draeger v. Reed'' (1999) 69 Cal.App.4th 1511, 1522
|-
|Georgia||
|-
|Hawaii||
|-
|Idaho||
|-
|Illinois||
|-
|Indiana||
|-
|Iowa||
|-
|Kansas||
|-
|Kentucky||
|-
|Louisiana||
|-
|Maine||
|-
|Maryland||
|-
|Massachusetts||
|-
|Michigan||
|-
|Minnesota||
|-
|Mississippi||
|-
|Missouri||
|-
|Montana||
|-
|Nebraska||
|-
|Nevada||
|-
|New Hampshire||
|-
|New Jersey||
|-
|New Mexico||
|-
|New York||
|-
|North Carolina||
|-
|North Dakota||
|-
|Ohio
|-
|Oklahoma||
|-
|Oregon||
|-
|Pennsylvania||
|-
|Rhode Island||
|-
|South Carolina||
|-
|South Dakota||
|-
|Tennessee||
|-
|Texas||
|-
|Utah||
|-
|Vermont||
|-
|Virginia||
|-
|Washington||
|-
|West Virginia||
|-
|Wisconsin||
|-
|Wyoming||
|}

===Passengers under 18 in car===

====Penal Code § 273a====

====Veh. Code § 23572 for Passengers under 14====
*1st DUI, +48 hours
*2nd DUI, +10 days
*3rd DUI, +30 days
*4th DUI as misdemeanor, +90 days

(a) If any person is convicted of a violation of Section 23152 and a minor under 14 years of age was a passenger in the vehicle at the time of the offense, the court shall impose the following penalties in addition to any other penalty prescribed:

:(1) If the person is convicted of a violation of Section 23152 punishable under Section 23536, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted, no part of which shall be stayed.

:(2) If a person is convicted of a violation of Section 23152 punishable under Section 23540, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted, no part of which may be stayed.

:(3) If a person is convicted of a violation of Section 23152 punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 30 days in the county jail, whether or not probation is granted, no part of which may be stayed.

:(4) If a person is convicted of a violation of Section 23152 which is punished as a misdemeanor under Section 23550, the punishment shall be enhanced by an imprisonment of 90 days in the county jail, whether or not probation is granted, no part of which may be stayed.

(b) The driving of a vehicle in which a minor under 14 years of age was a passenger shall be pled and proven.

(c) No punishment enhancement shall be imposed pursuant to this section if the person is also convicted of a violation of Section 273a of the Penal Code arising out of the same facts and incident.

==Driving under the influence on federal land==
Under the Assimilative Crimes Act, 18 U.S.C. § 13, state law is incorporated into federal law on federal land where there is not a federal law on point. (''United States v. Carlson'' (1990) 900 F.2d 1346.)

An important point to remember that for a federal DUI, like all out-of-state DUIs, if the client wishes to have California driving privileges restored, the client will need to complete the DUI classes as required by VC13352. It doesn't matter that the federal court didn't require it; the federal DUI is treated as if it were a California DUI, with all the conditions that attach. (''Moomjian v. Zolin'' (1993) 12 Cal.App.4th 1606, 1613 [holding that a driver should have complied with California probation conditions for Georgia DUIs in order to have license re-instated].)

===National Park Service land===
DUIs on a National Park Service land are slightly different. There is an explicit federal offense under 36 CFR § 4.23 for DUI on National Park Service land. Like state DUI, there is a DUI count, 36 CFR § 4.23(a)(1), and a 0.08 per se count, 36 CFR § 4.23(a)(2). However, there are several important distinctions. First, the CFR criminalizes "operating or being in actual physical control of a motor vehicle," which covers a broader range of conduct than the Californian definition for driving, which is "volitional movement". (''Mercer v. Department of Motor Vehicles'' (1991) 53 Cal.3d 753, 769.) For example, siting in the driver's seat with engine on but parked is operating a car, but not driving it. Second, the CFR requires impairment that renders one "incapable of safe operation" while California only requires impairment "to an appreciable degree."

The CFRs have an implied consent law. (36 CFR § 4.23(c).)

==Motion to Suppress Issues==

===Field Sobriety Tests===

People v. Sudduth (1966) 65 Cal.2d 543

People v. Bury (1996) 41 Cal.App.4th 1194

Marvin v. DMV (1984) 161 Cal.App.3d 717

Rust v. DMV (1968) 267 Cal.App.2d 545

===Blood draws===

Blood draws are searches. (''People v. Robinson'' (2010) 47 Cal.4th 1104, 1119–1120.)

Blood draw must be in a reasonable manner. (''Schmerber v. California'' (1966) 384 U.S. 757, 771-772.)

Blood draws are not justified by exigent circumstances. (''Missouri v. McNeely'' (2013) 569 U.S. 141.)

Blood draws are not justified as a search incident to arrest. (''Birchfield v. North Dakota'' (2016) 479 U.S. ___, 136 S.Ct. 2160

Implied consent from getting a driver's license is not consent to a blood draw. (''People v. Mason'' (2016) 8 Cal.App.5th Supp. 11.)

(''People v. Harris'' (2014) 225 Cal.App.4th Supp. 1, 3.)

Search conditions expressly for alcohol for a probationer allow warrantless blood draws. (''People v. Cruz'' (2019) 34 Cal.App.5th 764.)

''Mitchell v. Wisconsin'' (2019) ___ U.S. ___ [139 S.Ct. 2525]

==Defenses==

===General defense===

* Quality of driving
**Other reasons for impairment
* Odor of alcohol
* Wet and watery eyes
* Slurred speech
* Poor balance and coordination
* Performance on field sobrety test
* Admission to drinking alcohl
* Officer opinion on impairment
* Expert's opinion on impairment

===Post-driving drinking===

Presumption of BAC within 3 hours.

===Legally prescribed drug===

Being under the influence of a legally prescribed drug or an over-the-counter drug is not a defense. (Veh. Code, § 23630.)

==Studies==

===Drugs===
Biasotti, A.A., Bloand, P., Mallory, C., Peck, R., and Reeve, VC, Marijuana
and Alcohol: A Driver Performance Study, A Final Report (Sacramento, CA: Cal. Dept. of Justice, 9/86);

Bates, Michael N., and Blakely, Tony A., "Role of Cannabis in Motor Vehicle Crashes,"
Epidemiological Review, 1999, vol. 21,--No evidence that cannabis alone increases the risk of culpability
for traffic crash fatalities or serious injuries.]

==Statutes==

===From past to 12/31/2013===

===From 01/01/2014 to 12/31/2016===

===From 01/01/2017 to present===

Search warrants

2026-03-04T03:02:12Z

Sysop: /* Financial records */

Search warrants are used when there is no case. If there is a case, SDTs are an option.

==PC1523==

People v. Fisher (2002) 96 Cal.App.4th 1147 - a search warrant is a court oder.

PC1524(b) - scope of search warrant

PC1524(g) and EC1070 - Newsman Privilege/Shield Law

Article I, section 2(b) of California Constitution

Privacy Protection Act - 42 USC 2000aa et seq

Protection for documentary materials or work product materials that is going to be published.

Zurcher v. Stanford Daily (1978) 436 U.S. 547

42 USC 2000aa-7

(a) documentary materials

(b) work product materials

Violation of PPA is civil liability, not suppression of evidence

Good faith defense

==Probable cause==

PC1527

PC1525

==Affidavit==

Written affidavit - PC1526(a)

Telephone / oral - PC1526(b) and PC1528(b)

Hybrid - typed search warrant and oral affidavit

Charney v. Superior Court (1972) 27 Cal.App.3d 888

People v. Peck (1974) 38 Cal.App.3d 993 - oral affidavit need not be transcribed.

People v. Meza (1984) 162 Cal.App.3d 25

People v. Fortune (1988) 197 Cal.App.3d 941

Bowyer v. Superior Court (1974) 37 Cal.App.3d 151 - Search warrant must be in writing.

Opening

Items List

Affiant's Expertise

Justification

Probable Cause

Your affiant knows by training and experience that victims and suspects involved in domestic violence and stalking incidents exhibit similar
behaviors in past and current relationships. These behaviors are often documented in letters, journals, notes, emails, photographs, videos,
and pictures. These items are often stored digitally on computers, disks, phones, or other electronic storage devices. Domestic violence victims and suspects also conduct Internet research regarding emotional and psychological issues of relationships regarding domestic violence
and/or stalking. This research is often conducted through books and Internet searches. The cell phone that belongs to (victim or suspect’s
name here) is capable of conducting these actions.

Concluding Paragraph

==Special masters==

Special master only apply for searches of lawyers, physicians, psychotherapists, clergy.

PC1524 (c)-(f)

PC1524(d)

People v. Blasquez (1985) 165 Cal.App.3d 408

Attorney-client privilege

People v. Superior Court (1985) 37 Cal.App.4th 1757

PC964

==Anticipatory search warrants==

United States v. Grubbs (2006) 547 U.S. 90

People v. Sousa (1993) 18 Cal.App.4th 549

==PC1529 form of warrant==

Name of affiants

Statutory grounds

Description of persons place and vehicle subject to search

Description of property and things sought

Date search warrant issued

Signature

But good faith under People v. Superior Court (Robinson) (1977) 75 Cal.App.3d 76

==Jurisdiction==
Search warrant is for the county. People v. Emanuel (1978) 87 Cal.App.3d 205, People v. Smead (1985) 175 Cal.App.3d 1101, People v. Easley (1983) 34 Cal.3d 858.

Out-of-county warrant is for offense prosecuted in home county. People v. Ruster (1976) 16 Cal.3d 690; People v. Fleming (1981) 29 Cal.3d 698; People v. Galvan (1992) 5 Cal.App.4th 866.

PC781

PC782

PC1524(i) - Identity theft

People v. Dantzler (1988) 206 Cal.app.3d 289 - Good faith exception

349k915 - Officer from different jurisdiction

349k752Particular courts, judges, or magistrates

California state courts exercise no jurisdiction in other states. Accordingly, a magistrate in another state must sign a search warrant for evidence located in that state's jurisdiction. For example, an officer seeking a search warrant for evidence in Arizona must have an Arizona magistrate issue the search warrant.

==Execution of warrant==

===Press===

Wilson v. Layne (1999) 526 U.S. 603

Hanlon v. Berger (1999) 526 U.S. 808

===Federal agents===

A federal agent may be an affiant in a California search warrant but cannot serve the search warrant.

PC830.8

PC830.85

But can put in federal agent participation in affidavit and in warrant.

Chapter III 10.2.1 of CDAA book

===Dogs===

People v. Russell (1987) 185 Cal.App.3d 186

===Victims===

People v. Superior Court (meyers) 1979) 25 Cal.3d 67

===Civilian Experts===

People v. Eubanks (1996) 14 Cal.4th 580

===Securing scene before warrant issues===

Illegal unless:

Emergency

Arrest inside residence

Consent

Valid need to preserve evidence

People v. Escobedo (1973) 35 Cal.App.3d 32

Illinois v. McArthur (2001) 531 U.S> 326

Segura v. United States (1984) 468 U.S. 796 - 19 hours to get search warrant

Murray v. United States (1988) 487 U.S. 533

===Knock-notice===

Machado v. Superior Court (1975) 45 Cal.App.3d 316

Hudson v. Michigan (2006) 547 U.S. 586

People v. Macioce (1987) 197 Cal.App.3d 262, 271

PC1531

PC1532

PC844

People v. Gonzalez (1989) 211 Cal.App.3d 1043

Wilson v. Arkansas (1995) 514 U.S. 927

Richards v. Wisconsin (1997) 520 U.S. 385

United States v. Ramirez (1998) 523 U.S. 65

United States v. Banks (2003) 540 U.S. 31

People v. Hobbs (1987) 192 Cal.App.3d 959 - screen door

People v. Tacy (1987) 195 Cal.App.3d 1402

People v. Uhler(1989) 208 Cal.App.3d 766 - screen door

People v. Pompa (1989) 212 Cal.App.3d 1308 - inner door

People v. Howard (1993) 18 Cal.App.4th 1544 - inner door

People v. Aguilar (1996) 48 Cal.App.4th 632 - inner door

People v. Mays (1998) 67 Cal.App.4th 969 - inner door

People v. Bencomo (1985) 171 Cal.App.3d 1005 - fence

People v. Mayer (1987) 188 Cal.App.3d 1101 - fence

===Time of search===

PC1534 - within 10 days

GC6800 - definition of day

People v. Clayton (1993) 18 Cal.App.4th 440 - day that search warrant is issued doesn't count

People v. Stevenson (1976) 62 Cal.App.3d 915 - holidays don't count

Execution of the search warrant period does not mean that all forensics must be done within that time.
PC1533 - between 7am and 10pm

Arrest between 6am and 10pm

PC1534(b)(7) - between 6am and 10 pm

People v. Watson (1977) 75 Cal.App.3d 592

People v. Zepeda (1980) 102 Cal.App.3d 1

People v. Kimble (1988) 44 Cal.3d 480 - nighttime service

In re Donald R. (1978) 85 Cal.app.3d 23 - nighttime service

Srgo v. United States (1932) 287 U.S. 206 - expired warrant invalid even if re-issued.

People v. Brocard (1985) 170 Cal.App.3d 239 - search warrant may be re-issued if not stale and new finding of probable cause.

====Search warrant receipt====

PC1535

PC1536

West Covina v. Perkins (1999) 525 U.S. 234

People v. Calabrese (2002) 101 Cal.App.4th 79 - search warrant need not be shown

==Detention==

Michigan v. Summer (1981) 452 U.S. 692

People v. Glaser (1995) 11 Cal.4th 354

Bailey v. United States (2013) 568 U.S. 186

Muehler v. Mena (2005) 544 U.S. 93

Ybarra v. Illinois (1979) 444 U.S. 85 - Cannot search each individual in place.

People v. Ingram (1993) 16 Cal.App.4th 1745 - Detention with reasonable suspicion of relationship between person and place to connect individual to illegal activities

Los Angeles County v. Tettele (2007) 550 U.S. 609 - detention of naked occupants

Franklin v. Foxworth (9th Cir. 1994) 31 F.3d 873

United States v. Thompson (2009) 667 F.Supp.2d 758

People v. Thurman (1989) 209 Cal.App.3d 817 - patdown

People v. Reyes (1990) 223 Cal.App.3d 1218 - patdown bad

People v. Gallant (1990) 225 Cal.app.3d 200 - patdown good

People v. Samples (1996) 48 Cal.App.4th 1197 - patdown good

People v. Hannah (1996) 51 Cal.App.4th 1335 - patdown

People v. Matelski (2000) 82 Cal.App.4th 837 - patdown

People v. Vanvalkenburgh (1983) 145 Cal.App.3d 163 - answering phone call

==Sealing==

County of Orange v. Superior Court (2000) 79 Cal.App.4th 759 about sealing of entire warrant

People v. Hobbs (1994) 7 Cal.4th 948 - sealing of informant

People v. Martinez (2005) 132 Cal.App.4th 233

People v. Galland (2008) 45 Cal.4th 354

People v. Acevedo (2012) 209 Cal.App.4th 1040 - Hobbs dealing of wiretap

Penal Code section 954 deals with confidentiality of witness and victim information, such as address, telephone number, driver license number, social security number, date of birth, place of employment, etc.

==Medical records==

PC1543

PC1545

==Liability for search warrants==

SEARCH WARRANTS: The review of search warrants is within the course and scope of employment for Deputy District Attorneys. Pursuant to Government Code Section 825, the County shall defend any employee in the bargaining unit against whom a claim is made, or a lawsuit is filed, arising out of their review of search warrants as part of their employment with the County. Where the County provides a defense under this section and a subsequent judicial determination is made that at the time of the act giving rise to the liability the employee acted in bad faith, or acted with actual malice, the County may seek reimbursement for defense fees

==CalECPA==

===Search warrants===

PC1546.1

(d) Any warrant for electronic information shall comply with the following:

(1) The warrant shall describe with particularity the information to be seized by specifying, as appropriate and reasonable, the time periods covered, the target individuals or accounts, the applications or services covered, and the types of information sought, provided, however, that in the case of a warrant described in paragraph (1) of subdivision (c), the court may determine that it is not appropriate to specify time periods because of the specific circumstances of the investigation, including, but not limited to, the nature of the device to be searched.

(2) The warrant shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and shall not be subject to further review, use, or disclosure except pursuant to a court order or to comply with discovery as required by Sections 1054.1 and 1054.7. A court shall issue such an order upon a finding that there is probable cause to believe that the information is relevant to an active investigation, or review, use, or disclosure is required by state or federal law.

(3) The warrant shall comply with all other provisions of California and federal law, including any provisions prohibiting, limiting, or imposing additional requirements on the use of search warrants. If directed to a service provider, the warrant shall be accompanied by an order requiring the service provider to verify the authenticity of electronic information that it produces by providing an affidavit that complies with the requirements set forth in Section 1561 of the Evidence Code. Admission of that information into evidence shall be subject to Section 1562 of the Evidence Code.

===Notice of search warrant===

Penal Code 1546.2

===Specific consent===

PC1546(k): “Specific consent” means consent provided directly to the government entity seeking information, including, but not limited to, when the government entity is the addressee or intended recipient or a member of the intended audience of an electronic communication. Specific consent does not require that the originator of the communication have actual knowledge that an addressee, intended recipient, or member of the specific audience is a government entity.

==Financial records==

California Right to Privacy Act. Gov Code 7460 to 7493.

Evidence obtained in violation is inadmissible. Gov. Code 7489.

Burrows v. Superior Court (1974) 13 Cal.3d 238

People v. Blair (1979) 25 Cal.3d 640

Bank may disclose to customers a search warrant unless non-disclosure order. Gov. Code 7475.

Search warrants

2026-03-03T14:49:45Z

Sysop:

Search and Seizure

2026-03-03T14:48:54Z

Sysop: /* Hearing on Motion to Suppress */

California Public Records Act

2026-02-12T02:03:59Z

Sysop:

The '''California Public Records Act''' is currently codified at Government Code § 7290.000 et seq.

Everything was re-organized and re-numbered under AB473 and SB823, passed in 2021, to be effective in 2023. https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB473

==General rule==

Gov. Code § 7922.525, former Gov. Code § 6253, subd. (a).

(a) Public records are open to inspection at all times during the office hours of a state or local agency and every person has a right to inspect any public record, exempted as otherwise provided.

(b) Any reasonably segregable portion of a record shall be available for inspection by any person requesting the record after deletion of the portions that are exempted by law.

Cal. Const. Art. I, § 3

(b) (1) The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.

(2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

(3) Nothing in this subdivision supersedes or modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court rule, or other authority to the extent that it protects that right to privacy, including any statutory procedures governing discovery or disclosure of information concerning the official performance or professional qualifications of a peace officer.

(4) Nothing in this subdivision supersedes or modifies any provision of this Constitution, including the guarantees that a person may not be deprived of life, liberty, or property without due process of law, or denied equal protection of the laws, as provided in Section 7.

(5) This subdivision does not repeal or nullify, expressly or by implication, any constitutional or statutory exception to the right of access to public records or meetings of public bodies that is in effect on the effective date of this subdivision, including, but not limited to, any statute protecting the confidentiality of law enforcement and prosecution records.

(6) Nothing in this subdivision repeals, nullifies, supersedes, or modifies protections for the confidentiality of proceedings and records of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses provided by Section 7 of Article IV, state law, or legislative rules adopted in furtherance of those provisions; nor does it affect the scope of permitted discovery in judicial or administrative proceedings regarding deliberations of the Legislature, the Members of the Legislature, and its employees, committees, and caucuses.

(7) In order to ensure public access to the meetings of public bodies and the writings of public officials and agencies, as specified in paragraph (1), each local agency is hereby required to comply with the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5 of the Government Code), and with any subsequent statutory enactment amending either act, enacting a successor act, or amending any successor act that contains findings demonstrating that the statutory enactment furthers the purposes of this section.

Prop 42 is "a constitutionalization of the CRPA." (''Sutter Place Inc. v. Superior Court (2008) 161 Cal.App.4th 1370, 1382.)

Cal. Const. Art. I, & sect; (3), subd. (b), paragraph (2) applies to CRPA. (Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176, 1190.)

==What are records==

7920.530(a): “public records” includes any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.

"the mere possession by a public agency of a document does not make the document a public record." (Coronado Policce Officers Ass'n v. Carroll (2003) 106 Cal.App.4th 1001, 1006.)

"[I]f a record is kept by an officer because it is necessary or convenient to the discharge of his official duty, it is a public record. (California Univ., Fresno Ass'n v. Superior Court (2001) 90 Cal.App.4th 810, 824.)

"This definition is intended to cover every conceivable kind of record that is involved in the governmental process and will pertain to any new form of record-keeping instrument as it is developed. Only purely personal information unrelated to "the conduct of the public's business" could be considered exempt from this definition, i.e., the shopping list phoned from home, the letter to a public officer from a friend which is totally void of reference to governmental activities.'" (California Univ., Fresno Ass'n v. Superior Court (2001) 90 Cal.App.4th 810, 825.)

==Closed District Attorney files==

Does compelled disclosure of closed criminal investigation files obstruct the investigatory function of the district attorney's office, thus contravening section 25303? We conclude it does.

Very few activities performed by public officials are more important to the public and to the individuals most directly involved than the full and proper investigation of criminal complaints. Every effort must be made to ensure that investigators can gather all evidence that is available and legally obtainable. Without the assurance of continuing confidentiality, potential witnesses could easily be dissuaded from coming forward. Even if they knew that sensitive information would not automatically be turned over, publicity-shy witnesses would still have reason to be wary.

It is not a complete answer that publicity-shy witnesses may already be deterred from coming forward by the prospect of being subpoenaed for a criminal trial. Sometimes anonymous sources, well known to the targets of investigations, provide important information. That information, though not usable itself, may help focus the inquiry and lead to the acquisition of admissible evidence. These sources' anonymity would be compromised and their willingness to provide information hindered if the subjects could easily review investigation files.

We acknowledge a footnote in Williams that suggests the public may have no interest in preventing disclosure of a prosecutors' closed investigation files. After concluding that the CPRA in its then-current form protected closed investigation files, the Williams court offered advice to the Legislature: “In our view, the matter does appear to deserve legislative attention. Although there are good reasons for maintaining the confidentiality of investigatory records even after an investigation has ended [citation], those reasons lose force with the passage of time. Public policy does not demand that stale records be kept secret when their disclosure can harm no one, and the public good would seem to require a procedure by which a court may declare that the exemption for such records has expired.” (Williams v. Superior Court, supra, 5 Cal.4th at pp. 361–362, fn. 13, 19 Cal.Rptr.2d 882, 852 P.2d 377.)

We observe, however, that the Legislature has amended section 6254 more than once since the Williams decision, but has not revised the statute to permit disclosure of closed investigation files. We will not do what the Legislature has declined to do.

(Rivero v. Superior Court (1997) 54 Cal.App.4th 1048, 1058–1059.)

==Waiver of exemption==

Once material has been disclosed to one member of the public, it generally is available upon request to any and all members of the public. Govt. Code § 7921.505. However, certain disclosures made by an agency – such as confidential disclosures made to another governmental agency in connection with the performance of official duties, or disclosures made in a legal proceeding or otherwise required by law – are not considered disclosures to members of the public under the CPRA, and therefore do not constitute a waiver of exempt material. Govt. Code § 7921.505.

==Relation to federal Freedom of Information Act (FOIA)==

CRPA is modeled after FOIA. Therefore, courts look to FOIA for interpretation of CPRA. (''American Civil Liberties Union Foundation v. Deukmeijian'' (1982) 32 Cal.3d 440, 447.)

==Law enforcement records==

7923.600 to 7923.630

7923.600-
7923.625&7927.705; Penal Code § 832.7

==Access to law enforcement records==

7923.650 to 7923.655

72923.600 to 7293.655

Rivero v. Superior Court (1997) 54 Cal.App.4th 1048

==Investigative file exemption==

7923.600, subd. (a)

The exemption does not terminate when the investigation terminates or case is closed (Williams v. Superior Court (1993) 5 Cal.4th 337.)

When records are publicly filed in court, they are no longer exempt from disclosure. • Does not apply to documents filed under seal (Weaver v. Superior Court (2014) 224 Cal.App.4th 746.)

Victim Exception in Government Code section 7923.605:
(a) Notwithstanding Section 7923.600, a state or local law enforcement agency shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger either of the following:
(1) The safety of a witness or other person involved in the investigation.
(2) The successful completion of the investigation or a related investigation.
(b) However, this article does not require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.

Arrest information: rarely applies to DA’s offices
(Gov. Code, § 7923.610.)

Complaint information
(Gov. Code, § 7923.615.)

Contemporaneous cases only (likely applies to both sections), but contemporaneous is undefined
County of Los Angeles v. Superior Court (Kusar) (1993) 18 Cal.App.4th 588, 598.)

==Exempt from disclosure==

7927.705

7922.00

7927.200 (litigation records)

7927.500 (preliminary drafts and similar materials)

7927.700 (private records, privileged materials, and other reocrds)

7930.100-7930.215 secrecy statutes

7930.000

“Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of any preliminary drafts, notes, or interagency or intra agency memoranda that are not retained by a public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.” (Gov. Code, § 7927.500.)

“Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” (Gov. Code, § 7927.700.) Note: Names, salary information, dates of employment of employees – all public information, absent specific reason to withhold

“The following constitutional provisions may operate to exempt certain records, or portions thereof, from disclosure pursuant to this division: Crime victims, confidential information or records, The Victims' Bill of Rights Act of 2008: Marsy's Law, Section 28 of Article I of the California Constitution. Privacy, alienable right, Section 1 of Article I of the California Constitution.” (Gov. Code, § 7930.100.)

“Except as provided in Sections 7924.510, 7924.700, and 7929.610, this division does not require disclosure of records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.” (Gov. Code, § 7923.705.)

Attorney work product –Code of Civil Procedure section 2018.010

Arrests not resulting in conviction – See Labor Code section 432.7

Confidential information – Welfare and Institutions Code section 827

Child Abduction Unit records – Family Code section 17514

Copyright laws – Title 17 of the U.S.C.

Grand Jury confidentiality statutes –Penal Code sections 936.7 and 938.1

Probation reports, sometimes – Penal Code section 1203.05

Transferring or selling transcripts –Government Code section 69954, subdivision (b)

Summary criminal history information –Penal Code sections 11140, subd. (b), 11141, 11142, 13302, 13303; see also Westbrook v. County of Los Angeles (1994) 27 Cal.App.4th 157, 164-166 and 89 Ops.Cal.Atty. Gen. 204, 215 (2006)

The “catchall” provision: “An agency shall justify withholding any record by demonstrating that … on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (Gov. Code, § 7922.000.)

Unduly Burdensome • If the request requires a production of a “huge volume” of material • No “needle in a haystack” searches
California First Amendment Coalition v. Superior Court (1998) 67 Cal.App.4th 159, 166.) • Where is the line? See Getz v. Superior Court of El Dorado County (2021) 72
Cal.App.5th 637 - request that required a public agency to review 42,000 emails
not overly burdensome (but the county had already located the records and the
court found that they were unlikely to have privileged information) • While the CPRA imposes some burden on public agencies, it only obligates
disclosure of records that can be located with reasonable effort. (City of San
Jose v. Superior Court (2017) 2 Cal.5th 608, 627 (San Jose).) A public agency is
not required to “undertake extraordinarily extensive or intrusive searches.”
(Ibid.)

Deliberative Process • To prevent injury to the quality of executive decisions, the courts
have been particularly vigilant to protect communications to the
decision maker before the decision is made • Would disclosure discourage candid discussion within the agency?
Would disclosure undermine the agency’s ability to perform its
functions? • Still must apply balancing test on particular set of facts
(Rogers v. Superior Court (1993) 19 Cal.App.4th 469; Times Mirror Co. v.
Superior Court (1991) 53 Cal.3d 1325.)

Our exemptions are not waived when:
“A disclosure [is] made to a governmental agency that agrees
to treat the disclosed material as confidential. Only persons
authorized in writing by the person in charge of the agency
shall be permitted to obtain the information. Any information
obtained by the agency shall only be used for purposes that
are consistent with existing law.”
(Gov Code, § 7921.505, subd. (c)(5).)

Once an exemption is waived and records are released, we
waive exemptions permanently as to all future requesters for
the records at issue records.
(Gov Code, § 7921.505.) • Disclosures required by law do not count as a waiver • Ex: criminal discovery • Victim Exception – be careful not to exceed statutory
language • Agencies with statutory avenues to obtain records

==Emergency Communications to public safety authorities==

7923.700

==Crime victims==

7923.750 to 7923.755

==Firearm licenses==

7923.800 to 7923.805

==Right to privacy==
7926.700

==Computer programs

GIS

7922.585

County of Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301

==Procedure==

7922.535

==Conversion table==

"Nothing in the CPRA Recodification Act of 2021 is intended to substantively change the law relating to inspection of public records. The act is intended to be entirely nonsubstantive in effect. Every provision of this division and every other provision of this act, including, without limitation, every cross-reference in every provision of the act, shall be interpreted consistent with the nonsubstantive intent of the act." (Gov. Code, § 7920.100)

{| class="wikitable"
!Previous Code!!Current Code!!Notes
|-
|6250-6276.48||7920.000-7930.215
|-
|6250||7921.000
|-
|6251||7920.000
|-
|6252(a)||7920.510
|-
|6252(b)||7920.515
|-
|6252(c)||7920.520
|-
|6252(d)||7920.525(a)
|-
|6252(e)||7920.530
|-
|6252(f)||7920.540
|-
|6252(g)||7920.545
|-
|6252.5 ||7921.305
|-
|6252.6 ||7927.420
|-
|6252.7 ||7921.310
|-
|6253(a)||7922.525
|-
|6253(a) 1st sent||7922.525(a)
|-
|6253(a) 2d sent||7922.525(b)
|-
|6253(b)||7922.530(a)
|-
|6253(c)||7922.535
|-
|6253(c) 1st, 4th sent||7922.535(a)
|-
|6253(c) 2d, 3d sent||7922.535(b)
|-
|6253(c) 5th sent||7922.535(c)
|-
|6253(d) 1st sent||7922.500
|-
|6253(d)(1)||7922.530(b)
|-
|6253(d)(2)||7922.530(c)
|-
|6253(d)(3)||7922.540(b)
|-
|6253(e)||7922.505
|-
|6253(f) 1st sent||7922.545(a)
|-
|6253(f) 2d sent||7922.545(b)
|-
|6253.1(a)-(c)||7922.600
|-
|6253.1(d)||7922.605
|-
|6253.2 ||7926.300
|-
|6253.21||7927.305
|-
|6253.3||7921.005
|-
|}

==How to obtain records==

"Every agency may adopt regulations in accordance with this article stating the procedures to be followed when making its records available." (Gov. Code 7922.630, former Gov. Code 6253.4, subd. (a).)

"The following state and local bodies shall establish written guidelines for accessibility of records. A copy of these guidelines shall be posted in a conspicuous public place at the offices of these bodies, and a copy of the guidelines shall be available upon request free of charge to any person requesting that body's records" (Gov. Code 7922.635, former Gov. Code 6253.4, subd. (a).)

(a) Guidelines and regulations adopted pursuant to this article shall be consistent with all other sections of this division and shall reflect the intention of the Legislature to make the records accessible to the public.

(b) Guidelines and regulations adopted pursuant to this article shall not operate to limit the hours public records are open for inspection as prescribed in Article 1 (commencing with Section 7922.500) and Article 2 (commencing with Section 7922.525).

(Gov. Code 7922.640, former Gov. Code 6253.4, subd. (b).)

==Gov. Code 7923.605==

(a) Notwithstanding Section 7923.600, a state or local law enforcement agency shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger either of the following:
(1) The safety of a witness or other person involved in the investigation.

(2) The successful completion of the investigation or a related investigation.

(b) However, this article does not require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.

==Former Gov. Code 6254==

Except as provided in Sections 6254.7 and 6254.13, this chapter does not require the disclosure of any of the following records:

(a) Preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure.

(b) Records pertaining to pending litigation to which the public agency is a party, or to claims made pursuant to Division 3.6 (commencing with Section 810), until the pending litigation or claim has been finally adjudicated or otherwise settled.

(c) Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.

(d) Records contained in or related to any of the following:

(1) Applications filed with any state agency responsible for the regulation or supervision of the issuance of securities or of financial institutions, including, but not limited to, banks, savings and loan associations, industrial loan companies, credit unions, and insurance companies.

(2) Examination, operating, or condition reports prepared by, on behalf of, or for the use of, any state agency referred to in paragraph (1).

(3) Preliminary drafts, notes, or interagency or intra-agency communications prepared by, on behalf of, or for the use of, any state agency referred to in paragraph (1).

(4) Information received in confidence by any state agency referred to in paragraph (1).

(e) Geological and geophysical data, plant production data, and similar information relating to utility systems development, or market or crop reports, that are obtained in confidence from any person.

(f) Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes. However, state and local law enforcement agencies shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger the safety of a witness or other person involved in the investigation, or unless disclosure would endanger the successful completion of the investigation or a related investigation. However, this subdivision does not require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.

Customer lists provided to a state or local police agency by an alarm or security company at the request of the agency shall be construed to be records subject to this subdivision.

Notwithstanding any other provision of this subdivision, state and local law enforcement agencies shall make public the following information, except to the extent that disclosure of a particular item of information would endanger the safety of a person involved in an investigation or would endanger the successful completion of the investigation or a related investigation:

(1) The full name and occupation of every individual arrested by the agency, the individual’s physical description including date of birth, color of eyes and hair, sex, height and weight, the time and date of arrest, the time and date of booking, the location of the arrest, the factual circumstances surrounding the arrest, the amount of bail set, the time and manner of release or the location where the individual is currently being held, and all charges the individual is being held upon, including any outstanding warrants from other jurisdictions and parole or probation holds.

(2) (A) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the time, substance, and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto, including, to the extent the information regarding crimes alleged or committed or any other incident investigated is recorded, the time, date, and location of occurrence, the time and date of the report, the name and age of the victim, the factual circumstances surrounding the crime or incident, and a general description of any injuries, property, or weapons involved. The name of a victim of any crime defined by Section 220, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code may be withheld at the victim’s request, or at the request of the victim’s parent or guardian if the victim is a minor. When a person is the victim of more than one crime, information disclosing that the person is a victim of a crime defined in any of the sections of the Penal Code set forth in this subdivision may be deleted at the request of the victim, or the victim’s parent or guardian if the victim is a minor, in making the report of the crime, or of any crime or incident accompanying the crime, available to the public in compliance with the requirements of this paragraph.

(B) Subject to the restrictions imposed by Section 841.5 of the Penal Code, the names and images of a victim of human trafficking, as defined in Section 236.1 of the Penal Code, and of that victim’s immediate family, other than a family member who is charged with a criminal offense arising from the same incident, may be withheld at the victim’s request until the investigation or any subsequent prosecution is complete. For purposes of this subdivision, “immediate family” shall have the same meaning as that provided in paragraph (3) of subdivision (b) of Section 422.4 of the Penal Code.

(3) Subject to the restrictions of Section 841.5 of the Penal Code and this subdivision, the current address of every individual arrested by the agency and the current address of the victim of a crime, if the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator as described in Chapter 11.3 (commencing with Section 7512) of Division 3 of the Business and Professions Code. However, the address of the victim of any crime defined by Section 220, 236.1, 261, 261.5, 262, 264, 264.1, 265, 266, 266a, 266b, 266c, 266e, 266f, 266j, 267, 269, 273a, 273d, 273.5, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 422.6, 422.7, 422.75, 646.9, or 647.6 of the Penal Code shall remain confidential. Address information obtained pursuant to this paragraph shall not be used directly or indirectly, or furnished to another, to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury. This paragraph shall not be construed to prohibit or limit a scholarly, journalistic, political, or government use of address information obtained pursuant to this paragraph.

(4) Notwithstanding any other provision of this subdivision, commencing July 1, 2019, a video or audio recording that relates to a critical incident, as defined in subparagraph (C), may be withheld only as follows:

(A) (i) During an active criminal or administrative investigation, disclosure of a recording related to a critical incident may be delayed for no longer than 45 calendar days after the date the agency knew or reasonably should have known about the incident, if, based on the facts and circumstances depicted in the recording, disclosure would substantially interfere with the investigation, such as by endangering the safety of a witness or a confidential source. If an agency delays disclosure pursuant to this paragraph, the agency shall provide in writing to the requester the specific basis for the agency’s determination that disclosure would substantially interfere with the investigation and the estimated date for disclosure.

(ii) After 45 days from the date the agency knew or reasonably should have known about the incident, and up to one year from that date, the agency may continue to delay disclosure of a recording if the agency demonstrates that disclosure would substantially interfere with the investigation. After one year from the date the agency knew or reasonably should have known about the incident, the agency may continue to delay disclosure of a recording only if the agency demonstrates by clear and convincing evidence that disclosure would substantially interfere with the investigation. If an agency delays disclosure pursuant to this clause, the agency shall promptly provide in writing to the requester the specific basis for the agency’s determination that the interest in preventing interference with an active investigation outweighs the public interest in disclosure and provide the estimated date for the disclosure. The agency shall reassess withholding and notify the requester every 30 days. A recording withheld by the agency shall be disclosed promptly when the specific basis for withholding is resolved.

(B) (i) If the agency demonstrates, on the facts of the particular case, that the public interest in withholding a video or audio recording clearly outweighs the public interest in disclosure because the release of the recording would, based on the facts and circumstances depicted in the recording, violate the reasonable expectation of privacy of a subject depicted in the recording, the agency shall provide in writing to the requester the specific basis for the expectation of privacy and the public interest served by withholding the recording and may use redaction technology, including blurring or distorting images or audio, to obscure those specific portions of the recording that protect that interest. However, the redaction shall not interfere with the viewer’s ability to fully, completely, and accurately comprehend the events captured in the recording and the recording shall not otherwise be edited or altered.

(ii) Except as provided in clause (iii), if the agency demonstrates that the reasonable expectation of privacy of a subject depicted in the recording cannot adequately be protected through redaction as described in clause (i) and that interest outweighs the public interest in disclosure, the agency may withhold the recording from the public, except that the recording, either redacted as provided in clause (i) or unredacted, shall be disclosed promptly, upon request, to any of the following:

(I) The subject of the recording whose privacy is to be protected, or their authorized representative.

(II) If the subject is a minor, the parent or legal guardian of the subject whose privacy is to be protected.

(III) If the subject whose privacy is to be protected is deceased, an heir, beneficiary, designated immediate family member, or authorized legal representative of the deceased subject whose privacy is to be protected.

(iii) If disclosure pursuant to clause (ii) would substantially interfere with an active criminal or administrative investigation, the agency shall provide in writing to the requester the specific basis for the agency’s determination that disclosure would substantially interfere with the investigation, and provide the estimated date for the disclosure of the video or audio recording. Thereafter, the recording may be withheld by the agency for 45 calendar days, subject to extensions as set forth in clause (ii) of subparagraph (A).

(C) For purposes of this paragraph, a video or audio recording relates to a critical incident if it depicts any of the following incidents:

(i) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer.

(ii) An incident in which the use of force by a peace officer or custodial officer against a person resulted in death or in great bodily injury.

(D) An agency may provide greater public access to video or audio recordings than the minimum standards set forth in this paragraph.

(E) This paragraph does not alter, limit, or negate any other rights, remedies, or obligations with respect to public records regarding an incident other than a critical incident as described in subparagraph (C).

(F) For purposes of this paragraph, a peace officer does not include any peace officer employed by the Department of Corrections and Rehabilitation.

(g) Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination, except as provided for in Chapter 3 (commencing with Section 99150) of Part 65 of Division 14 of Title 3 of the Education Code.

(h) The contents of real estate appraisals or engineering or feasibility estimates and evaluations made for or by the state or local agency relative to the acquisition of property, or to prospective public supply and construction contracts, until all of the property has been acquired or all of the contract agreement obtained. However, the law of eminent domain shall not be affected by this provision.

(i) Information required from any taxpayer in connection with the collection of local taxes that is received in confidence and the disclosure of the information to other persons would result in unfair competitive disadvantage to the person supplying the information.

(j) Library circulation records kept for the purpose of identifying the borrower of items available in libraries, and library and museum materials made or acquired and presented solely for reference or exhibition purposes. The exemption in this subdivision shall not apply to records of fines imposed on the borrowers.

(k) Records, the disclosure of which is exempted or prohibited pursuant to federal or state law, including, but not limited to, provisions of the Evidence Code relating to privilege.

(l) Correspondence of and to the Governor or employees of the Governor’s office or in the custody of or maintained by the Governor’s Legal Affairs Secretary. However, public records shall not be transferred to the custody of the Governor’s Legal Affairs Secretary to evade the disclosure provisions of this chapter.

(m) In the custody of or maintained by the Legislative Counsel, except those records in the public database maintained by the Legislative Counsel that are described in Section 10248.

(n) Statements of personal worth or personal financial data required by a licensing agency and filed by an applicant with the licensing agency to establish their personal qualification for the license, certificate, or permit applied for.

(o) Financial data contained in applications for financing under Division 27 (commencing with Section 44500) of the Health and Safety Code, if an authorized officer of the California Pollution Control Financing Authority determines that disclosure of the financial data would be competitively injurious to the applicant and the data is required in order to obtain guarantees from the United States Small Business Administration. The California Pollution Control Financing Authority shall adopt rules for review of individual requests for confidentiality under this section and for making available to the public those portions of an application that are subject to disclosure under this chapter.

(p) (1) Records of state agencies related to activities governed by Chapter 10.3 (commencing with Section 3512), Chapter 10.5 (commencing with Section 3525), and Chapter 12 (commencing with Section 3560) of Division 4, and Chapter 25 (commencing with Section 10420) of Part 1.8 of Division 9 of the Welfare and Institutions Code, that reveal a state agency’s deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy, or that provide instruction, advice, or training to employees who do not have full collective bargaining and representation rights under these chapters. This paragraph shall not be construed to limit the disclosure duties of a state agency with respect to any other records relating to the activities governed by the employee relations acts referred to in this paragraph.

(2) Records of local agencies related to activities governed by Chapter 10 (commencing with Section 3500) of Division 4, that reveal a local agency’s deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy, or that provide instruction, advice, or training to employees who do not have full collective bargaining and representation rights under that chapter. This paragraph shall not be construed to limit the disclosure duties of a local agency with respect to any other records relating to the activities governed by the employee relations act referred to in this paragraph.

(q) (1) Records of state agencies related to activities governed by Article 2.6 (commencing with Section 14081), Article 2.8 (commencing with Section 14087.5), and Article 2.91 (commencing with Section 14089) of Chapter 7 of Part 3 of Division 9 of the Welfare and Institutions Code, that reveal the special negotiator’s deliberative processes, discussions, communications, or any other portion of the negotiations with providers of health care services, impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy, or that provide instruction, advice, or training to employees.

(2) Except for the portion of a contract containing the rates of payment, contracts for inpatient services entered into pursuant to these articles, on or after April 1, 1984, shall be open to inspection one year after they are fully executed. If a contract for inpatient services that is entered into prior to April 1, 1984, is amended on or after April 1, 1984, the amendment, except for any portion containing the rates of payment, shall be open to inspection one year after it is fully executed. If the California Medical Assistance Commission enters into contracts with health care providers for other than inpatient hospital services, those contracts shall be open to inspection one year after they are fully executed.

(3) Three years after a contract or amendment is open to inspection under this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

(4) Notwithstanding any other law, the entire contract or amendment shall be open to inspection by the Joint Legislative Audit Committee and the Legislative Analyst’s Office. The committee and that office shall maintain the confidentiality of the contracts and amendments until the time a contract or amendment is fully open to inspection by the public.

(r) Records of Native American graves, cemeteries, and sacred places and records of Native American places, features, and objects described in Sections 5097.9 and 5097.993 of the Public Resources Code maintained by, or in the possession of, the Native American Heritage Commission, another state agency, or a local agency.

(s) A final accreditation report of the Joint Commission on Accreditation of Hospitals that has been transmitted to the State Department of Health Care Services pursuant to subdivision (b) of Section 1282 of the Health and Safety Code.

(t) Records of a local hospital district, formed pursuant to Division 23 (commencing with Section 32000) of the Health and Safety Code, or the records of a municipal hospital, formed pursuant to Article 7 (commencing with Section 37600) or Article 8 (commencing with Section 37650) of Chapter 5 of Part 2 of Division 3 of Title 4 of this code, that relate to any contract with an insurer or nonprofit hospital service plan for inpatient or outpatient services for alternative rates pursuant to Section 10133 of the Insurance Code. However, the record shall be open to inspection within one year after the contract is fully executed.

(u) (1) Information contained in applications for licenses to carry firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department that indicates when or where the applicant is vulnerable to attack or that concerns the applicant’s medical or psychological history or that of members of their family.

(2) The home address and telephone number of prosecutors, public defenders, peace officers, judges, court commissioners, and magistrates that are set forth in applications for licenses to carry firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department.

(3) The home address and telephone number of prosecutors, public defenders, peace officers, judges, court commissioners, and magistrates that are set forth in licenses to carry firearms issued pursuant to Section 26150, 26155, 26170, or 26215 of the Penal Code by the sheriff of a county or the chief or other head of a municipal police department.

(v) (1) Records of the Managed Risk Medical Insurance Board and the State Department of Health Care Services related to activities governed by former Part 6.3 (commencing with Section 12695), former Part 6.5 (commencing with Section 12700), Part 6.6 (commencing with Section 12739.5), or Part 6.7 (commencing with Section 12739.70) of Division 2 of the Insurance Code, or Chapter 2 (commencing with Section 15810) or Chapter 4 (commencing with Section 15870) of Part 3.3 of Division 9 of the Welfare and Institutions Code, and that reveal any of the following:

(A) The deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the board or the department, entities with which the board or the department is considering a contract, or entities with which the board or department is considering or enters into any other arrangement under which the board or the department provides, receives, or arranges services or reimbursement.

(B) The impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff or the department or its staff, or records that provide instructions, advice, or training to their employees.

(2) (A) Except for the portion of a contract that contains the rates of payment, contracts entered into pursuant to former Part 6.3 (commencing with Section 12695), former Part 6.5 (commencing with Section 12700), Part 6.6 (commencing with Section 12739.5), or Part 6.7 (commencing with Section 12739.70) of Division 2 of the Insurance Code, or Chapter 2 (commencing with Section 15810) or Chapter 4 (commencing with Section 15870) of Part 3.3 of Division 9 of the Welfare and Institutions Code, on or after July 1, 1991, shall be open to inspection one year after their effective dates.

(B) If a contract that is entered into prior to July 1, 1991, is amended on or after July 1, 1991, the amendment, except for any portion containing the rates of payment, shall be open to inspection one year after the effective date of the amendment.

(3) Three years after a contract or amendment is open to inspection pursuant to this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

(4) Notwithstanding any other law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto, until the contracts or amendments to the contracts are open to inspection pursuant to paragraph (3).

(w) (1) Records of the Managed Risk Medical Insurance Board related to activities governed by Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of the Insurance Code, and that reveal the deliberative processes, discussions, communications, or any other portion of the negotiations with health plans, or the impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or records that provide instructions, advice, or training to employees.

(2) Except for the portion of a contract that contains the rates of payment, contracts for health coverage entered into pursuant to Chapter 8 (commencing with Section 10700) of Part 2 of Division 2 of the Insurance Code, on or after January 1, 1993, shall be open to inspection one year after they have been fully executed.

(3) Notwithstanding any other law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto, until the contracts or amendments to the contracts are open to inspection pursuant to paragraph (2).

(x) Financial data contained in applications for registration, or registration renewal, as a service contractor filed with the Director of Consumer Affairs pursuant to Chapter 20 (commencing with Section 9800) of Division 3 of the Business and Professions Code, for the purpose of establishing the service contractor’s net worth, or financial data regarding the funded accounts held in escrow for service contracts held in force in this state by a service contractor.

(y) (1) Records of the Managed Risk Medical Insurance Board and the State Department of Health Care Services related to activities governed by Part 6.2 (commencing with Section 12693) or former Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of, the Welfare and Institutions Code, if the records reveal any of the following:

(A) The deliberative processes, discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the board or the department, entities with which the board or department is considering a contract, or entities with which the board or department is considering or enters into any other arrangement under which the board or department provides, receives, or arranges services or reimbursement.

(B) The impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or the department or its staff, or records that provide instructions, advice, or training to employees.

(2) (A) Except for the portion of a contract that contains the rates of payment, contracts entered into pursuant to Part 6.2 (commencing with Section 12693) or former Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code, on or after January 1, 1998, or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of, the Welfare and Institutions Code shall be open to inspection one year after their effective dates.

(B) If a contract entered into pursuant to Part 6.2 (commencing with Section 12693) or former Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Sections 14005.26 and 14005.27 of, or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of, the Welfare and Institutions Code, is amended, the amendment shall be open to inspection one year after the effective date of the amendment.

(3) Three years after a contract or amendment is open to inspection pursuant to this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

(4) Notwithstanding any other law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto until the contract or amendments to a contract are open to inspection pursuant to paragraph (2) or (3).

(5) The exemption from disclosure provided pursuant to this subdivision for the contracts, deliberative processes, discussions, communications, negotiations, impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of the board or its staff, or the department or its staff, shall also apply to the contracts, deliberative processes, discussions, communications, negotiations, impressions, opinions, recommendations, meeting minutes, research, work product, theories, or strategy of applicants pursuant to former Part 6.4 (commencing with Section 12699.50) of Division 2 of the Insurance Code or Chapter 3 (commencing with Section 15850) of Part 3.3 of Division 9 of the Welfare and Institutions Code.

(z) Records obtained pursuant to paragraph (2) of subdivision (f) of Section 2891.1 of the Public Utilities Code.

(aa) A document prepared by or for a state or local agency that assesses its vulnerability to terrorist attack or other criminal acts intended to disrupt the public agency’s operations and that is for distribution or consideration in a closed session.

(ab) Critical infrastructure information, as defined in Section 131(3) of Title 6 of the United States Code, that is voluntarily submitted to the Office of Emergency Services for use by that office, including the identity of the person who or entity that voluntarily submitted the information. As used in this subdivision, “voluntarily submitted” means submitted in the absence of the office exercising any legal authority to compel access to or submission of critical infrastructure information. This subdivision shall not affect the status of information in the possession of any other state or local governmental agency.

(ac) All information provided to the Secretary of State by a person for the purpose of registration in the Advance Health Care Directive Registry, except that those records shall be released at the request of a health care provider, a public guardian, or the registrant’s legal representative.

(ad) The following records of the State Compensation Insurance Fund:

(1) Records related to claims pursuant to Chapter 1 (commencing with Section 3200) of Division 4 of the Labor Code, to the extent that confidential medical information or other individually identifiable information would be disclosed.

(2) Records related to the discussions, communications, or any other portion of the negotiations with entities contracting or seeking to contract with the fund, and any related deliberations.

(3) Records related to the impressions, opinions, recommendations, meeting minutes of meetings or sessions that are lawfully closed to the public, research, work product, theories, or strategy of the fund or its staff, on the development of rates, contracting strategy, underwriting, or competitive strategy pursuant to the powers granted to the fund in Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code.

(4) Records obtained to provide workers’ compensation insurance under Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code, including, but not limited to, any medical claims information, policyholder information provided that nothing in this paragraph shall be interpreted to prevent an insurance agent or broker from obtaining proprietary information or other information authorized by law to be obtained by the agent or broker, and information on rates, pricing, and claims handling received from brokers.

(5) (A) Records that are trade secrets pursuant to Section 6276.44, or Article 11 (commencing with Section 1060) of Chapter 4 of Division 8 of the Evidence Code, including, without limitation, instructions, advice, or training provided by the State Compensation Insurance Fund to its board members, officers, and employees regarding the fund’s special investigation unit, internal audit unit, and informational security, marketing, rating, pricing, underwriting, claims handling, audits, and collections.

(B) Notwithstanding subparagraph (A), the portions of records containing trade secrets shall be available for review by the Joint Legislative Audit Committee, California State Auditor’s Office, Division of Workers’ Compensation, and the Department of Insurance to ensure compliance with applicable law.

(6) (A) Internal audits containing proprietary information and the following records that are related to an internal audit:

(i) Personal papers and correspondence of any person providing assistance to the fund when that person has requested in writing that their papers and correspondence be kept private and confidential. Those papers and correspondence shall become public records if the written request is withdrawn, or upon order of the fund.

(ii) Papers, correspondence, memoranda, or any substantive information pertaining to any audit not completed or an internal audit that contains proprietary information.

(B) Notwithstanding subparagraph (A), the portions of records containing proprietary information, or any information specified in subparagraph (A) shall be available for review by the Joint Legislative Audit Committee, California State Auditor’s Office, Division of Workers’ Compensation, and the Department of Insurance to ensure compliance with applicable law.

(7) (A) Except as provided in subparagraph (C), contracts entered into pursuant to Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code shall be open to inspection one year after the contract has been fully executed.

(B) If a contract entered into pursuant to Chapter 4 (commencing with Section 11770) of Part 3 of Division 2 of the Insurance Code is amended, the amendment shall be open to inspection one year after the amendment has been fully executed.

(C) Three years after a contract or amendment is open to inspection pursuant to this subdivision, the portion of the contract or amendment containing the rates of payment shall be open to inspection.

(D) Notwithstanding any other law, the entire contract or amendments to a contract shall be open to inspection by the Joint Legislative Audit Committee. The committee shall maintain the confidentiality of the contracts and amendments thereto until the contract or amendments to a contract are open to inspection pursuant to this paragraph.

(E) This paragraph is not intended to apply to documents related to contracts with public entities that are not otherwise expressly confidential as to that public entity.

(F) For purposes of this paragraph, “fully executed” means the point in time when all of the necessary parties to the contract have signed the contract.

This section does not prevent any agency from opening its records concerning the administration of the agency to public inspection, unless disclosure is otherwise prohibited by law.

This section does not prevent any health facility from disclosing to a certified bargaining agent relevant financing information pursuant to Section 8 of the National Labor Relations Act (29 U.S.C. Sec. 158).

Burglary

2026-02-10T05:08:03Z

Sysop: /* Inhabited */

'''Burglary'''

(Thorn, supra, 176 Cal.App.4th at p. 262 [“ ‘immediately contiguous’ requirement ... easily met” where carport area was “situated close to and directly underneath the occupied apartments themselves”]; People v. Harris (2014) 224 Cal.App.4th 86, 90 [“[a] garage sharing a roof and a wall with a residence is part of an inhabited dwelling” despite lack of “interior access”]; In re Christopher J. (1980) 102 Cal.App.3d 76, 80, 78 [“carport appurtenant to the dwelling house,” with a roof and a wall along one side, “was attached to and an integral part of the dwelling house”]; In re Edwardo V. (1999) 70 Cal.App.4th 591, 594–595 (Edwardo V.) [multi-unit apartment building's common garage constituted inhabited dwelling and citing cases].)

People v. Jimenez (Cal. Ct. App., Apr. 17, 2017, No. A146261) 2017 WL 1376368, at *4

==Elements==

===Inhabited===

A deceased person doesn't make it inhabited. ([https://scholar.google.com/scholar_case?case=12292735242889433203 ''People v. Ramos'' (1997) 54 Cal.App.4th 300.])

As defined in Penal Code, Section 460, a dwelling house is inhabited if a person resides therein even though it may be temporarily unoccupied. (People v. Gilbert, 188 Cal.App.2d 723, 726, 10 Cal.Rptr. 799; People v. Loggins, 132 Cal.App.2d 736, 738, 282 P.2d 961; People v. Allard, 99 Cal.App. 591, 592, 279 P. 182.) However, the dwelling house in the case at bar, at the time in question, was not the residence of a person who was temporarily absent. It was not the residence of the new tenant, of the landlord, or of the old tenant. It was not the dwelling house of either of them. For this reason, we conclude that it then was uninhabited and the verdict should have been limited to burglary in the second degree. People v. Valdez (1962) 203 Cal.App.2d 559, 563 [21 Cal.Rptr. 764, 767]

Hotel or motel room that is being used for temporary habitation. (People v. Villalobos (2006) 145 Cal. App. 4th 310, 321.)

Vacation homes and second homes remain inhabited even where they are used sporadically by their residents. (People v. DeRouen (1995) 38 Cal.App.4th 86, 90–92, disapproved on other grounds in People v. Allen (1999) 21 Cal.4th 846, 864–866.)

A house “remains inhabited even if the burglary occurs while the residents are away for an extended period of time.” (People v. Cardona (1983) 142 Cal.App.3d 481, 483.)

“A structure that was once used for dwelling purposes is no longer inhabited when its occupants permanently cease using it as living quarters, and no other person is using it as living quarters.” (People v. Rodriguez (2004) 122 Cal.App.4th 121, 132.)

Tent. (People v. Wilson (1992) 11 Cal. App. 4th 1483, 1489.)

Hospital room in a locked psychiatric hospital. (People v. Fond (1999) 71 Cal. App. 4th 127, 131-132.)

Inhabited RV. (People v. Trevino (2016) 1 Cal. App. 5th 120, 126.)

====Adjacent structures====

“‘In determining whether a structure is part of an inhabited dwelling, the essential inquiry is whether the structure is “functionally interconnected with and immediately contiguous to other portions of the house.” [Citation.]’ “‘”Functionally interconnected” means used in related or complementary ways. “Contiguous” means adjacent, adjoining, nearby or close. [Citations.]’” (People v. Thorn (2009) 176 Cal. App. 4th 255, 262.)

Apartment balcony. (People v. Yarbrough, 54 Cal. 4th 889, 894, 144 Cal. Rptr. 3d 164 (Cal. 2012) [“Whenever a private, residential apartment and its balcony are on the second or a higher floor of a building, and the balcony is designed to be entered only from inside the apartment (thus extending the apartment's living space), the balcony is part of the apartment. The railing of such a balcony marks the apartment's ‘outer boundary’”].)

Open carports located underneath apartment complex. (People v. Thorn, supra, 176 Cal. App. 4th at p. 263.)

Attached garage at rear of duplex shared by tenants, not accessible from either duplex and entered only through exterior door. (Thorn, supra, at p. 262.)

Garage used for storing garden tools and equipment, where garage shared roof with house but was not directly connected to it. (Thorn, supra, at p. 262.)
Storage rooms in basement under apartment building. (Thorn, supra, at 262.)

Laundry room on ground floor of two-story, U-shaped apartment section, where entry to individual apartments was through unlocked, open-air courtyard in middle of building. (Thorn, supra, at p. 262.)

Storeroom connected by breezeway to house. (People v. Coutu, 171 Cal. App. 3d 192, 193, 217 Cal. Rptr. 191 (1st Dist. 1985).)

Shed connected by breezeway and roof. (People v. Robertson, 2018 WL 2355925, *5 (Cal. App. 2d Dist. 2018), unpublished/noncitable (May 24, 2018).)
Storage shed located at back of apartment complex that shared common wall with apartment complex but could only be entered from exterior door. (People v. Duran, 2005 WL 2901836, *2-5 (Cal. App. 4th Dist. 2005), unpublished/noncitable (Nov. 4, 2005).)
Car parked in guest parking in underground condominium parking garage. (People v. Kasrawi, 65 Cal. App. 5th 751, 765, 280 Cal. Rptr. 3d 214 (4th Dist. 2021), review granted, see Cal. Rules of Court, rules 8.1105 and 8.1115, 282 Cal. Rptr. 3d 638, 493 P.3d 195 (Cal. 2021) (Case No. S270040), cited for persuasive authority pursuant to Cal. Rules of Court, rule 8.115).

Home office. "His residence and office were under the same roof and shared a common wall. The office was not used as living quarters and there was no interior door connecting the office to the residence. The office and the dwelling had exterior doors leading to the same driveway. The door to the office was four to five feet away from the door to the residence." (''People v. Rodriguez'' (2000) 77 Cal.App.4th 1101, 1105.)

" Accordingly, under sections 459 and 460, we find significant similarities between a garage, a storeroom, a laundry room, and a home office. Entry into a structure that is functionally related to and immediately contiguous to a dwelling qualifies for first degree burglary. This is so even though there is no connecting door to the residence and the structure serves as a storehouse, workshop, or office or serves some other need of the residents. The use of the area need not be limited to the storage or use of property ordinarily related to dwelling places. Whereas a garage or storage area next to a residence typically contains items related to the home and its maintenance (e.g., food, bicycles and other athletic equipment, gardening equipment, a washer and dryer, an extra refrigerator or furniture) and a home office generally contains office-related items (e.g., a computer, fax, phone, printer, desk, files, and bookshelves), we are satisfied the contents of the structure are not determinative. Thus, many of the reasons that make traditional inhabited dwelling burglaries dangerous are present when a home office attached to a main house is burglarized, even though the office is not connected to the home by an interior door. " ((''People v. Rodriguez'' (2000) 77 Cal.App.4th 1101, 1112.)

==Statute==
===Penal Code § 459===
Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.

===Penal Code § 460===
(a)Every burglary of an inhabited dwelling house, vessel, as defined in the Harbors and Navigation Code, which is inhabited and designed for habitation, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree.

(b) All other kinds of burglary are of the second degree.

(c) This section shall not be construed to supersede or affect Section 464 of the Penal Code.

===Penal Code § 461===
Burglary is punishable as follows:
:(a) Burglary in the first degree: by imprisonment in the state prison for two, four, or six years.
:(b) Burglary in the second degree: by imprisonment in the county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170.

==CALCRIM Jury Instructions==

==Notable Cases==
"[C]ourts have explained that the term 'inhabited dwelling house' means a 'structure where people ordinarily live and which is currently
being used for dwelling purposes.'" (''People v. Cruz'' (1996) 13 Cal.4th 764, 776)

Factors relevant to determining whether a house is "inhabited" include whether the owner or occupant sleeps in the house, keeps personal belongings there, and intends to continue living there. (''People v. Hughes'' (2002) 27 Cal.4th 287, 354-355; ''People v. Aguilar'' (2010) 181 Cal.App.4th 966, 971-972; ''People v. Hernandez'' (1992) 9 Cal.App.4th 438, 442.)

An "open house" showing by a real estate agent does not change an inhabited residence into a commercial residence. (''People v. Little'' (2012) 206 Cal.App.4th 1364; ''People v. Tessman'' (Feb. 18, 2013, D062372) ___ Cal.4th ___ <http://www.courts.ca.gov/opinions/documents/D062372.PDF>.)

A burglary of a granny flat which is unoccupied, but attached to a main residence which is occupied, is a hot prowl. (''People v. Harris'' (Feb. 25, 2013, No. E058521) ___ Cal.App.4th ___ <http://www.courts.ca.gov/opinions/documents/E058521.PDF>

"an uninhabited outbuilding, such as a detached garage, is not an inhabited dwelling house.
Corona v. Superior Court (June 21, 2001, No. A161369) ___ Cal.App.4th ___ <https://www.courts.ca.gov/opinions/documents/A161369.PDF>

==Consent==

A juvenile was adjudicated, in the Superior Court, Ventura County, Lawrence Storch, J., to have committed burglary by his forced entry into his father's and stepmother's locked apartment without their consent to take food, a folding mattress, and a sleeping bag. Juvenile appealed. The Court of Appeal, Gilbert, J., held that: (1) there was substantial evidence of the requisite intent to commit burglary; (2) juvenile did not have a possessory claim of right in the particular items he took because his parents had a statutory duty to provide him with the necessaries of life; and (3) the parental obligation to provide for necessaries does not imply a possessory right in the parental residence. (In re Richard M. (1988) 205 Cal.App.3d 7.)

Burglary

2026-02-10T04:53:47Z

Sysop: /* Inhabited */

PC654

2026-02-08T04:31:58Z

Sysop:

PC654

==Statute==
(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.

(b) Notwithstanding subdivision (a), a defendant sentenced pursuant to subdivision (a) shall not be granted probation if any of the provisions that would otherwise apply to the defendant prohibits the granting of probation.

''(Amended by Stats. 1997, Ch. 410, Sec. 1. Effective January 1, 1998.)''

==Procedure==

The sentence imposed and stayed under PC654 is a normal full-term sentence, not a 1/3 middle-term consecutive. (People v. Cantrell (2009) 175 Cal.App.4th 1161.)

Rules of Court rule 4.412(b) also says that when a defendant agrees to a sentence, that the defendant is giving up any PC654 rights.

The California Supreme Court in People v. Deloza (1998) 18 Cal.4th 585, 591-592, said: “If, for example, a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed.” The next sentence is “Section 654 does not allow any multiple punishment, including either concurrent or consecutive sentences.”

So a sentence under Penal Code 654 is imposed and stayed and is not concurrent. The sentence must be imposed, so a term must be selected. “A sentence must be imposed on each count, otherwise if the nonstayed sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid sentence will remain. … A trial court can impose sentence on all counts, and then stay execution of sentence as necessary to comply with section 654, that way, if the unstayed sentence is reversed, a valid sentence remains extant… to implement section 654, the trial court must impose sentence on all counts, but stay execution of sentence as necessary to prevent multiple punishment.” People v. Alford (2010) 180 Cal.App.4th 1463, 1469.

People v. Jones (2012) 54 Cal.4th 350, held that when a defendant had a single revolver, he could only be punished once under PC654, even though definitely was felon-in-possessing, carrying a concealed gun, and carrying a loaded gun in public. One punishment per firearm. But under Penal Code section 23510, if you have more than one firearm, then you can punish once for each firearm.

People v. Washington (2021) 61 Cal.App.5th 776, has an in-depth discussion of how PC654 works when you have HSC11370.1, felon-in-possession, and drug trafficking charges. Court said if you are punishing someone for possession for sales, you cannot punish the person for HSC11370.1. If you are punishing someone for felon-in-possession, you cannot punish the person for HSC11370.1. If you are not punishing the HSC11370.1, you can punish for both the sales and for the felon-in-possession.

The big CEB book has many pages on this at section 37.44 to 37.50.

CDAA also has a sentencing manual online at https://www.cdaa.org/wp-content/uploads/CDAA-Sentencing-Outline-Nickel-2022.pdf in which this is at pages 56 to 57.

Section 654 prohibits punishment for two or more offenses arising from the same act or from a series of acts constituting an indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1216).4 “ ‘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 the offenses but not more than one.’ ” (People v. Correa (2012) 54 Cal.4th 331, 336.) Section 654 is intended to ensure that the defendant is punished commensurate with his or her culpability. (People v. Harrison (1989) 48 Cal.3d 321, 335.) The defendant's intent and objective, not the temporal proximity of his or her offenses, determines whether multiple punishment is permissible. (Ibid.)
“ ‘Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.’ ” (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1378.)
In People v. Mejia (2017) 9 Cal.App.5th 1036 (Mejia ), the defendant was convicted of spousal rape, infliction of corporal injury on a spouse, criminal threats, and torture. (Id. at p. 1039.) In determining whether section 654 applied to the torture and criminal threats counts the Mejia court noted that torture required the specific intent to inflict cruel or extreme physical pain or suffering and that “mentally or emotionally terrorizing the victim by means of threats is an objective separate from the intent to cause extreme physical pain.” (Id. at pp. 1046-1047.)
The reasoning of Mejia, supra, 9 Cal.App.5th 1036 applies here. Vanderwood could have caused Doe cruel or extreme physical pain and suffering without threatening to kill her. Doe testified that Vanderwood's threats to “kill” concerned her because “everything else that he had said he was going to do, he did or tried to do.” The trial court could have reasonably concluded that Vanderwood's objective in threatening to kill Doe was to place her in sustained fear for her life. Thus, even though Vanderwood's verbal threats and physical acts were otherwise parts of an indivisible course of conduct, the trial court properly imposed both sentences to punish Vanderwood commensurate with his increased culpability.

==Notable cases==

The phrase “act or omission” appears in section 654 proscribing multiple punishments. We learn an assault occurring in the course of a robbery is a separate act punishable by a term consecutive to that imposed for the robbery (People v. Williamson (1979) 90 Cal.App.3d 164, 153 Cal.Rptr. 48); assault and rape are separate offenses but part of indivisible **93 conduct (People v. Apodaca (1978) 76 Cal.App.3d 479, 142 Cal.Rptr. 830); assault with a deadly weapon and burglary are separate offenses but arise from a single act (People v. Radil (1977) 76 Cal.App.3d 702, 142 Cal.Rptr. 233); felony vehicular manslaughter and felony drunk driving are separate offenses arising out of different acts even though the victim was killed while the driver was under the influence (People v. Rocha (1978) 80 Cal.App.3d 972, 146 Cal.Rptr. 81); petty theft of purse and grand theft of a gun in the purse are separate offenses arising out of the same act (People v. Campbell (1976) 63 Cal.App.3d 599, 133 Cal.Rptr. 815).

People v. Sur. Ins. Co., 139 Cal. App. 3d 848, 853, 189 Cal. Rptr. 89, 92–93 (Ct. App. 1983)

==Driving Under the Influence==
A defendant can not be punished for both a violation of Vehicle Code section 23152(a) and Vehicle Code section 23152(b). (See ''People v. Subramani'' (1985) 173 Cal.App.3d 1106 [holding so for VC23153(a) and VC23153(b)].)

==Firearms==
People v. Jones (2012) 54 Cal.4th 350, 357 held "that a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654." In Jones, police searched the defendant's car and found an unregistered revolver. The defendant was convicted of three counts: Felon in possession (former PC12021), concealed carry (former PC12025), and loaded firearm in public (former PC12031). The Supremes ruled that even if the possession of a single firearm is unlawful in multiple ways, if it was a single act, it can only be punished once. People v. Atencio (2012) 208 Cal.App.4th 1239, follows Jones, holding that grand theft of a firearm and being in possession of that same firearm the next day was subject to PC654. People v. Saunders

''People v. Spirlin'' (2000) 81 Cal.App.4th 119 - possession of a gun on three separate occasions over 32-days was one course of conduct.

Multiple firearms can mean multiple punishments. (''People v. Correa'' (2012) 54 Cal.4th 331.)

==Drugs==

People v. Chung (2015) 237 Cal.App.4th 462

People v. Monarrez (1998) 66 Cal.App.4th 710

People v. Lopez (1967) 251 Cal.App.2d 918

Sentencing

2026-02-08T04:05:17Z

Sysop: /* Misdemeanor sentencing */

“In a criminal case, judgment is rendered when the trial court orally pronounces sentence.” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.)

==Charging==
Penal Code Section 12022.1
This is a two-year enhancement for committing a crime while released on bail or
own recognizance. Subdivision (c) specifically states that the allegation may be
pleaded in a Complaint, but need not be proved at the preliminary hearing. The
allegation must, however, be pleaded in the Information or Indictment.
2. Prior Convictions
Prior convictions, which are status enhancements, may be added to the Information
or Indictment whenever it is discovered that not all prior convictions have been
alleged. (Pen. Code § 969a; Miranda v. Superior Court of Los Angeles County (1995)
38 Cal.App.4th 902; Thompson v. Superior Court of Los Angeles County (2001)
91 Cal.App.4th 144; People v. Casillas (2001) 92 Cal.App.4th 171.)

==Admissible evidence==

“A probation report is required following every felony conviction in this state. [Citation.] [California Rules of Court, r]ule 4.411.5 details the contents of presentence reports, and contemplates that police reports will be used to prepare crime summaries contained therein. (Rule 4.411.5(a)(7)(i).) Defendants are required by statute to have an opportunity to review and challenge inaccuracies in the presentence report. [Citations.] [Defendant] does not contend he failed to receive such an opportunity in the underlying criminal prosecution. [¶] Superior courts consider and rely upon hearsay statements contained in a presentence report to determine whether to place a defendant on probation, and to evaluate his [or her] level of culpability when selecting an appropriate sentence. [Citations.]” (People v. Otto (2001) 26 Cal.4th 200, 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061 (Otto ).) “A sentencing judge ‘may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the convicted person's life and characteristics.’ [Citation.]” (People v. Arbuckle (1978) 22 Cal.3d 749, 754, 150 Cal.Rptr. 778, 587 P.2d 220.) The court may also consider and rely upon hearsay statements contained in a probation report, including the police reports used to prepare the crime summaries contained in the report. (Otto, at p. 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061.)

By stating in section 1204 that mitigating evidence must be presented through “the testimony of witnesses examined in open court” rather than verbal representations, the Legislature has declared that a criminal defendant wishing to make an oral statement to the court in mitigation of punishment must do so through testimony given under oath.6 (A defendant may also provide an unsworn written statement either by submitting the statement to the probation officer for inclusion in the probation report (Cal. Rules of Court, rule 4.411.5(a)(4)), if one is prepared; or by including such a statement in a “written report” filed by the defense that “presents a study of his background and personality and suggests a rehabilitation program” (§ 1204).) People v. Evans (2008) 44 Cal.4th 590, 598

==Granting probation==

“The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation....” (People v. Welch (1993) 5 Cal.4th 228, 233, 19 Cal.Rptr.2d 520, 851 P.2d 802.)

“The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]” (People v. Birmingham (1990) 217 Cal.App.3d 180, 185, 265 Cal.Rptr. 780.)

In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rule 4.406(b)(2); rule 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.)
67 “The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance **27 of the evidence. [Citations.]” (People v. Leung (1992) 5 Cal.App.4th 482, 506, 7 Cal.Rptr.2d 290.) Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. (Id. at pp. 506–507, 7 Cal.Rptr.2d 290.)

People v. Weaver (2007) 149 Cal.App.4th 1301, 1313 disapproved of by People v. Cook (2015) 60 Cal.4th 922 on other grounds

Note: Allegations that mandate probation denial, or the facts that support them, must be
alleged and proved, for example, Penal Code section 1203(k); however, allegations that
merely create a presumptive denial of probation, do not. (People v. Lo Cicero (1969) 71
Cal.2d 1186; In re Varnell (2003) 30 Cal.4th 1132; People v. Lara (2012) 54 Cal.4th 896;
McKissick, supra.)

(People v. Hood (2014) 223 Cal.App.4th 1356 [depublished].)

===Mandatory inelgibile===

===Presumptive ineligible===
There is likewise broad discretion to determine whether a given case is “unusual” and entitles the defendant to probation in the interests of justice. (People v. Superior Court (Du ) (1992) 5 Cal.App.4th 822, 831, 7 Cal.Rptr.2d 177.

A VC20001 hit-and-run is not "a deadly weapon," to make one presumptively eligible under PC1203(e)(2). (People v. Nuno (2018) 26 Cal.App.5th 43.)

And it does not apply the criteria in rule 4.414 to determine whether to grant probation unless it first finds any statutory presumption against probation is rebutted. (Rule 4.413(b); **584 People v. Superior Court (Dorsey ) (1996) 50 Cal.App.4th 1216, 1229, 58 Cal.Rptr.2d 165.)

===Statement of reasons===
“Generally speaking, the trial court must state reasons for granting or denying probation.” (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

"At an initial sentencing hearing, when the court has the discretion to grant probation, the decision to grant probation is a sentence choice which requires a statement of reasons." (§ 1170, subd. (c); Cal. Rules of Court, rule 405(f)Court, rule 405(f). (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792.)

"The denial of probation, in and of itself, is not a sentence choice requiring a statement of reasons. (People v. Gopal (1985) 171 Cal.App.3d 524, 547–549, 217 Cal.Rptr. 487, cert. den. 476 U.S. 1105, 106 S.Ct. 1949, 90 L.Ed.2d 359; People v. Crouch (1982) 131 Cal.App.3d 902, 904, 182 Cal.Rptr. 701.) The rationale is that the denial of probation is not the ultimate disposition of the case, but rather is part and parcel of the concomitant decision to sentence to state prison, and that is the sentence choice which requires a statement of reasons. (People v. Butler (1980) 107 Cal.App.3d 251, 254–255, 165 Cal.Rptr. 709; accord People v. Golliver, supra, 219 Cal.App.3d at p. 1616, fn. 2, 269 Cal.Rptr. 191.) (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792, fn. 2)

But it need not provide reasons for declining to find a case “unusual” so as to rebut any presumptive ineligibility for probation. (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

==Prison sentencing==

PC1170.1(c)

McCart

''People v. Roseberry'' (2020) 57 Cal.App.5th 543

5y sentence for PC273.5. Commit PC4573 and sentenced to full consecutive 3 years. New offense of PC4530 escape.

Being released on parole, breaks up the chain for McCart issues. (''People v. Reed'' (1993) 17 Cal.App.4th 302.)'
1981-4y sentence
1984-while serving sentence, sentenced to full 2y consecutive for PC4501.5
Paroled
1991-PC4501.5 while at Pelican Bay.
1991-not under McCart.

People v. Brantley (2019) 43 Cal.App.5th 917. section 1170.1, subdivision (c) “does not apply [when a] defendant completed the prison term he was serving *549 before being sentenced **508 on the” in-prison offense. (People v. Brantley (2019) 43 Cal.App.5th 917, 920 [257 Cal.Rptr.3d 98] (Brantley), italics added; see id. at p. 922 [“a reading of the plain language of subdivision (c) makes apparent that this provision does not apply once the prisoner has completed the sentence he or she was serving when the in-prison crime was committed”].)

Credits. In re Rojas (1979) 23 Cal.3d 152; People v. Phoenix (2014) 231 Cal.App.4th 1119

In re Sims (1981) 117 Cal.App.3d 309

In re Brown (2024) 104 Cal.App.5th 969

In re Thompson (1985) 172 Cal.App.3d 256

In jail for out-to-court is still in prison. People v. White (1988) 202 Cal.App.3d 862

Thompson term doesn't inherit violent nature. (In re Tate (2006) 135 Cal.App.4th 756.)

==Misdemeanor sentencing==

"A trial court in a misdemeanor case may properly look for guidance to what the rules consider to be aggravating and mitigating." (People v. Faber (2017) 15 Cal.App.5th Supp. 41, 48.)

A misdemeanor can be a full-boat consecutive in jail after a prison term. (''People v. Endelsen'' (1996) 46 Cal.App.4th 86.) A misdemeanor can be a full-boat consecutive in jail after a PC1170(h) jail sentence. (''People v. Brown (2016) 247 Cal.App.4th 1430.)

People v. Brown (2016) 247 Cal.App.4th 1430

People v. Erdelan (1996) 46 Cal.App.4th 86

People v. Murray (1994) 23 Cal.App.4th 1783

In re Valenti (1986) 178 Cal.App.3d 470

In re Eric J. (1979) 25 Cal.3d 522

==Sentencing error==

===Failing to state reasons===

Rule 4.403

People v. Dixon (1993) 20 Cal.App.4th 1029, 1037, found it reversible error, when failing to state reasons for consecutive sentences.

Sentencing can't just incorporate by reference, such as just the probation report. People v. Pierce (1995) 40 Cal.App.4th 1317; People v. Fernandez (1990) 226 Cal.App.3d 669; People v. Deloach (1989) 207 Cal.App.3d 323; People v. Davis (1980) 103 Cal.App.3d 270; People v. Turner (1978) 87 Cal.App.3d 244

==Housing under PC1170(h)==

Unstricken juvenile strike priors keep defendants out of county jail. (''People v. Delgado'' (2013) 214 Cal.App.4th 914.)

But what about juvenile strike priors and PC1170(f)?

==Enhancements==

An enhancement is defined as an additional term of imprisonment or penalty added to the
base term. (People v. Smith (1985) 163 Cal.App.3d 908; Sentencing Rules for Superior Court,
California Rules of Court, Rule 4.405(3).) An enhancement is not, however, a separate crime.
(People v. Muhammad (2007) 157 Cal.App.4th 484; People v. Wims (1995) 10 Cal.4th 293;
People v. Mustafaa (1994) 22 Cal.App.4th 1305; People v. White (1976) 16 Cal.3d 791.) Thus, it
is inextricably bound to the underlying crime, and the facts that are relied upon to establish the
enhancement must have occurred during the time of the offense. (People v. Walls (1978)
85 Cal.App.3d 447; People v. Dozier (1979) 90 Cal.App.3d 174.)

Because enhancements are not crimes, the corpus delicti rule does not apply to them. (People v.
Shoemake (1993) 16 Cal.App.4th 243.)

Generally, with determinate term sentences, a conduct enhancement is added to the base term
set for each offense, and a status enhancement is added once at the end of the determinate term
calculation. (People v. Jefferson (1999) 21 Cal.4th 86.) [Note: Enhancements for prior convictions
are added to each indeterminate term. (People v. Williams (2004) 34 Cal.4th 397.)] Penal Code
section 1170.11 lists specific enhancements that relate to the circumstances of the crime.
Enhancement allegations are not considered part of the accusatory pleading for purposes of
defining lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92; People v. Richmond
(1991) 2 Cal.App.4th 610.) Nor may they be considered when applying the multiple conviction
rule—the rule prohibiting multiple convictions based on necessarily included offenses. (People v.
Izaguirre (2007) 42 Cal.4th 126.) Further, Penal Code section 805(a) provides that enhancements
are disregarded when determining the applicable statute of limitations. In other words, the
enhancement is not part of the maximum punishment calculation.

Enhancements apply equally to juveniles as they do to adults. (Welf. & Inst. § 726(d); In re Jovan B. (1993) 6 Cal.4th 801.

Relevant enhancements should be attached to each applicable underlying offense. (Pen. Code
§ 1170.1(d).) Subject to Penal Code sections 654 and 1170.1, enhancements may be imposed for
each separate crime for which the enhancement is found true. In other words, the law does not
limit charging or imposing enhancements only once for a criminal event; rather enhancements
should be charged and imposed for each crime during that event. (See People v. King (1993)
5 Cal.4th 59, overruling the rule in In re Culbreth (1976) 17 Cal.3d 330.)

All enhancements must be pled and either admitted by the defendant or proved to the trier
of fact beyond a reasonable doubt. (Pen. Code § 1170.1(e); Apprendi v. New Jersey (2000)
Defendant Conduct Enhancements (2015) 3
530 U.S. 466; People v. Sengpadychith (2001) 26 Cal.4th 316; People v. Mancebo (2002)
27 Cal.4th 735.)
Conduct enhancements should be pled in the criminal Complaint and proved at the
preliminary hearing. An enhancement may be included on the Information, even if not
initially alleged in the Complaint, provided sufficient evidence to support the enhancement
was presented at the preliminary hearing. Otherwise, the defendant may challenge the
sufficiency of an enhancement allegation by way of a Penal Code section 995 motion.
(People v. Superior Court of Marin County (Mendella) (1983) 33 Cal.3d 754.)
If the incorrect code section is pled or the enhancement is attached to the wrong count, the
court may still apply the enhancement. (People v. McKissick (1984) 151 Cal.App.3d 439;
People v. Riva (2003) 112 Cal.App.4th 981; Pen. Code § 960.)

Burden of Proof
Enhancement allegations must be proved beyond a reasonable doubt. (Apprendi, supra;
People v. Sloan (2007) 42 Cal.4th 110.)

Plea Bargaining
When the defendant enters into a plea bargain that includes an enhancement that the
defendant knows is unauthorized by law, in exchange for a lesser sentence than could
otherwise be imposed, the defendant will be estopped from attacking the imposition
of sentence for the enhancement. (People v. Ellis (1987) 195 Cal.App.3d 334; People v.
Otterstein (1987) 189 Cal.App.3d 1548; People v. Jones (1989) 210 Cal.App.3d 124.)

“During the Commission” Defined
Most enhancements require the prohibited conduct to be “during the commission” or “in
the commission” of a crime. The phrase “in the commission” has been given an expansive
interpretation and means more than simply “while committing” or “while engaged in.”
(People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.].) The following cases
illustrate this concept:
• People v. Canela (2014) 224 Cal.App.4th 703 [cert. for part. pub.]—The defendant
was “in the commission” of a robbery when he was in flight from officers and struck a
pedestrian.
• People v. Elder (2014) 227 Cal.App.4th 411 [cert. for part. pub.]—The robbery
victim sustained GBI while trying to push the fleeing defendant from a van.
• People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.]—A GBI
enhancement may apply to leaving the scene of an accident in violation of Vehicle
Code section 20001(a) if the injury was inflicted as part of one continuous transaction,
but not if the injury was inflicted prior to the flight.
• People v. Frausto (2009) 180 Cal.App.4th 890—The phrase “in the commission of”
in Penal Code section 12022.53(d) has the same meaning as identical or equivalent
language in sections 667.61, 12022.3, 12022.5, and the felony-murder statutes. Thus,
a firearm is discharged “in the commission of” a felony within the meaning of Penal
Code section 12022.53(d) if the underlying felony and the discharge of the firearm
are part of one continuous transaction, including flight after the felony to a place of
temporary safety.
• People v. Pitto (2008) 43 Cal.4th 228—Whenever (1) the defendant knows of the
presence and location of a firearm near the drugs, (2) the gun’s proximity to the drugs
is not “accidental or coincidental,” and (3) the defendant is in a position to use the gun
offensively or defensively to aid in the commission of the offense, the gun facilitates
that crime and has the requisite purpose or effect with respect to its commission.
• People v. Carrasco (2006) 137 Cal.App.4th 1050—With a gun use enhancement
“during the commission” of a robbery, the robbery may be spread over a considerable
distance and varying periods of time. A robbery begins with the commission of any of
the elements and concludes after all the elements have been satisfied and the defendant
has reached a place of relative safety. The gun use enhancement applies if the “use” aids
in completing any of the essential elements of the crime.
• People v. Alvarado (2001) 87 Cal.App.4th 178—For the purpose of Penal Code
section 667.61(e)(2), “during the commission of a burglary” refers to that period of
time between the burglar’s initial entry with the requisite intent and the burglar’s escape
to a place of temporary safety
People v. Jones (2001) 25 Cal.4th 98—In the case of a weapons-use enhancement,
such use may be deemed to occur “in the commission of” the offense if it occurred
before, during, or after the technical completion of the felonious sex act. The operative
question is whether the sex offense posed a greater threat of harm, i.e., was more
culpable because the defendant used a deadly weapon to threaten or maintain control
over the victim.
• People v. Becker (2000) 83 Cal.App.4th 294 [cert. for part. pub.]—A defendant’s
sentence may be enhanced for arming as long as he [or she] has a weapon available for
use at any point during the course of a continuing offense (conspiracy).
• People v. Masbruch (1996) 13 Cal.4th 1001—In this case, the defendant initially
used a firearm to subdue the two female victims and tie them up. He then committed
robbery, rape, sodomy, false imprisonment, and torture. The defendant appealed the
enhancement for gun use in the sex crimes, claiming that he only displayed the gun at
the outset of the crime spree. The court held that the firearm use enhancement liability
continued for as long as the defendant “utilized a gun at least as an aid in completing
an essential element of a subsequent crime.” The court explained:
In considering whether a gun use occurred, the jury may consider a
“video” of the entire encounter; it is not limited to a “snapshot” of
the moments immediately preceding a sex offense. Thus, a jury could
reasonably conclude that although defendant’s presence with the victims
was sporadic, the control and fear created by his initial firearm display
continued throughout the encounter. (Id. at 1011.)
[Note: This case has an excellent and extensive discussion on the definition of “use” of a
firearm.]
• People v. Taylor (1995) 32 Cal.App.4th 578—For the purpose of Penal Code
section 12022.5, the use of a firearm during escape from the crime scene is a use during
the commission of the crime. The defendant had left the burglary scene with a police
officer in pursuit, but his companion was detained at the scene, and the defendant
used the weapon when he returned to free her. The companion had stolen items on her
person and could implicate the defendant in the burglary. Thus, the burglary had not
been completed.
• People v. Heston (1991) 1 Cal.App.4th 471 [cert. for part. pub.]—Penal Code
section 12022.4 creates an enhancement for furnishing a firearm during the
commission of a crime. Although the defendant actually furnished it before the crime,
the court held that the statutory language must be read as contemplating a time frame
other than simply the time of the actual act element of the felony.
• People v. Mixon (1990) 225 Cal.App.3d 1471—Infliction of injury on the victim
after removal from a burglary situs is “during the commission” of the burglary.
• People v. Walls (1978) 85 Cal.App.3d 447—During a burglary, the defendant used a
gun and inflicted GBI. (Pen. Code § 12022.7.) On appeal he urged that the burglary
was complete upon entry with the requisite intent and that the alleged enhancement
conduct did not occur “during the commission” of the burglary. This was rejected by
the court, which held that the burglary continued after entry.

The court does not need to state a reason for imposing an enhancement that was found
true (Pen. Code § 1170(d); Rule 4.428); however, the court must state reasons for striking
the enhancement. (In re Renfrow (2008) 164 Cal.App.4th 1251.)
Enhancements imposed on attempted crimes are not reduced by half the normal term for
the enhancement. (In re Anthony H. (1980) 108 Cal.App.3d 494.

However, only one
weapon enhancement (the greatest) and only one injury enhancement (the greatest) may be
imposed for a single victim on a single crime. (Pen. Code § 1170.1(f) and (g); Rule 4.447;
People v. Ahmed (2011) 53 Cal.4th 156; People v. Mercado (2013) 216 Cal.App.4th 67.)
1. Multiple Firearm and Weapon Use on a Single Crime—Penal Code
Section 1170.1(f)
The defendant’s use of a firearm or weapon during the commission of a crime
may implicate several enhancements (e.g., Pen. Code §§ 12022.5 and 12022.53);
however, only the greatest may be imposed for each crime. (Pen. Code § 1170.1(f);
People v. Rodriguez (2009) 47 Cal.4th 501.) This rule applies even if the defendant
uses two weapons during the commission of the crime. (People v. Jones (2000)
82 Cal.App.4th 485.)
2. Multiple Weapon Enhancements on Multiple Crimes
When the defendant uses a weapon during the commission of multiple crimes, a
weapons enhancement is permitted for each crime. (King, supra; People v. Palacios
(2007) 41 Cal.4th 720.)
3. Multiple Injury Enhancements on the Same Victim on a Single Crime—
Penal Code Section 1170.1(g)
The defendant’s infliction of injury during the commission of a crime may result in
the filing of several injury enhancements (e.g., Pen. Code § 12022.7(a) and (b));
however, only the greatest may be imposed. (Pen. Code § 1170.1(g); People v. Eck
(1999) 76 Cal.App.4th 759 [cert. for part. pub.].)
4. Multiple Injury Enhancements for Multiple Victims
Where multiple victims are injured, multiple injury enhancements are permitted.
(People v. Arndt (1999) 76 Cal.App.4th 387; People v. Ausbie (2004) 123 Cal.App.
4th 855 [cert. for part. pub.].)

he court can strike almost all enhancements—or just the additional punishment
for the enhancement—with stated reasons based on the general provisions of Penal
Code section 1385. (People v. Meloney (2003) 30 Cal.4th 1145; People v. Luckett
(1996) 48 Cal.App.4th 1214; Rule 4.406(b)(7) and (b)(10); see also former Pen.
Code § 1170.1(h) [pre-Jan. 1, 1998].) The court can strike an enhancement with
respect to one count but not another. (People v. Torres (2008) 163 Cal.App.4th
1420 [cert. for part. pub.].)

Example: The defendant is convicted of robbery with an enhancement for the
personal infliction of GBI. As nothing limits or prohibits the imposition of this
enhancement, it must be imposed or stricken, not stayed. (Pen. Code §§ 1170.1(d)
and 1385(c); People v. Langston (2004) 33 Cal.4th 1237; Vega, supra.)

his issue was addressed in the context of multiple firearm enhancements pursuant
to Penal Code sections 12022.5 and 12022.53(b) and (c) attached to a single
underlying crime. In reviewing the statutory construction of section 12022.53,
and harmonizing that statute with the rationale of section 654 and Rule 4.447,
the California Supreme Court held that an enhancement whose imposition is
prohibited should be stayed, not stricken. (People v. Gonzalez (2008) 43 Cal.4th
1118.)
Should the court wish to avoid the additional prison term for the enhancement
but retain the offense as a serious or violent felony for “strike” or credit limitation
purposes, the court should impose the enhancement and dismiss only the
additional punishment. (Pen. Code § 1385(c); Pope, supra; In re Pacheco (2007)
155 Cal.App.4th 1439; In re Borlik (2011) 194 Cal.App.4th 30.)

===PC12022(a) firearm +1===

“Armed” is knowingly carrying a firearm as a means of offense or defense.
Bland, supra, 10 Cal.4th 991, held that a defendant convicted of a possessory
drug offense is subject to the “armed with a firearm” enhancement when he or
she possesses both drugs and a gun, and keeps them together, but is not present
when the police seize them. (People v. Hayes (1990) 52 Cal.3d 577; People v.
Wandick (1991) 227 Cal.App.3d 918; Alvarado, supra, 146 Cal.App.4th 993;
Pen. Code § 1203.06(b)(3).)
• Applies to completed and attempted crimes.
• Vicarious liability is permitted for all principals. Two people can be personally
armed with one gun. (People v. Mendival (1992) 2 Cal.App.4th 562 [cert. for
part. pub.].)
• “Firearm” is defined as “a device, designed to be used as a weapon, from which
is expelled through a barrel a projectile by the force of an explosion or other
form of combustion.” (See Pen. Code § 16520(a).) This does not include the
mere “receiver.” (People v. Gailord (1993) 13 Cal.App.4th 1643.) The fact that
the object is a firearm can be established by direct or circumstantial evidence
(People v. Law (2011) 195 Cal.App.4th 976 [cert. for part. pub.]); however, toy
guns, pellet guns, and BB guns do not qualify as firearms. (People v. Monjaras
(2008) 164 Cal.App.4th 1432 [cert. for part. pub.].)
• The firearm need not be loaded or operable. (Masbruch, supra; People v. Nelums
(1982) 31 Cal.3d 355; People v. Steele (1991) 235 Cal.App.3d 788.)
• There is no requirement to prove that the defendant knew or should have
known that the crime partner was armed. (People v. Overten (1994)
28 Cal.App.4th 1497.)
• Not applicable if arming is an element of the offense.

===PC12022(b) Assault Weapon +3===

Applies to completed or attempted crimes.
• “Assault weapon” defined. (Pen. Code § 30510.) “Machine gun” defined.
(Pen. Code §§ 30530 and 16880.)
• Applies even if arming is an element of the offense.
Defendant Conduct Enhancements (2015) 13
• Vicarious liability is permitted for all principals.
• There must be proof the defendant knew or reasonably should have known the
weapon was an assault weapon. (In re Jorge M. (2000) 23 Cal.4th 877.)

===PC12022(c) Armed while having controlled substances +3-4-5===
Personally armed” refers to the person who acts, not that person’s action.
Hence, two people can be personally armed with the same weapon if it is
equally available for use to both. (People v. Superior Court of San Diego County
(Pomilia) (1991) 235 Cal.App.3d 1464; Mendival, supra; People v. Gonzales
(1992) 8 Cal.App.4th 1658.)
• In the commission or attempted commission of violating Health and Safety
Code section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5,
11379, 11379.5, or 11379.6.
• There must be proof that the defendant had knowledge of the presence of the
firearm. (People v. Singh (2004) 119 Cal.App.4th 905 [cert. for part. pub.].)

===PC12022(d) Vicariously armed +1-2-3===
Penal Code section 12022(c) applies to those who actually and knowingly have
a firearm available for use, and section 12022(d) applies to those who do not,
but who know that one of their co-principals does. (People v. Smith (1992)
9 Cal.App.4th 196 [cert. for part. pub.].)

===PC30615 assault weapon +1===

===PC12022(b)(1) Deadly Weapon +1 Serious===

“Deadly or dangerous weapon” refers to any weapon, instrument, or object that
is inherently deadly or is used in such a way it is capable of causing and is likely
to cause great bodily injury or death. (CALCRIM 3145; People v. Reid (1982)
133 Cal.App.3d 354). Examples:
- BB gun (In re Bartholomew D. (2005) 131 Cal.App.4th 317 [cert. for part.
pub.]; People v. Brown (2012) 210 Cal.App.4th 1)
- Dirk or blackjack (People v. Aguilar (1997) 16 Cal.4th 1023)
- Knife (People v. Smith (1963) 223 Cal.App.2d 431)
- Broken glass or bottle (People v. Neal (1984) 159 Cal.App.3d 69 [cert. for
part. pub.]; People v. Zermeno (1999) 21 Cal.4th 927)
- Dog (People v. Frazier (2009) 173 Cal.App.4th 613 [cert. for part. pub.])
- Car (Calderon, supra)
• Personal use is required; there is no vicarious liability.
• The enhancement is not applicable if use of a deadly or dangerous weapon is an
element of the offense. (People v. McGee (1993) 15 Cal.App.4th 107 [cert. for
part. pub.] [interpreting former Pen. Code § 245].)
• This enhancement qualifies the underlying crime as a serious felony (Pen. Code
§ 1192.7(c)(23)), but not a violent felony

===PC12022.5 Firearms +3-4-10===

Applies to completed and attempted crimes.
• The court cannot strike this enhancement. (Pen. Code § 12022.5(c); Thomas,
supra.)
• The requirement of use of a firearm does not create a specific intent to injure
or assault the victim; however, the use must be intentional. (In re Tameka C.
(2000) 22 Cal.4th 190; Johnson, supra, 38 Cal.App.4th 1315.)
• The firearm may be used as a bludgeon. (Walls, supra; People v. Miceli (2002)
104 Cal.App.4th 256 [cert. for part. pub.].)
• Personal use is required; there is no vicarious liability. (People v. Walker (1976)
18 Cal.3d 232; People v. Hays (1983) 147 Cal.App.3d 534.)
• The enhancement is applicable if the defendant who personally uses the firearm
is vicariously liable for the underlying offense. (In re Antonio R. (1990)
226 Cal.App.3d 476 [cert. for part. pub.]; Berry, supra; Thiessen, supra.)
• The firearm need not be loaded or operable. (Nelums, supra.) See definition of
“firearm” in Section V.A.1.
• This enhancement is not applicable (Pen. Code § 12022.5(d)) if the use of a
firearm is an element of the offense, except if the offense is:
- any violation of Penal Code section 245, or
- murder perpetrated by means of shooting a firearm from a motor vehicle
intentionally at another person outside of the vehicle with the intent to
inflict GBI or death. (People v. Joachim (1995) 38 Cal.App.4th 1526;
People v. Johnson (1996) 51 Cal.App.4th 1329.)
• Mandatory state prison (Pen. Code § 1203.06(a)(1)) for most violent crimes.
• Multiple enhancements are permitted for multiple crimes committed
on a single occasion (King, supra); however, if multiple types of firearm
enhancements are alleged for a single crime, only the greatest may be imposed
(Pen. Code § 1170.1(f)). See discussion in Section IV.C.
• Qualifies the underlying crime as a serious felony (Pen. Code § 1192.7(c)(8))
and violent felony (Pen. Code § 667.5(c)(8)); therefore, conduct credits for the
aggregate term are limited to 15 percent. (Pen. Code § 2933.1; Reeves, supra.)
• Gang implications: The court cannot impose both a Penal Code section
12022.5 and a section 186.22(b)(1) enhancement if the gun is what makes the
crime a serious or violent felony. (Rodriguez, supra.)

===PC12022.5(b) assault weapons +5-6-10===

===PC21022.53 10-20-life===

* Section 187 (murder)
* Section 203 or 205 (mayhem)
* Section 207, 209, or 209.5 (kidnapping)
* Section 211 (robbery)
* Section 215 (carjacking)
* Section 220 (assault with intent to commit a specified felony)
* Section 245(d) (assault with a firearm on a peace officer or firefighter)
* Section 261 or 262 (rape)
* Section 264.1 (rape or sexual penetration in concert)
* Section 286 (sodomy)
* Section 288 or 288.5 (lewd act on a child
* Section 288a (oral copulation)
* Section 289 (sexual penetration)
* Section 4500 (assault by a life prisoner)
* Section 4501 (assault by a prisoner)
* Section 4503 (holding hostage by a prisoner)
* Any felony punishable by death or imprisonment in the state prison for life.
* Any attempt to commit a listed crime other than an assault.

===PC12022.55 Discharge of firearm from motor vehicle +5-6-10===

===PC12022.7 Great bodily injury +3===
Personal infliction is required. (People v. Cole (1982) 31 Cal.3d 568; People v.
Cross (2008) 45 Cal.4th 58.) Personal infliction can include “joint infliction”
when the defendant contributes to the GBI. (People v. Modiri (2006)
39 Cal.4th 481; People v. Dunkerson (2007) 155 Cal.App.4th 1413.) The
definition can include a failure to act if the defendant has a duty to act and
failure leads to GBI. (People v. Warwick (2010) 182 Cal.App.4th 788.)
• Applies to completed and attempted crimes.
• Specific intent to inflict injury is no longer required. Specific intent is required
for crimes committed prior to January 1, 1996. (People v. Fong (2013)
217 Cal.App.4th 263.)
• For the crimes listed in Penal Code section 1203.075, the infliction of GBI
means a mandatory denial of probation. It is no longer necessary to plead
and prove the section 1203.075 allegation together with the section 12022.7
enhancement. Prior to September 20, 2006, Penal Code section 1203.075
required intentional infliction so a separate probation denial allegation was
required when specific intent was deleted from the GBI enhancement itself.
Note: The probations denial allegation of Penal Code section 1203.075 does
apply to murder and should be alleged.
• Penal Code section 12022.7(f) defines GBI as “a significant or substantial
physical injury” beyond that inherent in the underlying felony. (People v.
Washington (2012) 210 Cal.App.4th 1042.) The California Supreme Court in
People v. Caudillo (1978) 21 Cal.3d 562 [overruled on another point in
People v. Escobar, infra, at 751, fn. 5] required that the injury be “severe or
protracted.” The California Supreme Court returned to the code section
standard of “significant or substantial physical injury” in People v. Escobar
(1992) 3 Cal.4th 740. Consequently, the injury sustained under the new
standard need not be as serious as that required by Caudillo. The injuries that
qualified as GBI in Escobar were: “extensive bruises and abrasions over the
victim’s legs, knees and elbows, injury to her neck and soreness in her vaginal
area of such severity that it significantly impaired her ability to walk.” (Escobar,
supra, at 750.)
• Other cases with examples of GBI:
- People v. Mendias (1993) 17 Cal.App.4th 195. Gunshot wound to upper
thigh. The victim was released from the hospital the next day, but the bullet
was not removed. At the trial five months later, the victim said the bullet
moves, but is not painful.
- People v. Wallace (1993) 14 Cal.App.4th 651. Two victims, one with cuts on
wrists and ankles from being flex-tied. One victim’s finger had no feeling
for two months. The other victim’s wrists were burned from flex-ties and
bandaged for two days. Insecticide-like substance caused “really, really bad”
burning in her eyes, vagina, and anus for 24 hours.
- People v. Bustos (1994) 23 Cal.App.4th 1747, 1755. The wounds inflicted
by this defendant (not including fatal stab wounds inflicted by another)
were contusions to the nose, left elbow, and left thigh; lacerations to the left
upper lip; and abrasions to the right elbow, left knee, and anus.
- People v. Le (2006) 137 Cal.App.4th 54. Soft tissue and muscular injury to
both legs caused by gunshot wound causing pain and restricted mobility for
weeks.
• Additional examples of GBI were discussed and approved using the more
stringent standard set forth in Caudillo, supra (pre-Escobar law):
- Knocked unconscious, numerous cuts with scars still evident at trial,
intense headaches
- Prolonged loss of consciousness
- Severe concussion
- Protracted loss of any bodily member or organ
- Protracted impairment of function of any bodily member or organ or bone
- A wound or wounds requiring extensive suturing
- Serious disfigurement
- Severe physical pain inflicted by torture
[Note: These categories were included in the section as originally enacted,
but were deleted by an amendment in 1977.]
• Other examples of GBI:
- Multiple contusions, swelling, and discoloration of the body. (People v.
Jaramillo (1979) 98 Cal.App.3d 830.)
- A broken hand swollen to twice its normal size. (People v. Kent (1979)
96 Cal.App.3d 130.
- A fractured jaw. (People v. Johnson (1980) 104 Cal.App.3d 598.)
- Hot grease in face. “Blistering 2nd burns … visible discoloration and
disfigurement for a month at least.” (People v. Harvey (1992)
7 Cal.App.4th 823.)
- Six sutures to the vagina for a cut of 2.5 cm. (People v. Brown (1985)
174 Cal.App.3d 762.)
• The jury need not unanimously agree on which injury or injuries support the
GBI. It is a “measuring function.” The jury determines whether the victim
suffered that quantum of injury that is defined as GBI. (People v. Robbins
(1989) 209 Cal.App.3d 261 [cert. for part. pub.].)
• The enhancement is not applicable if GBI is an element of the offense.
(Pen. Code § 12022.7(g).) Penal Code section 243(d), Battery with “Serious
Bodily Injury” is “Great Bodily Injury,” and the enhancement is not applicable.
(People v. Hawkins (1993) 15 Cal.App.4th 1373.) The enhancement is
inapplicable to mayhem as well. (People v. Hill (1994) 23 Cal.App.4th 1566.)
The code section specifically exempts murder, manslaughter, or arson.
(People v. Martinez (2014) 226 Cal.App.4th 1169; but see People v. Weaver
(2007) 149 Cal.App.4th 1301; Pen. Code § 12022.7 applies to additional
injured victims in a vehicular manslaughter case.) This enhancement does apply
to attempted murder or attempted manslaughter. (Allen, supra; People v. Lewis
(1994) 21 Cal.App.4th 243.)
• Qualifies the underlying crime as a serious felony (Pen. Code § 1192.7(c)(8))
and a violent felony (Pen. Code § 667.5(c)(8)); therefore, conduct credits for
the aggregate term are limited to 15 percent. (Pen. Code § 2933.1; Reeves,
supra.)
• If multiple GBI enhancements are attached to the underlying crime, only the
greatest may be imposed. (Pen. Code § 1170.1(g); Eck, supra.)

===PC12022.1 OR enhancement +3===
Enhancement for Offenses Committed While Released on Bail / Own Recognizance—
Penal Code Section 12022.1 [+ 3 years]
Any person convicted of a felony offense (secondary offense) committed while the
defendant was released from custody on bail or on his or her own recognizance (O.R.) for
another offense (primary offense), before the judgment became final for that other offense,
including the disposition of any appeal, must have his or her sentence for the secondary
offense enhanced by two years.
“Primary offense” refers to the felony offense for which a person was released on bail / O.R.
prior to final judgment. Conviction for the primary offense is not an element of Penal
Code section 12022.1, but is a prerequisite to the imposition of the enhancement on the
secondary offense. (People v. Johnson (2012) 208 Cal.App.4th 1092 [cert. for part. pub.].)
“Secondary offense” refers to the felony offense committed by the defendant while released
on the primary offense.
Whenever there is a conviction for the secondary offense and the enhancement is proved,
and the person is sentenced on the secondary offense prior to the conviction of the primary
offense, the court for the secondary offense may strike the enhancement or imposition of
the enhancement must be stayed, pending sentencing for the primary offense per Penal
Code § 12022.1(d). The sentencing court on the primary offense will lift any stay of the
enhancement. (Meloney, supra.)
If the person is convicted of a felony for the primary offense, is sentenced to state prison for
the primary offense, and is convicted of a felony for the secondary offense, then any state
prison sentence for the secondary offense must be consecutive to the primary sentence.
(Pen. Code § 12022.1(e); People v. Sanchez (1991) 230 Cal.App.3d 768.)
If the person is convicted of a felony for the primary offense, is granted probation for
the primary offense, and is convicted of a felony for the secondary offense, then any state
prison sentence for the secondary offense must be enhanced by an additional term of two
years. (Pen. Code § 12022.1(f).)
If the primary offense conviction is reversed on appeal, the enhancement shall be
suspended pending retrial of that felony. On retrial and reconviction, the enhancement
must be re-imposed. If the person is no longer in custody for the secondary offense
on reconviction of the primary offense, the court may, at its discretion, re-impose the
enhancement and order the defendant to custody. (Pen. Code § 12022.1(g).)
• Multiple enhancements are possible if the defendant is released on multiple cases.
(People v. Mackabee (1989) 214 Cal.App.3d 1250 [cert. for part. pub.].) But only one
enhancement is permitted if there are multiple secondary offenses and one primary
offense. (People v. McNeely (1994) 28 Cal.App.4th 739.)
• Imposing this enhancement and a prior conviction enhancement for the same
primary offense is not a violation of Penal Code section 654. (People v. Juarez (1993)
21 Cal.App.4th 318 [cert. for part. pub.].)
• The enhancement is applicable to juvenile proceedings. (In re Jovan B., supra.) This
includes a “general release” of a juvenile. (In re Rottanak K. (1995) 37 Cal.App.4th
260.)
• The enhancement need not be proved at the preliminary hearing. (Pen. Code
§ 12022.1(c).)
• The defendant is not entitled to a jury trial on the allegation. (Johnson, supra, 208 Cal.
App.4th 1092.)
• Applicable to Penal Code section 1320.5 [felony failure to appear]. (People v. Walker
(2002) 29 Cal.4th 577 [cert. for part. pub.].) The enhancement does not apply to
release pursuant to Penal Code section 1000. (People v. Ormiston (2003)
105 Cal.App.4th 676 [cert. for part. pub.].)

Impersonating a peace officer.
Penal Code section 667.17 [+ 1 year]: Impersonating a peace officer in violation of
Penal Code section 538d during the commission of a felony.

Penal Code section 667.85 [+ 5 years]: Kidnapping a child under 14 with the intent to permanently deprive the parent or legal guardian of custody.

==Rules of Court==

===Rule 4.410 General objectives in sentencing===

(a) General objectives of sentencing include:

(1) Protecting society;

(2) Punishing the defendant;

(3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses;

(4) Deterring others from criminal conduct by demonstrating its consequences;

(5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration;

(6) Securing restitution for the victims of crime;

(7) Achieving uniformity in sentencing; and

(8) Increasing public safety by reducing recidivism through community-based corrections programs and evidence-based practices.

(b) Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by
statutory statements of policy, the criteria in these rules, and any other facts and circumstances relevant to the case.

===Rule 4.413. Grant of probation when defendant is presumptively ineligible for probation===

(a) Consideration of eligibility
The court must determine whether the defendant is eligible for probation. In most cases, the defendant is presumptively eligible for probation; in some cases, the defendant is presumptively ineligible; and in some cases, probation is not allowed.

(b) Probation in cases when defendant is presumptively ineligible
If the defendant comes under a statutory provision prohibiting probation “except in unusual cases where the interests of justice would best be served,” or a substantially equivalent provision, the court should apply the criteria in

(c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation.

(c) Factors overcoming the presumption of ineligibility
The following factors may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate:

(1) Factors relating to basis for limitation on probation
A factor or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including:

(A) The factor or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and

(B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense.

(2) Factors limiting defendant's culpability
A factor or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including:

(A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence;

(B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and

(C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.

(3) Results of risk/needs assessment

Along with all other relevant information in the case, the court may consider the results of a risk/needs assessment of the defendant, if one was performed. The weight of a risk/needs assessment is for the court to consider in its sentencing discretion.

Victim “[v]ulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act.” (People v. Smith (1979) 94 Cal.App.3d 433, 436, 156 Cal.Rptr. 502 [describing that term in the context of rule 4.421(a)(3) ].

People v. Weaver (2007) 149 Cal.App.4th 1301, 1314 disapproved of by People v. Cook (2015) 60 Cal.4th 922

===Rule 4.421 Circumstances in aggravation===

Circumstances in aggravation include factors relating to the crime and factors relating to the defendant.
(a) Factors relating to the crime
Factors relating to the crime, whether or not charged or chargeable as enhancements include that:
(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
(2) The defendant was armed with or used a weapon at the time of the commission of the crime;
(3) The victim was particularly vulnerable;
(4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission;
(5) The defendant induced a minor to commit or assist in the commission of the crime;
(6) The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;
(7) The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;
(8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism;
(9) The crime involved an attempted or actual taking or damage of great monetary value;
(10) The crime involved a large quantity of contraband; and
(11) The defendant took advantage of a position of trust or confidence to commit the offense.
(12) The crime constitutes a hate crime under section 422.55 and:
(A) No hate crime enhancements under section 422.75 are imposed; and
(B) The crime is not subject to sentencing under section 1170.8.
(b) Factors relating to the defendant
Factors relating to the defendant include that:
(1) The defendant has engaged in violent conduct that indicates a serious danger to society;
(2) The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
(3) The defendant has served a prior term in prison or county jail under section 1170(h);
(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.
(c) Other factors
Any other factors statutorily declared to be circumstances in aggravation or that reasonably relate to the defendant or the circumstances under which the crime was committed.
Credits
(Formerly Rule 421, adopted, eff. July 1, 1977. As amended, eff. Jan. 1, 1991. Renumbered Rule 4.421, eff. Jan. 1, 2001. As amended, eff. Jan. 1, 2007; May 23, 2007; Jan. 1, 2017; Jan. 1, 2018.)

====Comment====
ADVISORY COMMITTEE COMMENT

Circumstances in aggravation may justify imposition of the middle or upper of three possible terms of imprisonment. (Section 1170(b).)
The list of circumstances in aggravation includes some facts that, if charged and found, may be used to enhance the sentence. This rule does not deal with the dual use of the facts; the statutory prohibition against dual use is included, in part, in the comment to rule 4.420.

Conversely, such facts as infliction of bodily harm, being armed with or using a weapon, and a taking or loss of great value may be circumstances in aggravation even if not meeting the statutory definitions for enhancements or charged as an enhancement.

Facts concerning the defendant's prior record and personal history may be considered. By providing that the defendant's prior record and simultaneous convictions of other offenses may not be used both for enhancement and in aggravation, section 1170(b) indicates that these and other facts extrinsic to the commission of the crime may be considered in aggravation in appropriate cases.

Refusal to consider the personal characteristics of the defendant in imposing sentence may raise serious constitutional questions. The California Supreme Court has held that sentencing decisions must take into account “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (In re Rodriguez (1975) 14 Cal.3d 639, 654, quoting In re Lynch (1972) 8 Cal.3d 410, 425.) In Rodriguez the court released petitioner from further incarceration because “it appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment.” (Id. at p. 655, fn. omitted, italics added.) “For the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” (Pennsylvania ex rel. Sullivan v. Ashe (1937) 302 U.S. 51, 55, quoted with approval in Gregg v. Georgia (1976) 428 U.S. 153, 189.)

Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion. Some of the cases that had relied on that circumstance in aggravation were reversed on appeal because there was only a single victim in a particular count.

Old age or youth of the victim may be circumstances in aggravation; see section 1170.85(b). Other statutory circumstances in aggravation are listed, for example, in sections 422.76, 1170.7, 1170.71, 1170.8, and 1170.85.

==Resentencing==

[https://www.courts.ca.gov/opinions/documents/C090767.PDF People v. McMurray (Mar. 30, 2022, C090767)

Appellate jurisdiction

People v. Scarbrough (2015) 240 Cal.App.4th 916
People v. Nelms (2008) 165 Cal.App.4th 1465
People v. Acosta (1996) 48 Cal.App 4th 411, 427

==Upper term==

===Upper term imposed before passage of SB567===

''People v. Berdoll'' (2022) 85 Cal.App.5th 159

''People v. Mitchell'' (2022) 83 Cal.App.5th 1051, review granted, S277314

==Split-sentence==

''People v. Camp'' (2015) 233 Cal.App.4th 461

''People v. Arce'' (2017) 11 Cal.App.5th 613

Sentencing

2026-02-08T04:02:06Z

Sysop: /* Prison sentencing */

“In a criminal case, judgment is rendered when the trial court orally pronounces sentence.” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.)

==Charging==
Penal Code Section 12022.1
This is a two-year enhancement for committing a crime while released on bail or
own recognizance. Subdivision (c) specifically states that the allegation may be
pleaded in a Complaint, but need not be proved at the preliminary hearing. The
allegation must, however, be pleaded in the Information or Indictment.
2. Prior Convictions
Prior convictions, which are status enhancements, may be added to the Information
or Indictment whenever it is discovered that not all prior convictions have been
alleged. (Pen. Code § 969a; Miranda v. Superior Court of Los Angeles County (1995)
38 Cal.App.4th 902; Thompson v. Superior Court of Los Angeles County (2001)
91 Cal.App.4th 144; People v. Casillas (2001) 92 Cal.App.4th 171.)

==Admissible evidence==

“A probation report is required following every felony conviction in this state. [Citation.] [California Rules of Court, r]ule 4.411.5 details the contents of presentence reports, and contemplates that police reports will be used to prepare crime summaries contained therein. (Rule 4.411.5(a)(7)(i).) Defendants are required by statute to have an opportunity to review and challenge inaccuracies in the presentence report. [Citations.] [Defendant] does not contend he failed to receive such an opportunity in the underlying criminal prosecution. [¶] Superior courts consider and rely upon hearsay statements contained in a presentence report to determine whether to place a defendant on probation, and to evaluate his [or her] level of culpability when selecting an appropriate sentence. [Citations.]” (People v. Otto (2001) 26 Cal.4th 200, 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061 (Otto ).) “A sentencing judge ‘may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the convicted person's life and characteristics.’ [Citation.]” (People v. Arbuckle (1978) 22 Cal.3d 749, 754, 150 Cal.Rptr. 778, 587 P.2d 220.) The court may also consider and rely upon hearsay statements contained in a probation report, including the police reports used to prepare the crime summaries contained in the report. (Otto, at p. 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061.)

By stating in section 1204 that mitigating evidence must be presented through “the testimony of witnesses examined in open court” rather than verbal representations, the Legislature has declared that a criminal defendant wishing to make an oral statement to the court in mitigation of punishment must do so through testimony given under oath.6 (A defendant may also provide an unsworn written statement either by submitting the statement to the probation officer for inclusion in the probation report (Cal. Rules of Court, rule 4.411.5(a)(4)), if one is prepared; or by including such a statement in a “written report” filed by the defense that “presents a study of his background and personality and suggests a rehabilitation program” (§ 1204).) People v. Evans (2008) 44 Cal.4th 590, 598

==Granting probation==

“The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation....” (People v. Welch (1993) 5 Cal.4th 228, 233, 19 Cal.Rptr.2d 520, 851 P.2d 802.)

“The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]” (People v. Birmingham (1990) 217 Cal.App.3d 180, 185, 265 Cal.Rptr. 780.)

In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rule 4.406(b)(2); rule 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.)
67 “The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance **27 of the evidence. [Citations.]” (People v. Leung (1992) 5 Cal.App.4th 482, 506, 7 Cal.Rptr.2d 290.) Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. (Id. at pp. 506–507, 7 Cal.Rptr.2d 290.)

People v. Weaver (2007) 149 Cal.App.4th 1301, 1313 disapproved of by People v. Cook (2015) 60 Cal.4th 922 on other grounds

Note: Allegations that mandate probation denial, or the facts that support them, must be
alleged and proved, for example, Penal Code section 1203(k); however, allegations that
merely create a presumptive denial of probation, do not. (People v. Lo Cicero (1969) 71
Cal.2d 1186; In re Varnell (2003) 30 Cal.4th 1132; People v. Lara (2012) 54 Cal.4th 896;
McKissick, supra.)

(People v. Hood (2014) 223 Cal.App.4th 1356 [depublished].)

===Mandatory inelgibile===

===Presumptive ineligible===
There is likewise broad discretion to determine whether a given case is “unusual” and entitles the defendant to probation in the interests of justice. (People v. Superior Court (Du ) (1992) 5 Cal.App.4th 822, 831, 7 Cal.Rptr.2d 177.

A VC20001 hit-and-run is not "a deadly weapon," to make one presumptively eligible under PC1203(e)(2). (People v. Nuno (2018) 26 Cal.App.5th 43.)

And it does not apply the criteria in rule 4.414 to determine whether to grant probation unless it first finds any statutory presumption against probation is rebutted. (Rule 4.413(b); **584 People v. Superior Court (Dorsey ) (1996) 50 Cal.App.4th 1216, 1229, 58 Cal.Rptr.2d 165.)

===Statement of reasons===
“Generally speaking, the trial court must state reasons for granting or denying probation.” (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

"At an initial sentencing hearing, when the court has the discretion to grant probation, the decision to grant probation is a sentence choice which requires a statement of reasons." (§ 1170, subd. (c); Cal. Rules of Court, rule 405(f)Court, rule 405(f). (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792.)

"The denial of probation, in and of itself, is not a sentence choice requiring a statement of reasons. (People v. Gopal (1985) 171 Cal.App.3d 524, 547–549, 217 Cal.Rptr. 487, cert. den. 476 U.S. 1105, 106 S.Ct. 1949, 90 L.Ed.2d 359; People v. Crouch (1982) 131 Cal.App.3d 902, 904, 182 Cal.Rptr. 701.) The rationale is that the denial of probation is not the ultimate disposition of the case, but rather is part and parcel of the concomitant decision to sentence to state prison, and that is the sentence choice which requires a statement of reasons. (People v. Butler (1980) 107 Cal.App.3d 251, 254–255, 165 Cal.Rptr. 709; accord People v. Golliver, supra, 219 Cal.App.3d at p. 1616, fn. 2, 269 Cal.Rptr. 191.) (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792, fn. 2)

But it need not provide reasons for declining to find a case “unusual” so as to rebut any presumptive ineligibility for probation. (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

==Prison sentencing==

PC1170.1(c)

McCart

''People v. Roseberry'' (2020) 57 Cal.App.5th 543

5y sentence for PC273.5. Commit PC4573 and sentenced to full consecutive 3 years. New offense of PC4530 escape.

Being released on parole, breaks up the chain for McCart issues. (''People v. Reed'' (1993) 17 Cal.App.4th 302.)'
1981-4y sentence
1984-while serving sentence, sentenced to full 2y consecutive for PC4501.5
Paroled
1991-PC4501.5 while at Pelican Bay.
1991-not under McCart.

People v. Brantley (2019) 43 Cal.App.5th 917. section 1170.1, subdivision (c) “does not apply [when a] defendant completed the prison term he was serving *549 before being sentenced **508 on the” in-prison offense. (People v. Brantley (2019) 43 Cal.App.5th 917, 920 [257 Cal.Rptr.3d 98] (Brantley), italics added; see id. at p. 922 [“a reading of the plain language of subdivision (c) makes apparent that this provision does not apply once the prisoner has completed the sentence he or she was serving when the in-prison crime was committed”].)

Credits. In re Rojas (1979) 23 Cal.3d 152; People v. Phoenix (2014) 231 Cal.App.4th 1119

In re Sims (1981) 117 Cal.App.3d 309

In re Brown (2024) 104 Cal.App.5th 969

In re Thompson (1985) 172 Cal.App.3d 256

In jail for out-to-court is still in prison. People v. White (1988) 202 Cal.App.3d 862

Thompson term doesn't inherit violent nature. (In re Tate (2006) 135 Cal.App.4th 756.)

==Misdemeanor sentencing==

"A trial court in a misdemeanor case may properly look for guidance to what the rules consider to be aggravating and mitigating." (People v. Faber (2017) 15 Cal.App.5th Supp. 41, 48.)

A misdemeanor can be a full-boat consecutive in jail after a prison term. (''People v. Endelsen'' (1996) 46 Cal.App.4th 86.) A misdemeanor can be a full-boat consecutive in jail after a PC1170(h) jail sentence. (''People v. Brown (2016) 247 Cal.App.4th 1430.)

People v. Erdelan (1996) 46 Cal.App.4th 86

People v. Murray (1994) 23 Cal.App.4th 1783

In re Valenti (1986) 178 Cal.App.3d 470

In re Eric J. (1979) 25 Cal.3d 522

==Sentencing error==

===Failing to state reasons===

Rule 4.403

People v. Dixon (1993) 20 Cal.App.4th 1029, 1037, found it reversible error, when failing to state reasons for consecutive sentences.

Sentencing can't just incorporate by reference, such as just the probation report. People v. Pierce (1995) 40 Cal.App.4th 1317; People v. Fernandez (1990) 226 Cal.App.3d 669; People v. Deloach (1989) 207 Cal.App.3d 323; People v. Davis (1980) 103 Cal.App.3d 270; People v. Turner (1978) 87 Cal.App.3d 244

==Housing under PC1170(h)==

Unstricken juvenile strike priors keep defendants out of county jail. (''People v. Delgado'' (2013) 214 Cal.App.4th 914.)

But what about juvenile strike priors and PC1170(f)?

==Enhancements==

An enhancement is defined as an additional term of imprisonment or penalty added to the
base term. (People v. Smith (1985) 163 Cal.App.3d 908; Sentencing Rules for Superior Court,
California Rules of Court, Rule 4.405(3).) An enhancement is not, however, a separate crime.
(People v. Muhammad (2007) 157 Cal.App.4th 484; People v. Wims (1995) 10 Cal.4th 293;
People v. Mustafaa (1994) 22 Cal.App.4th 1305; People v. White (1976) 16 Cal.3d 791.) Thus, it
is inextricably bound to the underlying crime, and the facts that are relied upon to establish the
enhancement must have occurred during the time of the offense. (People v. Walls (1978)
85 Cal.App.3d 447; People v. Dozier (1979) 90 Cal.App.3d 174.)

Because enhancements are not crimes, the corpus delicti rule does not apply to them. (People v.
Shoemake (1993) 16 Cal.App.4th 243.)

Generally, with determinate term sentences, a conduct enhancement is added to the base term
set for each offense, and a status enhancement is added once at the end of the determinate term
calculation. (People v. Jefferson (1999) 21 Cal.4th 86.) [Note: Enhancements for prior convictions
are added to each indeterminate term. (People v. Williams (2004) 34 Cal.4th 397.)] Penal Code
section 1170.11 lists specific enhancements that relate to the circumstances of the crime.
Enhancement allegations are not considered part of the accusatory pleading for purposes of
defining lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92; People v. Richmond
(1991) 2 Cal.App.4th 610.) Nor may they be considered when applying the multiple conviction
rule—the rule prohibiting multiple convictions based on necessarily included offenses. (People v.
Izaguirre (2007) 42 Cal.4th 126.) Further, Penal Code section 805(a) provides that enhancements
are disregarded when determining the applicable statute of limitations. In other words, the
enhancement is not part of the maximum punishment calculation.

Enhancements apply equally to juveniles as they do to adults. (Welf. & Inst. § 726(d); In re Jovan B. (1993) 6 Cal.4th 801.

Relevant enhancements should be attached to each applicable underlying offense. (Pen. Code
§ 1170.1(d).) Subject to Penal Code sections 654 and 1170.1, enhancements may be imposed for
each separate crime for which the enhancement is found true. In other words, the law does not
limit charging or imposing enhancements only once for a criminal event; rather enhancements
should be charged and imposed for each crime during that event. (See People v. King (1993)
5 Cal.4th 59, overruling the rule in In re Culbreth (1976) 17 Cal.3d 330.)

All enhancements must be pled and either admitted by the defendant or proved to the trier
of fact beyond a reasonable doubt. (Pen. Code § 1170.1(e); Apprendi v. New Jersey (2000)
Defendant Conduct Enhancements (2015) 3
530 U.S. 466; People v. Sengpadychith (2001) 26 Cal.4th 316; People v. Mancebo (2002)
27 Cal.4th 735.)
Conduct enhancements should be pled in the criminal Complaint and proved at the
preliminary hearing. An enhancement may be included on the Information, even if not
initially alleged in the Complaint, provided sufficient evidence to support the enhancement
was presented at the preliminary hearing. Otherwise, the defendant may challenge the
sufficiency of an enhancement allegation by way of a Penal Code section 995 motion.
(People v. Superior Court of Marin County (Mendella) (1983) 33 Cal.3d 754.)
If the incorrect code section is pled or the enhancement is attached to the wrong count, the
court may still apply the enhancement. (People v. McKissick (1984) 151 Cal.App.3d 439;
People v. Riva (2003) 112 Cal.App.4th 981; Pen. Code § 960.)

Burden of Proof
Enhancement allegations must be proved beyond a reasonable doubt. (Apprendi, supra;
People v. Sloan (2007) 42 Cal.4th 110.)

Plea Bargaining
When the defendant enters into a plea bargain that includes an enhancement that the
defendant knows is unauthorized by law, in exchange for a lesser sentence than could
otherwise be imposed, the defendant will be estopped from attacking the imposition
of sentence for the enhancement. (People v. Ellis (1987) 195 Cal.App.3d 334; People v.
Otterstein (1987) 189 Cal.App.3d 1548; People v. Jones (1989) 210 Cal.App.3d 124.)

“During the Commission” Defined
Most enhancements require the prohibited conduct to be “during the commission” or “in
the commission” of a crime. The phrase “in the commission” has been given an expansive
interpretation and means more than simply “while committing” or “while engaged in.”
(People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.].) The following cases
illustrate this concept:
• People v. Canela (2014) 224 Cal.App.4th 703 [cert. for part. pub.]—The defendant
was “in the commission” of a robbery when he was in flight from officers and struck a
pedestrian.
• People v. Elder (2014) 227 Cal.App.4th 411 [cert. for part. pub.]—The robbery
victim sustained GBI while trying to push the fleeing defendant from a van.
• People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.]—A GBI
enhancement may apply to leaving the scene of an accident in violation of Vehicle
Code section 20001(a) if the injury was inflicted as part of one continuous transaction,
but not if the injury was inflicted prior to the flight.
• People v. Frausto (2009) 180 Cal.App.4th 890—The phrase “in the commission of”
in Penal Code section 12022.53(d) has the same meaning as identical or equivalent
language in sections 667.61, 12022.3, 12022.5, and the felony-murder statutes. Thus,
a firearm is discharged “in the commission of” a felony within the meaning of Penal
Code section 12022.53(d) if the underlying felony and the discharge of the firearm
are part of one continuous transaction, including flight after the felony to a place of
temporary safety.
• People v. Pitto (2008) 43 Cal.4th 228—Whenever (1) the defendant knows of the
presence and location of a firearm near the drugs, (2) the gun’s proximity to the drugs
is not “accidental or coincidental,” and (3) the defendant is in a position to use the gun
offensively or defensively to aid in the commission of the offense, the gun facilitates
that crime and has the requisite purpose or effect with respect to its commission.
• People v. Carrasco (2006) 137 Cal.App.4th 1050—With a gun use enhancement
“during the commission” of a robbery, the robbery may be spread over a considerable
distance and varying periods of time. A robbery begins with the commission of any of
the elements and concludes after all the elements have been satisfied and the defendant
has reached a place of relative safety. The gun use enhancement applies if the “use” aids
in completing any of the essential elements of the crime.
• People v. Alvarado (2001) 87 Cal.App.4th 178—For the purpose of Penal Code
section 667.61(e)(2), “during the commission of a burglary” refers to that period of
time between the burglar’s initial entry with the requisite intent and the burglar’s escape
to a place of temporary safety
People v. Jones (2001) 25 Cal.4th 98—In the case of a weapons-use enhancement,
such use may be deemed to occur “in the commission of” the offense if it occurred
before, during, or after the technical completion of the felonious sex act. The operative
question is whether the sex offense posed a greater threat of harm, i.e., was more
culpable because the defendant used a deadly weapon to threaten or maintain control
over the victim.
• People v. Becker (2000) 83 Cal.App.4th 294 [cert. for part. pub.]—A defendant’s
sentence may be enhanced for arming as long as he [or she] has a weapon available for
use at any point during the course of a continuing offense (conspiracy).
• People v. Masbruch (1996) 13 Cal.4th 1001—In this case, the defendant initially
used a firearm to subdue the two female victims and tie them up. He then committed
robbery, rape, sodomy, false imprisonment, and torture. The defendant appealed the
enhancement for gun use in the sex crimes, claiming that he only displayed the gun at
the outset of the crime spree. The court held that the firearm use enhancement liability
continued for as long as the defendant “utilized a gun at least as an aid in completing
an essential element of a subsequent crime.” The court explained:
In considering whether a gun use occurred, the jury may consider a
“video” of the entire encounter; it is not limited to a “snapshot” of
the moments immediately preceding a sex offense. Thus, a jury could
reasonably conclude that although defendant’s presence with the victims
was sporadic, the control and fear created by his initial firearm display
continued throughout the encounter. (Id. at 1011.)
[Note: This case has an excellent and extensive discussion on the definition of “use” of a
firearm.]
• People v. Taylor (1995) 32 Cal.App.4th 578—For the purpose of Penal Code
section 12022.5, the use of a firearm during escape from the crime scene is a use during
the commission of the crime. The defendant had left the burglary scene with a police
officer in pursuit, but his companion was detained at the scene, and the defendant
used the weapon when he returned to free her. The companion had stolen items on her
person and could implicate the defendant in the burglary. Thus, the burglary had not
been completed.
• People v. Heston (1991) 1 Cal.App.4th 471 [cert. for part. pub.]—Penal Code
section 12022.4 creates an enhancement for furnishing a firearm during the
commission of a crime. Although the defendant actually furnished it before the crime,
the court held that the statutory language must be read as contemplating a time frame
other than simply the time of the actual act element of the felony.
• People v. Mixon (1990) 225 Cal.App.3d 1471—Infliction of injury on the victim
after removal from a burglary situs is “during the commission” of the burglary.
• People v. Walls (1978) 85 Cal.App.3d 447—During a burglary, the defendant used a
gun and inflicted GBI. (Pen. Code § 12022.7.) On appeal he urged that the burglary
was complete upon entry with the requisite intent and that the alleged enhancement
conduct did not occur “during the commission” of the burglary. This was rejected by
the court, which held that the burglary continued after entry.

The court does not need to state a reason for imposing an enhancement that was found
true (Pen. Code § 1170(d); Rule 4.428); however, the court must state reasons for striking
the enhancement. (In re Renfrow (2008) 164 Cal.App.4th 1251.)
Enhancements imposed on attempted crimes are not reduced by half the normal term for
the enhancement. (In re Anthony H. (1980) 108 Cal.App.3d 494.

However, only one
weapon enhancement (the greatest) and only one injury enhancement (the greatest) may be
imposed for a single victim on a single crime. (Pen. Code § 1170.1(f) and (g); Rule 4.447;
People v. Ahmed (2011) 53 Cal.4th 156; People v. Mercado (2013) 216 Cal.App.4th 67.)
1. Multiple Firearm and Weapon Use on a Single Crime—Penal Code
Section 1170.1(f)
The defendant’s use of a firearm or weapon during the commission of a crime
may implicate several enhancements (e.g., Pen. Code §§ 12022.5 and 12022.53);
however, only the greatest may be imposed for each crime. (Pen. Code § 1170.1(f);
People v. Rodriguez (2009) 47 Cal.4th 501.) This rule applies even if the defendant
uses two weapons during the commission of the crime. (People v. Jones (2000)
82 Cal.App.4th 485.)
2. Multiple Weapon Enhancements on Multiple Crimes
When the defendant uses a weapon during the commission of multiple crimes, a
weapons enhancement is permitted for each crime. (King, supra; People v. Palacios
(2007) 41 Cal.4th 720.)
3. Multiple Injury Enhancements on the Same Victim on a Single Crime—
Penal Code Section 1170.1(g)
The defendant’s infliction of injury during the commission of a crime may result in
the filing of several injury enhancements (e.g., Pen. Code § 12022.7(a) and (b));
however, only the greatest may be imposed. (Pen. Code § 1170.1(g); People v. Eck
(1999) 76 Cal.App.4th 759 [cert. for part. pub.].)
4. Multiple Injury Enhancements for Multiple Victims
Where multiple victims are injured, multiple injury enhancements are permitted.
(People v. Arndt (1999) 76 Cal.App.4th 387; People v. Ausbie (2004) 123 Cal.App.
4th 855 [cert. for part. pub.].)

he court can strike almost all enhancements—or just the additional punishment
for the enhancement—with stated reasons based on the general provisions of Penal
Code section 1385. (People v. Meloney (2003) 30 Cal.4th 1145; People v. Luckett
(1996) 48 Cal.App.4th 1214; Rule 4.406(b)(7) and (b)(10); see also former Pen.
Code § 1170.1(h) [pre-Jan. 1, 1998].) The court can strike an enhancement with
respect to one count but not another. (People v. Torres (2008) 163 Cal.App.4th
1420 [cert. for part. pub.].)

Example: The defendant is convicted of robbery with an enhancement for the
personal infliction of GBI. As nothing limits or prohibits the imposition of this
enhancement, it must be imposed or stricken, not stayed. (Pen. Code §§ 1170.1(d)
and 1385(c); People v. Langston (2004) 33 Cal.4th 1237; Vega, supra.)

his issue was addressed in the context of multiple firearm enhancements pursuant
to Penal Code sections 12022.5 and 12022.53(b) and (c) attached to a single
underlying crime. In reviewing the statutory construction of section 12022.53,
and harmonizing that statute with the rationale of section 654 and Rule 4.447,
the California Supreme Court held that an enhancement whose imposition is
prohibited should be stayed, not stricken. (People v. Gonzalez (2008) 43 Cal.4th
1118.)
Should the court wish to avoid the additional prison term for the enhancement
but retain the offense as a serious or violent felony for “strike” or credit limitation
purposes, the court should impose the enhancement and dismiss only the
additional punishment. (Pen. Code § 1385(c); Pope, supra; In re Pacheco (2007)
155 Cal.App.4th 1439; In re Borlik (2011) 194 Cal.App.4th 30.)

===PC12022(a) firearm +1===

“Armed” is knowingly carrying a firearm as a means of offense or defense.
Bland, supra, 10 Cal.4th 991, held that a defendant convicted of a possessory
drug offense is subject to the “armed with a firearm” enhancement when he or
she possesses both drugs and a gun, and keeps them together, but is not present
when the police seize them. (People v. Hayes (1990) 52 Cal.3d 577; People v.
Wandick (1991) 227 Cal.App.3d 918; Alvarado, supra, 146 Cal.App.4th 993;
Pen. Code § 1203.06(b)(3).)
• Applies to completed and attempted crimes.
• Vicarious liability is permitted for all principals. Two people can be personally
armed with one gun. (People v. Mendival (1992) 2 Cal.App.4th 562 [cert. for
part. pub.].)
• “Firearm” is defined as “a device, designed to be used as a weapon, from which
is expelled through a barrel a projectile by the force of an explosion or other
form of combustion.” (See Pen. Code § 16520(a).) This does not include the
mere “receiver.” (People v. Gailord (1993) 13 Cal.App.4th 1643.) The fact that
the object is a firearm can be established by direct or circumstantial evidence
(People v. Law (2011) 195 Cal.App.4th 976 [cert. for part. pub.]); however, toy
guns, pellet guns, and BB guns do not qualify as firearms. (People v. Monjaras
(2008) 164 Cal.App.4th 1432 [cert. for part. pub.].)
• The firearm need not be loaded or operable. (Masbruch, supra; People v. Nelums
(1982) 31 Cal.3d 355; People v. Steele (1991) 235 Cal.App.3d 788.)
• There is no requirement to prove that the defendant knew or should have
known that the crime partner was armed. (People v. Overten (1994)
28 Cal.App.4th 1497.)
• Not applicable if arming is an element of the offense.

===PC12022(b) Assault Weapon +3===

Applies to completed or attempted crimes.
• “Assault weapon” defined. (Pen. Code § 30510.) “Machine gun” defined.
(Pen. Code §§ 30530 and 16880.)
• Applies even if arming is an element of the offense.
Defendant Conduct Enhancements (2015) 13
• Vicarious liability is permitted for all principals.
• There must be proof the defendant knew or reasonably should have known the
weapon was an assault weapon. (In re Jorge M. (2000) 23 Cal.4th 877.)

===PC12022(c) Armed while having controlled substances +3-4-5===
Personally armed” refers to the person who acts, not that person’s action.
Hence, two people can be personally armed with the same weapon if it is
equally available for use to both. (People v. Superior Court of San Diego County
(Pomilia) (1991) 235 Cal.App.3d 1464; Mendival, supra; People v. Gonzales
(1992) 8 Cal.App.4th 1658.)
• In the commission or attempted commission of violating Health and Safety
Code section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5,
11379, 11379.5, or 11379.6.
• There must be proof that the defendant had knowledge of the presence of the
firearm. (People v. Singh (2004) 119 Cal.App.4th 905 [cert. for part. pub.].)

===PC12022(d) Vicariously armed +1-2-3===
Penal Code section 12022(c) applies to those who actually and knowingly have
a firearm available for use, and section 12022(d) applies to those who do not,
but who know that one of their co-principals does. (People v. Smith (1992)
9 Cal.App.4th 196 [cert. for part. pub.].)

===PC30615 assault weapon +1===

===PC12022(b)(1) Deadly Weapon +1 Serious===

“Deadly or dangerous weapon” refers to any weapon, instrument, or object that
is inherently deadly or is used in such a way it is capable of causing and is likely
to cause great bodily injury or death. (CALCRIM 3145; People v. Reid (1982)
133 Cal.App.3d 354). Examples:
- BB gun (In re Bartholomew D. (2005) 131 Cal.App.4th 317 [cert. for part.
pub.]; People v. Brown (2012) 210 Cal.App.4th 1)
- Dirk or blackjack (People v. Aguilar (1997) 16 Cal.4th 1023)
- Knife (People v. Smith (1963) 223 Cal.App.2d 431)
- Broken glass or bottle (People v. Neal (1984) 159 Cal.App.3d 69 [cert. for
part. pub.]; People v. Zermeno (1999) 21 Cal.4th 927)
- Dog (People v. Frazier (2009) 173 Cal.App.4th 613 [cert. for part. pub.])
- Car (Calderon, supra)
• Personal use is required; there is no vicarious liability.
• The enhancement is not applicable if use of a deadly or dangerous weapon is an
element of the offense. (People v. McGee (1993) 15 Cal.App.4th 107 [cert. for
part. pub.] [interpreting former Pen. Code § 245].)
• This enhancement qualifies the underlying crime as a serious felony (Pen. Code
§ 1192.7(c)(23)), but not a violent felony

===PC12022.5 Firearms +3-4-10===

Applies to completed and attempted crimes.
• The court cannot strike this enhancement. (Pen. Code § 12022.5(c); Thomas,
supra.)
• The requirement of use of a firearm does not create a specific intent to injure
or assault the victim; however, the use must be intentional. (In re Tameka C.
(2000) 22 Cal.4th 190; Johnson, supra, 38 Cal.App.4th 1315.)
• The firearm may be used as a bludgeon. (Walls, supra; People v. Miceli (2002)
104 Cal.App.4th 256 [cert. for part. pub.].)
• Personal use is required; there is no vicarious liability. (People v. Walker (1976)
18 Cal.3d 232; People v. Hays (1983) 147 Cal.App.3d 534.)
• The enhancement is applicable if the defendant who personally uses the firearm
is vicariously liable for the underlying offense. (In re Antonio R. (1990)
226 Cal.App.3d 476 [cert. for part. pub.]; Berry, supra; Thiessen, supra.)
• The firearm need not be loaded or operable. (Nelums, supra.) See definition of
“firearm” in Section V.A.1.
• This enhancement is not applicable (Pen. Code § 12022.5(d)) if the use of a
firearm is an element of the offense, except if the offense is:
- any violation of Penal Code section 245, or
- murder perpetrated by means of shooting a firearm from a motor vehicle
intentionally at another person outside of the vehicle with the intent to
inflict GBI or death. (People v. Joachim (1995) 38 Cal.App.4th 1526;
People v. Johnson (1996) 51 Cal.App.4th 1329.)
• Mandatory state prison (Pen. Code § 1203.06(a)(1)) for most violent crimes.
• Multiple enhancements are permitted for multiple crimes committed
on a single occasion (King, supra); however, if multiple types of firearm
enhancements are alleged for a single crime, only the greatest may be imposed
(Pen. Code § 1170.1(f)). See discussion in Section IV.C.
• Qualifies the underlying crime as a serious felony (Pen. Code § 1192.7(c)(8))
and violent felony (Pen. Code § 667.5(c)(8)); therefore, conduct credits for the
aggregate term are limited to 15 percent. (Pen. Code § 2933.1; Reeves, supra.)
• Gang implications: The court cannot impose both a Penal Code section
12022.5 and a section 186.22(b)(1) enhancement if the gun is what makes the
crime a serious or violent felony. (Rodriguez, supra.)

===PC12022.5(b) assault weapons +5-6-10===

===PC21022.53 10-20-life===

* Section 187 (murder)
* Section 203 or 205 (mayhem)
* Section 207, 209, or 209.5 (kidnapping)
* Section 211 (robbery)
* Section 215 (carjacking)
* Section 220 (assault with intent to commit a specified felony)
* Section 245(d) (assault with a firearm on a peace officer or firefighter)
* Section 261 or 262 (rape)
* Section 264.1 (rape or sexual penetration in concert)
* Section 286 (sodomy)
* Section 288 or 288.5 (lewd act on a child
* Section 288a (oral copulation)
* Section 289 (sexual penetration)
* Section 4500 (assault by a life prisoner)
* Section 4501 (assault by a prisoner)
* Section 4503 (holding hostage by a prisoner)
* Any felony punishable by death or imprisonment in the state prison for life.
* Any attempt to commit a listed crime other than an assault.

===PC12022.55 Discharge of firearm from motor vehicle +5-6-10===

===PC12022.7 Great bodily injury +3===
Personal infliction is required. (People v. Cole (1982) 31 Cal.3d 568; People v.
Cross (2008) 45 Cal.4th 58.) Personal infliction can include “joint infliction”
when the defendant contributes to the GBI. (People v. Modiri (2006)
39 Cal.4th 481; People v. Dunkerson (2007) 155 Cal.App.4th 1413.) The
definition can include a failure to act if the defendant has a duty to act and
failure leads to GBI. (People v. Warwick (2010) 182 Cal.App.4th 788.)
• Applies to completed and attempted crimes.
• Specific intent to inflict injury is no longer required. Specific intent is required
for crimes committed prior to January 1, 1996. (People v. Fong (2013)
217 Cal.App.4th 263.)
• For the crimes listed in Penal Code section 1203.075, the infliction of GBI
means a mandatory denial of probation. It is no longer necessary to plead
and prove the section 1203.075 allegation together with the section 12022.7
enhancement. Prior to September 20, 2006, Penal Code section 1203.075
required intentional infliction so a separate probation denial allegation was
required when specific intent was deleted from the GBI enhancement itself.
Note: The probations denial allegation of Penal Code section 1203.075 does
apply to murder and should be alleged.
• Penal Code section 12022.7(f) defines GBI as “a significant or substantial
physical injury” beyond that inherent in the underlying felony. (People v.
Washington (2012) 210 Cal.App.4th 1042.) The California Supreme Court in
People v. Caudillo (1978) 21 Cal.3d 562 [overruled on another point in
People v. Escobar, infra, at 751, fn. 5] required that the injury be “severe or
protracted.” The California Supreme Court returned to the code section
standard of “significant or substantial physical injury” in People v. Escobar
(1992) 3 Cal.4th 740. Consequently, the injury sustained under the new
standard need not be as serious as that required by Caudillo. The injuries that
qualified as GBI in Escobar were: “extensive bruises and abrasions over the
victim’s legs, knees and elbows, injury to her neck and soreness in her vaginal
area of such severity that it significantly impaired her ability to walk.” (Escobar,
supra, at 750.)
• Other cases with examples of GBI:
- People v. Mendias (1993) 17 Cal.App.4th 195. Gunshot wound to upper
thigh. The victim was released from the hospital the next day, but the bullet
was not removed. At the trial five months later, the victim said the bullet
moves, but is not painful.
- People v. Wallace (1993) 14 Cal.App.4th 651. Two victims, one with cuts on
wrists and ankles from being flex-tied. One victim’s finger had no feeling
for two months. The other victim’s wrists were burned from flex-ties and
bandaged for two days. Insecticide-like substance caused “really, really bad”
burning in her eyes, vagina, and anus for 24 hours.
- People v. Bustos (1994) 23 Cal.App.4th 1747, 1755. The wounds inflicted
by this defendant (not including fatal stab wounds inflicted by another)
were contusions to the nose, left elbow, and left thigh; lacerations to the left
upper lip; and abrasions to the right elbow, left knee, and anus.
- People v. Le (2006) 137 Cal.App.4th 54. Soft tissue and muscular injury to
both legs caused by gunshot wound causing pain and restricted mobility for
weeks.
• Additional examples of GBI were discussed and approved using the more
stringent standard set forth in Caudillo, supra (pre-Escobar law):
- Knocked unconscious, numerous cuts with scars still evident at trial,
intense headaches
- Prolonged loss of consciousness
- Severe concussion
- Protracted loss of any bodily member or organ
- Protracted impairment of function of any bodily member or organ or bone
- A wound or wounds requiring extensive suturing
- Serious disfigurement
- Severe physical pain inflicted by torture
[Note: These categories were included in the section as originally enacted,
but were deleted by an amendment in 1977.]
• Other examples of GBI:
- Multiple contusions, swelling, and discoloration of the body. (People v.
Jaramillo (1979) 98 Cal.App.3d 830.)
- A broken hand swollen to twice its normal size. (People v. Kent (1979)
96 Cal.App.3d 130.
- A fractured jaw. (People v. Johnson (1980) 104 Cal.App.3d 598.)
- Hot grease in face. “Blistering 2nd burns … visible discoloration and
disfigurement for a month at least.” (People v. Harvey (1992)
7 Cal.App.4th 823.)
- Six sutures to the vagina for a cut of 2.5 cm. (People v. Brown (1985)
174 Cal.App.3d 762.)
• The jury need not unanimously agree on which injury or injuries support the
GBI. It is a “measuring function.” The jury determines whether the victim
suffered that quantum of injury that is defined as GBI. (People v. Robbins
(1989) 209 Cal.App.3d 261 [cert. for part. pub.].)
• The enhancement is not applicable if GBI is an element of the offense.
(Pen. Code § 12022.7(g).) Penal Code section 243(d), Battery with “Serious
Bodily Injury” is “Great Bodily Injury,” and the enhancement is not applicable.
(People v. Hawkins (1993) 15 Cal.App.4th 1373.) The enhancement is
inapplicable to mayhem as well. (People v. Hill (1994) 23 Cal.App.4th 1566.)
The code section specifically exempts murder, manslaughter, or arson.
(People v. Martinez (2014) 226 Cal.App.4th 1169; but see People v. Weaver
(2007) 149 Cal.App.4th 1301; Pen. Code § 12022.7 applies to additional
injured victims in a vehicular manslaughter case.) This enhancement does apply
to attempted murder or attempted manslaughter. (Allen, supra; People v. Lewis
(1994) 21 Cal.App.4th 243.)
• Qualifies the underlying crime as a serious felony (Pen. Code § 1192.7(c)(8))
and a violent felony (Pen. Code § 667.5(c)(8)); therefore, conduct credits for
the aggregate term are limited to 15 percent. (Pen. Code § 2933.1; Reeves,
supra.)
• If multiple GBI enhancements are attached to the underlying crime, only the
greatest may be imposed. (Pen. Code § 1170.1(g); Eck, supra.)

===PC12022.1 OR enhancement +3===
Enhancement for Offenses Committed While Released on Bail / Own Recognizance—
Penal Code Section 12022.1 [+ 3 years]
Any person convicted of a felony offense (secondary offense) committed while the
defendant was released from custody on bail or on his or her own recognizance (O.R.) for
another offense (primary offense), before the judgment became final for that other offense,
including the disposition of any appeal, must have his or her sentence for the secondary
offense enhanced by two years.
“Primary offense” refers to the felony offense for which a person was released on bail / O.R.
prior to final judgment. Conviction for the primary offense is not an element of Penal
Code section 12022.1, but is a prerequisite to the imposition of the enhancement on the
secondary offense. (People v. Johnson (2012) 208 Cal.App.4th 1092 [cert. for part. pub.].)
“Secondary offense” refers to the felony offense committed by the defendant while released
on the primary offense.
Whenever there is a conviction for the secondary offense and the enhancement is proved,
and the person is sentenced on the secondary offense prior to the conviction of the primary
offense, the court for the secondary offense may strike the enhancement or imposition of
the enhancement must be stayed, pending sentencing for the primary offense per Penal
Code § 12022.1(d). The sentencing court on the primary offense will lift any stay of the
enhancement. (Meloney, supra.)
If the person is convicted of a felony for the primary offense, is sentenced to state prison for
the primary offense, and is convicted of a felony for the secondary offense, then any state
prison sentence for the secondary offense must be consecutive to the primary sentence.
(Pen. Code § 12022.1(e); People v. Sanchez (1991) 230 Cal.App.3d 768.)
If the person is convicted of a felony for the primary offense, is granted probation for
the primary offense, and is convicted of a felony for the secondary offense, then any state
prison sentence for the secondary offense must be enhanced by an additional term of two
years. (Pen. Code § 12022.1(f).)
If the primary offense conviction is reversed on appeal, the enhancement shall be
suspended pending retrial of that felony. On retrial and reconviction, the enhancement
must be re-imposed. If the person is no longer in custody for the secondary offense
on reconviction of the primary offense, the court may, at its discretion, re-impose the
enhancement and order the defendant to custody. (Pen. Code § 12022.1(g).)
• Multiple enhancements are possible if the defendant is released on multiple cases.
(People v. Mackabee (1989) 214 Cal.App.3d 1250 [cert. for part. pub.].) But only one
enhancement is permitted if there are multiple secondary offenses and one primary
offense. (People v. McNeely (1994) 28 Cal.App.4th 739.)
• Imposing this enhancement and a prior conviction enhancement for the same
primary offense is not a violation of Penal Code section 654. (People v. Juarez (1993)
21 Cal.App.4th 318 [cert. for part. pub.].)
• The enhancement is applicable to juvenile proceedings. (In re Jovan B., supra.) This
includes a “general release” of a juvenile. (In re Rottanak K. (1995) 37 Cal.App.4th
260.)
• The enhancement need not be proved at the preliminary hearing. (Pen. Code
§ 12022.1(c).)
• The defendant is not entitled to a jury trial on the allegation. (Johnson, supra, 208 Cal.
App.4th 1092.)
• Applicable to Penal Code section 1320.5 [felony failure to appear]. (People v. Walker
(2002) 29 Cal.4th 577 [cert. for part. pub.].) The enhancement does not apply to
release pursuant to Penal Code section 1000. (People v. Ormiston (2003)
105 Cal.App.4th 676 [cert. for part. pub.].)

Impersonating a peace officer.
Penal Code section 667.17 [+ 1 year]: Impersonating a peace officer in violation of
Penal Code section 538d during the commission of a felony.

Penal Code section 667.85 [+ 5 years]: Kidnapping a child under 14 with the intent to permanently deprive the parent or legal guardian of custody.

==Rules of Court==

===Rule 4.410 General objectives in sentencing===

(a) General objectives of sentencing include:

(1) Protecting society;

(2) Punishing the defendant;

(3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses;

(4) Deterring others from criminal conduct by demonstrating its consequences;

(5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration;

(6) Securing restitution for the victims of crime;

(7) Achieving uniformity in sentencing; and

(8) Increasing public safety by reducing recidivism through community-based corrections programs and evidence-based practices.

(b) Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by
statutory statements of policy, the criteria in these rules, and any other facts and circumstances relevant to the case.

===Rule 4.413. Grant of probation when defendant is presumptively ineligible for probation===

(a) Consideration of eligibility
The court must determine whether the defendant is eligible for probation. In most cases, the defendant is presumptively eligible for probation; in some cases, the defendant is presumptively ineligible; and in some cases, probation is not allowed.

(b) Probation in cases when defendant is presumptively ineligible
If the defendant comes under a statutory provision prohibiting probation “except in unusual cases where the interests of justice would best be served,” or a substantially equivalent provision, the court should apply the criteria in

(c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation.

(c) Factors overcoming the presumption of ineligibility
The following factors may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate:

(1) Factors relating to basis for limitation on probation
A factor or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including:

(A) The factor or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and

(B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense.

(2) Factors limiting defendant's culpability
A factor or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including:

(A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence;

(B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and

(C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.

(3) Results of risk/needs assessment

Along with all other relevant information in the case, the court may consider the results of a risk/needs assessment of the defendant, if one was performed. The weight of a risk/needs assessment is for the court to consider in its sentencing discretion.

Victim “[v]ulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act.” (People v. Smith (1979) 94 Cal.App.3d 433, 436, 156 Cal.Rptr. 502 [describing that term in the context of rule 4.421(a)(3) ].

People v. Weaver (2007) 149 Cal.App.4th 1301, 1314 disapproved of by People v. Cook (2015) 60 Cal.4th 922

===Rule 4.421 Circumstances in aggravation===

Circumstances in aggravation include factors relating to the crime and factors relating to the defendant.
(a) Factors relating to the crime
Factors relating to the crime, whether or not charged or chargeable as enhancements include that:
(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
(2) The defendant was armed with or used a weapon at the time of the commission of the crime;
(3) The victim was particularly vulnerable;
(4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission;
(5) The defendant induced a minor to commit or assist in the commission of the crime;
(6) The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;
(7) The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;
(8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism;
(9) The crime involved an attempted or actual taking or damage of great monetary value;
(10) The crime involved a large quantity of contraband; and
(11) The defendant took advantage of a position of trust or confidence to commit the offense.
(12) The crime constitutes a hate crime under section 422.55 and:
(A) No hate crime enhancements under section 422.75 are imposed; and
(B) The crime is not subject to sentencing under section 1170.8.
(b) Factors relating to the defendant
Factors relating to the defendant include that:
(1) The defendant has engaged in violent conduct that indicates a serious danger to society;
(2) The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
(3) The defendant has served a prior term in prison or county jail under section 1170(h);
(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.
(c) Other factors
Any other factors statutorily declared to be circumstances in aggravation or that reasonably relate to the defendant or the circumstances under which the crime was committed.
Credits
(Formerly Rule 421, adopted, eff. July 1, 1977. As amended, eff. Jan. 1, 1991. Renumbered Rule 4.421, eff. Jan. 1, 2001. As amended, eff. Jan. 1, 2007; May 23, 2007; Jan. 1, 2017; Jan. 1, 2018.)

====Comment====
ADVISORY COMMITTEE COMMENT

Circumstances in aggravation may justify imposition of the middle or upper of three possible terms of imprisonment. (Section 1170(b).)
The list of circumstances in aggravation includes some facts that, if charged and found, may be used to enhance the sentence. This rule does not deal with the dual use of the facts; the statutory prohibition against dual use is included, in part, in the comment to rule 4.420.

Conversely, such facts as infliction of bodily harm, being armed with or using a weapon, and a taking or loss of great value may be circumstances in aggravation even if not meeting the statutory definitions for enhancements or charged as an enhancement.

Facts concerning the defendant's prior record and personal history may be considered. By providing that the defendant's prior record and simultaneous convictions of other offenses may not be used both for enhancement and in aggravation, section 1170(b) indicates that these and other facts extrinsic to the commission of the crime may be considered in aggravation in appropriate cases.

Refusal to consider the personal characteristics of the defendant in imposing sentence may raise serious constitutional questions. The California Supreme Court has held that sentencing decisions must take into account “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (In re Rodriguez (1975) 14 Cal.3d 639, 654, quoting In re Lynch (1972) 8 Cal.3d 410, 425.) In Rodriguez the court released petitioner from further incarceration because “it appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment.” (Id. at p. 655, fn. omitted, italics added.) “For the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” (Pennsylvania ex rel. Sullivan v. Ashe (1937) 302 U.S. 51, 55, quoted with approval in Gregg v. Georgia (1976) 428 U.S. 153, 189.)

Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion. Some of the cases that had relied on that circumstance in aggravation were reversed on appeal because there was only a single victim in a particular count.

Old age or youth of the victim may be circumstances in aggravation; see section 1170.85(b). Other statutory circumstances in aggravation are listed, for example, in sections 422.76, 1170.7, 1170.71, 1170.8, and 1170.85.

==Resentencing==

[https://www.courts.ca.gov/opinions/documents/C090767.PDF People v. McMurray (Mar. 30, 2022, C090767)

Appellate jurisdiction

People v. Scarbrough (2015) 240 Cal.App.4th 916
People v. Nelms (2008) 165 Cal.App.4th 1465
People v. Acosta (1996) 48 Cal.App 4th 411, 427

==Upper term==

===Upper term imposed before passage of SB567===

''People v. Berdoll'' (2022) 85 Cal.App.5th 159

''People v. Mitchell'' (2022) 83 Cal.App.5th 1051, review granted, S277314

==Split-sentence==

''People v. Camp'' (2015) 233 Cal.App.4th 461

''People v. Arce'' (2017) 11 Cal.App.5th 613

Sentencing

2026-02-08T03:50:50Z

Sysop: /* Prison sentencing */

“In a criminal case, judgment is rendered when the trial court orally pronounces sentence.” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.)

==Charging==
Penal Code Section 12022.1
This is a two-year enhancement for committing a crime while released on bail or
own recognizance. Subdivision (c) specifically states that the allegation may be
pleaded in a Complaint, but need not be proved at the preliminary hearing. The
allegation must, however, be pleaded in the Information or Indictment.
2. Prior Convictions
Prior convictions, which are status enhancements, may be added to the Information
or Indictment whenever it is discovered that not all prior convictions have been
alleged. (Pen. Code § 969a; Miranda v. Superior Court of Los Angeles County (1995)
38 Cal.App.4th 902; Thompson v. Superior Court of Los Angeles County (2001)
91 Cal.App.4th 144; People v. Casillas (2001) 92 Cal.App.4th 171.)

==Admissible evidence==

“A probation report is required following every felony conviction in this state. [Citation.] [California Rules of Court, r]ule 4.411.5 details the contents of presentence reports, and contemplates that police reports will be used to prepare crime summaries contained therein. (Rule 4.411.5(a)(7)(i).) Defendants are required by statute to have an opportunity to review and challenge inaccuracies in the presentence report. [Citations.] [Defendant] does not contend he failed to receive such an opportunity in the underlying criminal prosecution. [¶] Superior courts consider and rely upon hearsay statements contained in a presentence report to determine whether to place a defendant on probation, and to evaluate his [or her] level of culpability when selecting an appropriate sentence. [Citations.]” (People v. Otto (2001) 26 Cal.4th 200, 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061 (Otto ).) “A sentencing judge ‘may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the convicted person's life and characteristics.’ [Citation.]” (People v. Arbuckle (1978) 22 Cal.3d 749, 754, 150 Cal.Rptr. 778, 587 P.2d 220.) The court may also consider and rely upon hearsay statements contained in a probation report, including the police reports used to prepare the crime summaries contained in the report. (Otto, at p. 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061.)

By stating in section 1204 that mitigating evidence must be presented through “the testimony of witnesses examined in open court” rather than verbal representations, the Legislature has declared that a criminal defendant wishing to make an oral statement to the court in mitigation of punishment must do so through testimony given under oath.6 (A defendant may also provide an unsworn written statement either by submitting the statement to the probation officer for inclusion in the probation report (Cal. Rules of Court, rule 4.411.5(a)(4)), if one is prepared; or by including such a statement in a “written report” filed by the defense that “presents a study of his background and personality and suggests a rehabilitation program” (§ 1204).) People v. Evans (2008) 44 Cal.4th 590, 598

==Granting probation==

“The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation....” (People v. Welch (1993) 5 Cal.4th 228, 233, 19 Cal.Rptr.2d 520, 851 P.2d 802.)

“The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]” (People v. Birmingham (1990) 217 Cal.App.3d 180, 185, 265 Cal.Rptr. 780.)

In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rule 4.406(b)(2); rule 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.)
67 “The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance **27 of the evidence. [Citations.]” (People v. Leung (1992) 5 Cal.App.4th 482, 506, 7 Cal.Rptr.2d 290.) Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. (Id. at pp. 506–507, 7 Cal.Rptr.2d 290.)

People v. Weaver (2007) 149 Cal.App.4th 1301, 1313 disapproved of by People v. Cook (2015) 60 Cal.4th 922 on other grounds

Note: Allegations that mandate probation denial, or the facts that support them, must be
alleged and proved, for example, Penal Code section 1203(k); however, allegations that
merely create a presumptive denial of probation, do not. (People v. Lo Cicero (1969) 71
Cal.2d 1186; In re Varnell (2003) 30 Cal.4th 1132; People v. Lara (2012) 54 Cal.4th 896;
McKissick, supra.)

(People v. Hood (2014) 223 Cal.App.4th 1356 [depublished].)

===Mandatory inelgibile===

===Presumptive ineligible===
There is likewise broad discretion to determine whether a given case is “unusual” and entitles the defendant to probation in the interests of justice. (People v. Superior Court (Du ) (1992) 5 Cal.App.4th 822, 831, 7 Cal.Rptr.2d 177.

A VC20001 hit-and-run is not "a deadly weapon," to make one presumptively eligible under PC1203(e)(2). (People v. Nuno (2018) 26 Cal.App.5th 43.)

And it does not apply the criteria in rule 4.414 to determine whether to grant probation unless it first finds any statutory presumption against probation is rebutted. (Rule 4.413(b); **584 People v. Superior Court (Dorsey ) (1996) 50 Cal.App.4th 1216, 1229, 58 Cal.Rptr.2d 165.)

===Statement of reasons===
“Generally speaking, the trial court must state reasons for granting or denying probation.” (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

"At an initial sentencing hearing, when the court has the discretion to grant probation, the decision to grant probation is a sentence choice which requires a statement of reasons." (§ 1170, subd. (c); Cal. Rules of Court, rule 405(f)Court, rule 405(f). (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792.)

"The denial of probation, in and of itself, is not a sentence choice requiring a statement of reasons. (People v. Gopal (1985) 171 Cal.App.3d 524, 547–549, 217 Cal.Rptr. 487, cert. den. 476 U.S. 1105, 106 S.Ct. 1949, 90 L.Ed.2d 359; People v. Crouch (1982) 131 Cal.App.3d 902, 904, 182 Cal.Rptr. 701.) The rationale is that the denial of probation is not the ultimate disposition of the case, but rather is part and parcel of the concomitant decision to sentence to state prison, and that is the sentence choice which requires a statement of reasons. (People v. Butler (1980) 107 Cal.App.3d 251, 254–255, 165 Cal.Rptr. 709; accord People v. Golliver, supra, 219 Cal.App.3d at p. 1616, fn. 2, 269 Cal.Rptr. 191.) (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792, fn. 2)

But it need not provide reasons for declining to find a case “unusual” so as to rebut any presumptive ineligibility for probation. (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

==Prison sentencing==

PC1170.1(c)

McCart

''People v. Roseberry'' (2020) 57 Cal.App.5th 543

5y sentence for PC273.5. Commit PC4573 and sentenced to full consecutive 3 years. New offense of PC4530 escape.

Being released on parole, breaks up the chain for McCart issues. (''People v. Reed'' (1993) 17 Cal.App.4th 302.)'
1981-4y sentence
1984-while serving sentence, sentenced to full 2y consecutive for PC4501.5
Paroled
1991-PC4501.5 while at Pelican Bay.
1991-not under McCart.

People v. Brantley (2019) 43 Cal.App.5th 917. section 1170.1, subdivision (c) “does not apply [when a] defendant completed the prison term he was serving *549 before being sentenced **508 on the” in-prison offense. (People v. Brantley (2019) 43 Cal.App.5th 917, 920 [257 Cal.Rptr.3d 98] (Brantley), italics added; see id. at p. 922 [“a reading of the plain language of subdivision (c) makes apparent that this provision does not apply once the prisoner has completed the sentence he or she was serving when the in-prison crime was committed”].)

Credits. In re Rojas (1979) 23 Cal.3d 152; People v. Phoenix (2014) 231 Cal.App.4th 1119

In re Sims (1981) 117 Cal.App.3d 309

In re Brown (2024) 104 Cal.App.5th 969

In re Thompson (1985) 172 Cal.App.3d 256

In jail for out-to-court is still in prison. People v. White (1988) 202 Cal.App.3d 862

==Misdemeanor sentencing==

"A trial court in a misdemeanor case may properly look for guidance to what the rules consider to be aggravating and mitigating." (People v. Faber (2017) 15 Cal.App.5th Supp. 41, 48.)

A misdemeanor can be a full-boat consecutive in jail after a prison term. (''People v. Endelsen'' (1996) 46 Cal.App.4th 86.) A misdemeanor can be a full-boat consecutive in jail after a PC1170(h) jail sentence. (''People v. Brown (2016) 247 Cal.App.4th 1430.)

People v. Erdelan (1996) 46 Cal.App.4th 86

People v. Murray (1994) 23 Cal.App.4th 1783

In re Valenti (1986) 178 Cal.App.3d 470

In re Eric J. (1979) 25 Cal.3d 522

==Sentencing error==

===Failing to state reasons===

Rule 4.403

People v. Dixon (1993) 20 Cal.App.4th 1029, 1037, found it reversible error, when failing to state reasons for consecutive sentences.

Sentencing can't just incorporate by reference, such as just the probation report. People v. Pierce (1995) 40 Cal.App.4th 1317; People v. Fernandez (1990) 226 Cal.App.3d 669; People v. Deloach (1989) 207 Cal.App.3d 323; People v. Davis (1980) 103 Cal.App.3d 270; People v. Turner (1978) 87 Cal.App.3d 244

==Housing under PC1170(h)==

Unstricken juvenile strike priors keep defendants out of county jail. (''People v. Delgado'' (2013) 214 Cal.App.4th 914.)

But what about juvenile strike priors and PC1170(f)?

==Enhancements==

An enhancement is defined as an additional term of imprisonment or penalty added to the
base term. (People v. Smith (1985) 163 Cal.App.3d 908; Sentencing Rules for Superior Court,
California Rules of Court, Rule 4.405(3).) An enhancement is not, however, a separate crime.
(People v. Muhammad (2007) 157 Cal.App.4th 484; People v. Wims (1995) 10 Cal.4th 293;
People v. Mustafaa (1994) 22 Cal.App.4th 1305; People v. White (1976) 16 Cal.3d 791.) Thus, it
is inextricably bound to the underlying crime, and the facts that are relied upon to establish the
enhancement must have occurred during the time of the offense. (People v. Walls (1978)
85 Cal.App.3d 447; People v. Dozier (1979) 90 Cal.App.3d 174.)

Because enhancements are not crimes, the corpus delicti rule does not apply to them. (People v.
Shoemake (1993) 16 Cal.App.4th 243.)

Generally, with determinate term sentences, a conduct enhancement is added to the base term
set for each offense, and a status enhancement is added once at the end of the determinate term
calculation. (People v. Jefferson (1999) 21 Cal.4th 86.) [Note: Enhancements for prior convictions
are added to each indeterminate term. (People v. Williams (2004) 34 Cal.4th 397.)] Penal Code
section 1170.11 lists specific enhancements that relate to the circumstances of the crime.
Enhancement allegations are not considered part of the accusatory pleading for purposes of
defining lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92; People v. Richmond
(1991) 2 Cal.App.4th 610.) Nor may they be considered when applying the multiple conviction
rule—the rule prohibiting multiple convictions based on necessarily included offenses. (People v.
Izaguirre (2007) 42 Cal.4th 126.) Further, Penal Code section 805(a) provides that enhancements
are disregarded when determining the applicable statute of limitations. In other words, the
enhancement is not part of the maximum punishment calculation.

Enhancements apply equally to juveniles as they do to adults. (Welf. & Inst. § 726(d); In re Jovan B. (1993) 6 Cal.4th 801.

Relevant enhancements should be attached to each applicable underlying offense. (Pen. Code
§ 1170.1(d).) Subject to Penal Code sections 654 and 1170.1, enhancements may be imposed for
each separate crime for which the enhancement is found true. In other words, the law does not
limit charging or imposing enhancements only once for a criminal event; rather enhancements
should be charged and imposed for each crime during that event. (See People v. King (1993)
5 Cal.4th 59, overruling the rule in In re Culbreth (1976) 17 Cal.3d 330.)

All enhancements must be pled and either admitted by the defendant or proved to the trier
of fact beyond a reasonable doubt. (Pen. Code § 1170.1(e); Apprendi v. New Jersey (2000)
Defendant Conduct Enhancements (2015) 3
530 U.S. 466; People v. Sengpadychith (2001) 26 Cal.4th 316; People v. Mancebo (2002)
27 Cal.4th 735.)
Conduct enhancements should be pled in the criminal Complaint and proved at the
preliminary hearing. An enhancement may be included on the Information, even if not
initially alleged in the Complaint, provided sufficient evidence to support the enhancement
was presented at the preliminary hearing. Otherwise, the defendant may challenge the
sufficiency of an enhancement allegation by way of a Penal Code section 995 motion.
(People v. Superior Court of Marin County (Mendella) (1983) 33 Cal.3d 754.)
If the incorrect code section is pled or the enhancement is attached to the wrong count, the
court may still apply the enhancement. (People v. McKissick (1984) 151 Cal.App.3d 439;
People v. Riva (2003) 112 Cal.App.4th 981; Pen. Code § 960.)

Burden of Proof
Enhancement allegations must be proved beyond a reasonable doubt. (Apprendi, supra;
People v. Sloan (2007) 42 Cal.4th 110.)

Plea Bargaining
When the defendant enters into a plea bargain that includes an enhancement that the
defendant knows is unauthorized by law, in exchange for a lesser sentence than could
otherwise be imposed, the defendant will be estopped from attacking the imposition
of sentence for the enhancement. (People v. Ellis (1987) 195 Cal.App.3d 334; People v.
Otterstein (1987) 189 Cal.App.3d 1548; People v. Jones (1989) 210 Cal.App.3d 124.)

“During the Commission” Defined
Most enhancements require the prohibited conduct to be “during the commission” or “in
the commission” of a crime. The phrase “in the commission” has been given an expansive
interpretation and means more than simply “while committing” or “while engaged in.”
(People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.].) The following cases
illustrate this concept:
• People v. Canela (2014) 224 Cal.App.4th 703 [cert. for part. pub.]—The defendant
was “in the commission” of a robbery when he was in flight from officers and struck a
pedestrian.
• People v. Elder (2014) 227 Cal.App.4th 411 [cert. for part. pub.]—The robbery
victim sustained GBI while trying to push the fleeing defendant from a van.
• People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.]—A GBI
enhancement may apply to leaving the scene of an accident in violation of Vehicle
Code section 20001(a) if the injury was inflicted as part of one continuous transaction,
but not if the injury was inflicted prior to the flight.
• People v. Frausto (2009) 180 Cal.App.4th 890—The phrase “in the commission of”
in Penal Code section 12022.53(d) has the same meaning as identical or equivalent
language in sections 667.61, 12022.3, 12022.5, and the felony-murder statutes. Thus,
a firearm is discharged “in the commission of” a felony within the meaning of Penal
Code section 12022.53(d) if the underlying felony and the discharge of the firearm
are part of one continuous transaction, including flight after the felony to a place of
temporary safety.
• People v. Pitto (2008) 43 Cal.4th 228—Whenever (1) the defendant knows of the
presence and location of a firearm near the drugs, (2) the gun’s proximity to the drugs
is not “accidental or coincidental,” and (3) the defendant is in a position to use the gun
offensively or defensively to aid in the commission of the offense, the gun facilitates
that crime and has the requisite purpose or effect with respect to its commission.
• People v. Carrasco (2006) 137 Cal.App.4th 1050—With a gun use enhancement
“during the commission” of a robbery, the robbery may be spread over a considerable
distance and varying periods of time. A robbery begins with the commission of any of
the elements and concludes after all the elements have been satisfied and the defendant
has reached a place of relative safety. The gun use enhancement applies if the “use” aids
in completing any of the essential elements of the crime.
• People v. Alvarado (2001) 87 Cal.App.4th 178—For the purpose of Penal Code
section 667.61(e)(2), “during the commission of a burglary” refers to that period of
time between the burglar’s initial entry with the requisite intent and the burglar’s escape
to a place of temporary safety
People v. Jones (2001) 25 Cal.4th 98—In the case of a weapons-use enhancement,
such use may be deemed to occur “in the commission of” the offense if it occurred
before, during, or after the technical completion of the felonious sex act. The operative
question is whether the sex offense posed a greater threat of harm, i.e., was more
culpable because the defendant used a deadly weapon to threaten or maintain control
over the victim.
• People v. Becker (2000) 83 Cal.App.4th 294 [cert. for part. pub.]—A defendant’s
sentence may be enhanced for arming as long as he [or she] has a weapon available for
use at any point during the course of a continuing offense (conspiracy).
• People v. Masbruch (1996) 13 Cal.4th 1001—In this case, the defendant initially
used a firearm to subdue the two female victims and tie them up. He then committed
robbery, rape, sodomy, false imprisonment, and torture. The defendant appealed the
enhancement for gun use in the sex crimes, claiming that he only displayed the gun at
the outset of the crime spree. The court held that the firearm use enhancement liability
continued for as long as the defendant “utilized a gun at least as an aid in completing
an essential element of a subsequent crime.” The court explained:
In considering whether a gun use occurred, the jury may consider a
“video” of the entire encounter; it is not limited to a “snapshot” of
the moments immediately preceding a sex offense. Thus, a jury could
reasonably conclude that although defendant’s presence with the victims
was sporadic, the control and fear created by his initial firearm display
continued throughout the encounter. (Id. at 1011.)
[Note: This case has an excellent and extensive discussion on the definition of “use” of a
firearm.]
• People v. Taylor (1995) 32 Cal.App.4th 578—For the purpose of Penal Code
section 12022.5, the use of a firearm during escape from the crime scene is a use during
the commission of the crime. The defendant had left the burglary scene with a police
officer in pursuit, but his companion was detained at the scene, and the defendant
used the weapon when he returned to free her. The companion had stolen items on her
person and could implicate the defendant in the burglary. Thus, the burglary had not
been completed.
• People v. Heston (1991) 1 Cal.App.4th 471 [cert. for part. pub.]—Penal Code
section 12022.4 creates an enhancement for furnishing a firearm during the
commission of a crime. Although the defendant actually furnished it before the crime,
the court held that the statutory language must be read as contemplating a time frame
other than simply the time of the actual act element of the felony.
• People v. Mixon (1990) 225 Cal.App.3d 1471—Infliction of injury on the victim
after removal from a burglary situs is “during the commission” of the burglary.
• People v. Walls (1978) 85 Cal.App.3d 447—During a burglary, the defendant used a
gun and inflicted GBI. (Pen. Code § 12022.7.) On appeal he urged that the burglary
was complete upon entry with the requisite intent and that the alleged enhancement
conduct did not occur “during the commission” of the burglary. This was rejected by
the court, which held that the burglary continued after entry.

The court does not need to state a reason for imposing an enhancement that was found
true (Pen. Code § 1170(d); Rule 4.428); however, the court must state reasons for striking
the enhancement. (In re Renfrow (2008) 164 Cal.App.4th 1251.)
Enhancements imposed on attempted crimes are not reduced by half the normal term for
the enhancement. (In re Anthony H. (1980) 108 Cal.App.3d 494.

However, only one
weapon enhancement (the greatest) and only one injury enhancement (the greatest) may be
imposed for a single victim on a single crime. (Pen. Code § 1170.1(f) and (g); Rule 4.447;
People v. Ahmed (2011) 53 Cal.4th 156; People v. Mercado (2013) 216 Cal.App.4th 67.)
1. Multiple Firearm and Weapon Use on a Single Crime—Penal Code
Section 1170.1(f)
The defendant’s use of a firearm or weapon during the commission of a crime
may implicate several enhancements (e.g., Pen. Code §§ 12022.5 and 12022.53);
however, only the greatest may be imposed for each crime. (Pen. Code § 1170.1(f);
People v. Rodriguez (2009) 47 Cal.4th 501.) This rule applies even if the defendant
uses two weapons during the commission of the crime. (People v. Jones (2000)
82 Cal.App.4th 485.)
2. Multiple Weapon Enhancements on Multiple Crimes
When the defendant uses a weapon during the commission of multiple crimes, a
weapons enhancement is permitted for each crime. (King, supra; People v. Palacios
(2007) 41 Cal.4th 720.)
3. Multiple Injury Enhancements on the Same Victim on a Single Crime—
Penal Code Section 1170.1(g)
The defendant’s infliction of injury during the commission of a crime may result in
the filing of several injury enhancements (e.g., Pen. Code § 12022.7(a) and (b));
however, only the greatest may be imposed. (Pen. Code § 1170.1(g); People v. Eck
(1999) 76 Cal.App.4th 759 [cert. for part. pub.].)
4. Multiple Injury Enhancements for Multiple Victims
Where multiple victims are injured, multiple injury enhancements are permitted.
(People v. Arndt (1999) 76 Cal.App.4th 387; People v. Ausbie (2004) 123 Cal.App.
4th 855 [cert. for part. pub.].)

he court can strike almost all enhancements—or just the additional punishment
for the enhancement—with stated reasons based on the general provisions of Penal
Code section 1385. (People v. Meloney (2003) 30 Cal.4th 1145; People v. Luckett
(1996) 48 Cal.App.4th 1214; Rule 4.406(b)(7) and (b)(10); see also former Pen.
Code § 1170.1(h) [pre-Jan. 1, 1998].) The court can strike an enhancement with
respect to one count but not another. (People v. Torres (2008) 163 Cal.App.4th
1420 [cert. for part. pub.].)

Example: The defendant is convicted of robbery with an enhancement for the
personal infliction of GBI. As nothing limits or prohibits the imposition of this
enhancement, it must be imposed or stricken, not stayed. (Pen. Code §§ 1170.1(d)
and 1385(c); People v. Langston (2004) 33 Cal.4th 1237; Vega, supra.)

his issue was addressed in the context of multiple firearm enhancements pursuant
to Penal Code sections 12022.5 and 12022.53(b) and (c) attached to a single
underlying crime. In reviewing the statutory construction of section 12022.53,
and harmonizing that statute with the rationale of section 654 and Rule 4.447,
the California Supreme Court held that an enhancement whose imposition is
prohibited should be stayed, not stricken. (People v. Gonzalez (2008) 43 Cal.4th
1118.)
Should the court wish to avoid the additional prison term for the enhancement
but retain the offense as a serious or violent felony for “strike” or credit limitation
purposes, the court should impose the enhancement and dismiss only the
additional punishment. (Pen. Code § 1385(c); Pope, supra; In re Pacheco (2007)
155 Cal.App.4th 1439; In re Borlik (2011) 194 Cal.App.4th 30.)

===PC12022(a) firearm +1===

“Armed” is knowingly carrying a firearm as a means of offense or defense.
Bland, supra, 10 Cal.4th 991, held that a defendant convicted of a possessory
drug offense is subject to the “armed with a firearm” enhancement when he or
she possesses both drugs and a gun, and keeps them together, but is not present
when the police seize them. (People v. Hayes (1990) 52 Cal.3d 577; People v.
Wandick (1991) 227 Cal.App.3d 918; Alvarado, supra, 146 Cal.App.4th 993;
Pen. Code § 1203.06(b)(3).)
• Applies to completed and attempted crimes.
• Vicarious liability is permitted for all principals. Two people can be personally
armed with one gun. (People v. Mendival (1992) 2 Cal.App.4th 562 [cert. for
part. pub.].)
• “Firearm” is defined as “a device, designed to be used as a weapon, from which
is expelled through a barrel a projectile by the force of an explosion or other
form of combustion.” (See Pen. Code § 16520(a).) This does not include the
mere “receiver.” (People v. Gailord (1993) 13 Cal.App.4th 1643.) The fact that
the object is a firearm can be established by direct or circumstantial evidence
(People v. Law (2011) 195 Cal.App.4th 976 [cert. for part. pub.]); however, toy
guns, pellet guns, and BB guns do not qualify as firearms. (People v. Monjaras
(2008) 164 Cal.App.4th 1432 [cert. for part. pub.].)
• The firearm need not be loaded or operable. (Masbruch, supra; People v. Nelums
(1982) 31 Cal.3d 355; People v. Steele (1991) 235 Cal.App.3d 788.)
• There is no requirement to prove that the defendant knew or should have
known that the crime partner was armed. (People v. Overten (1994)
28 Cal.App.4th 1497.)
• Not applicable if arming is an element of the offense.

===PC12022(b) Assault Weapon +3===

Applies to completed or attempted crimes.
• “Assault weapon” defined. (Pen. Code § 30510.) “Machine gun” defined.
(Pen. Code §§ 30530 and 16880.)
• Applies even if arming is an element of the offense.
Defendant Conduct Enhancements (2015) 13
• Vicarious liability is permitted for all principals.
• There must be proof the defendant knew or reasonably should have known the
weapon was an assault weapon. (In re Jorge M. (2000) 23 Cal.4th 877.)

===PC12022(c) Armed while having controlled substances +3-4-5===
Personally armed” refers to the person who acts, not that person’s action.
Hence, two people can be personally armed with the same weapon if it is
equally available for use to both. (People v. Superior Court of San Diego County
(Pomilia) (1991) 235 Cal.App.3d 1464; Mendival, supra; People v. Gonzales
(1992) 8 Cal.App.4th 1658.)
• In the commission or attempted commission of violating Health and Safety
Code section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5,
11379, 11379.5, or 11379.6.
• There must be proof that the defendant had knowledge of the presence of the
firearm. (People v. Singh (2004) 119 Cal.App.4th 905 [cert. for part. pub.].)

===PC12022(d) Vicariously armed +1-2-3===
Penal Code section 12022(c) applies to those who actually and knowingly have
a firearm available for use, and section 12022(d) applies to those who do not,
but who know that one of their co-principals does. (People v. Smith (1992)
9 Cal.App.4th 196 [cert. for part. pub.].)

===PC30615 assault weapon +1===

===PC12022(b)(1) Deadly Weapon +1 Serious===

“Deadly or dangerous weapon” refers to any weapon, instrument, or object that
is inherently deadly or is used in such a way it is capable of causing and is likely
to cause great bodily injury or death. (CALCRIM 3145; People v. Reid (1982)
133 Cal.App.3d 354). Examples:
- BB gun (In re Bartholomew D. (2005) 131 Cal.App.4th 317 [cert. for part.
pub.]; People v. Brown (2012) 210 Cal.App.4th 1)
- Dirk or blackjack (People v. Aguilar (1997) 16 Cal.4th 1023)
- Knife (People v. Smith (1963) 223 Cal.App.2d 431)
- Broken glass or bottle (People v. Neal (1984) 159 Cal.App.3d 69 [cert. for
part. pub.]; People v. Zermeno (1999) 21 Cal.4th 927)
- Dog (People v. Frazier (2009) 173 Cal.App.4th 613 [cert. for part. pub.])
- Car (Calderon, supra)
• Personal use is required; there is no vicarious liability.
• The enhancement is not applicable if use of a deadly or dangerous weapon is an
element of the offense. (People v. McGee (1993) 15 Cal.App.4th 107 [cert. for
part. pub.] [interpreting former Pen. Code § 245].)
• This enhancement qualifies the underlying crime as a serious felony (Pen. Code
§ 1192.7(c)(23)), but not a violent felony

===PC12022.5 Firearms +3-4-10===

Applies to completed and attempted crimes.
• The court cannot strike this enhancement. (Pen. Code § 12022.5(c); Thomas,
supra.)
• The requirement of use of a firearm does not create a specific intent to injure
or assault the victim; however, the use must be intentional. (In re Tameka C.
(2000) 22 Cal.4th 190; Johnson, supra, 38 Cal.App.4th 1315.)
• The firearm may be used as a bludgeon. (Walls, supra; People v. Miceli (2002)
104 Cal.App.4th 256 [cert. for part. pub.].)
• Personal use is required; there is no vicarious liability. (People v. Walker (1976)
18 Cal.3d 232; People v. Hays (1983) 147 Cal.App.3d 534.)
• The enhancement is applicable if the defendant who personally uses the firearm
is vicariously liable for the underlying offense. (In re Antonio R. (1990)
226 Cal.App.3d 476 [cert. for part. pub.]; Berry, supra; Thiessen, supra.)
• The firearm need not be loaded or operable. (Nelums, supra.) See definition of
“firearm” in Section V.A.1.
• This enhancement is not applicable (Pen. Code § 12022.5(d)) if the use of a
firearm is an element of the offense, except if the offense is:
- any violation of Penal Code section 245, or
- murder perpetrated by means of shooting a firearm from a motor vehicle
intentionally at another person outside of the vehicle with the intent to
inflict GBI or death. (People v. Joachim (1995) 38 Cal.App.4th 1526;
People v. Johnson (1996) 51 Cal.App.4th 1329.)
• Mandatory state prison (Pen. Code § 1203.06(a)(1)) for most violent crimes.
• Multiple enhancements are permitted for multiple crimes committed
on a single occasion (King, supra); however, if multiple types of firearm
enhancements are alleged for a single crime, only the greatest may be imposed
(Pen. Code § 1170.1(f)). See discussion in Section IV.C.
• Qualifies the underlying crime as a serious felony (Pen. Code § 1192.7(c)(8))
and violent felony (Pen. Code § 667.5(c)(8)); therefore, conduct credits for the
aggregate term are limited to 15 percent. (Pen. Code § 2933.1; Reeves, supra.)
• Gang implications: The court cannot impose both a Penal Code section
12022.5 and a section 186.22(b)(1) enhancement if the gun is what makes the
crime a serious or violent felony. (Rodriguez, supra.)

===PC12022.5(b) assault weapons +5-6-10===

===PC21022.53 10-20-life===

* Section 187 (murder)
* Section 203 or 205 (mayhem)
* Section 207, 209, or 209.5 (kidnapping)
* Section 211 (robbery)
* Section 215 (carjacking)
* Section 220 (assault with intent to commit a specified felony)
* Section 245(d) (assault with a firearm on a peace officer or firefighter)
* Section 261 or 262 (rape)
* Section 264.1 (rape or sexual penetration in concert)
* Section 286 (sodomy)
* Section 288 or 288.5 (lewd act on a child
* Section 288a (oral copulation)
* Section 289 (sexual penetration)
* Section 4500 (assault by a life prisoner)
* Section 4501 (assault by a prisoner)
* Section 4503 (holding hostage by a prisoner)
* Any felony punishable by death or imprisonment in the state prison for life.
* Any attempt to commit a listed crime other than an assault.

===PC12022.55 Discharge of firearm from motor vehicle +5-6-10===

===PC12022.7 Great bodily injury +3===
Personal infliction is required. (People v. Cole (1982) 31 Cal.3d 568; People v.
Cross (2008) 45 Cal.4th 58.) Personal infliction can include “joint infliction”
when the defendant contributes to the GBI. (People v. Modiri (2006)
39 Cal.4th 481; People v. Dunkerson (2007) 155 Cal.App.4th 1413.) The
definition can include a failure to act if the defendant has a duty to act and
failure leads to GBI. (People v. Warwick (2010) 182 Cal.App.4th 788.)
• Applies to completed and attempted crimes.
• Specific intent to inflict injury is no longer required. Specific intent is required
for crimes committed prior to January 1, 1996. (People v. Fong (2013)
217 Cal.App.4th 263.)
• For the crimes listed in Penal Code section 1203.075, the infliction of GBI
means a mandatory denial of probation. It is no longer necessary to plead
and prove the section 1203.075 allegation together with the section 12022.7
enhancement. Prior to September 20, 2006, Penal Code section 1203.075
required intentional infliction so a separate probation denial allegation was
required when specific intent was deleted from the GBI enhancement itself.
Note: The probations denial allegation of Penal Code section 1203.075 does
apply to murder and should be alleged.
• Penal Code section 12022.7(f) defines GBI as “a significant or substantial
physical injury” beyond that inherent in the underlying felony. (People v.
Washington (2012) 210 Cal.App.4th 1042.) The California Supreme Court in
People v. Caudillo (1978) 21 Cal.3d 562 [overruled on another point in
People v. Escobar, infra, at 751, fn. 5] required that the injury be “severe or
protracted.” The California Supreme Court returned to the code section
standard of “significant or substantial physical injury” in People v. Escobar
(1992) 3 Cal.4th 740. Consequently, the injury sustained under the new
standard need not be as serious as that required by Caudillo. The injuries that
qualified as GBI in Escobar were: “extensive bruises and abrasions over the
victim’s legs, knees and elbows, injury to her neck and soreness in her vaginal
area of such severity that it significantly impaired her ability to walk.” (Escobar,
supra, at 750.)
• Other cases with examples of GBI:
- People v. Mendias (1993) 17 Cal.App.4th 195. Gunshot wound to upper
thigh. The victim was released from the hospital the next day, but the bullet
was not removed. At the trial five months later, the victim said the bullet
moves, but is not painful.
- People v. Wallace (1993) 14 Cal.App.4th 651. Two victims, one with cuts on
wrists and ankles from being flex-tied. One victim’s finger had no feeling
for two months. The other victim’s wrists were burned from flex-ties and
bandaged for two days. Insecticide-like substance caused “really, really bad”
burning in her eyes, vagina, and anus for 24 hours.
- People v. Bustos (1994) 23 Cal.App.4th 1747, 1755. The wounds inflicted
by this defendant (not including fatal stab wounds inflicted by another)
were contusions to the nose, left elbow, and left thigh; lacerations to the left
upper lip; and abrasions to the right elbow, left knee, and anus.
- People v. Le (2006) 137 Cal.App.4th 54. Soft tissue and muscular injury to
both legs caused by gunshot wound causing pain and restricted mobility for
weeks.
• Additional examples of GBI were discussed and approved using the more
stringent standard set forth in Caudillo, supra (pre-Escobar law):
- Knocked unconscious, numerous cuts with scars still evident at trial,
intense headaches
- Prolonged loss of consciousness
- Severe concussion
- Protracted loss of any bodily member or organ
- Protracted impairment of function of any bodily member or organ or bone
- A wound or wounds requiring extensive suturing
- Serious disfigurement
- Severe physical pain inflicted by torture
[Note: These categories were included in the section as originally enacted,
but were deleted by an amendment in 1977.]
• Other examples of GBI:
- Multiple contusions, swelling, and discoloration of the body. (People v.
Jaramillo (1979) 98 Cal.App.3d 830.)
- A broken hand swollen to twice its normal size. (People v. Kent (1979)
96 Cal.App.3d 130.
- A fractured jaw. (People v. Johnson (1980) 104 Cal.App.3d 598.)
- Hot grease in face. “Blistering 2nd burns … visible discoloration and
disfigurement for a month at least.” (People v. Harvey (1992)
7 Cal.App.4th 823.)
- Six sutures to the vagina for a cut of 2.5 cm. (People v. Brown (1985)
174 Cal.App.3d 762.)
• The jury need not unanimously agree on which injury or injuries support the
GBI. It is a “measuring function.” The jury determines whether the victim
suffered that quantum of injury that is defined as GBI. (People v. Robbins
(1989) 209 Cal.App.3d 261 [cert. for part. pub.].)
• The enhancement is not applicable if GBI is an element of the offense.
(Pen. Code § 12022.7(g).) Penal Code section 243(d), Battery with “Serious
Bodily Injury” is “Great Bodily Injury,” and the enhancement is not applicable.
(People v. Hawkins (1993) 15 Cal.App.4th 1373.) The enhancement is
inapplicable to mayhem as well. (People v. Hill (1994) 23 Cal.App.4th 1566.)
The code section specifically exempts murder, manslaughter, or arson.
(People v. Martinez (2014) 226 Cal.App.4th 1169; but see People v. Weaver
(2007) 149 Cal.App.4th 1301; Pen. Code § 12022.7 applies to additional
injured victims in a vehicular manslaughter case.) This enhancement does apply
to attempted murder or attempted manslaughter. (Allen, supra; People v. Lewis
(1994) 21 Cal.App.4th 243.)
• Qualifies the underlying crime as a serious felony (Pen. Code § 1192.7(c)(8))
and a violent felony (Pen. Code § 667.5(c)(8)); therefore, conduct credits for
the aggregate term are limited to 15 percent. (Pen. Code § 2933.1; Reeves,
supra.)
• If multiple GBI enhancements are attached to the underlying crime, only the
greatest may be imposed. (Pen. Code § 1170.1(g); Eck, supra.)

===PC12022.1 OR enhancement +3===
Enhancement for Offenses Committed While Released on Bail / Own Recognizance—
Penal Code Section 12022.1 [+ 3 years]
Any person convicted of a felony offense (secondary offense) committed while the
defendant was released from custody on bail or on his or her own recognizance (O.R.) for
another offense (primary offense), before the judgment became final for that other offense,
including the disposition of any appeal, must have his or her sentence for the secondary
offense enhanced by two years.
“Primary offense” refers to the felony offense for which a person was released on bail / O.R.
prior to final judgment. Conviction for the primary offense is not an element of Penal
Code section 12022.1, but is a prerequisite to the imposition of the enhancement on the
secondary offense. (People v. Johnson (2012) 208 Cal.App.4th 1092 [cert. for part. pub.].)
“Secondary offense” refers to the felony offense committed by the defendant while released
on the primary offense.
Whenever there is a conviction for the secondary offense and the enhancement is proved,
and the person is sentenced on the secondary offense prior to the conviction of the primary
offense, the court for the secondary offense may strike the enhancement or imposition of
the enhancement must be stayed, pending sentencing for the primary offense per Penal
Code § 12022.1(d). The sentencing court on the primary offense will lift any stay of the
enhancement. (Meloney, supra.)
If the person is convicted of a felony for the primary offense, is sentenced to state prison for
the primary offense, and is convicted of a felony for the secondary offense, then any state
prison sentence for the secondary offense must be consecutive to the primary sentence.
(Pen. Code § 12022.1(e); People v. Sanchez (1991) 230 Cal.App.3d 768.)
If the person is convicted of a felony for the primary offense, is granted probation for
the primary offense, and is convicted of a felony for the secondary offense, then any state
prison sentence for the secondary offense must be enhanced by an additional term of two
years. (Pen. Code § 12022.1(f).)
If the primary offense conviction is reversed on appeal, the enhancement shall be
suspended pending retrial of that felony. On retrial and reconviction, the enhancement
must be re-imposed. If the person is no longer in custody for the secondary offense
on reconviction of the primary offense, the court may, at its discretion, re-impose the
enhancement and order the defendant to custody. (Pen. Code § 12022.1(g).)
• Multiple enhancements are possible if the defendant is released on multiple cases.
(People v. Mackabee (1989) 214 Cal.App.3d 1250 [cert. for part. pub.].) But only one
enhancement is permitted if there are multiple secondary offenses and one primary
offense. (People v. McNeely (1994) 28 Cal.App.4th 739.)
• Imposing this enhancement and a prior conviction enhancement for the same
primary offense is not a violation of Penal Code section 654. (People v. Juarez (1993)
21 Cal.App.4th 318 [cert. for part. pub.].)
• The enhancement is applicable to juvenile proceedings. (In re Jovan B., supra.) This
includes a “general release” of a juvenile. (In re Rottanak K. (1995) 37 Cal.App.4th
260.)
• The enhancement need not be proved at the preliminary hearing. (Pen. Code
§ 12022.1(c).)
• The defendant is not entitled to a jury trial on the allegation. (Johnson, supra, 208 Cal.
App.4th 1092.)
• Applicable to Penal Code section 1320.5 [felony failure to appear]. (People v. Walker
(2002) 29 Cal.4th 577 [cert. for part. pub.].) The enhancement does not apply to
release pursuant to Penal Code section 1000. (People v. Ormiston (2003)
105 Cal.App.4th 676 [cert. for part. pub.].)

Impersonating a peace officer.
Penal Code section 667.17 [+ 1 year]: Impersonating a peace officer in violation of
Penal Code section 538d during the commission of a felony.

Penal Code section 667.85 [+ 5 years]: Kidnapping a child under 14 with the intent to permanently deprive the parent or legal guardian of custody.

==Rules of Court==

===Rule 4.410 General objectives in sentencing===

(a) General objectives of sentencing include:

(1) Protecting society;

(2) Punishing the defendant;

(3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses;

(4) Deterring others from criminal conduct by demonstrating its consequences;

(5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration;

(6) Securing restitution for the victims of crime;

(7) Achieving uniformity in sentencing; and

(8) Increasing public safety by reducing recidivism through community-based corrections programs and evidence-based practices.

(b) Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by
statutory statements of policy, the criteria in these rules, and any other facts and circumstances relevant to the case.

===Rule 4.413. Grant of probation when defendant is presumptively ineligible for probation===

(a) Consideration of eligibility
The court must determine whether the defendant is eligible for probation. In most cases, the defendant is presumptively eligible for probation; in some cases, the defendant is presumptively ineligible; and in some cases, probation is not allowed.

(b) Probation in cases when defendant is presumptively ineligible
If the defendant comes under a statutory provision prohibiting probation “except in unusual cases where the interests of justice would best be served,” or a substantially equivalent provision, the court should apply the criteria in

(c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation.

(c) Factors overcoming the presumption of ineligibility
The following factors may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate:

(1) Factors relating to basis for limitation on probation
A factor or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including:

(A) The factor or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and

(B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense.

(2) Factors limiting defendant's culpability
A factor or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including:

(A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence;

(B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and

(C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.

(3) Results of risk/needs assessment

Along with all other relevant information in the case, the court may consider the results of a risk/needs assessment of the defendant, if one was performed. The weight of a risk/needs assessment is for the court to consider in its sentencing discretion.

Victim “[v]ulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act.” (People v. Smith (1979) 94 Cal.App.3d 433, 436, 156 Cal.Rptr. 502 [describing that term in the context of rule 4.421(a)(3) ].

People v. Weaver (2007) 149 Cal.App.4th 1301, 1314 disapproved of by People v. Cook (2015) 60 Cal.4th 922

===Rule 4.421 Circumstances in aggravation===

Circumstances in aggravation include factors relating to the crime and factors relating to the defendant.
(a) Factors relating to the crime
Factors relating to the crime, whether or not charged or chargeable as enhancements include that:
(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
(2) The defendant was armed with or used a weapon at the time of the commission of the crime;
(3) The victim was particularly vulnerable;
(4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission;
(5) The defendant induced a minor to commit or assist in the commission of the crime;
(6) The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;
(7) The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;
(8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism;
(9) The crime involved an attempted or actual taking or damage of great monetary value;
(10) The crime involved a large quantity of contraband; and
(11) The defendant took advantage of a position of trust or confidence to commit the offense.
(12) The crime constitutes a hate crime under section 422.55 and:
(A) No hate crime enhancements under section 422.75 are imposed; and
(B) The crime is not subject to sentencing under section 1170.8.
(b) Factors relating to the defendant
Factors relating to the defendant include that:
(1) The defendant has engaged in violent conduct that indicates a serious danger to society;
(2) The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
(3) The defendant has served a prior term in prison or county jail under section 1170(h);
(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.
(c) Other factors
Any other factors statutorily declared to be circumstances in aggravation or that reasonably relate to the defendant or the circumstances under which the crime was committed.
Credits
(Formerly Rule 421, adopted, eff. July 1, 1977. As amended, eff. Jan. 1, 1991. Renumbered Rule 4.421, eff. Jan. 1, 2001. As amended, eff. Jan. 1, 2007; May 23, 2007; Jan. 1, 2017; Jan. 1, 2018.)

====Comment====
ADVISORY COMMITTEE COMMENT

Circumstances in aggravation may justify imposition of the middle or upper of three possible terms of imprisonment. (Section 1170(b).)
The list of circumstances in aggravation includes some facts that, if charged and found, may be used to enhance the sentence. This rule does not deal with the dual use of the facts; the statutory prohibition against dual use is included, in part, in the comment to rule 4.420.

Conversely, such facts as infliction of bodily harm, being armed with or using a weapon, and a taking or loss of great value may be circumstances in aggravation even if not meeting the statutory definitions for enhancements or charged as an enhancement.

Facts concerning the defendant's prior record and personal history may be considered. By providing that the defendant's prior record and simultaneous convictions of other offenses may not be used both for enhancement and in aggravation, section 1170(b) indicates that these and other facts extrinsic to the commission of the crime may be considered in aggravation in appropriate cases.

Refusal to consider the personal characteristics of the defendant in imposing sentence may raise serious constitutional questions. The California Supreme Court has held that sentencing decisions must take into account “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (In re Rodriguez (1975) 14 Cal.3d 639, 654, quoting In re Lynch (1972) 8 Cal.3d 410, 425.) In Rodriguez the court released petitioner from further incarceration because “it appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment.” (Id. at p. 655, fn. omitted, italics added.) “For the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” (Pennsylvania ex rel. Sullivan v. Ashe (1937) 302 U.S. 51, 55, quoted with approval in Gregg v. Georgia (1976) 428 U.S. 153, 189.)

Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion. Some of the cases that had relied on that circumstance in aggravation were reversed on appeal because there was only a single victim in a particular count.

Old age or youth of the victim may be circumstances in aggravation; see section 1170.85(b). Other statutory circumstances in aggravation are listed, for example, in sections 422.76, 1170.7, 1170.71, 1170.8, and 1170.85.

==Resentencing==

[https://www.courts.ca.gov/opinions/documents/C090767.PDF People v. McMurray (Mar. 30, 2022, C090767)

Appellate jurisdiction

People v. Scarbrough (2015) 240 Cal.App.4th 916
People v. Nelms (2008) 165 Cal.App.4th 1465
People v. Acosta (1996) 48 Cal.App 4th 411, 427

==Upper term==

===Upper term imposed before passage of SB567===

''People v. Berdoll'' (2022) 85 Cal.App.5th 159

''People v. Mitchell'' (2022) 83 Cal.App.5th 1051, review granted, S277314

==Split-sentence==

''People v. Camp'' (2015) 233 Cal.App.4th 461

''People v. Arce'' (2017) 11 Cal.App.5th 613

Sentencing

2026-02-08T03:48:41Z

Sysop: /* Misdemeanor sentencing */

“In a criminal case, judgment is rendered when the trial court orally pronounces sentence.” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.)

==Charging==
Penal Code Section 12022.1
This is a two-year enhancement for committing a crime while released on bail or
own recognizance. Subdivision (c) specifically states that the allegation may be
pleaded in a Complaint, but need not be proved at the preliminary hearing. The
allegation must, however, be pleaded in the Information or Indictment.
2. Prior Convictions
Prior convictions, which are status enhancements, may be added to the Information
or Indictment whenever it is discovered that not all prior convictions have been
alleged. (Pen. Code § 969a; Miranda v. Superior Court of Los Angeles County (1995)
38 Cal.App.4th 902; Thompson v. Superior Court of Los Angeles County (2001)
91 Cal.App.4th 144; People v. Casillas (2001) 92 Cal.App.4th 171.)

==Admissible evidence==

“A probation report is required following every felony conviction in this state. [Citation.] [California Rules of Court, r]ule 4.411.5 details the contents of presentence reports, and contemplates that police reports will be used to prepare crime summaries contained therein. (Rule 4.411.5(a)(7)(i).) Defendants are required by statute to have an opportunity to review and challenge inaccuracies in the presentence report. [Citations.] [Defendant] does not contend he failed to receive such an opportunity in the underlying criminal prosecution. [¶] Superior courts consider and rely upon hearsay statements contained in a presentence report to determine whether to place a defendant on probation, and to evaluate his [or her] level of culpability when selecting an appropriate sentence. [Citations.]” (People v. Otto (2001) 26 Cal.4th 200, 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061 (Otto ).) “A sentencing judge ‘may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the convicted person's life and characteristics.’ [Citation.]” (People v. Arbuckle (1978) 22 Cal.3d 749, 754, 150 Cal.Rptr. 778, 587 P.2d 220.) The court may also consider and rely upon hearsay statements contained in a probation report, including the police reports used to prepare the crime summaries contained in the report. (Otto, at p. 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061.)

By stating in section 1204 that mitigating evidence must be presented through “the testimony of witnesses examined in open court” rather than verbal representations, the Legislature has declared that a criminal defendant wishing to make an oral statement to the court in mitigation of punishment must do so through testimony given under oath.6 (A defendant may also provide an unsworn written statement either by submitting the statement to the probation officer for inclusion in the probation report (Cal. Rules of Court, rule 4.411.5(a)(4)), if one is prepared; or by including such a statement in a “written report” filed by the defense that “presents a study of his background and personality and suggests a rehabilitation program” (§ 1204).) People v. Evans (2008) 44 Cal.4th 590, 598

==Granting probation==

“The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation....” (People v. Welch (1993) 5 Cal.4th 228, 233, 19 Cal.Rptr.2d 520, 851 P.2d 802.)

“The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]” (People v. Birmingham (1990) 217 Cal.App.3d 180, 185, 265 Cal.Rptr. 780.)

In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rule 4.406(b)(2); rule 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.)
67 “The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance **27 of the evidence. [Citations.]” (People v. Leung (1992) 5 Cal.App.4th 482, 506, 7 Cal.Rptr.2d 290.) Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. (Id. at pp. 506–507, 7 Cal.Rptr.2d 290.)

People v. Weaver (2007) 149 Cal.App.4th 1301, 1313 disapproved of by People v. Cook (2015) 60 Cal.4th 922 on other grounds

Note: Allegations that mandate probation denial, or the facts that support them, must be
alleged and proved, for example, Penal Code section 1203(k); however, allegations that
merely create a presumptive denial of probation, do not. (People v. Lo Cicero (1969) 71
Cal.2d 1186; In re Varnell (2003) 30 Cal.4th 1132; People v. Lara (2012) 54 Cal.4th 896;
McKissick, supra.)

(People v. Hood (2014) 223 Cal.App.4th 1356 [depublished].)

===Mandatory inelgibile===

===Presumptive ineligible===
There is likewise broad discretion to determine whether a given case is “unusual” and entitles the defendant to probation in the interests of justice. (People v. Superior Court (Du ) (1992) 5 Cal.App.4th 822, 831, 7 Cal.Rptr.2d 177.

A VC20001 hit-and-run is not "a deadly weapon," to make one presumptively eligible under PC1203(e)(2). (People v. Nuno (2018) 26 Cal.App.5th 43.)

And it does not apply the criteria in rule 4.414 to determine whether to grant probation unless it first finds any statutory presumption against probation is rebutted. (Rule 4.413(b); **584 People v. Superior Court (Dorsey ) (1996) 50 Cal.App.4th 1216, 1229, 58 Cal.Rptr.2d 165.)

===Statement of reasons===
“Generally speaking, the trial court must state reasons for granting or denying probation.” (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

"At an initial sentencing hearing, when the court has the discretion to grant probation, the decision to grant probation is a sentence choice which requires a statement of reasons." (§ 1170, subd. (c); Cal. Rules of Court, rule 405(f)Court, rule 405(f). (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792.)

"The denial of probation, in and of itself, is not a sentence choice requiring a statement of reasons. (People v. Gopal (1985) 171 Cal.App.3d 524, 547–549, 217 Cal.Rptr. 487, cert. den. 476 U.S. 1105, 106 S.Ct. 1949, 90 L.Ed.2d 359; People v. Crouch (1982) 131 Cal.App.3d 902, 904, 182 Cal.Rptr. 701.) The rationale is that the denial of probation is not the ultimate disposition of the case, but rather is part and parcel of the concomitant decision to sentence to state prison, and that is the sentence choice which requires a statement of reasons. (People v. Butler (1980) 107 Cal.App.3d 251, 254–255, 165 Cal.Rptr. 709; accord People v. Golliver, supra, 219 Cal.App.3d at p. 1616, fn. 2, 269 Cal.Rptr. 191.) (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792, fn. 2)

But it need not provide reasons for declining to find a case “unusual” so as to rebut any presumptive ineligibility for probation. (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

==Prison sentencing==

PC1170.1(c)

McCart

''People v. Roseberry'' (2020) 57 Cal.App.5th 543

5y sentence for PC273.5. Commit PC4573 and sentenced to full consecutive 3 years. New offense of PC4530 escape.

Being released on parole, breaks up the chain for McCart issues. (''People v. Reed'' (1993) 17 Cal.App.4th 302.)'
1981-4y sentence
1984-while serving sentence, sentenced to full 2y consecutive for PC4501.5
Paroled
1991-PC4501.5 while at Pelican Bay.
1991-not under McCart.

People v. Brantley (2019) 43 Cal.App.5th 917. section 1170.1, subdivision (c) “does not apply [when a] defendant completed the prison term he was serving *549 before being sentenced **508 on the” in-prison offense. (People v. Brantley (2019) 43 Cal.App.5th 917, 920 [257 Cal.Rptr.3d 98] (Brantley), italics added; see id. at p. 922 [“a reading of the plain language of subdivision (c) makes apparent that this provision does not apply once the prisoner has completed the sentence he or she was serving when the in-prison crime was committed”].)

Credits. In re Rojas (1979) 23 Cal.3d 152; People v. Phoenix (2014) 231 Cal.App.4th 1119

In re Sims (1981) 117 Cal.App.3d 309

==Misdemeanor sentencing==

"A trial court in a misdemeanor case may properly look for guidance to what the rules consider to be aggravating and mitigating." (People v. Faber (2017) 15 Cal.App.5th Supp. 41, 48.)

A misdemeanor can be a full-boat consecutive in jail after a prison term. (''People v. Endelsen'' (1996) 46 Cal.App.4th 86.) A misdemeanor can be a full-boat consecutive in jail after a PC1170(h) jail sentence. (''People v. Brown (2016) 247 Cal.App.4th 1430.)

People v. Erdelan (1996) 46 Cal.App.4th 86

People v. Murray (1994) 23 Cal.App.4th 1783

In re Valenti (1986) 178 Cal.App.3d 470

In re Eric J. (1979) 25 Cal.3d 522

==Sentencing error==

===Failing to state reasons===

Rule 4.403

People v. Dixon (1993) 20 Cal.App.4th 1029, 1037, found it reversible error, when failing to state reasons for consecutive sentences.

Sentencing can't just incorporate by reference, such as just the probation report. People v. Pierce (1995) 40 Cal.App.4th 1317; People v. Fernandez (1990) 226 Cal.App.3d 669; People v. Deloach (1989) 207 Cal.App.3d 323; People v. Davis (1980) 103 Cal.App.3d 270; People v. Turner (1978) 87 Cal.App.3d 244

==Housing under PC1170(h)==

Unstricken juvenile strike priors keep defendants out of county jail. (''People v. Delgado'' (2013) 214 Cal.App.4th 914.)

But what about juvenile strike priors and PC1170(f)?

==Enhancements==

An enhancement is defined as an additional term of imprisonment or penalty added to the
base term. (People v. Smith (1985) 163 Cal.App.3d 908; Sentencing Rules for Superior Court,
California Rules of Court, Rule 4.405(3).) An enhancement is not, however, a separate crime.
(People v. Muhammad (2007) 157 Cal.App.4th 484; People v. Wims (1995) 10 Cal.4th 293;
People v. Mustafaa (1994) 22 Cal.App.4th 1305; People v. White (1976) 16 Cal.3d 791.) Thus, it
is inextricably bound to the underlying crime, and the facts that are relied upon to establish the
enhancement must have occurred during the time of the offense. (People v. Walls (1978)
85 Cal.App.3d 447; People v. Dozier (1979) 90 Cal.App.3d 174.)

Because enhancements are not crimes, the corpus delicti rule does not apply to them. (People v.
Shoemake (1993) 16 Cal.App.4th 243.)

Generally, with determinate term sentences, a conduct enhancement is added to the base term
set for each offense, and a status enhancement is added once at the end of the determinate term
calculation. (People v. Jefferson (1999) 21 Cal.4th 86.) [Note: Enhancements for prior convictions
are added to each indeterminate term. (People v. Williams (2004) 34 Cal.4th 397.)] Penal Code
section 1170.11 lists specific enhancements that relate to the circumstances of the crime.
Enhancement allegations are not considered part of the accusatory pleading for purposes of
defining lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92; People v. Richmond
(1991) 2 Cal.App.4th 610.) Nor may they be considered when applying the multiple conviction
rule—the rule prohibiting multiple convictions based on necessarily included offenses. (People v.
Izaguirre (2007) 42 Cal.4th 126.) Further, Penal Code section 805(a) provides that enhancements
are disregarded when determining the applicable statute of limitations. In other words, the
enhancement is not part of the maximum punishment calculation.

Enhancements apply equally to juveniles as they do to adults. (Welf. & Inst. § 726(d); In re Jovan B. (1993) 6 Cal.4th 801.

Relevant enhancements should be attached to each applicable underlying offense. (Pen. Code
§ 1170.1(d).) Subject to Penal Code sections 654 and 1170.1, enhancements may be imposed for
each separate crime for which the enhancement is found true. In other words, the law does not
limit charging or imposing enhancements only once for a criminal event; rather enhancements
should be charged and imposed for each crime during that event. (See People v. King (1993)
5 Cal.4th 59, overruling the rule in In re Culbreth (1976) 17 Cal.3d 330.)

All enhancements must be pled and either admitted by the defendant or proved to the trier
of fact beyond a reasonable doubt. (Pen. Code § 1170.1(e); Apprendi v. New Jersey (2000)
Defendant Conduct Enhancements (2015) 3
530 U.S. 466; People v. Sengpadychith (2001) 26 Cal.4th 316; People v. Mancebo (2002)
27 Cal.4th 735.)
Conduct enhancements should be pled in the criminal Complaint and proved at the
preliminary hearing. An enhancement may be included on the Information, even if not
initially alleged in the Complaint, provided sufficient evidence to support the enhancement
was presented at the preliminary hearing. Otherwise, the defendant may challenge the
sufficiency of an enhancement allegation by way of a Penal Code section 995 motion.
(People v. Superior Court of Marin County (Mendella) (1983) 33 Cal.3d 754.)
If the incorrect code section is pled or the enhancement is attached to the wrong count, the
court may still apply the enhancement. (People v. McKissick (1984) 151 Cal.App.3d 439;
People v. Riva (2003) 112 Cal.App.4th 981; Pen. Code § 960.)

Burden of Proof
Enhancement allegations must be proved beyond a reasonable doubt. (Apprendi, supra;
People v. Sloan (2007) 42 Cal.4th 110.)

Plea Bargaining
When the defendant enters into a plea bargain that includes an enhancement that the
defendant knows is unauthorized by law, in exchange for a lesser sentence than could
otherwise be imposed, the defendant will be estopped from attacking the imposition
of sentence for the enhancement. (People v. Ellis (1987) 195 Cal.App.3d 334; People v.
Otterstein (1987) 189 Cal.App.3d 1548; People v. Jones (1989) 210 Cal.App.3d 124.)

“During the Commission” Defined
Most enhancements require the prohibited conduct to be “during the commission” or “in
the commission” of a crime. The phrase “in the commission” has been given an expansive
interpretation and means more than simply “while committing” or “while engaged in.”
(People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.].) The following cases
illustrate this concept:
• People v. Canela (2014) 224 Cal.App.4th 703 [cert. for part. pub.]—The defendant
was “in the commission” of a robbery when he was in flight from officers and struck a
pedestrian.
• People v. Elder (2014) 227 Cal.App.4th 411 [cert. for part. pub.]—The robbery
victim sustained GBI while trying to push the fleeing defendant from a van.
• People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.]—A GBI
enhancement may apply to leaving the scene of an accident in violation of Vehicle
Code section 20001(a) if the injury was inflicted as part of one continuous transaction,
but not if the injury was inflicted prior to the flight.
• People v. Frausto (2009) 180 Cal.App.4th 890—The phrase “in the commission of”
in Penal Code section 12022.53(d) has the same meaning as identical or equivalent
language in sections 667.61, 12022.3, 12022.5, and the felony-murder statutes. Thus,
a firearm is discharged “in the commission of” a felony within the meaning of Penal
Code section 12022.53(d) if the underlying felony and the discharge of the firearm
are part of one continuous transaction, including flight after the felony to a place of
temporary safety.
• People v. Pitto (2008) 43 Cal.4th 228—Whenever (1) the defendant knows of the
presence and location of a firearm near the drugs, (2) the gun’s proximity to the drugs
is not “accidental or coincidental,” and (3) the defendant is in a position to use the gun
offensively or defensively to aid in the commission of the offense, the gun facilitates
that crime and has the requisite purpose or effect with respect to its commission.
• People v. Carrasco (2006) 137 Cal.App.4th 1050—With a gun use enhancement
“during the commission” of a robbery, the robbery may be spread over a considerable
distance and varying periods of time. A robbery begins with the commission of any of
the elements and concludes after all the elements have been satisfied and the defendant
has reached a place of relative safety. The gun use enhancement applies if the “use” aids
in completing any of the essential elements of the crime.
• People v. Alvarado (2001) 87 Cal.App.4th 178—For the purpose of Penal Code
section 667.61(e)(2), “during the commission of a burglary” refers to that period of
time between the burglar’s initial entry with the requisite intent and the burglar’s escape
to a place of temporary safety
People v. Jones (2001) 25 Cal.4th 98—In the case of a weapons-use enhancement,
such use may be deemed to occur “in the commission of” the offense if it occurred
before, during, or after the technical completion of the felonious sex act. The operative
question is whether the sex offense posed a greater threat of harm, i.e., was more
culpable because the defendant used a deadly weapon to threaten or maintain control
over the victim.
• People v. Becker (2000) 83 Cal.App.4th 294 [cert. for part. pub.]—A defendant’s
sentence may be enhanced for arming as long as he [or she] has a weapon available for
use at any point during the course of a continuing offense (conspiracy).
• People v. Masbruch (1996) 13 Cal.4th 1001—In this case, the defendant initially
used a firearm to subdue the two female victims and tie them up. He then committed
robbery, rape, sodomy, false imprisonment, and torture. The defendant appealed the
enhancement for gun use in the sex crimes, claiming that he only displayed the gun at
the outset of the crime spree. The court held that the firearm use enhancement liability
continued for as long as the defendant “utilized a gun at least as an aid in completing
an essential element of a subsequent crime.” The court explained:
In considering whether a gun use occurred, the jury may consider a
“video” of the entire encounter; it is not limited to a “snapshot” of
the moments immediately preceding a sex offense. Thus, a jury could
reasonably conclude that although defendant’s presence with the victims
was sporadic, the control and fear created by his initial firearm display
continued throughout the encounter. (Id. at 1011.)
[Note: This case has an excellent and extensive discussion on the definition of “use” of a
firearm.]
• People v. Taylor (1995) 32 Cal.App.4th 578—For the purpose of Penal Code
section 12022.5, the use of a firearm during escape from the crime scene is a use during
the commission of the crime. The defendant had left the burglary scene with a police
officer in pursuit, but his companion was detained at the scene, and the defendant
used the weapon when he returned to free her. The companion had stolen items on her
person and could implicate the defendant in the burglary. Thus, the burglary had not
been completed.
• People v. Heston (1991) 1 Cal.App.4th 471 [cert. for part. pub.]—Penal Code
section 12022.4 creates an enhancement for furnishing a firearm during the
commission of a crime. Although the defendant actually furnished it before the crime,
the court held that the statutory language must be read as contemplating a time frame
other than simply the time of the actual act element of the felony.
• People v. Mixon (1990) 225 Cal.App.3d 1471—Infliction of injury on the victim
after removal from a burglary situs is “during the commission” of the burglary.
• People v. Walls (1978) 85 Cal.App.3d 447—During a burglary, the defendant used a
gun and inflicted GBI. (Pen. Code § 12022.7.) On appeal he urged that the burglary
was complete upon entry with the requisite intent and that the alleged enhancement
conduct did not occur “during the commission” of the burglary. This was rejected by
the court, which held that the burglary continued after entry.

The court does not need to state a reason for imposing an enhancement that was found
true (Pen. Code § 1170(d); Rule 4.428); however, the court must state reasons for striking
the enhancement. (In re Renfrow (2008) 164 Cal.App.4th 1251.)
Enhancements imposed on attempted crimes are not reduced by half the normal term for
the enhancement. (In re Anthony H. (1980) 108 Cal.App.3d 494.

However, only one
weapon enhancement (the greatest) and only one injury enhancement (the greatest) may be
imposed for a single victim on a single crime. (Pen. Code § 1170.1(f) and (g); Rule 4.447;
People v. Ahmed (2011) 53 Cal.4th 156; People v. Mercado (2013) 216 Cal.App.4th 67.)
1. Multiple Firearm and Weapon Use on a Single Crime—Penal Code
Section 1170.1(f)
The defendant’s use of a firearm or weapon during the commission of a crime
may implicate several enhancements (e.g., Pen. Code §§ 12022.5 and 12022.53);
however, only the greatest may be imposed for each crime. (Pen. Code § 1170.1(f);
People v. Rodriguez (2009) 47 Cal.4th 501.) This rule applies even if the defendant
uses two weapons during the commission of the crime. (People v. Jones (2000)
82 Cal.App.4th 485.)
2. Multiple Weapon Enhancements on Multiple Crimes
When the defendant uses a weapon during the commission of multiple crimes, a
weapons enhancement is permitted for each crime. (King, supra; People v. Palacios
(2007) 41 Cal.4th 720.)
3. Multiple Injury Enhancements on the Same Victim on a Single Crime—
Penal Code Section 1170.1(g)
The defendant’s infliction of injury during the commission of a crime may result in
the filing of several injury enhancements (e.g., Pen. Code § 12022.7(a) and (b));
however, only the greatest may be imposed. (Pen. Code § 1170.1(g); People v. Eck
(1999) 76 Cal.App.4th 759 [cert. for part. pub.].)
4. Multiple Injury Enhancements for Multiple Victims
Where multiple victims are injured, multiple injury enhancements are permitted.
(People v. Arndt (1999) 76 Cal.App.4th 387; People v. Ausbie (2004) 123 Cal.App.
4th 855 [cert. for part. pub.].)

he court can strike almost all enhancements—or just the additional punishment
for the enhancement—with stated reasons based on the general provisions of Penal
Code section 1385. (People v. Meloney (2003) 30 Cal.4th 1145; People v. Luckett
(1996) 48 Cal.App.4th 1214; Rule 4.406(b)(7) and (b)(10); see also former Pen.
Code § 1170.1(h) [pre-Jan. 1, 1998].) The court can strike an enhancement with
respect to one count but not another. (People v. Torres (2008) 163 Cal.App.4th
1420 [cert. for part. pub.].)

Example: The defendant is convicted of robbery with an enhancement for the
personal infliction of GBI. As nothing limits or prohibits the imposition of this
enhancement, it must be imposed or stricken, not stayed. (Pen. Code §§ 1170.1(d)
and 1385(c); People v. Langston (2004) 33 Cal.4th 1237; Vega, supra.)

his issue was addressed in the context of multiple firearm enhancements pursuant
to Penal Code sections 12022.5 and 12022.53(b) and (c) attached to a single
underlying crime. In reviewing the statutory construction of section 12022.53,
and harmonizing that statute with the rationale of section 654 and Rule 4.447,
the California Supreme Court held that an enhancement whose imposition is
prohibited should be stayed, not stricken. (People v. Gonzalez (2008) 43 Cal.4th
1118.)
Should the court wish to avoid the additional prison term for the enhancement
but retain the offense as a serious or violent felony for “strike” or credit limitation
purposes, the court should impose the enhancement and dismiss only the
additional punishment. (Pen. Code § 1385(c); Pope, supra; In re Pacheco (2007)
155 Cal.App.4th 1439; In re Borlik (2011) 194 Cal.App.4th 30.)

===PC12022(a) firearm +1===

“Armed” is knowingly carrying a firearm as a means of offense or defense.
Bland, supra, 10 Cal.4th 991, held that a defendant convicted of a possessory
drug offense is subject to the “armed with a firearm” enhancement when he or
she possesses both drugs and a gun, and keeps them together, but is not present
when the police seize them. (People v. Hayes (1990) 52 Cal.3d 577; People v.
Wandick (1991) 227 Cal.App.3d 918; Alvarado, supra, 146 Cal.App.4th 993;
Pen. Code § 1203.06(b)(3).)
• Applies to completed and attempted crimes.
• Vicarious liability is permitted for all principals. Two people can be personally
armed with one gun. (People v. Mendival (1992) 2 Cal.App.4th 562 [cert. for
part. pub.].)
• “Firearm” is defined as “a device, designed to be used as a weapon, from which
is expelled through a barrel a projectile by the force of an explosion or other
form of combustion.” (See Pen. Code § 16520(a).) This does not include the
mere “receiver.” (People v. Gailord (1993) 13 Cal.App.4th 1643.) The fact that
the object is a firearm can be established by direct or circumstantial evidence
(People v. Law (2011) 195 Cal.App.4th 976 [cert. for part. pub.]); however, toy
guns, pellet guns, and BB guns do not qualify as firearms. (People v. Monjaras
(2008) 164 Cal.App.4th 1432 [cert. for part. pub.].)
• The firearm need not be loaded or operable. (Masbruch, supra; People v. Nelums
(1982) 31 Cal.3d 355; People v. Steele (1991) 235 Cal.App.3d 788.)
• There is no requirement to prove that the defendant knew or should have
known that the crime partner was armed. (People v. Overten (1994)
28 Cal.App.4th 1497.)
• Not applicable if arming is an element of the offense.

===PC12022(b) Assault Weapon +3===

Applies to completed or attempted crimes.
• “Assault weapon” defined. (Pen. Code § 30510.) “Machine gun” defined.
(Pen. Code §§ 30530 and 16880.)
• Applies even if arming is an element of the offense.
Defendant Conduct Enhancements (2015) 13
• Vicarious liability is permitted for all principals.
• There must be proof the defendant knew or reasonably should have known the
weapon was an assault weapon. (In re Jorge M. (2000) 23 Cal.4th 877.)

===PC12022(c) Armed while having controlled substances +3-4-5===
Personally armed” refers to the person who acts, not that person’s action.
Hence, two people can be personally armed with the same weapon if it is
equally available for use to both. (People v. Superior Court of San Diego County
(Pomilia) (1991) 235 Cal.App.3d 1464; Mendival, supra; People v. Gonzales
(1992) 8 Cal.App.4th 1658.)
• In the commission or attempted commission of violating Health and Safety
Code section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5,
11379, 11379.5, or 11379.6.
• There must be proof that the defendant had knowledge of the presence of the
firearm. (People v. Singh (2004) 119 Cal.App.4th 905 [cert. for part. pub.].)

===PC12022(d) Vicariously armed +1-2-3===
Penal Code section 12022(c) applies to those who actually and knowingly have
a firearm available for use, and section 12022(d) applies to those who do not,
but who know that one of their co-principals does. (People v. Smith (1992)
9 Cal.App.4th 196 [cert. for part. pub.].)

===PC30615 assault weapon +1===

===PC12022(b)(1) Deadly Weapon +1 Serious===

“Deadly or dangerous weapon” refers to any weapon, instrument, or object that
is inherently deadly or is used in such a way it is capable of causing and is likely
to cause great bodily injury or death. (CALCRIM 3145; People v. Reid (1982)
133 Cal.App.3d 354). Examples:
- BB gun (In re Bartholomew D. (2005) 131 Cal.App.4th 317 [cert. for part.
pub.]; People v. Brown (2012) 210 Cal.App.4th 1)
- Dirk or blackjack (People v. Aguilar (1997) 16 Cal.4th 1023)
- Knife (People v. Smith (1963) 223 Cal.App.2d 431)
- Broken glass or bottle (People v. Neal (1984) 159 Cal.App.3d 69 [cert. for
part. pub.]; People v. Zermeno (1999) 21 Cal.4th 927)
- Dog (People v. Frazier (2009) 173 Cal.App.4th 613 [cert. for part. pub.])
- Car (Calderon, supra)
• Personal use is required; there is no vicarious liability.
• The enhancement is not applicable if use of a deadly or dangerous weapon is an
element of the offense. (People v. McGee (1993) 15 Cal.App.4th 107 [cert. for
part. pub.] [interpreting former Pen. Code § 245].)
• This enhancement qualifies the underlying crime as a serious felony (Pen. Code
§ 1192.7(c)(23)), but not a violent felony

===PC12022.5 Firearms +3-4-10===

Applies to completed and attempted crimes.
• The court cannot strike this enhancement. (Pen. Code § 12022.5(c); Thomas,
supra.)
• The requirement of use of a firearm does not create a specific intent to injure
or assault the victim; however, the use must be intentional. (In re Tameka C.
(2000) 22 Cal.4th 190; Johnson, supra, 38 Cal.App.4th 1315.)
• The firearm may be used as a bludgeon. (Walls, supra; People v. Miceli (2002)
104 Cal.App.4th 256 [cert. for part. pub.].)
• Personal use is required; there is no vicarious liability. (People v. Walker (1976)
18 Cal.3d 232; People v. Hays (1983) 147 Cal.App.3d 534.)
• The enhancement is applicable if the defendant who personally uses the firearm
is vicariously liable for the underlying offense. (In re Antonio R. (1990)
226 Cal.App.3d 476 [cert. for part. pub.]; Berry, supra; Thiessen, supra.)
• The firearm need not be loaded or operable. (Nelums, supra.) See definition of
“firearm” in Section V.A.1.
• This enhancement is not applicable (Pen. Code § 12022.5(d)) if the use of a
firearm is an element of the offense, except if the offense is:
- any violation of Penal Code section 245, or
- murder perpetrated by means of shooting a firearm from a motor vehicle
intentionally at another person outside of the vehicle with the intent to
inflict GBI or death. (People v. Joachim (1995) 38 Cal.App.4th 1526;
People v. Johnson (1996) 51 Cal.App.4th 1329.)
• Mandatory state prison (Pen. Code § 1203.06(a)(1)) for most violent crimes.
• Multiple enhancements are permitted for multiple crimes committed
on a single occasion (King, supra); however, if multiple types of firearm
enhancements are alleged for a single crime, only the greatest may be imposed
(Pen. Code § 1170.1(f)). See discussion in Section IV.C.
• Qualifies the underlying crime as a serious felony (Pen. Code § 1192.7(c)(8))
and violent felony (Pen. Code § 667.5(c)(8)); therefore, conduct credits for the
aggregate term are limited to 15 percent. (Pen. Code § 2933.1; Reeves, supra.)
• Gang implications: The court cannot impose both a Penal Code section
12022.5 and a section 186.22(b)(1) enhancement if the gun is what makes the
crime a serious or violent felony. (Rodriguez, supra.)

===PC12022.5(b) assault weapons +5-6-10===

===PC21022.53 10-20-life===

* Section 187 (murder)
* Section 203 or 205 (mayhem)
* Section 207, 209, or 209.5 (kidnapping)
* Section 211 (robbery)
* Section 215 (carjacking)
* Section 220 (assault with intent to commit a specified felony)
* Section 245(d) (assault with a firearm on a peace officer or firefighter)
* Section 261 or 262 (rape)
* Section 264.1 (rape or sexual penetration in concert)
* Section 286 (sodomy)
* Section 288 or 288.5 (lewd act on a child
* Section 288a (oral copulation)
* Section 289 (sexual penetration)
* Section 4500 (assault by a life prisoner)
* Section 4501 (assault by a prisoner)
* Section 4503 (holding hostage by a prisoner)
* Any felony punishable by death or imprisonment in the state prison for life.
* Any attempt to commit a listed crime other than an assault.

===PC12022.55 Discharge of firearm from motor vehicle +5-6-10===

===PC12022.7 Great bodily injury +3===
Personal infliction is required. (People v. Cole (1982) 31 Cal.3d 568; People v.
Cross (2008) 45 Cal.4th 58.) Personal infliction can include “joint infliction”
when the defendant contributes to the GBI. (People v. Modiri (2006)
39 Cal.4th 481; People v. Dunkerson (2007) 155 Cal.App.4th 1413.) The
definition can include a failure to act if the defendant has a duty to act and
failure leads to GBI. (People v. Warwick (2010) 182 Cal.App.4th 788.)
• Applies to completed and attempted crimes.
• Specific intent to inflict injury is no longer required. Specific intent is required
for crimes committed prior to January 1, 1996. (People v. Fong (2013)
217 Cal.App.4th 263.)
• For the crimes listed in Penal Code section 1203.075, the infliction of GBI
means a mandatory denial of probation. It is no longer necessary to plead
and prove the section 1203.075 allegation together with the section 12022.7
enhancement. Prior to September 20, 2006, Penal Code section 1203.075
required intentional infliction so a separate probation denial allegation was
required when specific intent was deleted from the GBI enhancement itself.
Note: The probations denial allegation of Penal Code section 1203.075 does
apply to murder and should be alleged.
• Penal Code section 12022.7(f) defines GBI as “a significant or substantial
physical injury” beyond that inherent in the underlying felony. (People v.
Washington (2012) 210 Cal.App.4th 1042.) The California Supreme Court in
People v. Caudillo (1978) 21 Cal.3d 562 [overruled on another point in
People v. Escobar, infra, at 751, fn. 5] required that the injury be “severe or
protracted.” The California Supreme Court returned to the code section
standard of “significant or substantial physical injury” in People v. Escobar
(1992) 3 Cal.4th 740. Consequently, the injury sustained under the new
standard need not be as serious as that required by Caudillo. The injuries that
qualified as GBI in Escobar were: “extensive bruises and abrasions over the
victim’s legs, knees and elbows, injury to her neck and soreness in her vaginal
area of such severity that it significantly impaired her ability to walk.” (Escobar,
supra, at 750.)
• Other cases with examples of GBI:
- People v. Mendias (1993) 17 Cal.App.4th 195. Gunshot wound to upper
thigh. The victim was released from the hospital the next day, but the bullet
was not removed. At the trial five months later, the victim said the bullet
moves, but is not painful.
- People v. Wallace (1993) 14 Cal.App.4th 651. Two victims, one with cuts on
wrists and ankles from being flex-tied. One victim’s finger had no feeling
for two months. The other victim’s wrists were burned from flex-ties and
bandaged for two days. Insecticide-like substance caused “really, really bad”
burning in her eyes, vagina, and anus for 24 hours.
- People v. Bustos (1994) 23 Cal.App.4th 1747, 1755. The wounds inflicted
by this defendant (not including fatal stab wounds inflicted by another)
were contusions to the nose, left elbow, and left thigh; lacerations to the left
upper lip; and abrasions to the right elbow, left knee, and anus.
- People v. Le (2006) 137 Cal.App.4th 54. Soft tissue and muscular injury to
both legs caused by gunshot wound causing pain and restricted mobility for
weeks.
• Additional examples of GBI were discussed and approved using the more
stringent standard set forth in Caudillo, supra (pre-Escobar law):
- Knocked unconscious, numerous cuts with scars still evident at trial,
intense headaches
- Prolonged loss of consciousness
- Severe concussion
- Protracted loss of any bodily member or organ
- Protracted impairment of function of any bodily member or organ or bone
- A wound or wounds requiring extensive suturing
- Serious disfigurement
- Severe physical pain inflicted by torture
[Note: These categories were included in the section as originally enacted,
but were deleted by an amendment in 1977.]
• Other examples of GBI:
- Multiple contusions, swelling, and discoloration of the body. (People v.
Jaramillo (1979) 98 Cal.App.3d 830.)
- A broken hand swollen to twice its normal size. (People v. Kent (1979)
96 Cal.App.3d 130.
- A fractured jaw. (People v. Johnson (1980) 104 Cal.App.3d 598.)
- Hot grease in face. “Blistering 2nd burns … visible discoloration and
disfigurement for a month at least.” (People v. Harvey (1992)
7 Cal.App.4th 823.)
- Six sutures to the vagina for a cut of 2.5 cm. (People v. Brown (1985)
174 Cal.App.3d 762.)
• The jury need not unanimously agree on which injury or injuries support the
GBI. It is a “measuring function.” The jury determines whether the victim
suffered that quantum of injury that is defined as GBI. (People v. Robbins
(1989) 209 Cal.App.3d 261 [cert. for part. pub.].)
• The enhancement is not applicable if GBI is an element of the offense.
(Pen. Code § 12022.7(g).) Penal Code section 243(d), Battery with “Serious
Bodily Injury” is “Great Bodily Injury,” and the enhancement is not applicable.
(People v. Hawkins (1993) 15 Cal.App.4th 1373.) The enhancement is
inapplicable to mayhem as well. (People v. Hill (1994) 23 Cal.App.4th 1566.)
The code section specifically exempts murder, manslaughter, or arson.
(People v. Martinez (2014) 226 Cal.App.4th 1169; but see People v. Weaver
(2007) 149 Cal.App.4th 1301; Pen. Code § 12022.7 applies to additional
injured victims in a vehicular manslaughter case.) This enhancement does apply
to attempted murder or attempted manslaughter. (Allen, supra; People v. Lewis
(1994) 21 Cal.App.4th 243.)
• Qualifies the underlying crime as a serious felony (Pen. Code § 1192.7(c)(8))
and a violent felony (Pen. Code § 667.5(c)(8)); therefore, conduct credits for
the aggregate term are limited to 15 percent. (Pen. Code § 2933.1; Reeves,
supra.)
• If multiple GBI enhancements are attached to the underlying crime, only the
greatest may be imposed. (Pen. Code § 1170.1(g); Eck, supra.)

===PC12022.1 OR enhancement +3===
Enhancement for Offenses Committed While Released on Bail / Own Recognizance—
Penal Code Section 12022.1 [+ 3 years]
Any person convicted of a felony offense (secondary offense) committed while the
defendant was released from custody on bail or on his or her own recognizance (O.R.) for
another offense (primary offense), before the judgment became final for that other offense,
including the disposition of any appeal, must have his or her sentence for the secondary
offense enhanced by two years.
“Primary offense” refers to the felony offense for which a person was released on bail / O.R.
prior to final judgment. Conviction for the primary offense is not an element of Penal
Code section 12022.1, but is a prerequisite to the imposition of the enhancement on the
secondary offense. (People v. Johnson (2012) 208 Cal.App.4th 1092 [cert. for part. pub.].)
“Secondary offense” refers to the felony offense committed by the defendant while released
on the primary offense.
Whenever there is a conviction for the secondary offense and the enhancement is proved,
and the person is sentenced on the secondary offense prior to the conviction of the primary
offense, the court for the secondary offense may strike the enhancement or imposition of
the enhancement must be stayed, pending sentencing for the primary offense per Penal
Code § 12022.1(d). The sentencing court on the primary offense will lift any stay of the
enhancement. (Meloney, supra.)
If the person is convicted of a felony for the primary offense, is sentenced to state prison for
the primary offense, and is convicted of a felony for the secondary offense, then any state
prison sentence for the secondary offense must be consecutive to the primary sentence.
(Pen. Code § 12022.1(e); People v. Sanchez (1991) 230 Cal.App.3d 768.)
If the person is convicted of a felony for the primary offense, is granted probation for
the primary offense, and is convicted of a felony for the secondary offense, then any state
prison sentence for the secondary offense must be enhanced by an additional term of two
years. (Pen. Code § 12022.1(f).)
If the primary offense conviction is reversed on appeal, the enhancement shall be
suspended pending retrial of that felony. On retrial and reconviction, the enhancement
must be re-imposed. If the person is no longer in custody for the secondary offense
on reconviction of the primary offense, the court may, at its discretion, re-impose the
enhancement and order the defendant to custody. (Pen. Code § 12022.1(g).)
• Multiple enhancements are possible if the defendant is released on multiple cases.
(People v. Mackabee (1989) 214 Cal.App.3d 1250 [cert. for part. pub.].) But only one
enhancement is permitted if there are multiple secondary offenses and one primary
offense. (People v. McNeely (1994) 28 Cal.App.4th 739.)
• Imposing this enhancement and a prior conviction enhancement for the same
primary offense is not a violation of Penal Code section 654. (People v. Juarez (1993)
21 Cal.App.4th 318 [cert. for part. pub.].)
• The enhancement is applicable to juvenile proceedings. (In re Jovan B., supra.) This
includes a “general release” of a juvenile. (In re Rottanak K. (1995) 37 Cal.App.4th
260.)
• The enhancement need not be proved at the preliminary hearing. (Pen. Code
§ 12022.1(c).)
• The defendant is not entitled to a jury trial on the allegation. (Johnson, supra, 208 Cal.
App.4th 1092.)
• Applicable to Penal Code section 1320.5 [felony failure to appear]. (People v. Walker
(2002) 29 Cal.4th 577 [cert. for part. pub.].) The enhancement does not apply to
release pursuant to Penal Code section 1000. (People v. Ormiston (2003)
105 Cal.App.4th 676 [cert. for part. pub.].)

Impersonating a peace officer.
Penal Code section 667.17 [+ 1 year]: Impersonating a peace officer in violation of
Penal Code section 538d during the commission of a felony.

Penal Code section 667.85 [+ 5 years]: Kidnapping a child under 14 with the intent to permanently deprive the parent or legal guardian of custody.

==Rules of Court==

===Rule 4.410 General objectives in sentencing===

(a) General objectives of sentencing include:

(1) Protecting society;

(2) Punishing the defendant;

(3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses;

(4) Deterring others from criminal conduct by demonstrating its consequences;

(5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration;

(6) Securing restitution for the victims of crime;

(7) Achieving uniformity in sentencing; and

(8) Increasing public safety by reducing recidivism through community-based corrections programs and evidence-based practices.

(b) Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by
statutory statements of policy, the criteria in these rules, and any other facts and circumstances relevant to the case.

===Rule 4.413. Grant of probation when defendant is presumptively ineligible for probation===

(a) Consideration of eligibility
The court must determine whether the defendant is eligible for probation. In most cases, the defendant is presumptively eligible for probation; in some cases, the defendant is presumptively ineligible; and in some cases, probation is not allowed.

(b) Probation in cases when defendant is presumptively ineligible
If the defendant comes under a statutory provision prohibiting probation “except in unusual cases where the interests of justice would best be served,” or a substantially equivalent provision, the court should apply the criteria in

(c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation.

(c) Factors overcoming the presumption of ineligibility
The following factors may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate:

(1) Factors relating to basis for limitation on probation
A factor or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including:

(A) The factor or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and

(B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense.

(2) Factors limiting defendant's culpability
A factor or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including:

(A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence;

(B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and

(C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.

(3) Results of risk/needs assessment

Along with all other relevant information in the case, the court may consider the results of a risk/needs assessment of the defendant, if one was performed. The weight of a risk/needs assessment is for the court to consider in its sentencing discretion.

Victim “[v]ulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act.” (People v. Smith (1979) 94 Cal.App.3d 433, 436, 156 Cal.Rptr. 502 [describing that term in the context of rule 4.421(a)(3) ].

People v. Weaver (2007) 149 Cal.App.4th 1301, 1314 disapproved of by People v. Cook (2015) 60 Cal.4th 922

===Rule 4.421 Circumstances in aggravation===

Circumstances in aggravation include factors relating to the crime and factors relating to the defendant.
(a) Factors relating to the crime
Factors relating to the crime, whether or not charged or chargeable as enhancements include that:
(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
(2) The defendant was armed with or used a weapon at the time of the commission of the crime;
(3) The victim was particularly vulnerable;
(4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission;
(5) The defendant induced a minor to commit or assist in the commission of the crime;
(6) The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;
(7) The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;
(8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism;
(9) The crime involved an attempted or actual taking or damage of great monetary value;
(10) The crime involved a large quantity of contraband; and
(11) The defendant took advantage of a position of trust or confidence to commit the offense.
(12) The crime constitutes a hate crime under section 422.55 and:
(A) No hate crime enhancements under section 422.75 are imposed; and
(B) The crime is not subject to sentencing under section 1170.8.
(b) Factors relating to the defendant
Factors relating to the defendant include that:
(1) The defendant has engaged in violent conduct that indicates a serious danger to society;
(2) The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
(3) The defendant has served a prior term in prison or county jail under section 1170(h);
(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.
(c) Other factors
Any other factors statutorily declared to be circumstances in aggravation or that reasonably relate to the defendant or the circumstances under which the crime was committed.
Credits
(Formerly Rule 421, adopted, eff. July 1, 1977. As amended, eff. Jan. 1, 1991. Renumbered Rule 4.421, eff. Jan. 1, 2001. As amended, eff. Jan. 1, 2007; May 23, 2007; Jan. 1, 2017; Jan. 1, 2018.)

====Comment====
ADVISORY COMMITTEE COMMENT

Circumstances in aggravation may justify imposition of the middle or upper of three possible terms of imprisonment. (Section 1170(b).)
The list of circumstances in aggravation includes some facts that, if charged and found, may be used to enhance the sentence. This rule does not deal with the dual use of the facts; the statutory prohibition against dual use is included, in part, in the comment to rule 4.420.

Conversely, such facts as infliction of bodily harm, being armed with or using a weapon, and a taking or loss of great value may be circumstances in aggravation even if not meeting the statutory definitions for enhancements or charged as an enhancement.

Facts concerning the defendant's prior record and personal history may be considered. By providing that the defendant's prior record and simultaneous convictions of other offenses may not be used both for enhancement and in aggravation, section 1170(b) indicates that these and other facts extrinsic to the commission of the crime may be considered in aggravation in appropriate cases.

Refusal to consider the personal characteristics of the defendant in imposing sentence may raise serious constitutional questions. The California Supreme Court has held that sentencing decisions must take into account “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (In re Rodriguez (1975) 14 Cal.3d 639, 654, quoting In re Lynch (1972) 8 Cal.3d 410, 425.) In Rodriguez the court released petitioner from further incarceration because “it appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment.” (Id. at p. 655, fn. omitted, italics added.) “For the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” (Pennsylvania ex rel. Sullivan v. Ashe (1937) 302 U.S. 51, 55, quoted with approval in Gregg v. Georgia (1976) 428 U.S. 153, 189.)

Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion. Some of the cases that had relied on that circumstance in aggravation were reversed on appeal because there was only a single victim in a particular count.

Old age or youth of the victim may be circumstances in aggravation; see section 1170.85(b). Other statutory circumstances in aggravation are listed, for example, in sections 422.76, 1170.7, 1170.71, 1170.8, and 1170.85.

==Resentencing==

[https://www.courts.ca.gov/opinions/documents/C090767.PDF People v. McMurray (Mar. 30, 2022, C090767)

Appellate jurisdiction

People v. Scarbrough (2015) 240 Cal.App.4th 916
People v. Nelms (2008) 165 Cal.App.4th 1465
People v. Acosta (1996) 48 Cal.App 4th 411, 427

==Upper term==

===Upper term imposed before passage of SB567===

''People v. Berdoll'' (2022) 85 Cal.App.5th 159

''People v. Mitchell'' (2022) 83 Cal.App.5th 1051, review granted, S277314

==Split-sentence==

''People v. Camp'' (2015) 233 Cal.App.4th 461

''People v. Arce'' (2017) 11 Cal.App.5th 613

Sentencing

2026-02-08T03:45:58Z

Sysop: /* Prison sentencing */

“In a criminal case, judgment is rendered when the trial court orally pronounces sentence.” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.)

==Charging==
Penal Code Section 12022.1
This is a two-year enhancement for committing a crime while released on bail or
own recognizance. Subdivision (c) specifically states that the allegation may be
pleaded in a Complaint, but need not be proved at the preliminary hearing. The
allegation must, however, be pleaded in the Information or Indictment.
2. Prior Convictions
Prior convictions, which are status enhancements, may be added to the Information
or Indictment whenever it is discovered that not all prior convictions have been
alleged. (Pen. Code § 969a; Miranda v. Superior Court of Los Angeles County (1995)
38 Cal.App.4th 902; Thompson v. Superior Court of Los Angeles County (2001)
91 Cal.App.4th 144; People v. Casillas (2001) 92 Cal.App.4th 171.)

==Admissible evidence==

“A probation report is required following every felony conviction in this state. [Citation.] [California Rules of Court, r]ule 4.411.5 details the contents of presentence reports, and contemplates that police reports will be used to prepare crime summaries contained therein. (Rule 4.411.5(a)(7)(i).) Defendants are required by statute to have an opportunity to review and challenge inaccuracies in the presentence report. [Citations.] [Defendant] does not contend he failed to receive such an opportunity in the underlying criminal prosecution. [¶] Superior courts consider and rely upon hearsay statements contained in a presentence report to determine whether to place a defendant on probation, and to evaluate his [or her] level of culpability when selecting an appropriate sentence. [Citations.]” (People v. Otto (2001) 26 Cal.4th 200, 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061 (Otto ).) “A sentencing judge ‘may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the convicted person's life and characteristics.’ [Citation.]” (People v. Arbuckle (1978) 22 Cal.3d 749, 754, 150 Cal.Rptr. 778, 587 P.2d 220.) The court may also consider and rely upon hearsay statements contained in a probation report, including the police reports used to prepare the crime summaries contained in the report. (Otto, at p. 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061.)

By stating in section 1204 that mitigating evidence must be presented through “the testimony of witnesses examined in open court” rather than verbal representations, the Legislature has declared that a criminal defendant wishing to make an oral statement to the court in mitigation of punishment must do so through testimony given under oath.6 (A defendant may also provide an unsworn written statement either by submitting the statement to the probation officer for inclusion in the probation report (Cal. Rules of Court, rule 4.411.5(a)(4)), if one is prepared; or by including such a statement in a “written report” filed by the defense that “presents a study of his background and personality and suggests a rehabilitation program” (§ 1204).) People v. Evans (2008) 44 Cal.4th 590, 598

==Granting probation==

“The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation....” (People v. Welch (1993) 5 Cal.4th 228, 233, 19 Cal.Rptr.2d 520, 851 P.2d 802.)

“The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]” (People v. Birmingham (1990) 217 Cal.App.3d 180, 185, 265 Cal.Rptr. 780.)

In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rule 4.406(b)(2); rule 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.)
67 “The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance **27 of the evidence. [Citations.]” (People v. Leung (1992) 5 Cal.App.4th 482, 506, 7 Cal.Rptr.2d 290.) Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. (Id. at pp. 506–507, 7 Cal.Rptr.2d 290.)

People v. Weaver (2007) 149 Cal.App.4th 1301, 1313 disapproved of by People v. Cook (2015) 60 Cal.4th 922 on other grounds

Note: Allegations that mandate probation denial, or the facts that support them, must be
alleged and proved, for example, Penal Code section 1203(k); however, allegations that
merely create a presumptive denial of probation, do not. (People v. Lo Cicero (1969) 71
Cal.2d 1186; In re Varnell (2003) 30 Cal.4th 1132; People v. Lara (2012) 54 Cal.4th 896;
McKissick, supra.)

(People v. Hood (2014) 223 Cal.App.4th 1356 [depublished].)

===Mandatory inelgibile===

===Presumptive ineligible===
There is likewise broad discretion to determine whether a given case is “unusual” and entitles the defendant to probation in the interests of justice. (People v. Superior Court (Du ) (1992) 5 Cal.App.4th 822, 831, 7 Cal.Rptr.2d 177.

A VC20001 hit-and-run is not "a deadly weapon," to make one presumptively eligible under PC1203(e)(2). (People v. Nuno (2018) 26 Cal.App.5th 43.)

And it does not apply the criteria in rule 4.414 to determine whether to grant probation unless it first finds any statutory presumption against probation is rebutted. (Rule 4.413(b); **584 People v. Superior Court (Dorsey ) (1996) 50 Cal.App.4th 1216, 1229, 58 Cal.Rptr.2d 165.)

===Statement of reasons===
“Generally speaking, the trial court must state reasons for granting or denying probation.” (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

"At an initial sentencing hearing, when the court has the discretion to grant probation, the decision to grant probation is a sentence choice which requires a statement of reasons." (§ 1170, subd. (c); Cal. Rules of Court, rule 405(f)Court, rule 405(f). (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792.)

"The denial of probation, in and of itself, is not a sentence choice requiring a statement of reasons. (People v. Gopal (1985) 171 Cal.App.3d 524, 547–549, 217 Cal.Rptr. 487, cert. den. 476 U.S. 1105, 106 S.Ct. 1949, 90 L.Ed.2d 359; People v. Crouch (1982) 131 Cal.App.3d 902, 904, 182 Cal.Rptr. 701.) The rationale is that the denial of probation is not the ultimate disposition of the case, but rather is part and parcel of the concomitant decision to sentence to state prison, and that is the sentence choice which requires a statement of reasons. (People v. Butler (1980) 107 Cal.App.3d 251, 254–255, 165 Cal.Rptr. 709; accord People v. Golliver, supra, 219 Cal.App.3d at p. 1616, fn. 2, 269 Cal.Rptr. 191.) (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792, fn. 2)

But it need not provide reasons for declining to find a case “unusual” so as to rebut any presumptive ineligibility for probation. (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

==Prison sentencing==

PC1170.1(c)

McCart

''People v. Roseberry'' (2020) 57 Cal.App.5th 543

5y sentence for PC273.5. Commit PC4573 and sentenced to full consecutive 3 years. New offense of PC4530 escape.

Being released on parole, breaks up the chain for McCart issues. (''People v. Reed'' (1993) 17 Cal.App.4th 302.)'
1981-4y sentence
1984-while serving sentence, sentenced to full 2y consecutive for PC4501.5
Paroled
1991-PC4501.5 while at Pelican Bay.
1991-not under McCart.

People v. Brantley (2019) 43 Cal.App.5th 917. section 1170.1, subdivision (c) “does not apply [when a] defendant completed the prison term he was serving *549 before being sentenced **508 on the” in-prison offense. (People v. Brantley (2019) 43 Cal.App.5th 917, 920 [257 Cal.Rptr.3d 98] (Brantley), italics added; see id. at p. 922 [“a reading of the plain language of subdivision (c) makes apparent that this provision does not apply once the prisoner has completed the sentence he or she was serving when the in-prison crime was committed”].)

Credits. In re Rojas (1979) 23 Cal.3d 152; People v. Phoenix (2014) 231 Cal.App.4th 1119

In re Sims (1981) 117 Cal.App.3d 309

==Misdemeanor sentencing==

"A trial court in a misdemeanor case may properly look for guidance to what the rules consider to be aggravating and mitigating." (People v. Faber (2017) 15 Cal.App.5th Supp. 41, 48.)

A misdemeanor can be a full-boat consecutive in jail after a prison term. (''People v. Endelsen'' (1996) 46 Cal.App.4th 86.) A misdemeanor can be a full-boat consecutive in jail after a PC1170(h) jail sentence. (''People v. Brown (2016) 247 Cal.App.4th 1430.)

==Sentencing error==

===Failing to state reasons===

Rule 4.403

People v. Dixon (1993) 20 Cal.App.4th 1029, 1037, found it reversible error, when failing to state reasons for consecutive sentences.

Sentencing can't just incorporate by reference, such as just the probation report. People v. Pierce (1995) 40 Cal.App.4th 1317; People v. Fernandez (1990) 226 Cal.App.3d 669; People v. Deloach (1989) 207 Cal.App.3d 323; People v. Davis (1980) 103 Cal.App.3d 270; People v. Turner (1978) 87 Cal.App.3d 244

==Housing under PC1170(h)==

Unstricken juvenile strike priors keep defendants out of county jail. (''People v. Delgado'' (2013) 214 Cal.App.4th 914.)

But what about juvenile strike priors and PC1170(f)?

==Enhancements==

An enhancement is defined as an additional term of imprisonment or penalty added to the
base term. (People v. Smith (1985) 163 Cal.App.3d 908; Sentencing Rules for Superior Court,
California Rules of Court, Rule 4.405(3).) An enhancement is not, however, a separate crime.
(People v. Muhammad (2007) 157 Cal.App.4th 484; People v. Wims (1995) 10 Cal.4th 293;
People v. Mustafaa (1994) 22 Cal.App.4th 1305; People v. White (1976) 16 Cal.3d 791.) Thus, it
is inextricably bound to the underlying crime, and the facts that are relied upon to establish the
enhancement must have occurred during the time of the offense. (People v. Walls (1978)
85 Cal.App.3d 447; People v. Dozier (1979) 90 Cal.App.3d 174.)

Because enhancements are not crimes, the corpus delicti rule does not apply to them. (People v.
Shoemake (1993) 16 Cal.App.4th 243.)

Generally, with determinate term sentences, a conduct enhancement is added to the base term
set for each offense, and a status enhancement is added once at the end of the determinate term
calculation. (People v. Jefferson (1999) 21 Cal.4th 86.) [Note: Enhancements for prior convictions
are added to each indeterminate term. (People v. Williams (2004) 34 Cal.4th 397.)] Penal Code
section 1170.11 lists specific enhancements that relate to the circumstances of the crime.
Enhancement allegations are not considered part of the accusatory pleading for purposes of
defining lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92; People v. Richmond
(1991) 2 Cal.App.4th 610.) Nor may they be considered when applying the multiple conviction
rule—the rule prohibiting multiple convictions based on necessarily included offenses. (People v.
Izaguirre (2007) 42 Cal.4th 126.) Further, Penal Code section 805(a) provides that enhancements
are disregarded when determining the applicable statute of limitations. In other words, the
enhancement is not part of the maximum punishment calculation.

Enhancements apply equally to juveniles as they do to adults. (Welf. & Inst. § 726(d); In re Jovan B. (1993) 6 Cal.4th 801.

Relevant enhancements should be attached to each applicable underlying offense. (Pen. Code
§ 1170.1(d).) Subject to Penal Code sections 654 and 1170.1, enhancements may be imposed for
each separate crime for which the enhancement is found true. In other words, the law does not
limit charging or imposing enhancements only once for a criminal event; rather enhancements
should be charged and imposed for each crime during that event. (See People v. King (1993)
5 Cal.4th 59, overruling the rule in In re Culbreth (1976) 17 Cal.3d 330.)

All enhancements must be pled and either admitted by the defendant or proved to the trier
of fact beyond a reasonable doubt. (Pen. Code § 1170.1(e); Apprendi v. New Jersey (2000)
Defendant Conduct Enhancements (2015) 3
530 U.S. 466; People v. Sengpadychith (2001) 26 Cal.4th 316; People v. Mancebo (2002)
27 Cal.4th 735.)
Conduct enhancements should be pled in the criminal Complaint and proved at the
preliminary hearing. An enhancement may be included on the Information, even if not
initially alleged in the Complaint, provided sufficient evidence to support the enhancement
was presented at the preliminary hearing. Otherwise, the defendant may challenge the
sufficiency of an enhancement allegation by way of a Penal Code section 995 motion.
(People v. Superior Court of Marin County (Mendella) (1983) 33 Cal.3d 754.)
If the incorrect code section is pled or the enhancement is attached to the wrong count, the
court may still apply the enhancement. (People v. McKissick (1984) 151 Cal.App.3d 439;
People v. Riva (2003) 112 Cal.App.4th 981; Pen. Code § 960.)

Burden of Proof
Enhancement allegations must be proved beyond a reasonable doubt. (Apprendi, supra;
People v. Sloan (2007) 42 Cal.4th 110.)

Plea Bargaining
When the defendant enters into a plea bargain that includes an enhancement that the
defendant knows is unauthorized by law, in exchange for a lesser sentence than could
otherwise be imposed, the defendant will be estopped from attacking the imposition
of sentence for the enhancement. (People v. Ellis (1987) 195 Cal.App.3d 334; People v.
Otterstein (1987) 189 Cal.App.3d 1548; People v. Jones (1989) 210 Cal.App.3d 124.)

“During the Commission” Defined
Most enhancements require the prohibited conduct to be “during the commission” or “in
the commission” of a crime. The phrase “in the commission” has been given an expansive
interpretation and means more than simply “while committing” or “while engaged in.”
(People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.].) The following cases
illustrate this concept:
• People v. Canela (2014) 224 Cal.App.4th 703 [cert. for part. pub.]—The defendant
was “in the commission” of a robbery when he was in flight from officers and struck a
pedestrian.
• People v. Elder (2014) 227 Cal.App.4th 411 [cert. for part. pub.]—The robbery
victim sustained GBI while trying to push the fleeing defendant from a van.
• People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.]—A GBI
enhancement may apply to leaving the scene of an accident in violation of Vehicle
Code section 20001(a) if the injury was inflicted as part of one continuous transaction,
but not if the injury was inflicted prior to the flight.
• People v. Frausto (2009) 180 Cal.App.4th 890—The phrase “in the commission of”
in Penal Code section 12022.53(d) has the same meaning as identical or equivalent
language in sections 667.61, 12022.3, 12022.5, and the felony-murder statutes. Thus,
a firearm is discharged “in the commission of” a felony within the meaning of Penal
Code section 12022.53(d) if the underlying felony and the discharge of the firearm
are part of one continuous transaction, including flight after the felony to a place of
temporary safety.
• People v. Pitto (2008) 43 Cal.4th 228—Whenever (1) the defendant knows of the
presence and location of a firearm near the drugs, (2) the gun’s proximity to the drugs
is not “accidental or coincidental,” and (3) the defendant is in a position to use the gun
offensively or defensively to aid in the commission of the offense, the gun facilitates
that crime and has the requisite purpose or effect with respect to its commission.
• People v. Carrasco (2006) 137 Cal.App.4th 1050—With a gun use enhancement
“during the commission” of a robbery, the robbery may be spread over a considerable
distance and varying periods of time. A robbery begins with the commission of any of
the elements and concludes after all the elements have been satisfied and the defendant
has reached a place of relative safety. The gun use enhancement applies if the “use” aids
in completing any of the essential elements of the crime.
• People v. Alvarado (2001) 87 Cal.App.4th 178—For the purpose of Penal Code
section 667.61(e)(2), “during the commission of a burglary” refers to that period of
time between the burglar’s initial entry with the requisite intent and the burglar’s escape
to a place of temporary safety
People v. Jones (2001) 25 Cal.4th 98—In the case of a weapons-use enhancement,
such use may be deemed to occur “in the commission of” the offense if it occurred
before, during, or after the technical completion of the felonious sex act. The operative
question is whether the sex offense posed a greater threat of harm, i.e., was more
culpable because the defendant used a deadly weapon to threaten or maintain control
over the victim.
• People v. Becker (2000) 83 Cal.App.4th 294 [cert. for part. pub.]—A defendant’s
sentence may be enhanced for arming as long as he [or she] has a weapon available for
use at any point during the course of a continuing offense (conspiracy).
• People v. Masbruch (1996) 13 Cal.4th 1001—In this case, the defendant initially
used a firearm to subdue the two female victims and tie them up. He then committed
robbery, rape, sodomy, false imprisonment, and torture. The defendant appealed the
enhancement for gun use in the sex crimes, claiming that he only displayed the gun at
the outset of the crime spree. The court held that the firearm use enhancement liability
continued for as long as the defendant “utilized a gun at least as an aid in completing
an essential element of a subsequent crime.” The court explained:
In considering whether a gun use occurred, the jury may consider a
“video” of the entire encounter; it is not limited to a “snapshot” of
the moments immediately preceding a sex offense. Thus, a jury could
reasonably conclude that although defendant’s presence with the victims
was sporadic, the control and fear created by his initial firearm display
continued throughout the encounter. (Id. at 1011.)
[Note: This case has an excellent and extensive discussion on the definition of “use” of a
firearm.]
• People v. Taylor (1995) 32 Cal.App.4th 578—For the purpose of Penal Code
section 12022.5, the use of a firearm during escape from the crime scene is a use during
the commission of the crime. The defendant had left the burglary scene with a police
officer in pursuit, but his companion was detained at the scene, and the defendant
used the weapon when he returned to free her. The companion had stolen items on her
person and could implicate the defendant in the burglary. Thus, the burglary had not
been completed.
• People v. Heston (1991) 1 Cal.App.4th 471 [cert. for part. pub.]—Penal Code
section 12022.4 creates an enhancement for furnishing a firearm during the
commission of a crime. Although the defendant actually furnished it before the crime,
the court held that the statutory language must be read as contemplating a time frame
other than simply the time of the actual act element of the felony.
• People v. Mixon (1990) 225 Cal.App.3d 1471—Infliction of injury on the victim
after removal from a burglary situs is “during the commission” of the burglary.
• People v. Walls (1978) 85 Cal.App.3d 447—During a burglary, the defendant used a
gun and inflicted GBI. (Pen. Code § 12022.7.) On appeal he urged that the burglary
was complete upon entry with the requisite intent and that the alleged enhancement
conduct did not occur “during the commission” of the burglary. This was rejected by
the court, which held that the burglary continued after entry.

The court does not need to state a reason for imposing an enhancement that was found
true (Pen. Code § 1170(d); Rule 4.428); however, the court must state reasons for striking
the enhancement. (In re Renfrow (2008) 164 Cal.App.4th 1251.)
Enhancements imposed on attempted crimes are not reduced by half the normal term for
the enhancement. (In re Anthony H. (1980) 108 Cal.App.3d 494.

However, only one
weapon enhancement (the greatest) and only one injury enhancement (the greatest) may be
imposed for a single victim on a single crime. (Pen. Code § 1170.1(f) and (g); Rule 4.447;
People v. Ahmed (2011) 53 Cal.4th 156; People v. Mercado (2013) 216 Cal.App.4th 67.)
1. Multiple Firearm and Weapon Use on a Single Crime—Penal Code
Section 1170.1(f)
The defendant’s use of a firearm or weapon during the commission of a crime
may implicate several enhancements (e.g., Pen. Code §§ 12022.5 and 12022.53);
however, only the greatest may be imposed for each crime. (Pen. Code § 1170.1(f);
People v. Rodriguez (2009) 47 Cal.4th 501.) This rule applies even if the defendant
uses two weapons during the commission of the crime. (People v. Jones (2000)
82 Cal.App.4th 485.)
2. Multiple Weapon Enhancements on Multiple Crimes
When the defendant uses a weapon during the commission of multiple crimes, a
weapons enhancement is permitted for each crime. (King, supra; People v. Palacios
(2007) 41 Cal.4th 720.)
3. Multiple Injury Enhancements on the Same Victim on a Single Crime—
Penal Code Section 1170.1(g)
The defendant’s infliction of injury during the commission of a crime may result in
the filing of several injury enhancements (e.g., Pen. Code § 12022.7(a) and (b));
however, only the greatest may be imposed. (Pen. Code § 1170.1(g); People v. Eck
(1999) 76 Cal.App.4th 759 [cert. for part. pub.].)
4. Multiple Injury Enhancements for Multiple Victims
Where multiple victims are injured, multiple injury enhancements are permitted.
(People v. Arndt (1999) 76 Cal.App.4th 387; People v. Ausbie (2004) 123 Cal.App.
4th 855 [cert. for part. pub.].)

he court can strike almost all enhancements—or just the additional punishment
for the enhancement—with stated reasons based on the general provisions of Penal
Code section 1385. (People v. Meloney (2003) 30 Cal.4th 1145; People v. Luckett
(1996) 48 Cal.App.4th 1214; Rule 4.406(b)(7) and (b)(10); see also former Pen.
Code § 1170.1(h) [pre-Jan. 1, 1998].) The court can strike an enhancement with
respect to one count but not another. (People v. Torres (2008) 163 Cal.App.4th
1420 [cert. for part. pub.].)

Example: The defendant is convicted of robbery with an enhancement for the
personal infliction of GBI. As nothing limits or prohibits the imposition of this
enhancement, it must be imposed or stricken, not stayed. (Pen. Code §§ 1170.1(d)
and 1385(c); People v. Langston (2004) 33 Cal.4th 1237; Vega, supra.)

his issue was addressed in the context of multiple firearm enhancements pursuant
to Penal Code sections 12022.5 and 12022.53(b) and (c) attached to a single
underlying crime. In reviewing the statutory construction of section 12022.53,
and harmonizing that statute with the rationale of section 654 and Rule 4.447,
the California Supreme Court held that an enhancement whose imposition is
prohibited should be stayed, not stricken. (People v. Gonzalez (2008) 43 Cal.4th
1118.)
Should the court wish to avoid the additional prison term for the enhancement
but retain the offense as a serious or violent felony for “strike” or credit limitation
purposes, the court should impose the enhancement and dismiss only the
additional punishment. (Pen. Code § 1385(c); Pope, supra; In re Pacheco (2007)
155 Cal.App.4th 1439; In re Borlik (2011) 194 Cal.App.4th 30.)

===PC12022(a) firearm +1===

“Armed” is knowingly carrying a firearm as a means of offense or defense.
Bland, supra, 10 Cal.4th 991, held that a defendant convicted of a possessory
drug offense is subject to the “armed with a firearm” enhancement when he or
she possesses both drugs and a gun, and keeps them together, but is not present
when the police seize them. (People v. Hayes (1990) 52 Cal.3d 577; People v.
Wandick (1991) 227 Cal.App.3d 918; Alvarado, supra, 146 Cal.App.4th 993;
Pen. Code § 1203.06(b)(3).)
• Applies to completed and attempted crimes.
• Vicarious liability is permitted for all principals. Two people can be personally
armed with one gun. (People v. Mendival (1992) 2 Cal.App.4th 562 [cert. for
part. pub.].)
• “Firearm” is defined as “a device, designed to be used as a weapon, from which
is expelled through a barrel a projectile by the force of an explosion or other
form of combustion.” (See Pen. Code § 16520(a).) This does not include the
mere “receiver.” (People v. Gailord (1993) 13 Cal.App.4th 1643.) The fact that
the object is a firearm can be established by direct or circumstantial evidence
(People v. Law (2011) 195 Cal.App.4th 976 [cert. for part. pub.]); however, toy
guns, pellet guns, and BB guns do not qualify as firearms. (People v. Monjaras
(2008) 164 Cal.App.4th 1432 [cert. for part. pub.].)
• The firearm need not be loaded or operable. (Masbruch, supra; People v. Nelums
(1982) 31 Cal.3d 355; People v. Steele (1991) 235 Cal.App.3d 788.)
• There is no requirement to prove that the defendant knew or should have
known that the crime partner was armed. (People v. Overten (1994)
28 Cal.App.4th 1497.)
• Not applicable if arming is an element of the offense.

===PC12022(b) Assault Weapon +3===

Applies to completed or attempted crimes.
• “Assault weapon” defined. (Pen. Code § 30510.) “Machine gun” defined.
(Pen. Code §§ 30530 and 16880.)
• Applies even if arming is an element of the offense.
Defendant Conduct Enhancements (2015) 13
• Vicarious liability is permitted for all principals.
• There must be proof the defendant knew or reasonably should have known the
weapon was an assault weapon. (In re Jorge M. (2000) 23 Cal.4th 877.)

===PC12022(c) Armed while having controlled substances +3-4-5===
Personally armed” refers to the person who acts, not that person’s action.
Hence, two people can be personally armed with the same weapon if it is
equally available for use to both. (People v. Superior Court of San Diego County
(Pomilia) (1991) 235 Cal.App.3d 1464; Mendival, supra; People v. Gonzales
(1992) 8 Cal.App.4th 1658.)
• In the commission or attempted commission of violating Health and Safety
Code section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5,
11379, 11379.5, or 11379.6.
• There must be proof that the defendant had knowledge of the presence of the
firearm. (People v. Singh (2004) 119 Cal.App.4th 905 [cert. for part. pub.].)

===PC12022(d) Vicariously armed +1-2-3===
Penal Code section 12022(c) applies to those who actually and knowingly have
a firearm available for use, and section 12022(d) applies to those who do not,
but who know that one of their co-principals does. (People v. Smith (1992)
9 Cal.App.4th 196 [cert. for part. pub.].)

===PC30615 assault weapon +1===

===PC12022(b)(1) Deadly Weapon +1 Serious===

“Deadly or dangerous weapon” refers to any weapon, instrument, or object that
is inherently deadly or is used in such a way it is capable of causing and is likely
to cause great bodily injury or death. (CALCRIM 3145; People v. Reid (1982)
133 Cal.App.3d 354). Examples:
- BB gun (In re Bartholomew D. (2005) 131 Cal.App.4th 317 [cert. for part.
pub.]; People v. Brown (2012) 210 Cal.App.4th 1)
- Dirk or blackjack (People v. Aguilar (1997) 16 Cal.4th 1023)
- Knife (People v. Smith (1963) 223 Cal.App.2d 431)
- Broken glass or bottle (People v. Neal (1984) 159 Cal.App.3d 69 [cert. for
part. pub.]; People v. Zermeno (1999) 21 Cal.4th 927)
- Dog (People v. Frazier (2009) 173 Cal.App.4th 613 [cert. for part. pub.])
- Car (Calderon, supra)
• Personal use is required; there is no vicarious liability.
• The enhancement is not applicable if use of a deadly or dangerous weapon is an
element of the offense. (People v. McGee (1993) 15 Cal.App.4th 107 [cert. for
part. pub.] [interpreting former Pen. Code § 245].)
• This enhancement qualifies the underlying crime as a serious felony (Pen. Code
§ 1192.7(c)(23)), but not a violent felony

===PC12022.5 Firearms +3-4-10===

Applies to completed and attempted crimes.
• The court cannot strike this enhancement. (Pen. Code § 12022.5(c); Thomas,
supra.)
• The requirement of use of a firearm does not create a specific intent to injure
or assault the victim; however, the use must be intentional. (In re Tameka C.
(2000) 22 Cal.4th 190; Johnson, supra, 38 Cal.App.4th 1315.)
• The firearm may be used as a bludgeon. (Walls, supra; People v. Miceli (2002)
104 Cal.App.4th 256 [cert. for part. pub.].)
• Personal use is required; there is no vicarious liability. (People v. Walker (1976)
18 Cal.3d 232; People v. Hays (1983) 147 Cal.App.3d 534.)
• The enhancement is applicable if the defendant who personally uses the firearm
is vicariously liable for the underlying offense. (In re Antonio R. (1990)
226 Cal.App.3d 476 [cert. for part. pub.]; Berry, supra; Thiessen, supra.)
• The firearm need not be loaded or operable. (Nelums, supra.) See definition of
“firearm” in Section V.A.1.
• This enhancement is not applicable (Pen. Code § 12022.5(d)) if the use of a
firearm is an element of the offense, except if the offense is:
- any violation of Penal Code section 245, or
- murder perpetrated by means of shooting a firearm from a motor vehicle
intentionally at another person outside of the vehicle with the intent to
inflict GBI or death. (People v. Joachim (1995) 38 Cal.App.4th 1526;
People v. Johnson (1996) 51 Cal.App.4th 1329.)
• Mandatory state prison (Pen. Code § 1203.06(a)(1)) for most violent crimes.
• Multiple enhancements are permitted for multiple crimes committed
on a single occasion (King, supra); however, if multiple types of firearm
enhancements are alleged for a single crime, only the greatest may be imposed
(Pen. Code § 1170.1(f)). See discussion in Section IV.C.
• Qualifies the underlying crime as a serious felony (Pen. Code § 1192.7(c)(8))
and violent felony (Pen. Code § 667.5(c)(8)); therefore, conduct credits for the
aggregate term are limited to 15 percent. (Pen. Code § 2933.1; Reeves, supra.)
• Gang implications: The court cannot impose both a Penal Code section
12022.5 and a section 186.22(b)(1) enhancement if the gun is what makes the
crime a serious or violent felony. (Rodriguez, supra.)

===PC12022.5(b) assault weapons +5-6-10===

===PC21022.53 10-20-life===

* Section 187 (murder)
* Section 203 or 205 (mayhem)
* Section 207, 209, or 209.5 (kidnapping)
* Section 211 (robbery)
* Section 215 (carjacking)
* Section 220 (assault with intent to commit a specified felony)
* Section 245(d) (assault with a firearm on a peace officer or firefighter)
* Section 261 or 262 (rape)
* Section 264.1 (rape or sexual penetration in concert)
* Section 286 (sodomy)
* Section 288 or 288.5 (lewd act on a child
* Section 288a (oral copulation)
* Section 289 (sexual penetration)
* Section 4500 (assault by a life prisoner)
* Section 4501 (assault by a prisoner)
* Section 4503 (holding hostage by a prisoner)
* Any felony punishable by death or imprisonment in the state prison for life.
* Any attempt to commit a listed crime other than an assault.

===PC12022.55 Discharge of firearm from motor vehicle +5-6-10===

===PC12022.7 Great bodily injury +3===
Personal infliction is required. (People v. Cole (1982) 31 Cal.3d 568; People v.
Cross (2008) 45 Cal.4th 58.) Personal infliction can include “joint infliction”
when the defendant contributes to the GBI. (People v. Modiri (2006)
39 Cal.4th 481; People v. Dunkerson (2007) 155 Cal.App.4th 1413.) The
definition can include a failure to act if the defendant has a duty to act and
failure leads to GBI. (People v. Warwick (2010) 182 Cal.App.4th 788.)
• Applies to completed and attempted crimes.
• Specific intent to inflict injury is no longer required. Specific intent is required
for crimes committed prior to January 1, 1996. (People v. Fong (2013)
217 Cal.App.4th 263.)
• For the crimes listed in Penal Code section 1203.075, the infliction of GBI
means a mandatory denial of probation. It is no longer necessary to plead
and prove the section 1203.075 allegation together with the section 12022.7
enhancement. Prior to September 20, 2006, Penal Code section 1203.075
required intentional infliction so a separate probation denial allegation was
required when specific intent was deleted from the GBI enhancement itself.
Note: The probations denial allegation of Penal Code section 1203.075 does
apply to murder and should be alleged.
• Penal Code section 12022.7(f) defines GBI as “a significant or substantial
physical injury” beyond that inherent in the underlying felony. (People v.
Washington (2012) 210 Cal.App.4th 1042.) The California Supreme Court in
People v. Caudillo (1978) 21 Cal.3d 562 [overruled on another point in
People v. Escobar, infra, at 751, fn. 5] required that the injury be “severe or
protracted.” The California Supreme Court returned to the code section
standard of “significant or substantial physical injury” in People v. Escobar
(1992) 3 Cal.4th 740. Consequently, the injury sustained under the new
standard need not be as serious as that required by Caudillo. The injuries that
qualified as GBI in Escobar were: “extensive bruises and abrasions over the
victim’s legs, knees and elbows, injury to her neck and soreness in her vaginal
area of such severity that it significantly impaired her ability to walk.” (Escobar,
supra, at 750.)
• Other cases with examples of GBI:
- People v. Mendias (1993) 17 Cal.App.4th 195. Gunshot wound to upper
thigh. The victim was released from the hospital the next day, but the bullet
was not removed. At the trial five months later, the victim said the bullet
moves, but is not painful.
- People v. Wallace (1993) 14 Cal.App.4th 651. Two victims, one with cuts on
wrists and ankles from being flex-tied. One victim’s finger had no feeling
for two months. The other victim’s wrists were burned from flex-ties and
bandaged for two days. Insecticide-like substance caused “really, really bad”
burning in her eyes, vagina, and anus for 24 hours.
- People v. Bustos (1994) 23 Cal.App.4th 1747, 1755. The wounds inflicted
by this defendant (not including fatal stab wounds inflicted by another)
were contusions to the nose, left elbow, and left thigh; lacerations to the left
upper lip; and abrasions to the right elbow, left knee, and anus.
- People v. Le (2006) 137 Cal.App.4th 54. Soft tissue and muscular injury to
both legs caused by gunshot wound causing pain and restricted mobility for
weeks.
• Additional examples of GBI were discussed and approved using the more
stringent standard set forth in Caudillo, supra (pre-Escobar law):
- Knocked unconscious, numerous cuts with scars still evident at trial,
intense headaches
- Prolonged loss of consciousness
- Severe concussion
- Protracted loss of any bodily member or organ
- Protracted impairment of function of any bodily member or organ or bone
- A wound or wounds requiring extensive suturing
- Serious disfigurement
- Severe physical pain inflicted by torture
[Note: These categories were included in the section as originally enacted,
but were deleted by an amendment in 1977.]
• Other examples of GBI:
- Multiple contusions, swelling, and discoloration of the body. (People v.
Jaramillo (1979) 98 Cal.App.3d 830.)
- A broken hand swollen to twice its normal size. (People v. Kent (1979)
96 Cal.App.3d 130.
- A fractured jaw. (People v. Johnson (1980) 104 Cal.App.3d 598.)
- Hot grease in face. “Blistering 2nd burns … visible discoloration and
disfigurement for a month at least.” (People v. Harvey (1992)
7 Cal.App.4th 823.)
- Six sutures to the vagina for a cut of 2.5 cm. (People v. Brown (1985)
174 Cal.App.3d 762.)
• The jury need not unanimously agree on which injury or injuries support the
GBI. It is a “measuring function.” The jury determines whether the victim
suffered that quantum of injury that is defined as GBI. (People v. Robbins
(1989) 209 Cal.App.3d 261 [cert. for part. pub.].)
• The enhancement is not applicable if GBI is an element of the offense.
(Pen. Code § 12022.7(g).) Penal Code section 243(d), Battery with “Serious
Bodily Injury” is “Great Bodily Injury,” and the enhancement is not applicable.
(People v. Hawkins (1993) 15 Cal.App.4th 1373.) The enhancement is
inapplicable to mayhem as well. (People v. Hill (1994) 23 Cal.App.4th 1566.)
The code section specifically exempts murder, manslaughter, or arson.
(People v. Martinez (2014) 226 Cal.App.4th 1169; but see People v. Weaver
(2007) 149 Cal.App.4th 1301; Pen. Code § 12022.7 applies to additional
injured victims in a vehicular manslaughter case.) This enhancement does apply
to attempted murder or attempted manslaughter. (Allen, supra; People v. Lewis
(1994) 21 Cal.App.4th 243.)
• Qualifies the underlying crime as a serious felony (Pen. Code § 1192.7(c)(8))
and a violent felony (Pen. Code § 667.5(c)(8)); therefore, conduct credits for
the aggregate term are limited to 15 percent. (Pen. Code § 2933.1; Reeves,
supra.)
• If multiple GBI enhancements are attached to the underlying crime, only the
greatest may be imposed. (Pen. Code § 1170.1(g); Eck, supra.)

===PC12022.1 OR enhancement +3===
Enhancement for Offenses Committed While Released on Bail / Own Recognizance—
Penal Code Section 12022.1 [+ 3 years]
Any person convicted of a felony offense (secondary offense) committed while the
defendant was released from custody on bail or on his or her own recognizance (O.R.) for
another offense (primary offense), before the judgment became final for that other offense,
including the disposition of any appeal, must have his or her sentence for the secondary
offense enhanced by two years.
“Primary offense” refers to the felony offense for which a person was released on bail / O.R.
prior to final judgment. Conviction for the primary offense is not an element of Penal
Code section 12022.1, but is a prerequisite to the imposition of the enhancement on the
secondary offense. (People v. Johnson (2012) 208 Cal.App.4th 1092 [cert. for part. pub.].)
“Secondary offense” refers to the felony offense committed by the defendant while released
on the primary offense.
Whenever there is a conviction for the secondary offense and the enhancement is proved,
and the person is sentenced on the secondary offense prior to the conviction of the primary
offense, the court for the secondary offense may strike the enhancement or imposition of
the enhancement must be stayed, pending sentencing for the primary offense per Penal
Code § 12022.1(d). The sentencing court on the primary offense will lift any stay of the
enhancement. (Meloney, supra.)
If the person is convicted of a felony for the primary offense, is sentenced to state prison for
the primary offense, and is convicted of a felony for the secondary offense, then any state
prison sentence for the secondary offense must be consecutive to the primary sentence.
(Pen. Code § 12022.1(e); People v. Sanchez (1991) 230 Cal.App.3d 768.)
If the person is convicted of a felony for the primary offense, is granted probation for
the primary offense, and is convicted of a felony for the secondary offense, then any state
prison sentence for the secondary offense must be enhanced by an additional term of two
years. (Pen. Code § 12022.1(f).)
If the primary offense conviction is reversed on appeal, the enhancement shall be
suspended pending retrial of that felony. On retrial and reconviction, the enhancement
must be re-imposed. If the person is no longer in custody for the secondary offense
on reconviction of the primary offense, the court may, at its discretion, re-impose the
enhancement and order the defendant to custody. (Pen. Code § 12022.1(g).)
• Multiple enhancements are possible if the defendant is released on multiple cases.
(People v. Mackabee (1989) 214 Cal.App.3d 1250 [cert. for part. pub.].) But only one
enhancement is permitted if there are multiple secondary offenses and one primary
offense. (People v. McNeely (1994) 28 Cal.App.4th 739.)
• Imposing this enhancement and a prior conviction enhancement for the same
primary offense is not a violation of Penal Code section 654. (People v. Juarez (1993)
21 Cal.App.4th 318 [cert. for part. pub.].)
• The enhancement is applicable to juvenile proceedings. (In re Jovan B., supra.) This
includes a “general release” of a juvenile. (In re Rottanak K. (1995) 37 Cal.App.4th
260.)
• The enhancement need not be proved at the preliminary hearing. (Pen. Code
§ 12022.1(c).)
• The defendant is not entitled to a jury trial on the allegation. (Johnson, supra, 208 Cal.
App.4th 1092.)
• Applicable to Penal Code section 1320.5 [felony failure to appear]. (People v. Walker
(2002) 29 Cal.4th 577 [cert. for part. pub.].) The enhancement does not apply to
release pursuant to Penal Code section 1000. (People v. Ormiston (2003)
105 Cal.App.4th 676 [cert. for part. pub.].)

Impersonating a peace officer.
Penal Code section 667.17 [+ 1 year]: Impersonating a peace officer in violation of
Penal Code section 538d during the commission of a felony.

Penal Code section 667.85 [+ 5 years]: Kidnapping a child under 14 with the intent to permanently deprive the parent or legal guardian of custody.

==Rules of Court==

===Rule 4.410 General objectives in sentencing===

(a) General objectives of sentencing include:

(1) Protecting society;

(2) Punishing the defendant;

(3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses;

(4) Deterring others from criminal conduct by demonstrating its consequences;

(5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration;

(6) Securing restitution for the victims of crime;

(7) Achieving uniformity in sentencing; and

(8) Increasing public safety by reducing recidivism through community-based corrections programs and evidence-based practices.

(b) Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by
statutory statements of policy, the criteria in these rules, and any other facts and circumstances relevant to the case.

===Rule 4.413. Grant of probation when defendant is presumptively ineligible for probation===

(a) Consideration of eligibility
The court must determine whether the defendant is eligible for probation. In most cases, the defendant is presumptively eligible for probation; in some cases, the defendant is presumptively ineligible; and in some cases, probation is not allowed.

(b) Probation in cases when defendant is presumptively ineligible
If the defendant comes under a statutory provision prohibiting probation “except in unusual cases where the interests of justice would best be served,” or a substantially equivalent provision, the court should apply the criteria in

(c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation.

(c) Factors overcoming the presumption of ineligibility
The following factors may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate:

(1) Factors relating to basis for limitation on probation
A factor or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including:

(A) The factor or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and

(B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense.

(2) Factors limiting defendant's culpability
A factor or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including:

(A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence;

(B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and

(C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.

(3) Results of risk/needs assessment

Along with all other relevant information in the case, the court may consider the results of a risk/needs assessment of the defendant, if one was performed. The weight of a risk/needs assessment is for the court to consider in its sentencing discretion.

Victim “[v]ulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act.” (People v. Smith (1979) 94 Cal.App.3d 433, 436, 156 Cal.Rptr. 502 [describing that term in the context of rule 4.421(a)(3) ].

People v. Weaver (2007) 149 Cal.App.4th 1301, 1314 disapproved of by People v. Cook (2015) 60 Cal.4th 922

===Rule 4.421 Circumstances in aggravation===

Circumstances in aggravation include factors relating to the crime and factors relating to the defendant.
(a) Factors relating to the crime
Factors relating to the crime, whether or not charged or chargeable as enhancements include that:
(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
(2) The defendant was armed with or used a weapon at the time of the commission of the crime;
(3) The victim was particularly vulnerable;
(4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission;
(5) The defendant induced a minor to commit or assist in the commission of the crime;
(6) The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;
(7) The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;
(8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism;
(9) The crime involved an attempted or actual taking or damage of great monetary value;
(10) The crime involved a large quantity of contraband; and
(11) The defendant took advantage of a position of trust or confidence to commit the offense.
(12) The crime constitutes a hate crime under section 422.55 and:
(A) No hate crime enhancements under section 422.75 are imposed; and
(B) The crime is not subject to sentencing under section 1170.8.
(b) Factors relating to the defendant
Factors relating to the defendant include that:
(1) The defendant has engaged in violent conduct that indicates a serious danger to society;
(2) The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
(3) The defendant has served a prior term in prison or county jail under section 1170(h);
(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.
(c) Other factors
Any other factors statutorily declared to be circumstances in aggravation or that reasonably relate to the defendant or the circumstances under which the crime was committed.
Credits
(Formerly Rule 421, adopted, eff. July 1, 1977. As amended, eff. Jan. 1, 1991. Renumbered Rule 4.421, eff. Jan. 1, 2001. As amended, eff. Jan. 1, 2007; May 23, 2007; Jan. 1, 2017; Jan. 1, 2018.)

====Comment====
ADVISORY COMMITTEE COMMENT

Circumstances in aggravation may justify imposition of the middle or upper of three possible terms of imprisonment. (Section 1170(b).)
The list of circumstances in aggravation includes some facts that, if charged and found, may be used to enhance the sentence. This rule does not deal with the dual use of the facts; the statutory prohibition against dual use is included, in part, in the comment to rule 4.420.

Conversely, such facts as infliction of bodily harm, being armed with or using a weapon, and a taking or loss of great value may be circumstances in aggravation even if not meeting the statutory definitions for enhancements or charged as an enhancement.

Facts concerning the defendant's prior record and personal history may be considered. By providing that the defendant's prior record and simultaneous convictions of other offenses may not be used both for enhancement and in aggravation, section 1170(b) indicates that these and other facts extrinsic to the commission of the crime may be considered in aggravation in appropriate cases.

Refusal to consider the personal characteristics of the defendant in imposing sentence may raise serious constitutional questions. The California Supreme Court has held that sentencing decisions must take into account “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (In re Rodriguez (1975) 14 Cal.3d 639, 654, quoting In re Lynch (1972) 8 Cal.3d 410, 425.) In Rodriguez the court released petitioner from further incarceration because “it appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment.” (Id. at p. 655, fn. omitted, italics added.) “For the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” (Pennsylvania ex rel. Sullivan v. Ashe (1937) 302 U.S. 51, 55, quoted with approval in Gregg v. Georgia (1976) 428 U.S. 153, 189.)

Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion. Some of the cases that had relied on that circumstance in aggravation were reversed on appeal because there was only a single victim in a particular count.

Old age or youth of the victim may be circumstances in aggravation; see section 1170.85(b). Other statutory circumstances in aggravation are listed, for example, in sections 422.76, 1170.7, 1170.71, 1170.8, and 1170.85.

==Resentencing==

[https://www.courts.ca.gov/opinions/documents/C090767.PDF People v. McMurray (Mar. 30, 2022, C090767)

Appellate jurisdiction

People v. Scarbrough (2015) 240 Cal.App.4th 916
People v. Nelms (2008) 165 Cal.App.4th 1465
People v. Acosta (1996) 48 Cal.App 4th 411, 427

==Upper term==

===Upper term imposed before passage of SB567===

''People v. Berdoll'' (2022) 85 Cal.App.5th 159

''People v. Mitchell'' (2022) 83 Cal.App.5th 1051, review granted, S277314

==Split-sentence==

''People v. Camp'' (2015) 233 Cal.App.4th 461

''People v. Arce'' (2017) 11 Cal.App.5th 613

Prison crimes

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Sysop:

==PC4571==

Under Equal Protection, PC4573 is 16-2-3 under PC1170(h), even though the statute says "felony" meaning state prison. (''People v. Noyan'' (2014) 232 Cal.App.4th 657.)

==PC4573.5==

Under Equal Protection, PC4573.5 is 16-2-3 under PC1170(h), even though the statute says "felony," meaning state prison. (''People v. Noyan'' (2014) 232 Cal.App.4th 657.)

==PC4573.8==

Under Equal Protection, PC4573.8 is 16-2-3 under PC1170(h), even though the statute says "felony," meaning state prison. (''People v. Noyan'' (2014) 232 Cal.App.4th 657.)

==1170.1(c)==
In-prison offenses
An “aggregate term of imprisonment” is a single term and not a series of separate terms. In re Brown (App. 5 Dist. 2024) 325 Cal.Rptr.3d 304. Sentencing and Punishment Key Number 1122

The term for an in-prison offense does not become part of the aggregate prison term imposed for those offenses which were committed on the outside; instead, the defendant is imprisoned for a total term consisting of the sum of his aggregate sentence computed under the statutory provision governing consecutive sentences for multiple out-of-prison felonies plus the new aggregate term imposed for in-prison felonies. People v. Escobedo (App. 2 Dist. 2023) 311 Cal.Rptr.3d 639, rehearing granted, opinion not citeable, vacated 313 Cal.Rptr.3d 557, modified on denial of rehearing, review denied. Sentencing and Punishment Key Number 637

Where defendant was convicted of offense committed in prison and subsequently convicted of a second in-prison offense, the Determinate Sentencing Act required a single term, consisting of a principal and a subordinate term, with the single term to run at end of the prison term imposed on the original “outside” offense, in the absence of any showing that defendant had finished his original prison term and begun serving his term for his first in-prison offense when he committed his second in-prison offense, or whether he had actually been paroled, and therefore whether he was serving his original term or any term when he was sentenced for his second in-prison offense. People v. Roseberry (App. 3 Dist. 2020) 271 Cal.Rptr.3d 504, rehearing denied, review denied. Sentencing and Punishment Key Number 637

Inmate, who was granted parole for first degree murder committed when he was 21 years old under youth offender parole provisions, was not required to serve a consecutive sentence for in-prison offense of battery against non-prisoner committed when inmate was over the age of 26 prior to release; youth offender parole provisions excluded inmates who were convicted of in-prison offenses after age of 26 from benefits of statute only if additional crime had element of malice aforethought or was punishable by life in prison, in-prison crime of battery neither included malice as element nor was punishable by term of life, and youth offender parole scheme was designed to effectuate constitutional prohibition against excessive punishment of youthful offenders. In re Williams (App. 2 Dist. 2018) 234 Cal.Rptr.3d 600. Infants Key Number 3156

An inmate's in-prison offense is a factor to be considered by the Board of Parole Hearings in determining whether the inmate is suitable for release on parole under the youthful offender parole statute, even though the in-prison offense will not result in a consecutive sentence that must be served before release. In re Williams (App. 2 Dist. 2018) 234 Cal.Rptr.3d 600. Infants Key Number 3156

Habeas corpus petitioner, who was convicted of felony murder at 19 years old, was not required to serve additional consecutive prison terms for in-prison offenses after he was found suitable for parole under statute governing youth offender parole hearings, and thus petitioner was to be released on parole; statute governing youth offender parole hearings superseded statute establishing consecutive prison terms for in-person offenses, and petitioner committed in-prison offenses before he was 26 years old, malice aforethought was not necessary element of in-prison offenses, and in-prison offenses were not punished by life in prison. In re Jenson (App. 2 Dist. 2018) 233 Cal.Rptr.3d 868. Infants Key Number 3156

Under the statute providing that a consecutive term of imprisonment for an offense committed in state prison “shall commence from the time the person would otherwise have been released from prison,” the in-prison offense is treated as a new principal term rather than as a subordinate term to the out-of-prison offense. In re Coleman (App. 1 Dist. 2015) 186 Cal.Rptr.3d 922, 236 Cal.App.4th 1013, review filed, review denied. Sentencing and Punishment Key Number 1130

A term for an in-prison offense, or multiple in-prison offenses, begins to run at the end of the prison term imposed for the original out-of-prison offenses. In re Tate (App. 5 Dist. 2006) 37 Cal.Rptr.3d 710, 135 Cal.App.4th 756. Sentencing And Punishment Key Number 1130

Trial court erred in sentencing defendant to sentence of four years for conviction of battery by inmate on non-inmate to be served consecutively with sentence already being served, as where sentences for new offenses are to be served consecutively, greatest term of imprisonment will be selected as principal term, with others serving as subordinate terms, consisting of one-third of the statutory middle term. People v. Washington (App. 1 Dist. 1994) 33 Cal.Rptr.2d 569, 27 Cal.App.4th 940, habeas corpus dismissed 1998 WL 164967, reversed and remanded 208 F.3d 832, certiorari denied 121 S.Ct. 282, 531 U.S. 919, 148 L.Ed.2d 203. Sentencing And Punishment Key Number 637

Defendant's consecutive sentence for battery committed while he was in prison was separate prison term that could be used in enhancing defendant's sentence for subsequent burglary offense, although defendant was never physically released from incarceration before sentence for the in-prison battery commenced. People v. Walkkein (App. 2 Dist. 1993) 18 Cal.Rptr.2d 383, 14 Cal.App.4th 1401, review denied. Sentencing And Punishment Key Number 1307

Section providing for different sentencing treatment for felonies committed while person is confined in state prison did not apply to defendant who had been sentenced for felony and was in county jail, not having been delivered to state prison. People v. Holdsworth (App. 1 Dist. 1988) 244 Cal.Rptr. 782, 199 Cal.App.3d 253, modified. Sentencing And Punishment Key Number 94

Section providing for different sentencing treatment for felonies committed while person is confined in state prison did not apply based on parole hold applicable to defendant located in county jail, even if defendant were subject to parole hold; parole hold could not be equated with delivery of convicted felon to state prison. People v. Holdsworth (App. 1 Dist. 1988) 244 Cal.Rptr. 782, 199 Cal.App.3d 253, modified. Sentencing And Punishment Key Number 94

Section providing for different sentencing treatment of felonies committed while person is confined in state prison did not apply to defendant who was parolee in custody at time of offense on theory defendant's parole status made him state prisoner; constructive or legal custody of defendant was not the issue, for it was place of confinement, rather than status of person confined, that was decisive for purposes of sentencing statute. People v. Holdsworth (App. 1 Dist. 1988) 244 Cal.Rptr. 782, 199 Cal.App.3d 253, modified. Sentencing And Punishment Key Number 94

Judge imposing sentence for single, in-prison offense had discretion to order that new sentence be served concurrently with term for which defendant was then incarcerated. People v. Arant (App. 5 Dist. 1988) 244 Cal.Rptr. 645, 199 Cal.App.3d 294. Sentencing And Punishment Key Number 637

Defendant who resided at church-administered halfway house and participated in work furlough program was “confined in a state prison” for purposes of West's Ann.Cal.Penal Code § 1170.1(c), governing consecutive sentencing of person convicted of one or more felonies committed while confined in state prison. People v. Lamont (App. 5 Dist. 1986) 223 Cal.Rptr. 52, 177 Cal.App.3d 577. Sentencing And Punishment Key Number 637

Defendant's confinement at conservation camp did not preclude his being treated as prisoner confined to state prison for purposes of imposing sentences for offenses committed by persons confined to state prison. People v. Nick (App. 1 Dist. 1985) 210 Cal.Rptr. 137, 164 Cal.App.3d 141. Sentencing And Punishment Key Number 637

Where prison inmate, while serving sentence for second-degree murder of inmate concurrently with initial sentence, was convicted of assault of two inmates, consecutive sentence on assault charge equal to upper-base term could be imposed without violating this section interpreted to require computation of single term of imprisonment for all in-prison offenses which are sentenced consecutively regardless of date of offense. In re Curl (App. 1 Dist. 1983) 196 Cal.Rptr. 766, 149 Cal.App.3d 236. Assault And Battery Key Number 592; Prisons Key Number 436; Sentencing And Punishment Key Number 557

Where defendant was convicted of offense committed in prison and barely two months later was convicted of possession of a deadly weapon by a prisoner, the Determinate Sentencing Act required a single term, consisting of a principal and a subordinate term, with the single term to run at end of the prison term imposed on the original “outside” offense. People v. McCart (1982) 185 Cal.Rptr. 284, 32 Cal.3d 338, 649 P.2d 926. Sentencing And Punishment Key Number 1064

Pleadings

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Sysop:

==Accusatory Pleadings==

Under the Sixth Amendment to the United States Constitution, "In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation;"

Under Penal Code section 948, "All the forms of pleading in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this Code."

Under Penal Code section 949, "The first pleading on the part of the people in the superior court in a felony case is the indictment, information, or the complaint in any case certified to the superior court under Section 859a. The first pleading on the part of the people in a misdemeanor or infraction case is the complaint except as otherwise provided by law."

Under Vehicle Code 40513, subdivision (a), "Whenever written notice to appear has been prepared, delivered, and filed with the court, an exact and legible duplicate copy of the notice when filed with the magistrate, in lieu of a verified complaint, shall constitute a complaint to which the defendant may plead 'guilty' or 'nolo contendere.'"

''People v. Barron'' (1995) 37 Cal.App.4th Supp. 1; ''Heidt v. Municipal Court'' (1985) 163 Cal.App.3d 532

Under Penal Code section 682, "Every public offense must be prosecuted by indictment or information, except: 3. Misdemeanors and infractions;"

Under Penal Code section 959:

:The accusatory pleading is sufficient if it can be understood therefrom:

:1. That it is filed in a court having authority to receive it, though the name of the court be not stated.

:2. If an indictment, that it was found by a grand jury of the county in which the court was held, or if an information, that it was subscribed and presented to the court by the district attorney of the county in which the court was held.

:3. If a complaint, that it is made and subscribed by some natural person and sworn to before some officer entitled to administer oaths.

:4. That the defendant is named, or if his name is unknown, that he is described by a fictitious name, with a statement that his true name is to the grand jury, district attorney, or complainant, as the case may be, unknown.

:5. That the offense charged therein is triable in the court in which it is filed, except in case of a complaint filed with a magistrate for the purposes of a preliminary examination.

:6. That the offense was committed at some time prior to the filing of the accusatory pleading.

Penal Code section 959.1

:(a) Notwithstanding Sections 740, 806, 949, and 959 or any other law to the contrary, a criminal prosecution may be commenced by filing an accusatory pleading in electronic form with the magistrate or in a court having authority to receive it.

:(b) As used in this section, accusatory pleadings include, but are not limited to, the complaint, the information, and the indictment.

:(c) A magistrate or court is authorized to receive and file an accusatory pleading in electronic form if all of the following conditions are met:

::(1) The accusatory pleading is issued in the name of, and transmitted by, a public prosecutor or law enforcement agency filing pursuant to Chapter 5c (commencing with Section 853.5) or Chapter 5d (commencing with Section 853.9), or by a clerk of the court with respect to complaints issued for the offenses of failure to appear, pay a fine, or comply with an order of the court.

::(2) The magistrate or court has the facility to electronically store the accusatory pleading for the statutory period of record retention.

::(3) The magistrate or court has the ability to reproduce the accusatory pleading in physical form upon demand and payment of any costs involved.

:An accusatory pleading shall be deemed to have been filed when it has been received by the magistrate or court.

:When transmitted in electronic form, the accusatory pleading shall be exempt from any requirement that it be subscribed by a natural person.

:It is sufficient to satisfy any requirement that an accusatory pleading, or any part of it, be sworn to before an officer entitled to administer oaths, if the pleading, or any part of it, was in fact sworn to and the electronic form indicates which parts of the pleading were sworn to and the name of the officer who administered the oath.

:(d) Notwithstanding any other law, a notice to appear issued on a form approved by the Judicial Council may be received and filed by a court in electronic form, if the following conditions are met:

::(1) The notice to appear is issued and transmitted by a law enforcement agency prosecuting pursuant to Chapter 5c (commencing with Section 853.5) or Chapter 5d (commencing with Section 853.9) of Title 3 of Part 2 of this code, or Chapter 2 (commencing with Section 40300) of Division 17 of the Vehicle Code.

::(2) The court has all of the following:

:::(A) The ability to receive the notice to appear in electronic format.

:::(B) The facility to electronically store an electronic copy and the data elements of the notice to appear for the statutory period of record retention.

:::(C) The ability to reproduce the electronic copy of the notice to appear and those data elements in printed form upon demand and payment of any costs involved.

::(3) The issuing agency has the ability to reproduce the notice to appear in physical form upon demand and payment of any costs involved.

:(e) A notice to appear that is received under subdivision (d) is deemed to have been filed when it has been accepted by the court and is in the form approved by the Judicial Council.

:(f) If transmitted in electronic form, the notice to appear is deemed to have been signed by the defendant if it includes a digitized facsimile of the defendant’s signature on the notice to appear. A notice to appear filed electronically under subdivision (d) need not be subscribed by the citing officer. An electronically submitted notice to appear need not be verified by the citing officer with a declaration under penalty of perjury if the electronic form indicates which parts of the notice are verified by that declaration and the name of the officer making the declaration.

Penal Code section 806: A proceeding for the examination before a magistrate of a person on a charge of a felony must be commenced by written complaint under oath subscribed by the complainant and filed with the magistrate. Such complaint may be verified on information and belief.

People v. Toro (1989) 47 Cal. 3d 966, 975, disapproved of by People v. Guiuan (1998) 18 Cal. 4th 558.

"While the wording of accusatory pleadings has been liberalized, prosecutors may still get themselves in trouble by pleading charges in the disjunctive (“or”), instead of in the conjunctive (“and”). For example, the robbery statute prohibits taking of property by “force or fear.” The complaint and information should allege “force and fear” to avoid any uncertainty." (§ 11:5. Form of allegations—Use of statutory language, California Criminal Procedure § 11:5)

==Complaint vs information and indictment==

The requirement that the filing of an information be preceded by a preliminary hearing before a magistrate and a commitment by the magistrate based on probable cause is a creature of statute (Pen.Code, ss 737, 738, 872) and is designed to satisfy the due process requirement of the Fourteenth Amendment to the United States Constitution by *834 serving as a substitute for the control on prosecutorial power provided by the Fifth Amendment to the United States Constitution requiring all prosecutions for infamous crimes to proceed by way of grand jury indictment.
Neither the preliminary hearing nor the proceedings before a grand jury amount to the “institution of criminal proceedings.” They are, instead, inquiries into whether there is available sufficient evidence to warrant the institution of criminal proceedings.

Reported decisions in cases interpreting Penal Code section 8721 have uniformly held that the “complaint” filed with the magistrate under Penal Code sections 813 and 806 serve only the purpose of providing a basis for the issuance of a warrant of arrest. Once an individual is arrested and is before the magistrate, the “complaint” is functus officio and the magistrate may commit the arrestee on any charge shown by the evidence presented even though such charge is not the one originally alleged in the “complaint.” (People v. Tibbitts, 71 Cal.App. 709, 236 P. 217; People v. Lee Look, 143 Cal. 216, 76 P. 1028; Wells v. Justice Court, 181 Cal.App.2d 221, 5 Cal.Rptr. 204; People v. Storke, 39 Cal.App. 633, 179 P. 527.)

The “complaint,” as that term is used in Penal Code section 813, is not a formal accusatory pleading filed in a court with trial jurisdiction over the offense. Hence it does not institute a criminal proceeding. It is instead simply the basis for conducting a hearing to determine if probable cause exists to hold the person for trial. (Pen.Code, s 806.)

People v. Case (1980) 105 Cal.App.3d 826, 833–834

==Charging Language==

HSC11350
did willfully and unlawfully have in his/her possession a controlled substance, to wit, (name of controlled substance). (§ 11:16. Form of allegations—Possession of controlled substances, California Criminal Procedure § 11:16)

HSC11351 and HSC11378
did willfully and unlawfully possess for sale a controlled substance, to wit, (name of controlled substance).

HSC11370.4
It is further alleged that, in the commission of the above charged offense, possessed (kilograms or grams) of the controlled substance, which exceeded the (amount or quantity) by weight within the meaning of (name of proper code and subdivision number).

PC186.22(a)
, did willfully, unlawfully, and actively participate in a criminal street gang with knowledge that its members engage in and have engaged in a pattern of criminal gang activity, and did willfully promote, further, and assist in felony criminal conduct by gang members.

Enhancements must be based on acts committed by others in defendant's gang before his or her crime has been completed.5 The wording in the accusatory pleading, for example, is sufficient in the following form (People v. Godinez)

It is further alleged that in the commission of the above offense the defendant [carried a firearm on the person and in a vehicle within the meaning of Penal Code § 12021.5.

In People v. Hernandez8 the California Supreme Court ruled that a trial court is not required to bifurcate the trial on the gang enhancement, but it has the discretion to do so. The key factor is whether the gang evidence is relevant to the underlying charge. When requested, the court should give a limiting instruction on evidence used only to prove the gang enhancement.

A defendant's offense on a separate occasion may qualify as a predicate offense to establish a “pattern of criminal activity” under the STEP Act. People v. Quang Minh Tran, 51 Cal. 4th 1040, 1046, 126 Cal. Rptr. 3d 65, 253 P.3d 239 (2011).

NOTICE: If convicted of this offense, the court must suspend your driving privileges if you are under the age of 21. Vehicle Code § 13202.5.

NOTICE: Conviction of this offense will require you to register pursuant to Health and Safety Code § 11590. Failure to do so is a crime pursuant to Health and Safety Code § 11594.

When describing the type of controlled substance, it is best to state the particular substance at issue.4

Courts have found that a defendant is denied due process when the accusatory pleading simply charges him or her with being under the influence of a controlled substance, but does not designate or describe the substance

But see ''Ross v. Municipal Court'' (1975) 49 Cal.App.3d 575 [overrruling demurrer for not specifying specific controlled substance in complaint for HSC11550].

Information need not state which degree of burglary. (''People v. Nunez'' (1970) 7 Cal.App.3d 655.)

===Penal Code section 951===

An indictment or information may be in substantially the following form: The people of the State of California against A. B. In the superior court of the State of California, in and for the county of ____. The grand jury (or the district attorney) of the county of ____ hereby accuses A. B. of a felony (or misdemeanor), to wit: (giving the name of the crime, as murder, burglary, etc.), in that on or about the ____ day of ____, 19__, in the county of ____, State of California, he (here insert statement of act or omission, as for example, “murdered C. D.”).

===Penal Code section 952===

In charging an offense, each count shall contain, and shall be sufficient if it contains in substance, a statement that the accused has committed some public offense therein specified. Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused. In charging theft it shall be sufficient to allege that the defendant unlawfully took the labor or property of another.

===Penal Code section 955===

The precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense.

===Penal Code section 956===

When an offense involves the commission of, or an attempt to commit a private injury, and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, or of the place where the offense was committed, or of the property involved in its commission, is not material.

===Penal Code section 957===
The words used in an accusatory pleading are construed in their usual acceptance in common language, except such words and phrases as are defined by law, which are construed according to their legal meaning.

===Penal Code section 958===
Words used in a statute to define a public offense need not be strictly pursued in the accusatory pleading, but other words conveying the same meaning may be used.

===Penal Code section 1404===

Neither a departure from the form or mode prescribed by this Code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right.

===Penal Code section 960===

No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits.

===Penal Code section 969===
In charging the fact of a previous conviction of felony, or of an attempt to commit an offense which, if perpetrated, would have been a felony, or of theft, it is sufficient to state, “That the defendant, before the commission of the offense charged herein, was in (giving the title of the court in which the conviction was had) convicted of a felony (or attempt, etc., or of theft).” If more than one previous conviction is charged, the date of the judgment upon each conviction may be stated, and all known previous convictions, whether in this State or elsewhere, must be charged.

===Penal Code section 969a===
Whenever it shall be discovered that a pending indictment or information does not charge all prior felonies of which the defendant has been convicted either in this State or elsewhere, said indictment or information may be forthwith amended to charge such prior conviction or convictions, and if such amendment is made it shall be made upon order of the court, and no action of the grand jury (in the case of an indictment) shall be necessary. Defendant shall promptly be rearraigned on such information or indictment as amended and be required to plead thereto.

===Penal Code section 969.5===
:(a) Whenever it shall be discovered that a pending complaint to which a plea of guilty has been made under Section 859a does not charge all prior felonies of which the defendant has been convicted either in this state or elsewhere, the complaint may be forthwith amended to charge the prior conviction or convictions and the amendments may and shall be made upon order of the court. The defendant shall thereupon be arraigned before the court to which the complaint has been certified and shall be asked whether he or she has suffered the prior conviction. If the defendant enters a denial, his or her answer shall be entered in the minutes of the court. The refusal of the defendant to answer is equivalent to a denial that he or she has suffered the prior conviction.

:(b) Except as provided in subdivision (c), the question of whether or not the defendant has suffered the prior conviction shall be tried by a jury impaneled for that purpose unless a jury is waived, in which case it may be tried by the court.

:(c) Notwithstanding the provisions of subdivision (b), the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury.

===Penal Code section 969f===

:(a) Whenever a defendant has committed a serious felony as defined in subdivision (c) of Section 1192.7, the facts that make the crime constitute a serious felony may be charged in the accusatory pleading. However, the crime shall not be referred to as a serious felony nor shall the jury be informed that the crime is defined as a serious felony. This charge, if made, shall be added to and be a part of the count or each of the counts of the accusatory pleading which charged the offense. If the defendant pleads not guilty to the offense charged in any count which alleges that the defendant committed a serious felony, the question whether or not the defendant committed a serious felony as alleged shall be tried by the court or jury which tries the issue upon the plea of not guilty. If the defendant pleads guilty of the offense charged, the question whether or not the defendant committed a serious felony as alleged shall be separately admitted or denied by the defendant.

:(b) In charging an act or acts that bring the defendant within the operation of paragraph (8) or (23) of subdivision (c) of Section 1192.7, it is sufficient for purposes of subdivision (a) if the pleading states the following:

:“It is further alleged that in the commission and attempted commission of the foregoing offense, the defendant ____, personally [inflicted great bodily injury on another person, other than an accomplice] [used a firearm, to wit: ____,] [used a dangerous and deadly weapon, to wit: ____,] within the meaning of Sections 667 and 1192.7 of the Penal Code.”

==State numbers vs descriptions==

[§ 212] Designation of Statute by Number.
Correlation Table | Tables and Index
(1) In General. Neither P.C. 951 nor 952 (supra, § 208), specifying the form and matters that must appear in an information, requires that the violated statute be designated by number. “However, the accusatory pleading ‘might well’ designate by number the statute allegedly violated, although ‘the defect’ in failing to do so may not be of substance.” (People v. Schueren (1973) 10 C.3d 553, 558, 111 C.R. 129, 516 P.2d 833.)
(2) Effect of Erroneous Designation. In People v. Carbonie (1975) 48 C.A.3d 679, 121 C.R. 831, defendant was put on trial for allegedly using her minor son as an intermediary in an amphetamine transaction. The information defining her offense referred to Health & Saf.C. 11380, the proper statute governing the furnishing of amphetamine, but described her activities in the language of another statute, Health & Saf.C. 11353. Defendant was thus charged with using “a minor … to knowingly and lawfully … sell” a controlled substance, amphetamine sulphate (Health & Saf.C. 11353), instead of using a minor as agent through soliciting, etc., the minor (Health & Saf.C. 11380). The district attorney erred in so describing the offense. Held, this was harmless error. “The purpose of the information is to provide the accused with fair notice of the charges he or she is expected to answer. That purpose was adequately served by the information before us. The information referred to the correct statute and named the correct substances. Moreover, the type of activity described in the information would also fall within [Health & Saf.C.] 11380. … In any event, since appellant failed to object in the trial court to the adequacy of the notice she received, she thereby waived her objection.” (48 C.A.3d 691.)
In Isaac v. Superior Court (1978) 79 C.A.3d 260, 146 C.R. 396, defendant was charged with attempted extortion in violation of P.C. 664 (general attempt statute) and P.C. 518 (defining extortion) in that she “did willfully and unlawfully attempt to obtain an official act of a public officer … by the wrongful use of force or fear.” Attempted extortion is an offense under P.C. 524. Held, defendant was properly charged with violation of P.C. 524. (a) Because the charging language clearly refers to attempted extortion, defendant suffered no prejudice from the erroneous designation of P.C. 664. (b) Legislative history shows that the broadened definition of extortion in P.C. 518 was intended to apply to P.C. 524. (79 C.A.3d 263.) (See People v. White (2005) 133 C.A.4th 473, 483, 34 C.R.3d 848 [in light of legislative declaration that no substantive change was intended by adding subparagraphs to statute, error in designating subparagraph in information was not necessarily fatal; issue is whether defendant was misled or can show prejudice, and that was not shown].)
Sometimes, an erroneous designation requires a reversal. (See People v. Hernandez (1976) 64 C.A.3d Supp. 16, 22, 134 C.R. 620, citing the text [defendants were improperly charged with violating P.C. 4550 (attempted rescue of prisoner), when they should have been charged with attempted violation of Welf.C. 1152 (aiding inmate of juvenile facility to escape); “having been charged under the wrong statute, they did not receive the requisite notice which due process requires and this fundamental error compels reversal”].)

==Notice==
People v. Anderson, 141 Cal. App. 4th 430, 445, 45 Cal. Rptr. 3d 910 (1st Dist. 2006) [“the role of the accusatory pleading is to provide notice to the defendant of the charges that he or she can anticipate being proved at trial”]; People v. Jordan, 19 Cal. App. 3d 362, 368, 97 Cal. Rptr. 570 (4th Dist. 1971) [noting “the constitutional requirement defendants be given adequate notice of the nature of the charges against them so they may prepare their defense and plead the judgment as a bar to any later prosecution for the same offense”].)

===Attempts===
"The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense." (Pen. Code, § 1159.)

Part and parcel of almost every charge is the possibility the charge may actually be an attempt and not a substantive offense, or based upon a theory of aiding and abetting, or the natural and probable consequences doctrine, or a conspiracy. (See, e.g., People v. Fontenot, 8 Cal. 5th 57, 61, 251 Cal. Rptr. 3d 341, 447 P.3d 252 (Cal. 2019) [“Under California law, a defendant may be convicted of an attempt even if the People charged only the completed crime”];

===Pleading aiders/abbetors and accomplice liability===

People v. Garrison, 47 Cal. 3d 746, 776 n.12, 254 Cal. Rptr. 257, 765 P.2d 419 (1989) [“notice as a principal is sufficient to support a conviction as an aider and abettor … ‘without the accusatory pleading reciting the aiding and abetting theory so long as defendant is charged in that pleading as a principal to the substantive offense and thus receives the notice of the charge against him’”].)

Penal Code 971: The distinction between an accessory before the fact and a principal, and between principals in the first and second degree is abrogated; and all persons concerned in the commission of a crime, who by the operation of other provisions of this code are principals therein, shall hereafter be prosecuted, tried and punished as principals and no other facts need be alleged in any accusatory pleading against any such person than are required in an accusatory pleading against a principal.

"Although the general rule is that no special facts need be alleged to charge a defendant as an accessory, if the accessory could not personally commit the offense (for example, a non-felon being charged along with a felon in possession of a gun), then specific statutory language should be used in the complaint to designate the defendant as an aider and abettor." (§ 11:13. Form of allegations—Accessory and principal, California Criminal Procedure § 11:13)

===lesser included===
To determine whether one offense is a lesser included offense of another, we have at times looked to the accusatory pleading in the case before us, as well as to the statutory elements of the two offenses at issue. (People v. Robinson (2016) 63 Cal.4th 200, 207, 202 Cal.Rptr.3d 485, 370 P.3d 1043.) But because the first amended information charging Fontenot with completed kidnapping merely “incorporate[d] the statutory definition of the charged offense without referring to the particular facts” in detail, we “must rely on the statutory elements” alone. (Ibid.) So here we need only apply the so-called “elements test.” (Ibid.) What that test requires is determining whether a given crime's elements together constitute a mere subset of another crime's elements. (Ibid.) If the answer is yes, the greater offense “ ‘ “ ‘cannot be committed without also necessarily ***348 committing [the] lesser offense.’ ” ’ ” (Ibid., quoting Bailey, supra, 54 Cal.4th at p. 748, 143 Cal.Rptr.3d 647, 279 P.3d 1120.) Which means that, so long as some additional evidence is required to support a conviction for the former, the latter is a lesser included offense. (Robinson, at p. 207, 202 Cal.Rptr.3d 485, 370 P.3d 1043.)

People v. Fontenot (2019) 8 Cal.5th 57, 65 [251 Cal.Rptr.3d 341, 347–348, 447 P.3d 252, 258]

==Amendments==

Garcia v. Superior Court (2020) 47 Cal.App.5th 631. Arraignment on amended complaint started a new 10 days. Amendment was a new charge.

Unless the amendment is an “amendment of substance,” the defendant is not entitled to a new clock. (Hankla v. Municipal Court, 26 Cal. App. 3d 342, 358, 102 Cal. Rptr. 896 (1st Dist. 1972) (disapproved on other grounds by, Owens v. Superior Court, 28 Cal. 3d 238, 249, fn. 10, 168 Cal. Rptr. 466, 617 P.2d 1098 (1980)).) Where the amendments do “no more than add [] evidentiary allegations to the same charge,” the amendments are “of no substance” and do not extend the time within which the defendant is entitled to be brought to trial. (Id. at p. 359.) Amendments that change the charges but leave the times, dates, and victims the same as in the first information are not substantial changes and therefore do not toll Penal Code § 1382's 60-day speedy trial period. (Perez v. Superior Court, 111 Cal. App. 3d 994, 999, 169 Cal. Rptr. 45 (2d Dist. 1980) (disapproved on other grounds by, People v. Engram, 50 Cal. 4th 1131, 1159-1161, 116 Cal. Rptr. 3d 762, 240 P.3d 237 (2010)).) Similarly, the addition of prior conviction allegations or aggravating sentencing factors14 to an information or a complaint are not substantial changes triggering a new period. (See Huerta v. Superior Court, 18 Cal. App. 3d 482, 485, 95 Cal. Rptr. 748 (2d Dist. 1980).) In Perez, the Court of Appeal reaffirmed that “[i]n order for an amendment to an information to toll the running of the 60-day period prescribed by section 1382, the amendment must go to the substance of the charge.” (Perez, at pp. 998-999.) While the foregoing cases discuss the impact of substantive amendments to the trial clock (Penal Code § 1382), the same reasoning should apply to Penal Code § 859b. In short, only substantive amendments trigger the need to rearraign the defendant and start a new clock.

Unlike the amendment of a complaint or information to add a conduct enhancement, “neither the Legislature nor the courts have ever deemed aggravating facts used to impose the upper term as being equivalent to statutory sentencing ‘enhancements’ … that must be alleged in the accusatory pleading and provided at the preliminary hearing.” (Barragan v. Superior Court, 148 Cal. App. 4th 1478, 1485, 56 Cal. Rptr. 3d 660 (3d Dist. 2007).) Accordingly, the amendment of a complaint to add aggravating factors is likely not an “amendment of substance” (Hankla, supra, 26 Cal. App. 3d at 358) that would trigger a new clock. Rather, the addition of aggravating factors is similar to the addition of prior conviction allegations in that aggravating factors pertain solely to the length of punishment. In Huerta v. Superior Court, 18 Cal. App. 3d 482, 95 Cal. Rptr. 748 (2d Dist. 1980), the Court of Appeal held that the addition of prior conviction allegations to an information is not a substantial change triggering a new 60-day period. Noting that the added allegations did not go “to the substance of the charge,” the court stated: “Whatever justification there may be for delay of trial when an amendment has changed the nature of the offense involved, we see no reason why the formal addition of a matter going (at most) to the length of penalty, should automatically affect the right to a trial on the merits.” (Id. at p. 485.)

With respect to the trial clock under Penal Code § 1382, the filing of a substantive amendment either tolls the 60-day speedy trial clock (Perez v. Superior Court, 111 Cal. App. 3d 994, 997, 169 Cal. Rptr. 45 (2d Dist. 1980) (disapproved on other grounds by, People v. Engram, 50 Cal. 4th 1131, 1159-1161, 116 Cal. Rptr. 3d 762, 240 P.3d 237 (2010)) or starts a new clock (Hankla v. Municipal Court, 26 Cal. App. 3d 342, 358, 102 Cal. Rptr. 896 (1972) (disapproved on other grounds by, Owens v. Superior Court, 28 Cal. 3d 238, 249, fn. 10, 168 Cal. Rptr. 466, 617 P.2d 1098 (1980)) [“it may be assumed, as in Huerta, that an amendment of substance would constitute a new charge which would start a new period for trial, following the petitioner's arraignment”].)

[§ 242] Authority To Amend.
Correlation Table | Tables and Index
Supplement
(1) Without Leave: Before Plea or Demurrer Sustained. An indictment, accusation, or information may be amended by the district attorney, or an amended complaint may be filed by the prosecuting attorney, without leave of court at any time before the defendant pleads or a demurrer to the original pleading is sustained. (P.C. 1009; see People v. Gilbert (1938) 26 C.A.2d 1, 6, 78 P.2d 770 [amended second indictment was returned by grand jury while demurrer to first indictment was pending]; People v. Stuhlmiller (1940) 37 C.A.2d 603, 605, 99 P.2d 1072 [same right when plea to original information is withdrawn]; People v. Crosby (1962) 58 C.2d 713, 721, 25 C.R. 847, 375 P.2d 839 [court erred in denying leave to amend indictment before entry of defendants' plea]; People v. Carrasco (2006) 137 C.A.4th 1050, 1057, 40 C.R.3d 768 [P.C. 1009 permits court to amend information without request of prosecution; thus, after denying defendant's motion to dismiss, court did not err in amending information to conform to complaint that had been amended according to proof at preliminary hearing]; C.E.B., Criminal Law, §§ 7.1, 7.14 et seq.; 41 Am.Jur.2d (2005 ed.), Indictments and Informations § 160 et seq.)
(2) With Leave: At Any Stage. The court may order or permit an amendment for any defect or insufficiency, at any stage of the proceedings. (P.C. 1009; see 17 A.L.R.3d 1181 [court's power to make or permit amendment of indictment].) Thus, after a plea or demurrer is sustained, the court's permission to amend is necessary. (People v. Brower (1949) 92 C.A.2d 562, 564, 207 P.2d 571.) However, with this permission, amendment may be made at any time prior to verdict or judgment. The following situations are illustrative:
(a) Before trial. (See People v. Alves (1957) 154 C.A.2d Supp. 877, 879, 315 P.2d 755 [dictum: after demurrer sustained without leave to amend, and before dismissal, if court should decide that it had erred].)
(b) At or during trial. (See People v. Valladoli (1996) 13 C.4th 590, 54 C.R.2d 695, 918 P.2d 999, infra, § 247 [after return of guilty verdicts but before discharge of jury, information was amended to charge inadvertently omitted enhancement allegations]; People v. Lancaster (2007) 41 C.4th 50, 87, 58 C.R.3d 608, 158 P.3d 157 [defendant was not prejudiced where count charging kidnaping for ransom was amended to include “other valuable things” in addition to money sought by defendant; extortion was originally pleaded in that count and thus both original and amended counts “referred to kidnapping for ransom as a shorthand way of designating the aggravated kidnapping offenses enumerated” in P.C. 209]; People v. Miralrio (2008) 167 C.A.4th 448, 459, 84 C.R.3d 169 [following all evidence and before closing arguments, trial court did not abuse discretion by allowing prosecution to file second amended information to attach multiple victim enhancement to each of eight counts; first amended complaint with enhancement to count one only was deemed clerical error and parties always understood that prosecution was seeking enhancement on all counts]; People v. Arevalo-Iraheta (2011) 193 C.A.4th 1574, 1582, 124 C.R.3d 363 [where original complaint alleged five counts of aggravated sexual assault on child under age 14, amendments prior to close of prosecution's case adding five counts of lewd and lascivious behavior with child under age 14, for which defendant was convicted, were proper; added counts involved lesser charges of which defendant had notice through original complaint].)
(c) Following a mistrial. (See People v. Flowers (1971) 14 C.A.3d 1017, 1021, 92 C.R. 647 [charging new offense shown at original trial]; People v. Brown (1973) 35 C.A.3d 317, 323, 110 C.R. 854 [information was amended to allege two counts of unlawful intercourse in addition to the two counts of rape charged in original information; defendant was aware at preliminary hearing that victim was 15 years old and thus was not prejudiced by amendment; following Flowers].)
The court's discretion is broad, and is almost invariably upheld. (People v. O'Moore (1948) 83 C.A.2d 586, 594, 189 P.2d 554; People v. Stoddard (1948) 85 C.A.2d 130, 138, 192 P.2d 472; People v. Byrd (1960) 187 C.A.2d 840, 842, 10 C.R. 43; People v. Baldwin (1961) 191 C.A.2d 83, 87, 12 C.R. 365; People v. Hernandez (1961) 197 C.A.2d 25, 31, 17 C.R. 20.)
(3) Distinction: New Information or Indictment. If the defect in an indictment or information cannot be remedied by amendment, the court may order the case resubmitted to the same or another grand jury or the filing of a new information. (P.C. 1009; on procedure when court directs refiling or resubmission, see P.C. 1010.)
SUPPLEMENT
(1) Without Leave: Before Plea or Demurrer Sustained. See 41 Am.Jur.2d (2015 ed.), Indictments and Informations § 153 et seq.
(2) With Leave: At Any Stage. See People v. Simpson (2014) 223 C.A.4th Supp. 6, 8, 167 C.R.3d 396 [trial court exceeded its authority under P.C. 1009 and violated separation of powers doctrine by amending complaint sua sponte during trial to add charge]; People v. Hamernik (2016) 1 C.A.5th 412, 424, 427, 204 C.R.3d 649 [after erroneously determining that attempted possession of controlled substance was lesser included offense of possession of controlled substance, trial court, after presentation of evidence, dismissed possession of controlled substance charge, substituted attempted possession charge, and ruled that prosecution's motion to amend information was moot; defendant's conviction of attempted possession of controlled substance had to be reversed, where attempted possession charge was not included in information; Court of Appeal had no authority to order trial court to amend information after conviction].

(1) Application of District Attorney or Court's Own Motion. An amendment may be made with leave on application of the district attorney, or the court may order it on its own motion. (P.C. 1009; see People v. Walker (1947) 82 C.A.2d 196, 185 P.2d 842 [court's own motion].) (On required statement under P.C. 1192.6 where felony charges in original accusatory pleading are amended or dismissed, see infra, § 361.)
(2) Defendant Need Not Be Present. The motion may be heard without the defendant present. (People v. Cayer (1951) 102 C.A.2d 643, 651, 228 P.2d 70.)
(3) Interlineation. An amendment by interlineation may be permitted. (See People v. Walker (1959) 170 C.A.2d 159, 162, 338 P.2d 536; People v. Crosby (1962) 58 C.2d 713, 720, 25 C.R. 847, 375 P.2d 839.)
(4) Insertion of Names of Witnesses or District Attorney's Signature. The court may order the names of witnesses inserted in an indictment or the district attorney's signature added to an information. (P.C. 995a(a).) (On procedure under P.C. 995a(b) for correction of minor or technical errors in information, see infra, § 272.)
(5) Conduct of Defendant in Trial Court. The proceedings in the trial court may constitute an informal amendment of the accusatory pleading, when the defendant's conduct or circumstances created by defendant amount to an implied consent to the amendment. (See People v. Hensel (1965) 233 C.A.2d 834, 839, 43 C.R. 865 [where defendant had expressly asked court to reduce his offense to violation of former P.C. 650½, defendant impliedly consented that information be treated as though that offense had been charged and pleaded to]; People v. Rasher (1970) 3 C.A.3d 798, 803, 806, 83 C.R. 724 [implied amendment where defendant “was fully informed of the case he would be expected to meet at the trial and was in no manner misled in making his defense or as to any theory of defense which he himself injected into the trial”]; People v. Sandoval (2006) 140 C.A.4th 111, 132, 133, 43 C.R.3d 911 [criminal judgment may be based on information that was orally amended; informal amendment procedure attaches no “talismanic significance” to existence of written information, and defendant's conduct may effect informal amendment without prosecution formally filing written amendment].)
(6) Original Pleading Is Superseded. An amended pleading supersedes the original (Muns v. Superior Court (1955) 137 C.A.2d 728, 732, 290 P.2d 951), and starts a new 60-day period to bring the case to trial (People v. Wilkes (1960) 177 C.A.2d 691, 697, 2 C.R. 594).
SUPPLEMENT
(5) Conduct of Defendant in Trial Court. See People v. Anderson (2020) 9 C.5th 946, 958, 266 C.R.3d 283, 470 P.3d 2 [defendant did not impliedly consent to informal amendment of information to add enhancement allegations by failing to object to jury instructions and verdict forms that asked jury to return findings that would support those enhancements]; People v. Whitmer (2014) 230 C.A.4th 906, 919, 179 C.R.3d 112, citing the text [although defendant was improperly charged with grand theft of automobile, he was properly convicted of grand theft of property worth more than $400, where instructions effectively presented both theories of grand theft to jury; by failing to object to those instructions, defendant impliedly consented to submission of both theories to jury]; People v. Sawyers (2017) 15 C.A.5th 713, 723, 223 C.R.3d 438 [informal amendment doctrine applies only where defendant had reasonable notice of sentence enhancement allegation despite incomplete pleading; thus, doctrine did not apply where court proceedings did not give defendant notice that his sentence would be doubled under three strikes law]; People v. Pettie (2017) 16 C.A.5th 23, 81, 224 C.R.3d 160 [prosecution's oral amendment of information at close of evidence to allege sentence enhancement for personal discharge of firearm did not prejudice defendant, where pleadings, preliminary hearing, prosecutor's arguments, and evidence at trial unambiguously established that defendant had notice of that allegation].

[§ 244] Rearraignment and Plea.
Correlation Table | Tables and Index
The defendant must plead to an amendment or amended pleading immediately, or at the time fixed for pleading if the defendant has not yet pleaded, and the trial or other proceeding must continue as if the pleading had been originally filed as amended. (P.C. 1009.) This is the normal practice, but its effect is not to impose a mandatory requirement that may not be waived. Where a case is tried as if a new plea of not guilty has been made, and the defendant does not object, failure to follow the statute is not reversible error. (In re Mitchell (1961) 56 C.2d 667, 670, 16 C.R. 281, 365 P.2d 177; People v. Suter (1941) 43 C.A.2d 444, 462, 111 P.2d 23; People v. Walker (1959) 170 C.A.2d 159, 164, 338 P.2d 536; People v. O'Hara (1960) 184 C.A.2d 798, 811, 8 C.R. 114.)
When the defendant objects to the failure to be rearraigned, the error may be prejudicial. In People v. Hopkins (1974) 39 C.A.3d 107, 113 C.R. 880, defendant was originally charged with multiple felonies, including armed robbery causing great bodily injury to the victim. After defendant waived a jury trial, the prosecutor, over defendant's objection, introduced what he termed “not a substantial amendment,” i.e., a charge that in the course of committing the robbery, defendant intentionally inflicted great bodily injury on the victim. Defendant objected that one reason for having a court trial was the fact that the information had failed to allege specific intent to inflict great bodily injury. The objection was overruled, trial proceeded, defendant was convicted, and the judge found that defendant had intentionally inflicted great bodily injury on the victim. Held, this was error; defendant should have been rearraigned after the information was amended.
(a) By amendment, a substantial change was made in the charges faced by defendant after he had waived a jury trial. The judgment erroneously augmented the punishment by findings on issues about which defendant never personally waived a jury trial. (39 C.A.3d 117.) Whether the amendment changed the offense charged within the meaning of P.C. 1009 was unnecessary to determine. “It is clear that a substantial right of the defendant, to wit, to elect whether to have a jury trial before being subjected to an additional 10-year minimum sentence, was prejudiced by the court's failure to properly arraign him and secure a personal jury waiver on the information as amended. It is immaterial that the defendant had notice that the factual issues might be the same before and after the amendment, and that he was therefore not surprised. He was entitled to know the true consequences of an adverse finding on the facts before he elected to waive a jury.” (39 C.A.3d 119.)
(b) Ordinarily, if a defendant is denied a jury trial and the judgment is set aside, the case is remanded for retrial. However: “In the hybrid situation presented by this case the judgment should be set aside and the case should be remanded with instructions to rearraign the defendant on the first count as amended, and thereafter conduct such further proceedings as may be necessary in the premises. Because the defendant waived a right to jury trial on the charge of robbery in the first degree and was properly convicted of that offense, the People should have the opportunity to consent to the deletion of the findings predicated upon the amendment to the complaint.” (39 C.A.3d 119.)

[§ 245] Continuance.
Correlation Table | Tables and Index
The requirement of pleading immediately to an amended pleading applies unless doing so would prejudice the defendant's substantial rights, in which case a reasonable postponement may be granted. (P.C. 1009.) If the amendment makes no substantial change in the offense charged, and therefore does not require additional preparation or evidence to meet it, and the defendant's substantial rights are not prejudiced, the denial of a continuance is justified. (See People v. Suter (1941) 43 C.A.2d 444, 462, 111 P.2d 23 [bribery; amendment specified “money” as the bribe, i.e., merely showed with more particularity the offense charged]; People v. Witt (1975) 53 C.A.3d 154, 164, 125 C.R. 653 [during closing arguments to jury, trial judge permitted prosecution to amend information to allege new overt act placing charged conspiracy within limitations period; no new legal issues were created by amendment and no continuance was required]; People v. Adams (1974) 43 C.A.3d 697, 704, 117 C.R. 905 [amended information was for primary purpose of removing sunglasses and watchband from list of allegedly stolen property; defendant was not misled as to identity of offense charged]; People v. George (1980) 109 C.A.3d 814, 167 C.R. 603, citing the text [after presentation of prosecution's case in chief, motion to strike charge of attempted escape from information that also charged escape lessened defense burden but did not change primary charge].)
However, if the change is so substantial as to call for additional preparation, it may be reversible error to deny a continuance. In People v. Hembree (1956) 143 C.A.2d 733, 299 P.2d 1043, the original charge was robbery. After the prosecution had rested and one defense witness had testified, the evidence appeared insufficient, and the district attorney was granted leave to amend to charge conspiracy to commit grand theft and assault with a deadly weapon. Defense counsel's request for a 2-week continuance was denied, and he was allowed only 3½ hours. Held, this was an abuse of discretion and a denial of a fair trial. The amendment was in effect an abandonment of the original charge and a substitution of two different offenses, involving additional issues such as agreement, overt act, withdrawal from conspiracy, and assault. “It is apparent that a proper preparation for the defense in such a trial would require counsel for defendant to review the evidence which had been presented by the prosecution; to determine whether he should further cross-examine the prosecution witnesses; to review the law pertaining to the several new issues; to submit additional instructions; and to interview witnesses.” (143 C.A.2d 742.)
In People v. Murphy (1963) 59 C.2d 818, 31 C.R. 306, 382 P.2d 346, defendants were charged with pimping and statutory rape. The information, in two counts, alleged the aiding and abetting of Jim Prince and Jim McDonald to engage in intercourse with the prosecuting witness, who was age 17. At the trial, the district attorney was allowed to strike the two names and insert “John Doe William” and “John Doe Bob.” Defendants' counsel asserted that the defense had been based on the identity of the two men originally named, and requested a continuance. Held, denial was reversible error. This was neither the correction of a clerical error in spelling of the defendant's name nor the insertion of the defendant's true name for a fictitious name; here, new fictitious names of apparently different third persons were added, and the amendment was one of substance. (59 C.2d 821, 827.)

[§ 246] Improper Amendments.
Correlation Table | Tables and Index
Supplement
(1) Indictment or Accusation Changing Offense. The grand jury alone determines what crime is to be charged on the basis of the evidence presented to it. Hence, while an indictment may be amended as freely as an information within the scope of the charge (infra, § 247 et seq.), an indictment or accusation “cannot be amended so as to change the offense charged.” (P.C. 1009; People v. Granice (1875) 50 C. 447 [change from manslaughter to murder]; see People v. Foster (1926) 198 C. 112, 120, 243 P. 667 [discussing reasons for distinction].)
(2) Information Charging Offense Not Shown at Preliminary Examination. The district attorney may not originally charge an offense not shown by the evidence at the preliminary examination (supra, § 202), and the same limitation applies to an amendment. (P.C. 1009; People v. Fyfe (1929) 102 C.A. 549, 555, 283 P. 378; see People v. Tallman (1945) 27 C.2d 209, 213, 163 P.2d 857 [amendment is proper if shown by evidence]; People v. Winters (1990) 221 C.A.3d 997, 1005, 1007, 270 C.R. 740 [amendment violated P.C. 1009 where defendant waived preliminary hearing on charge of possession of methamphetamine for sale but objected to amendment of information at trial to add charge of transportation of methamphetamine].)
In People v. Peyton (2009) 176 C.A.4th 642, 98 C.R.3d 243, defendant was initially charged with three counts of oral copulation and one count of sexual penetration. Defendant waived the preliminary hearing, and the prosecution filed an information charging defendant with the same crimes charged in the complaint. The prosecution then filed two more amended informations, one on the first day of trial, the second following the prosecution's case to conform to proof. Both changed the allegations to three counts of sexual penetration and one count of oral copulation. However, the second amended information added a count of aggravated lewd conduct. The trial court approved the amendments and the jury convicted defendant as charged. Held, conviction for lewd conduct reversed and other convictions affirmed.
(a) Improper amendment. The reasoning of People v. Winters applies here. P.C. 1009 prohibits adding new charges to an accusatory pleading after a defendant has waived the right to a preliminary hearing on that pleading. Here, the lewd conduct charge was alleged as an additional fifth charge following the prosecution's case-in-chief. Thus, defendant was convicted of a charge not included in the complaint to which he had waived a preliminary hearing. (176 C.A.4th 655.)
(b) Proper amendment. A variance in pleading is not material unless it misleads a defendant in preparing a defense. Here, all of the pleadings, including the amended complaint and second amended information, “consistently alleged” four charges of aggravated sexual assault of a child by force or duress based on either oral copulation or sexual penetration. “Each pleading dealt with one victim and with conduct occurring over a very limited timeframe. And the only difference between the amended complaint, to which defendant waived his right to a preliminary hearing, and the second amended information, upon which defendant was convicted at trial, is that the bases of two of the four alleged section 269 charges were changed from oral copulation to sexual penetration.” (176 C.A.4th 659.) Thus, defendant was not deprived of an ability to properly prepare a defense to the charges as originally alleged, and the convictions were not in significant variance from the charges in the complaint. (176 C.A.4th 659, 660.)
The defendant's right to attack the information on this ground is, however, limited by the following procedural rules:
(a) The defendant waives the error by failing to object or move to set aside the information. (People v. Workman (1953) 121 C.A.2d 533, 535, 263 P.2d 458; People v. Walker (1959) 170 C.A.2d 159, 164, 338 P.2d 536.)
(b) Unless the defendant brings up the preliminary examination transcript in the appeal record, the presumption (in favor of the judgment) will be that the evidence supported the amendment. (People v. Walker, supra, 170 C.A.2d 163; People v. Dean (1958) 158 C.A.2d 572, 575, 322 P.2d 929.)
(3) Complaint Charging Offense Not Charged by Original Complaint. A complaint cannot be amended to charge an offense not attempted to be charged by the original complaint, except that separate counts may be added that might properly have been joined in the original complaint. (P.C. 1009; see People v. Berkowitz (1977) 68 C.A.3d Supp. 9, 14, 137 C.R. 313 [at close of trial, complaint charging defendant with two counts of practicing medicine without a license was amended to add two counts of dispensing dangerous drugs without good faith examination; lack of notice violated due process and required reversal of convictions on those counts].)
SUPPLEMENT
(2) Information Charging Offense Not Shown at Preliminary Examination. In People v. Mora-Duran (2020) 45 C.A.5th 589, 258 C.R.3d 893, defendant waived a preliminary hearing and pleaded no contest to felony marijuana cultivation under former Health & Saf.C. 11358. After defendant's plea, but before sentencing, Proposition 64 became effective. Proposition 64 amended Health & Saf.C. 11358 to require additional elements for a felony marijuana cultivation conviction, such as an accompanying violation of certain environmental protection laws. The trial court rejected the plea agreement and reinstated charges. The prosecution filed an amended information and defendant pleaded no contest to a new felony marijuana cultivation charge under Health & Saf.C. 11358(d)(3)(C) pertaining to marijuana cultivation resulting in a violation of Fish & Game C. 5650 or 5652, both relating to contaminating state waters. On appeal, defendant argued that charges were added to the amended information after a preliminary hearing was waived in violation of P.C. 1099. Held, conviction reversed. The amendment to the information constituted a significant variance from the original charges. “As originally charged, defendant was to defend against accusations of planting, cultivating, harvesting, drying, or processing marijuana. After the amendment, the scope of his defense grew to encompass” violations of Fish & Game C. 5650 and 5652. (45 C.A.5th 600.) Although the amendment made it more difficult for the prosecutor to obtain a felony conviction, “the amendment still presented a moving target by requiring the defendant to defend against allegations not encompassed within the original charge.” (45 C.A.5th 600.)
(2a) (New) Information Charging Conduct Enhancement After Defendant Waives Preliminary Hearing. An information cannot be amended to add a conduct enhancement after the defendant has waived the right to a preliminary hearing. (People v. Rogers (2016) 245 C.A.4th 1353, 1357, 200 C.R.3d 355.) In Rogers, defendant appealed his convictions on numerous charges, arguing that his attorney rendered ineffective assistance by failing to object to the prosecution's motion to amend the information to include an enhancement for inflicting great bodily injury (GBI) after he waived a preliminary hearing. Held, convictions affirmed, but case remanded for resentencing.
(a) People v. Superior Court (Mendella) (1983) 33 C.3d 754, 191 C.R. 1, 661 P.2d 1081, held that a defendant could challenge the prosecution's failure to present evidence supporting a GBI enhancement allegation at the preliminary hearing by moving to dismiss the enhancement under P.C. 995 (text, § 261). However, the court concluded that as long as evidence at the preliminary hearing supported the enhancement, there was no bar to adding the enhancement to the information. In contrast, Thompson v. Superior Court (2001) 91 C.A.4th 144, 110 C.R.2d 89, held that the prosecution is not required to present evidence to support prior strike convictions at the preliminary hearing. Based on the reasoning of Mendella and Thompson, the prosecution may not add a conduct enhancement to the information after a defendant has waived a preliminary hearing. This conclusion “is a necessary extension from Mendella, because if there is no preliminary hearing, there can be no evidence supporting the allegation.” (245 C.A.4th 1362.)
(b) P.C. 1009 must be construed to bar the addition of conduct enhancements. To do otherwise would mean that a prosecutor could amend an information to add a conduct enhancement over the defendant's objection, but the defendant could then move to dismiss the enhancement under P.C. 995 and Mendella on the ground that there was no preliminary hearing testimony supporting the enhancement. (245 C.A.4th 1363.)

==Aggravating circumstances==

Pleading and proof—Aggravating factors
Effective January 1, 2022, Senate Bill 567 amended Penal Code § 1170(b)(1)-(3) to limit the court's discretion to impose the upper limit. Under the amended statute, the court cannot impose the upper term unless an aggravating factor justifies the imposition of a term exceeding the middle term, and (1) the defendant stipulates to the aggravating factor; (2) the aggravating factor is based on a prior conviction as established by a certified record of conviction; or (3) the jury or judge finds the aggravating factor true beyond a reasonable doubt in a bifurcated trial. (Penal Code § 1170(b)(1)-(3).)
Although there are no cases discussing the effects, if any, of these amendments on pleading and proof requirements at preliminary hearings, prior case law suggests that People need not prove and the court need not make findings concerning aggravating factors at the preliminary hearing. (See Barragan v. Superior Court, 148 Cal. App. 4th 1478, 1484, 56 Cal. Rptr. 3d 660 (3rd Dist. 2007) [“an aggravating fact is not an ‘offense’ within the meaning of [Penal Code] section 1009 and the statutes governing accusatory pleadings. [Citation.] Thus, the statutory scheme does not require the prosecution to plead and prove at the preliminary examination the existence of aggravating facts that can be used to impose the upper term in California's determinate sentencing law” (internal citation omitted)].) The Barragan Court held that the People were entitled to amend the information to include aggravating factors in the information even though those factors were not pled or proved at the preliminary hearing. Doing so, the court explained, complied with the constitutional mandates set forth in Apprendi v. New Jersey, 530 U.S. 466, 494, fn. 19, 120 S.Ct. 2348 (2000), and complied with California's statutory pleading requirements primarily because “an aggravating factor is not an ‘offense’ within the meaning of section 1009 and the statutes governing accusatory pleading.” (Barragan, at p. 1484.) A contrary case, People v. Superior Court (Brooks), 159 Cal. App. 4th 1, 71 Cal. Rptr. 3d 49 (2d Dist. 2007) was decided after Barragan, but its central holding was abrogated by the passage of the new amendment.
Penal Code § 1170(b)(2) is in sync with Barragan. The statute requires the People to plead the aggravating factors in the information or indictment. The statute does not require the People to plead and prove the aggravating factors at the preliminary hearing stage. And the Legislature did not amend the statutory definition of “offense” to include aggravating factors. Nonetheless, Barragan and section 1170(b)(2) may be vulnerable to several due process based/notice pleading arguments that may favor requiring the People to plead and prove aggravating factors at the preliminary hearing stage. (See People v. Mancebo, 27 Cal. 4th 735, 747, 117 Cal. Rptr. 550 (Cal. 2002) [“a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes”]; People v. Dominguez, 166 Cal. App. 4th 858, 866, 83 Cal. Rptr. 3d 284 (6th Dist. 2008) [“It is the rule that ‘a defendant may not be prosecuted for an offense not shown by the evidence at the preliminary hearing or arising out of the transaction upon which the commitment was based’”]; People v. Jeff, 204 Cal. App. 3d 309, 342, 251 Cal. Rptr. 135 (5th Dist. 1988) [“the time, place, and circumstances of charged offenses are left to the preliminary hearing transcript. This is the touchstone of due process notice to a defendant. [Citation.] So long as the evidence presented at the preliminary hearing supports the number of offenses charged against defendant and covers the timeframe(s) charged in the information, a defendant has all the notice the Constitution requires”].)

Comment:
Barragan is controlling law (Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450, 455, 20 Cal. Rptr. 321 (Cal. 1962)) and the statutory scheme does not require the People to plead or prove aggravating factors at the preliminary hearing stage. However, because there are good arguments on both sides of the issue, a cautious prosecutor may choose to plead and prove aggravating factors at the preliminary hearing, and, where such proof is not presented or the magistrate did not make findings, a diligent defense counsel may choose to file a 995 motion and move to dismiss the aggravating factors. Time will tell.

[§ 250] Aggravating Facts for Sentencing Purposes.
Correlation Table | Tables and Index
Courts of Appeal are in disagreement over whether the prosecution should be permitted to amend an information to assert aggravating circumstances. In Barragan v. Superior Court (2007) 148 C.A.4th 1478, 56 C.R.3d 660, defendant was charged with attempted murder and other crimes, the jury was impaneled, and the prosecution's first witness was called before the prosecution learned of Cunningham v. California (2007) 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856, 5 Cal. Crim. Law (4th), Criminal Trial, § 520, decided the previous day, which requires that the jury, not the judge, decide aggravating facts for purposes of imposing an upper term punishment. The trial court permitted the prosecution to amend the information to add the aggravating facts, overruled defendant's demurrer to the amended information, and bifurcated the trial so that the aggravating facts would be submitted to the jury only if defendant were found guilty of one or more of the charged crimes. Held, the amendments were proper.
(a) Nothing in California's statutory scheme governing accusatory pleadings precludes amending an information to allege aggravating facts for purposes of sentencing. To construe the statutes otherwise would result in the prosecution being unable to comply with Cunningham. (148 C.A.4th 1483.)
(b) An aggravating fact is not an “offense” within the meaning of P.C. 1009 or the statutes governing accusatory pleadings. Thus, the prosecution is not required “to plead and prove at the preliminary examination the existence of aggravating facts that can be used to impose the upper term in California's determinate sentencing law. … [A]ggravating facts used to impose the upper term may have nothing to do with the offense; instead, they may relate solely to the offender regardless of the crime committed. Therefore, it would be inaccurate to say that such aggravating facts are functional equivalent of elements of an offense.” (148 C.A.4th 1484, 1485.)
However, in People v. Superior Court (Brooks) (2007) 159 C.A.4th 1, 71 C.R.3d 49, the prosecution sought to amend the information prior to trial to allege 10 aggravating circumstances that were within the meaning of C.R.C., Rule 4.421 (circumstances in aggravation for sentencing under Determining Sentencing Law; see 3 Cal. Crim. Law (4th), Punishment, § 323 et seq.) The trial court sustained defendant's special demurrer, and the prosecution sought a writ of mandamus to compel the trial court to reverse the order. Held, writ denied.
(a) People v. Sandoval (2007) 41 C.4th 825, 62 C.R.3d 588, 161 P.3d 1146, 5 Cal. Crim. Law (4th), Criminal Trial, § 533, decided after Barragan, applied Cunningham in considering the appropriate process for resentencing a defendant, and held that “resentencing under a discretionary scheme was preferable to permitting a jury trial on aggravating circumstances.” (159 C.A.4th 5.) Sandoval reasoned as follows:
(1) Although permitting a jury trial on aggravating circumstances would comply with the constitutional requirements of Cunningham, “engrafting a jury trial onto the sentencing process … would significantly complicate and distort the sentencing scheme. Neither the [Determining Sentencing Law] nor the Judicial Council's sentencing rules were drafted in contemplation of a jury trial on aggravating circumstances. It is unclear how prosecutors might determine which aggravating circumstances should be charged and tried to a jury, because no comprehensive list of aggravating circumstances exists.” (159 C.A.4th 5, quoting Sandoval.)
(2) Under P.C. 1170(b), the Legislature has authorized the trial court, not the prosecutor, to decide what term to impose by considering the trial record, the probation report, and statements submitted by the defendant, the prosecutor, and the victim or the victim's family. (159 C.A.4th 5.)
(3) The Rules of Court provide criteria to cover a wide spectrum of offenses, and thus are framed more broadly than criminal statutes and are necessarily more vague than would be permissible if the criteria were used to define specific crimes. Hence, using them as guidance by the jury would pose difficult questions and potentially raise constitutional concerns. (159 C.A.4th 5.)
(b) Although arising in the context of resentencing after trial and appeal, the rationale of Sandoval is nevertheless applicable here. A jury trial on the aggravated circumstances “would clothe the prosecutor with a form of discretion the Legislature intended to be exercised by the court and would introduce to the jury imprecise standards and ones requiring comparative evaluation. To amend the information the People seek to rely on a rule of court that was ‘not drafted with a jury in mind.’ ” (159 C.A.4th 7.) Thus, the trial court correctly struck the allegations of aggravating circumstances. (159 C.A.4th 8.)

==Penal Code section 964==

(a) In each county, the district attorney and the courts, in consultation with any local law enforcement agencies that may desire to provide information or other assistance, shall establish a mutually agreeable procedure to protect confidential personal information regarding any witness or victim contained in a police report, arrest report, or investigative report if one of these reports is submitted to a court by a prosecutor in support of a criminal complaint, indictment, or information, or by a prosecutor or law enforcement officer in support of a search warrant or an arrest warrant.
(b) For purposes of this section, “confidential personal information” includes, but is not limited to, an address, telephone number, driver’s license or California Identification Card number, social security number, date of birth, place of employment, employee identification number, mother’s maiden name, demand deposit account number, savings or checking account number, or credit card number.
(c) (1) This section may not be construed to impair or affect the provisions of Chapter 10 (commencing with Section 1054) of Title 6 of Part 2.
(2) This section may not be construed to impair or affect procedures regarding informant disclosure provided by Sections 1040 to 1042, inclusive, of the Evidence Code, or as altering procedures regarding sealed search warrant affidavits as provided by People v. Hobbs (1994) 7 Cal.4th 948.

(3) This section shall not be construed to impair or affect a criminal defense counsel’s access to unredacted reports otherwise authorized by law, or the submission of documents in support of a civil complaint.

(4) This section applies as an exception to California Rule of Court 2.550, as provided by paragraph (2) of subdivision (a) of that rule.

==Infractions vs misdemeanors==

Code of Ordinance 1.12.020

Pursuant to Penal Code Section 836.5, the following officers or employees are authorized to make arrests without warrant, subject to the limitations hereinafter provided, where there is a reasonable cause to believe that the person arrested has violated a statute or ordinance which such officer or employee has the duty to enforce:

A.The air pollution control officer and his or her designated deputies;

B.The health officer and environmental health division deputy director or designee;

C.The director of parks and recreation, his or her deputies, and safety rangers;

D.The county veterinarian and animal control officers;

E.The planning director and his or her designated deputies;

F.Safety rangers;

G.Director of buildings and grounds, and his or her designated deputies.

Code of Ordinance 1.16.010

Any person who violates any of the provisions of this code is guilty of an infraction or a misdemeanor. Every violation determined to be an infraction is punishable by:

(1)A fine not exceeding one hundred dollars ($100.00) for a first violation;(2)A fine not exceeding two hundred dollars ($200.00) for a second violation of the same ordinance within one year;(3)A fine not exceeding five hundred dollars ($500.00) for each additional violation of the same ordinance within one year, unless otherwise prescribed.
Every violation determined to be a misdemeanor is punishable by a fine of not more than one thousand dollars ($1,000.00) and/or by imprisonment in the county jail for a period of not more than six months, unless otherwise prescribed.

Code of Ordinance 8.02.040

A.No person, corporation, association, firm, business or entity shall operate, perform, carry on, conduct or engage in any of the activities delineated in this section without obtaining a health permit and paying the fee listed in this section for the activity and obtaining a receipt therefore from the environmental health division.

Penal Code 836.5

(a) A public officer or employee, when authorized by ordinance, may arrest a person without a warrant whenever the officer or employee has reasonable cause to believe that the person to be arrested has committed a misdemeanor in the presence of the officer or employee that is a violation of a statute or ordinance that the officer or employee has the duty to enforce.

(b) There shall be no civil liability on the part of, and no cause of action shall arise against, any public officer or employee acting pursuant to subdivision (a) and within the scope of his or her authority for false arrest or false imprisonment arising out of any arrest that is lawful or that the public officer or employee, at the time of the arrest, had reasonable cause to believe was lawful. No officer or employee shall be deemed an aggressor or lose his or her right to self-defense by the use of reasonable force to effect the arrest, prevent escape, or overcome resistance.

(c) In any case in which a person is arrested pursuant to subdivision (a) and the person arrested does not demand to be taken before a magistrate, the public officer or employee making the arrest shall prepare a written notice to appear and release the person on his or her promise to appear, as prescribed by Chapter 5C (commencing with Section 853.5). The provisions of that chapter shall thereafter apply with reference to any proceeding based upon the issuance of a written notice to appear pursuant to this authority.

(d) The governing body of a local agency, by ordinance, may authorize its officers and employees who have the duty to enforce a statute or ordinance to arrest persons for violations of the statute or ordinance as provided in subdivision (a).

Penal Code 853.9

(a) (1) If written notice to appear has been prepared, delivered, and filed by an officer or the prosecuting attorney with the court pursuant to Section 853.6, an exact and legible duplicate copy of the notice when filed with the magistrate, in lieu of a verified complaint, shall constitute a complaint to which the defendant may plead “guilty” or “nolo contendere.”
(2) If the defendant violates his or her promise to appear in court, or does not deposit lawful bail, or pleads other than “guilty” or “nolo contendere” to the offense charged, a complaint shall be filed which shall conform to the provisions of this code and which shall be deemed to be an original complaint; and thereafter proceedings shall be had as provided by law, except that a defendant may, by an agreement in writing, subscribed by him or her and filed with the court, waive the filing of a verified complaint and elect that the prosecution may proceed upon a written notice to appear.

(b) Notwithstanding subdivision (a), if the written notice to appear has been prepared on a form approved by the Judicial Council, an exact and legible duplicate copy of the notice when filed with the magistrate shall constitute a complaint to which the defendant may enter a plea and, if the notice to appear is verified, upon which a warrant may be issued. If the notice to appear is not verified, the defendant may, at the time of arraignment, request that a verified complaint be filed.

Penal Code 853.6

(a) (1) When a person is arrested for an offense declared to be a misdemeanor, including a violation of a city or county ordinance, and does not demand to be taken before a magistrate, that person shall, instead of being taken before a magistrate, be released according to the procedures set forth by this chapter, although nothing prevents an officer from first booking an arrestee pursuant to subdivision (g). If the person is released, the officer or the officer’s superior shall prepare in duplicate a written notice to appear in court, containing the name and address of the person, the offense charged, and the time when, and place where, the person shall appear in court. If, pursuant to subdivision (i), the person is not released prior to being booked and the officer in charge of the booking or the officer’s superior determines that the person should be released, the officer or the officer’s superior shall prepare a written notice to appear in a court.

(e) The officer shall, as soon as practicable, file the duplicate notice, as follows:
(1) It shall be filed with the magistrate if the offense charged is an infraction.

(2) It shall be filed with the magistrate if the prosecuting attorney has previously directed the officer to do so.

(3) (A) The duplicate notice and underlying police reports in support of the charge or charges shall be filed with the prosecuting attorney in cases other than those specified in paragraphs (1) and (2).

(B) If the duplicate notice is filed with the prosecuting attorney, the prosecuting attorney, within their discretion, may initiate prosecution by filing the notice or a formal complaint with the magistrate specified in the duplicate notice within 25 days from the time of arrest. If the prosecution is not to be initiated, the prosecutor shall send notice to the person arrested at the address on the notice to appear. The failure by the prosecutor to file the notice or formal complaint within 25 days of the time of the arrest shall not bar further prosecution of the misdemeanor charged in the notice to appear. However, any further prosecution shall be preceded by a new and separate citation or an arrest warrant.

(C) Upon the filing of the notice with the magistrate by the officer, or the filing of the notice or formal complaint by the prosecutor, the magistrate may fix the amount of bail that in the magistrate’s judgment, in accordance with Section 1275, is reasonable and sufficient for the appearance of the defendant and shall endorse upon the notice a statement signed by the magistrate in the form set forth in Section 815a. The defendant may, prior to the date upon which the defendant promised to appear in court, deposit with the magistrate the amount of bail set by the magistrate. At the time the case is called for arraignment before the magistrate, if the defendant does not appear, either in person or by counsel, the magistrate may declare the bail forfeited, and may, in the magistrate’s discretion, order that further proceedings shall not be had in the case, unless the defendant has been charged with a violation of Section 374.3 or 374.7 of this code or of Section 11357, 11360, or 13002 of the Health and Safety Code, or a violation punishable under Section 5008.7 of the Public Resources Code, and the defendant has previously been convicted of a violation of that section or a violation that is punishable under that section, except when the magistrate finds that undue hardship will be imposed upon the defendant by requiring the defendant to appear, the magistrate may declare the bail forfeited and order that further proceedings not be had in the case.

(D) Upon the making of the order that further proceedings not be had, all sums deposited as bail shall immediately be paid into the county treasury for distribution pursuant to Section 1463.

==Demurrer==

Penal Code section 1012 is for demurring to prior strikes. (''People v. Equarte'' (1986) 42 Cal.3d 456)

Strike

2026-01-16T20:42:14Z

Sysop: /* Plead and proven */

==Crimes==

{| class="wikitable"
|-
!Code!!Crime!!Serious?!!Violent?!!707(b)?!!Notes
|-
|PC37||Treason||Yes, PC1192.7(c)(7)||Yes, PC667.5(c)(7)||No
|-
|PC128||Perjury resulting in execution of innocent person||Yes, PC1192.7(c)(7)||Yes, PC667.5(c)(7)||No
|-
|PC136.1||Intimidation of victims or witnesses||Yes, PC1192.7(c)(37)||No||Yes, 707(b)(19)||''People v. Neely'' (2004) 124 Cal.App.4th 1258 held '''any''' felony violation of any of 136.1 as serious.
|-
|PC137||Witness influencing||No||No||Yes, 707(b)(19)
|-
|PC148.10||Resisting police officer with SBI or death to officer||Maybe, PC1192.7(c)(8)||No||No||''People v. Rodriguez'' (1999) 69 Cal.App.4th 341; Personally inflicting serious injury is serious, but 148.10 can be violated by proximately causing injury
|-
|PC186.22||Gang offense||Yes, PC1192.7(c)(28)||No||Maybe, 707(b)(21)||''People v. Briceno'' (2004) 34 Cal.4th 451, held that both PC186.22(a) crime and PC186.22(b) enhancement are serious.
|-
|PC187||Murder||Yes, PC1192.7(C)(1)||Yes, PC667.5(c)(1)||707(b)(1)
|-
|PC187/PC664||Attempted murder||Yes, PC1192.7(c)(9)||Yes, PC667.5(c)(12)||707(b)(12)
|-
|PC191.5||Gross vehicular manslaughter||Maybe, PC1192.7(c)(8)||No||No||PC1192.8 ''People v. Wilson'' (2013) 219 Cal.App.4th 500 ''People v. Gonzales'' (1994) 29 Cal.App.4th 1684 [https://scholar.google.com/scholar_case?case=11798641801335320684 ''People v. Bow'' (1993) 13 Cal.App.4th 1551]
|-
|PC192(a)||Voluntary manslaughter||Yes, PC1192.7(c)(1)||Yes, PC667.5(c)(1)||707(b)(30)
|-
|PC192(b)||Involuntary manslaughter||No||No||No||''People v. Cook'' (1984) 158 Cal.App.3d 948
|-
|PC192(C)(1)||Gross vehicular manslaughter||Maybe, under PC1192.7(c)(8)||No||No||To be serious, must prove personal infliction of GBI to non-accomplice ''People v. Marin'' (2015) 240 Cal.App.4th 1344, 1350–1351 PC1192.8 ''People v. Gonzales'' (1994) 29 Cal.App.4th 1684
|-
|PC203||Mayhem||Yes, PC1192.7(c)(2)||Yes, PC667.5(c)(2)||No
|-
|PC205||Aggravated mayhem||Yes, PC1192.7(c)(2), (7)||Yes, PC667.5(c)(2),(7)||707(b)(24)
|-
|PC206||Torture||Yes, PC1192.7(c)(7),(8)||Yes, PC667.5(c)(7),(8)||No
|-
|PC207||Kidnapping||Yes, PC1192.7(c)(20)||Yes, PC667.5(c)(14)||Maybe
|-
|PC209||Kidnapping for ransom||Yes, PC1192.7(c)(20)||PC667.5(c)(14)||Yes, 707(b)(9)
|-
|PC209.5||Kidnapping during carjacking||Yes, PC1192.7(c)(20), (27)||Yes, PC667.5(c)(14)||Yes, 707(b)(27)
|-
|PC211||Robbery||Yes, PC1192.7(c)(19)||Yes, PC667.5(c)(9)||Yes, 707(b)(3)
|-
|PC215||Carjacking||Yes, PC1192.7(c)(27)||Yes, PC667.5(c)(17)||Maybe, 707(b)(25)
|-
|PC220||Assault with intent to commit specified felony||Maybe, PC1192.7(c)(10), (29)||Yes, PC667.5(c)(15)||Maybe||Does not include assault with intent to commit PC264.1, PC286, PC288, PC288a, PC289
|-
|PC243(d)||Battery with SBI||Maybe, PC1192.7(c)(8)||No||Maybe, 707(b)(14)||GBI both is and is not the same as SBI. And not necessarily personally inflicted. [https://scholar.google.com/scholar_case?case=1683675228826196701 ''People v. Bueno'' (2006) 143 Cal.App.4th 1503] ''People v. Taylor'' (2004) 118 Cal.App.4th 11 ''People v. Moore'' (1992) 10 Cal.App.4th 1868. [https://scholar.google.com/scholar_case?case=2237521241125044486 ''People v. Johnson'' (2016) 244 Cal.App.4th 384]. For 707(b), see ''People v. Fountain'' (2000) 82 Cal.App.4th 61.
|-
|PC244||Throwing acid or flammable substances||Maybe, PC1192.7(c)(30)||No||No
|-
|PC245(a)(1)||Assault with a deadly weapon||Yes, PC1192.7(c)(31)||No||Yes, 707(b)(14)||Use of deadly weapon does not have to be personal.<ref name="Luna">''People v. Myers'' (2007) 148 Cal.App.4th 546, 554; ''People v. Luna'' (2003) 113 Cal.App.4th 395, 398, disapproved on other grounds in ''People v. Delgado'' (2008) 43 Cal.4th 1059, 1070, fn. 4.)</ref> ADW synonymous with GBI for 707.<ref name="PedroC">[https://scholar.google.com/scholar_case?case=4410705602285449186 ''In re Pedro C.'' (1989) 215 Cal.App.3d 174]</ref>
|-
|PC245(a)(2)||Assault with a firearm||Yes, PC1192.7(31)||No||Yes, 707(b)(13)||Use of firearm does not have to be personal.<ref name="Luna"/>
|-
|PC245(a)(4),former PC245(a)(1) until 12/31/2011||Assault with means likely to produce GBI||No||No||Yes, 707(b)(14)||''People v. Haykel'' (2002) 96 Cal.App.4th 146 ''People v. Winters'' (2001) 93 Cal.App.4th 273 ''Williams v. Superior Court'' (2001) 92 Cal.App.4th 612.
|-
|PC245(b)||Assault with a semiautomatic firearm||Yes, PC1182.7(c)(8), (23), or (31)||No||Yes, 707(b)(13)||''People v. Le'' (2015) 61 Cal.4th 416 Use of firearm does not have to be personal.<ref name="Luna"/>
|-
|PC245(c) or (d)||Assault with deadly weapon or firearm, or with means likely to produce GBI, on police officer||Yes, PC1192.7(c)(11)||No||Yes, 707(b)(13),(14)||Assault with force likely to cause GBI is serious. ''In re C.D.'' (2017) 18 Cal.App.5th 1021, 1029; ''People v. Semien'' (2008) 162 Cal.App.4th 701, 709 Does not include assault on firefighter ADW synonymous with GBI for 707.<ref name="PedroC"/>
|-
|PC245.2||Assault with a deadly weapon against a public transit employee||Maybe, PC1192.7(c)(32)||No||Yes, 707(b)(14)||Does not include assault with means likely to produce GBI ADW synonymous with GBI for 707.<ref name="PedroC"/>
|-
|PC245.3||Assault with a deadly weapon against a custodial officer||Maybe, PC1192.7(c)(32)||No||Yes, 707(b)(14)||Does not include assault with means likely to produce GBI ADW synonymous with GBI for 707.<ref name="PedroC"/>
|-
|PC245.5||Assault with a deadly weapon against a school employee||Maybe, PC1192.7(c)(32)||No||Yes, 707(b)(14)||Does not include assault with means likely to produce GBI ADW synonymous with GBI for 707.<ref name="PedroC"/>
|-
|PC246||Discharge of a firearm at an inhabited dwelling, vehicle, or aircraft||Maybe, PC1192.7(c)(33)||No||Maybe, 707(b)(15)||Does not include occupied building
|-
|PC246.3||Negligent discharge of firearm||Maybe, PC1192.7(c)(8), (c)(23)||No||No||Not necessarily personal use. [https://scholar.google.com/scholar_case?case=8509961924315210853 ''People v. Golde'' (2008) 163 Cal.App.4th 101], ''People v. Leslie'' (1996) 47 Cal.App.4th 198.
|-
|PC261||Rape||Yes, PC1192.7(c)(3)||Yes for (1), (2), (4), (6), PC667.5(c)(3)||Maybe, 707(b)(4)
|-
|PC264.1||Rape in concert||Yes, PC1192.7(c)(34)||Yes, PC667.5(c)(18)||Maybe, 707(b)(4)
|-
|PC286(c)||Sodomy on child <14 years old||Yes, PC1192.7(c)(6)||Yes,PC667.5(c)(4)||Maybe, 707(b)(5)||''People v. Murphy'' (2001) 25 Cal.4th 136
|-
|PC286(d)||Sodomy||Yes, PC1192.7(c)(4)||Yes, PC667.5(c)(4)||Maybe, 707(b)(5)
|-
|PC288(a)||Lewd and lascivious act on child <14 years old||Yes, PC1192.7(c)(6)||Yes, PC667.5(c)(6)||No
|-
|PC288(b)||Lewd and lascivious act on child <14 years old with force||Yes, PC1192.7(c)(6)||Yes, PC667.5(c)(6)||Yes, 707(b)(6)
|-
|PC287(c), former PC288a(c)||Oral copulation on child <14 years old||Yes, PC1192.7(c)(5)||Yes, PC667.5(c)(5)||Maybe, 707(b)(7)
|-
|PC287(d), former PC288a(d)||oral copulation||Yes, PC1192.7(c)(5)||Yes, PC667.5(c)(5)||Maybe, 707(b)(7)
|-
|PC288.5||Continuous sexual abuse of a child||Yes||Yes, PC667.5(c)(16)||No
|-
|PC289(a)||Sexual penetration||Yes||Yes, PC667.5(c)(11)||No
|-
|PC289(j)||Sexual penetration on child <14 years old||Yes||Yes, PC667.5(c)(11)||No
|-
|PC422||Criminal threats||Yes, PC1192.7(c)(38)||No||No||Added by Prop 21
|-
|PC451||Arson||Yes, PC1192.7(c)(14)||Yes for only (a) and (b), PC667.5(c)(10)||Yes for only (a) and (b), 707(b)(2)
|-
|PC455||Attempted arson||Yes, PC1192.7(c)(27)||No||No||[https://scholar.google.com/scholar_case?case=9402346688607707451 ''People v. Flores'' (1995) 39 Cal.App.4th 1811]
|-
|PC459 PC460(a)||First-degree Burglary||Yes, PC1192.7(c)(18)||Maybe, PC667.5(c)(21)||No||Violent if pleaded and proven that another person, other than accomplice, was present, aka "hot prowl"
|-
|PC487(d)(2)||Grand theft firearm||Yes, PC1192.7(c)(26)||No||No
|-
|PC664||Attempt||Yes, PC1192.7(c)(39)||Maybe, PC667(c)(12)||No||Only attempted murder is violent.<ref>''People v. Ibarra'' (1982) 134 Cal.App.3d 413, 425 ["Section 667.5, subdivision (a), does not apply to attempts to commit the crimes referred to as violent felonies."]; ''People v. Bedolla'' (2018) 28 Cal.App.5th 535 [holding an attempted "hot prowl" first-degree burglary cannot be "violent"]</ref>.)
|-
|PC4501(a)||Assault with a deadly weapon by an inmate||Yes, PC1192.7(c)(13)||No||No
|-
|PC11418(b) or (c)||Use of weapon of mass destruction||Yes||Yes, PC667.5(c)(23)||No
|-
|PC18745||exploding a destructive device or any explosive with intent to murder||Yes||Yes, PC667.5(c)(13)||Yes, 707(b)(29)
|-
|PC18750||Exploding a destructive device or any explosive causing bodily injury||Yes||Yes, PC667.5(c)(13)||No
|-
|PC18750||Exploding a destructive device or any explosive causing GBI or death||Yes||Yes, PC667.5(c)(13)||No
|-
|???||Life sentence||Yes, 1192.7(c)(6)
|-
|PC12022(a)||Armed with firearm||Yes, PC1192.7(c)(8)||No
|-
|PC12022(b)||Personal use of deadly weapon||Yes, PC1192.7(c)(23)||No
|-
|PC12022.5||Use of firearm||Yes||Yes, PC667.5(c)(8)||Yes, 707(b)(17)
|-
|PC12022.53||Firearm sentence enhancement||Yes||Yes, PC667.5(c)(22)||Yes, 707(b)(17)
|-
|PC12022.7?||Personal infliction of GBI||Yes, PC1192.7(c)(8)||Yes, PC667.5(c)(8)
|-
|PC26100, former PC12034||Discharge of firearm from vehicle||Maybe, PC1192.7(c)(8), (c)(23)||No||Maybe, 707(b)(28)||[https://scholar.google.com/scholar_case?case=17013329294070674542 ''People v. Cortez'' (1999) 73 Cal.App.4th 276]
|-
|???||Personal use of firearm||Yes, PC1192.7(c)(7)
|-
|HSC11353(c)||Furnishing heroin or cocaine to minor||Yes, PC1192.7(c)(23)||No||No
|-
|HSC11380(a)||Furnishing PCP or methamphetamines to minor||Yes, PC1192.7(c)(23)||No||No
|-
|VC20001(b)||Hit-and-run with injury||Probably not under PC1192.7(c)(8)||No||No||[https://scholar.google.com/scholar_case?case=16282966261664515424 ''People v. Wood'' (2000) 83 Cal.App.4th 862]
|}

==Charging==

Penal Code 969f

(a) Whenever a defendant has committed a serious felony as defined in subdivision (c) of Section 1192.7, the facts that make the crime constitute a serious felony may be charged in the accusatory pleading. However, the crime shall not be referred to as a serious felony nor shall the jury be informed that the crime is defined as a serious felony. This charge, if made, shall be added to and be a part of the count or each of the counts of the accusatory pleading which charged the offense. If the defendant pleads not guilty to the offense charged in any count which alleges that the defendant committed a serious felony, the question whether or not the defendant committed a serious felony as alleged shall be tried by the court or jury which tries the issue upon the plea of not guilty. If the defendant pleads guilty of the offense charged, the question whether or not the defendant committed a serious felony as alleged shall be separately admitted or denied by the defendant.

(b) In charging an act or acts that bring the defendant within the operation of paragraph (8) or (23) of subdivision (c) of Section 1192.7, it is sufficient for purposes of subdivision (a) if the pleading states the following:

“It is further alleged that in the commission and attempted commission of the foregoing offense, the defendant ____, personally [inflicted great bodily injury on another person, other than an accomplice] [used a firearm, to wit: ____,] [used a dangerous and deadly weapon, to wit: ____,] within the meaning of Sections 667 and 1192.7 of the Penal Code.”

==Plead and proven==

Strikes priors don't have to be proven up at preliminary examination if not an element of the crime. (''Miranda v. Superior Court'' (1995) 38 Cal.App.4th 902.)

PC1192.7(c)(23) use of personal weapon does not require that a PC12022(b) be charged. (''People v. Equarte'' (1986) 42 Cal.3d 456.)

Search warrants

2026-01-12T02:51:01Z

Sysop: /* CalECPA */

Search warrants

2026-01-12T02:40:25Z

Sysop:

Search warrants are used when there is no case. If there is a case, SDTs are an option.

==PC1523==

People v. Fisher (2002) 96 Cal.App.4th 1147 - a search warrant is a court oder.

PC1524(b) - scope of search warrant

PC1524(g) and EC1070 - Newsman Privilege/Shield Law

Article I, section 2(b) of California Constitution

Privacy Protection Act - 42 USC 2000aa et seq

Protection for documentary materials or work product materials that is going to be published.

Zurcher v. Stanford Daily (1978) 436 U.S. 547

42 USC 2000aa-7

(a) documentary materials

(b) work product materials

Violation of PPA is civil liability, not suppression of evidence

Good faith defense

==Probable cause==

PC1527

PC1525

==Affidavit==

Written affidavit - PC1526(a)

Telephone / oral - PC1526(b) and PC1528(b)

Hybrid - typed search warrant and oral affidavit

Charney v. Superior Court (1972) 27 Cal.App.3d 888

People v. Peck (1974) 38 Cal.App.3d 993 - oral affidavit need not be transcribed.

People v. Meza (1984) 162 Cal.App.3d 25

People v. Fortune (1988) 197 Cal.App.3d 941

Bowyer v. Superior Court (1974) 37 Cal.App.3d 151 - Search warrant must be in writing.

Opening

Items List

Affiant's Expertise

Justification

Probable Cause

Your affiant knows by training and experience that victims and suspects involved in domestic violence and stalking incidents exhibit similar
behaviors in past and current relationships. These behaviors are often documented in letters, journals, notes, emails, photographs, videos,
and pictures. These items are often stored digitally on computers, disks, phones, or other electronic storage devices. Domestic violence victims and suspects also conduct Internet research regarding emotional and psychological issues of relationships regarding domestic violence
and/or stalking. This research is often conducted through books and Internet searches. The cell phone that belongs to (victim or suspect’s
name here) is capable of conducting these actions.

Concluding Paragraph

==Special masters==

Special master only apply for searches of lawyers, physicians, psychotherapists, clergy.

PC1524 (c)-(f)

PC1524(d)

People v. Blasquez (1985) 165 Cal.App.3d 408

Attorney-client privilege

People v. Superior Court (1985) 37 Cal.App.4th 1757

PC964

==Anticipatory search warrants==

United States v. Grubbs (2006) 547 U.S. 90

People v. Sousa (1993) 18 Cal.App.4th 549

==PC1529 form of warrant==

Name of affiants

Statutory grounds

Description of persons place and vehicle subject to search

Description of property and things sought

Date search warrant issued

Signature

But good faith under People v. Superior Court (Robinson) (1977) 75 Cal.App.3d 76

==Jurisdiction==
Search warrant is for the county. People v. Emanuel (1978) 87 Cal.App.3d 205, People v. Smead (1985) 175 Cal.App.3d 1101, People v. Easley (1983) 34 Cal.3d 858.

Out-of-county warrant is for offense prosecuted in home county. People v. Ruster (1976) 16 Cal.3d 690; People v. Fleming (1981) 29 Cal.3d 698; People v. Galvan (1992) 5 Cal.App.4th 866.

PC781

PC782

PC1524(i) - Identity theft

People v. Dantzler (1988) 206 Cal.app.3d 289 - Good faith exception

349k915 - Officer from different jurisdiction

349k752Particular courts, judges, or magistrates

California state courts exercise no jurisdiction in other states. Accordingly, a magistrate in another state must sign a search warrant for evidence located in that state's jurisdiction. For example, an officer seeking a search warrant for evidence in Arizona must have an Arizona magistrate issue the search warrant.

==Execution of warrant==

===Press===

Wilson v. Layne (1999) 526 U.S. 603

Hanlon v. Berger (1999) 526 U.S. 808

===Federal agents===

A federal agent may be an affiant in a California search warrant but cannot serve the search warrant.

PC830.8

PC830.85

But can put in federal agent participation in affidavit and in warrant.

Chapter III 10.2.1 of CDAA book

===Dogs===

People v. Russell (1987) 185 Cal.App.3d 186

===Victims===

People v. Superior Court (meyers) 1979) 25 Cal.3d 67

===Civilian Experts===

People v. Eubanks (1996) 14 Cal.4th 580

===Securing scene before warrant issues===

Illegal unless:

Emergency

Arrest inside residence

Consent

Valid need to preserve evidence

People v. Escobedo (1973) 35 Cal.App.3d 32

Illinois v. McArthur (2001) 531 U.S> 326

Segura v. United States (1984) 468 U.S. 796 - 19 hours to get search warrant

Murray v. United States (1988) 487 U.S. 533

===Knock-notice===

Machado v. Superior Court (1975) 45 Cal.App.3d 316

Hudson v. Michigan (2006) 547 U.S. 586

People v. Macioce (1987) 197 Cal.App.3d 262, 271

PC1531

PC1532

PC844

People v. Gonzalez (1989) 211 Cal.App.3d 1043

Wilson v. Arkansas (1995) 514 U.S. 927

Richards v. Wisconsin (1997) 520 U.S. 385

United States v. Ramirez (1998) 523 U.S. 65

United States v. Banks (2003) 540 U.S. 31

People v. Hobbs (1987) 192 Cal.App.3d 959 - screen door

People v. Tacy (1987) 195 Cal.App.3d 1402

People v. Uhler(1989) 208 Cal.App.3d 766 - screen door

People v. Pompa (1989) 212 Cal.App.3d 1308 - inner door

People v. Howard (1993) 18 Cal.App.4th 1544 - inner door

People v. Aguilar (1996) 48 Cal.App.4th 632 - inner door

People v. Mays (1998) 67 Cal.App.4th 969 - inner door

People v. Bencomo (1985) 171 Cal.App.3d 1005 - fence

People v. Mayer (1987) 188 Cal.App.3d 1101 - fence

===Time of search===

PC1534 - within 10 days

GC6800 - definition of day

People v. Clayton (1993) 18 Cal.App.4th 440 - day that search warrant is issued doesn't count

People v. Stevenson (1976) 62 Cal.App.3d 915 - holidays don't count

Execution of the search warrant period does not mean that all forensics must be done within that time.
PC1533 - between 7am and 10pm

Arrest between 6am and 10pm

PC1534(b)(7) - between 6am and 10 pm

People v. Watson (1977) 75 Cal.App.3d 592

People v. Zepeda (1980) 102 Cal.App.3d 1

People v. Kimble (1988) 44 Cal.3d 480 - nighttime service

In re Donald R. (1978) 85 Cal.app.3d 23 - nighttime service

Srgo v. United States (1932) 287 U.S. 206 - expired warrant invalid even if re-issued.

People v. Brocard (1985) 170 Cal.App.3d 239 - search warrant may be re-issued if not stale and new finding of probable cause.

====Search warrant receipt====

PC1535

PC1536

West Covina v. Perkins (1999) 525 U.S. 234

People v. Calabrese (2002) 101 Cal.App.4th 79 - search warrant need not be shown

==Detention==

Michigan v. Summer (1981) 452 U.S. 692

People v. Glaser (1995) 11 Cal.4th 354

Bailey v. United States (2013) 568 U.S. 186

Muehler v. Mena (2005) 544 U.S. 93

Ybarra v. Illinois (1979) 444 U.S. 85 - Cannot search each individual in place.

People v. Ingram (1993) 16 Cal.App.4th 1745 - Detention with reasonable suspicion of relationship between person and place to connect individual to illegal activities

Los Angeles County v. Tettele (2007) 550 U.S. 609 - detention of naked occupants

Franklin v. Foxworth (9th Cir. 1994) 31 F.3d 873

United States v. Thompson (2009) 667 F.Supp.2d 758

People v. Thurman (1989) 209 Cal.App.3d 817 - patdown

People v. Reyes (1990) 223 Cal.App.3d 1218 - patdown bad

People v. Gallant (1990) 225 Cal.app.3d 200 - patdown good

People v. Samples (1996) 48 Cal.App.4th 1197 - patdown good

People v. Hannah (1996) 51 Cal.App.4th 1335 - patdown

People v. Matelski (2000) 82 Cal.App.4th 837 - patdown

People v. Vanvalkenburgh (1983) 145 Cal.App.3d 163 - answering phone call

==Sealing==

County of Orange v. Superior Court (2000) 79 Cal.App.4th 759 about sealing of entire warrant

People v. Hobbs (1994) 7 Cal.4th 948 - sealing of informant

People v. Martinez (2005) 132 Cal.App.4th 233

People v. Galland (2008) 45 Cal.4th 354

People v. Acevedo (2012) 209 Cal.App.4th 1040 - Hobbs dealing of wiretap

Penal Code section 954 deals with confidentiality of witness and victim information, such as address, telephone number, driver license number, social security number, date of birth, place of employment, etc.

==Medical records==

PC1543

PC1545

==Liability for search warrants==

SEARCH WARRANTS: The review of search warrants is within the course and scope of employment for Deputy District Attorneys. Pursuant to Government Code Section 825, the County shall defend any employee in the bargaining unit against whom a claim is made, or a lawsuit is filed, arising out of their review of search warrants as part of their employment with the County. Where the County provides a defense under this section and a subsequent judicial determination is made that at the time of the act giving rise to the liability the employee acted in bad faith, or acted with actual malice, the County may seek reimbursement for defense fees

==CalECPA==

===Specific consent===

PC1546(k): “Specific consent” means consent provided directly to the government entity seeking information, including, but not limited to, when the government entity is the addressee or intended recipient or a member of the intended audience of an electronic communication. Specific consent does not require that the originator of the communication have actual knowledge that an addressee, intended recipient, or member of the specific audience is a government entity.

Search warrants

2026-01-12T02:11:55Z

Sysop: /* Sealing */

Search warrants

2026-01-11T05:21:07Z

Sysop: /* Jurisdiction */

Search warrants are used when there is no case. If there is a case, SDTs are an option.

==PC1523==

People v. Fisher (2002) 96 Cal.App.4th 1147 - a search warrant is a court oder.

PC1524(b) - scope of search warrant

PC1524(g) and EC1070 - Newsman Privilege/Shield Law

Article I, section 2(b) of California Constitution

Privacy Protection Act - 42 USC 2000aa et seq

Protection for documentary materials or work product materials that is going to be published.

Zurcher v. Stanford Daily (1978) 436 U.S. 547

42 USC 2000aa-7

(a) documentary materials

(b) work product materials

Violation of PPA is civil liability, not suppression of evidence

Good faith defense

==Probable cause==

PC1527

PC1525

==Affidavit==

Written affidavit - PC1526(a)

Telephone / oral - PC1526(b) and PC1528(b)

Hybrid - typed search warrant and oral affidavit

Charney v. Superior Court (1972) 27 Cal.App.3d 888

People v. Peck (1974) 38 Cal.App.3d 993 - oral affidavit need not be transcribed.

People v. Meza (1984) 162 Cal.App.3d 25

People v. Fortune (1988) 197 Cal.App.3d 941

Bowyer v. Superior Court (1974) 37 Cal.App.3d 151 - Search warrant must be in writing.

Opening

Items List

Affiant's Expertise

Justification

Probable Cause

Your affiant knows by training and experience that victims and suspects involved in domestic violence and stalking incidents exhibit similar
behaviors in past and current relationships. These behaviors are often documented in letters, journals, notes, emails, photographs, videos,
and pictures. These items are often stored digitally on computers, disks, phones, or other electronic storage devices. Domestic violence victims and suspects also conduct Internet research regarding emotional and psychological issues of relationships regarding domestic violence
and/or stalking. This research is often conducted through books and Internet searches. The cell phone that belongs to (victim or suspect’s
name here) is capable of conducting these actions.

Concluding Paragraph

==Special masters==

Special master only apply for searches of lawyers, physicians, psychotherapists, clergy.

PC1524 (c)-(f)

PC1524(d)

People v. Blasquez (1985) 165 Cal.App.3d 408

Attorney-client privilege

People v. Superior Court (1985) 37 Cal.App.4th 1757

PC964

==Anticipatory search warrants==

United States v. Grubbs (2006) 547 U.S. 90

People v. Sousa (1993) 18 Cal.App.4th 549

==PC1529 form of warrant==

Name of affiants

Statutory grounds

Description of persons place and vehicle subject to search

Description of property and things sought

Date search warrant issued

Signature

But good faith under People v. Superior Court (Robinson) (1977) 75 Cal.App.3d 76

==Jurisdiction==
Search warrant is for the county. People v. Emanuel (1978) 87 Cal.App.3d 205, People v. Smead (1985) 175 Cal.App.3d 1101, People v. Easley (1983) 34 Cal.3d 858.

Out-of-county warrant is for offense prosecuted in home county. People v. Ruster (1976) 16 Cal.3d 690; People v. Fleming (1981) 29 Cal.3d 698; People v. Galvan (1992) 5 Cal.App.4th 866.

PC781

PC782

PC1524(i) - Identity theft

People v. Dantzler (1988) 206 Cal.app.3d 289 - Good faith exception

349k915 - Officer from different jurisdiction

349k752Particular courts, judges, or magistrates

California state courts exercise no jurisdiction in other states. Accordingly, a magistrate in another state must sign a search warrant for evidence located in that state's jurisdiction. For example, an officer seeking a search warrant for evidence in Arizona must have an Arizona magistrate issue the search warrant.

==Execution of warrant==

===Press===

Wilson v. Layne (1999) 526 U.S. 603

Hanlon v. Berger (1999) 526 U.S. 808

===Federal agents===

A federal agent may be an affiant in a California search warrant but cannot serve the search warrant.

PC830.8

PC830.85

But can put in federal agent participation in affidavit and in warrant.

Chapter III 10.2.1 of CDAA book

===Dogs===

People v. Russell (1987) 185 Cal.App.3d 186

===Victims===

People v. Superior Court (meyers) 1979) 25 Cal.3d 67

===Civilian Experts===

People v. Eubanks (1996) 14 Cal.4th 580

===Securing scene before warrant issues===

Illegal unless:

Emergency

Arrest inside residence

Consent

Valid need to preserve evidence

People v. Escobedo (1973) 35 Cal.App.3d 32

Illinois v. McArthur (2001) 531 U.S> 326

Segura v. United States (1984) 468 U.S. 796 - 19 hours to get search warrant

Murray v. United States (1988) 487 U.S. 533

===Knock-notice===

Machado v. Superior Court (1975) 45 Cal.App.3d 316

Hudson v. Michigan (2006) 547 U.S. 586

People v. Macioce (1987) 197 Cal.App.3d 262, 271

PC1531

PC1532

PC844

People v. Gonzalez (1989) 211 Cal.App.3d 1043

Wilson v. Arkansas (1995) 514 U.S. 927

Richards v. Wisconsin (1997) 520 U.S. 385

United States v. Ramirez (1998) 523 U.S. 65

United States v. Banks (2003) 540 U.S. 31

People v. Hobbs (1987) 192 Cal.App.3d 959 - screen door

People v. Tacy (1987) 195 Cal.App.3d 1402

People v. Uhler(1989) 208 Cal.App.3d 766 - screen door

People v. Pompa (1989) 212 Cal.App.3d 1308 - inner door

People v. Howard (1993) 18 Cal.App.4th 1544 - inner door

People v. Aguilar (1996) 48 Cal.App.4th 632 - inner door

People v. Mays (1998) 67 Cal.App.4th 969 - inner door

People v. Bencomo (1985) 171 Cal.App.3d 1005 - fence

People v. Mayer (1987) 188 Cal.App.3d 1101 - fence

===Time of search===

PC1534 - within 10 days

GC6800 - definition of day

People v. Clayton (1993) 18 Cal.App.4th 440 - day that search warrant is issued doesn't count

People v. Stevenson (1976) 62 Cal.App.3d 915 - holidays don't count

Execution of the search warrant period does not mean that all forensics must be done within that time.
PC1533 - between 7am and 10pm

Arrest between 6am and 10pm

PC1534(b)(7) - between 6am and 10 pm

People v. Watson (1977) 75 Cal.App.3d 592

People v. Zepeda (1980) 102 Cal.App.3d 1

People v. Kimble (1988) 44 Cal.3d 480 - nighttime service

In re Donald R. (1978) 85 Cal.app.3d 23 - nighttime service

Srgo v. United States (1932) 287 U.S. 206 - expired warrant invalid even if re-issued.

People v. Brocard (1985) 170 Cal.App.3d 239 - search warrant may be re-issued if not stale and new finding of probable cause.

====Search warrant receipt====

PC1535

PC1536

West Covina v. Perkins (1999) 525 U.S. 234

People v. Calabrese (2002) 101 Cal.App.4th 79 - search warrant need not be shown

==Detention==

Michigan v. Summer (1981) 452 U.S. 692

People v. Glaser (1995) 11 Cal.4th 354

Bailey v. United States (2013) 568 U.S. 186

Muehler v. Mena (2005) 544 U.S. 93

Ybarra v. Illinois (1979) 444 U.S. 85 - Cannot search each individual in place.

People v. Ingram (1993) 16 Cal.App.4th 1745 - Detention with reasonable suspicion of relationship between person and place to connect individual to illegal activities

Los Angeles County v. Tettele (2007) 550 U.S. 609 - detention of naked occupants

Franklin v. Foxworth (9th Cir. 1994) 31 F.3d 873

United States v. Thompson (2009) 667 F.Supp.2d 758

People v. Thurman (1989) 209 Cal.App.3d 817 - patdown

People v. Reyes (1990) 223 Cal.App.3d 1218 - patdown bad

People v. Gallant (1990) 225 Cal.app.3d 200 - patdown good

People v. Samples (1996) 48 Cal.App.4th 1197 - patdown good

People v. Hannah (1996) 51 Cal.App.4th 1335 - patdown

People v. Matelski (2000) 82 Cal.App.4th 837 - patdown

People v. Vanvalkenburgh (1983) 145 Cal.App.3d 163 - answering phone call

==Sealing==

County of Orange v. Superior Court (2000) 79 Cal.App.4th 759

People v. Hobbs (1994) 7 Cal.4th 948 - sealing of informant

People v. Martinez (2005) 132 Cal.App.4th 233

People v. Galland (2008) 45 Cal.4th 354

People v. Acevedo (2012) 209 Cal.App.4th 1040 - Hobbs dealing of wiretap

Penal Code section 954 deals with confidentiality of witness and victim information, such as address, telephone number, driver license number, social security number, date of birth, place of employment, etc.

==Medical records==

PC1543

PC1545

==Liability for search warrants==

SEARCH WARRANTS: The review of search warrants is within the course and scope of employment for Deputy District Attorneys. Pursuant to Government Code Section 825, the County shall defend any employee in the bargaining unit against whom a claim is made, or a lawsuit is filed, arising out of their review of search warrants as part of their employment with the County. Where the County provides a defense under this section and a subsequent judicial determination is made that at the time of the act giving rise to the liability the employee acted in bad faith, or acted with actual malice, the County may seek reimbursement for defense fees

Search warrants

2026-01-11T05:07:47Z

Sysop: /* Jurisdiction */

Search warrants are used when there is no case. If there is a case, SDTs are an option.

==PC1523==

People v. Fisher (2002) 96 Cal.App.4th 1147 - a search warrant is a court oder.

PC1524(b) - scope of search warrant

PC1524(g) and EC1070 - Newsman Privilege/Shield Law

Article I, section 2(b) of California Constitution

Privacy Protection Act - 42 USC 2000aa et seq

Protection for documentary materials or work product materials that is going to be published.

Zurcher v. Stanford Daily (1978) 436 U.S. 547

42 USC 2000aa-7

(a) documentary materials

(b) work product materials

Violation of PPA is civil liability, not suppression of evidence

Good faith defense

==Probable cause==

PC1527

PC1525

==Affidavit==

Written affidavit - PC1526(a)

Telephone / oral - PC1526(b) and PC1528(b)

Hybrid - typed search warrant and oral affidavit

Charney v. Superior Court (1972) 27 Cal.App.3d 888

People v. Peck (1974) 38 Cal.App.3d 993 - oral affidavit need not be transcribed.

People v. Meza (1984) 162 Cal.App.3d 25

People v. Fortune (1988) 197 Cal.App.3d 941

Bowyer v. Superior Court (1974) 37 Cal.App.3d 151 - Search warrant must be in writing.

Opening

Items List

Affiant's Expertise

Justification

Probable Cause

Your affiant knows by training and experience that victims and suspects involved in domestic violence and stalking incidents exhibit similar
behaviors in past and current relationships. These behaviors are often documented in letters, journals, notes, emails, photographs, videos,
and pictures. These items are often stored digitally on computers, disks, phones, or other electronic storage devices. Domestic violence victims and suspects also conduct Internet research regarding emotional and psychological issues of relationships regarding domestic violence
and/or stalking. This research is often conducted through books and Internet searches. The cell phone that belongs to (victim or suspect’s
name here) is capable of conducting these actions.

Concluding Paragraph

==Special masters==

Special master only apply for searches of lawyers, physicians, psychotherapists, clergy.

PC1524 (c)-(f)

PC1524(d)

People v. Blasquez (1985) 165 Cal.App.3d 408

Attorney-client privilege

People v. Superior Court (1985) 37 Cal.App.4th 1757

PC964

==Anticipatory search warrants==

United States v. Grubbs (2006) 547 U.S. 90

People v. Sousa (1993) 18 Cal.App.4th 549

==PC1529 form of warrant==

Name of affiants

Statutory grounds

Description of persons place and vehicle subject to search

Description of property and things sought

Date search warrant issued

Signature

But good faith under People v. Superior Court (Robinson) (1977) 75 Cal.App.3d 76

==Jurisdiction==
Search warrant is for the county. People v. Emanuel (1978) 87 Cal.App.3d 205, People v. Smead (1985) 175 Cal.App.3d 1101, People v. Easley (1983) 34 Cal.3d 858.

Out-of-county warrant is for offense prosecuted in home county. People v. Ruster (1976) 16 Cal.3d 690; People v. Fleming (1981) 29 Cal.3d 698; People v. Galvan (1992) 5 Cal.App.4th 866.

PC781

PC782

PC1524(i) - Identity theft

People v. Dantzler (1988) 206 Cal.app.3d 289 - Good faith exception

349k915 - Officer from different jurisdiction

349k752Particular courts, judges, or magistrates

==Execution of warrant==

===Press===

Wilson v. Layne (1999) 526 U.S. 603

Hanlon v. Berger (1999) 526 U.S. 808

===Federal agents===

A federal agent may be an affiant in a California search warrant but cannot serve the search warrant.

PC830.8

PC830.85

But can put in federal agent participation in affidavit and in warrant.

Chapter III 10.2.1 of CDAA book

===Dogs===

People v. Russell (1987) 185 Cal.App.3d 186

===Victims===

People v. Superior Court (meyers) 1979) 25 Cal.3d 67

===Civilian Experts===

People v. Eubanks (1996) 14 Cal.4th 580

===Securing scene before warrant issues===

Illegal unless:

Emergency

Arrest inside residence

Consent

Valid need to preserve evidence

People v. Escobedo (1973) 35 Cal.App.3d 32

Illinois v. McArthur (2001) 531 U.S> 326

Segura v. United States (1984) 468 U.S. 796 - 19 hours to get search warrant

Murray v. United States (1988) 487 U.S. 533

===Knock-notice===

Machado v. Superior Court (1975) 45 Cal.App.3d 316

Hudson v. Michigan (2006) 547 U.S. 586

People v. Macioce (1987) 197 Cal.App.3d 262, 271

PC1531

PC1532

PC844

People v. Gonzalez (1989) 211 Cal.App.3d 1043

Wilson v. Arkansas (1995) 514 U.S. 927

Richards v. Wisconsin (1997) 520 U.S. 385

United States v. Ramirez (1998) 523 U.S. 65

United States v. Banks (2003) 540 U.S. 31

People v. Hobbs (1987) 192 Cal.App.3d 959 - screen door

People v. Tacy (1987) 195 Cal.App.3d 1402

People v. Uhler(1989) 208 Cal.App.3d 766 - screen door

People v. Pompa (1989) 212 Cal.App.3d 1308 - inner door

People v. Howard (1993) 18 Cal.App.4th 1544 - inner door

People v. Aguilar (1996) 48 Cal.App.4th 632 - inner door

People v. Mays (1998) 67 Cal.App.4th 969 - inner door

People v. Bencomo (1985) 171 Cal.App.3d 1005 - fence

People v. Mayer (1987) 188 Cal.App.3d 1101 - fence

===Time of search===

PC1534 - within 10 days

GC6800 - definition of day

People v. Clayton (1993) 18 Cal.App.4th 440 - day that search warrant is issued doesn't count

People v. Stevenson (1976) 62 Cal.App.3d 915 - holidays don't count

Execution of the search warrant period does not mean that all forensics must be done within that time.
PC1533 - between 7am and 10pm

Arrest between 6am and 10pm

PC1534(b)(7) - between 6am and 10 pm

People v. Watson (1977) 75 Cal.App.3d 592

People v. Zepeda (1980) 102 Cal.App.3d 1

People v. Kimble (1988) 44 Cal.3d 480 - nighttime service

In re Donald R. (1978) 85 Cal.app.3d 23 - nighttime service

Srgo v. United States (1932) 287 U.S. 206 - expired warrant invalid even if re-issued.

People v. Brocard (1985) 170 Cal.App.3d 239 - search warrant may be re-issued if not stale and new finding of probable cause.

====Search warrant receipt====

PC1535

PC1536

West Covina v. Perkins (1999) 525 U.S. 234

People v. Calabrese (2002) 101 Cal.App.4th 79 - search warrant need not be shown

==Detention==

Michigan v. Summer (1981) 452 U.S. 692

People v. Glaser (1995) 11 Cal.4th 354

Bailey v. United States (2013) 568 U.S. 186

Muehler v. Mena (2005) 544 U.S. 93

Ybarra v. Illinois (1979) 444 U.S. 85 - Cannot search each individual in place.

People v. Ingram (1993) 16 Cal.App.4th 1745 - Detention with reasonable suspicion of relationship between person and place to connect individual to illegal activities

Los Angeles County v. Tettele (2007) 550 U.S. 609 - detention of naked occupants

Franklin v. Foxworth (9th Cir. 1994) 31 F.3d 873

United States v. Thompson (2009) 667 F.Supp.2d 758

People v. Thurman (1989) 209 Cal.App.3d 817 - patdown

People v. Reyes (1990) 223 Cal.App.3d 1218 - patdown bad

People v. Gallant (1990) 225 Cal.app.3d 200 - patdown good

People v. Samples (1996) 48 Cal.App.4th 1197 - patdown good

People v. Hannah (1996) 51 Cal.App.4th 1335 - patdown

People v. Matelski (2000) 82 Cal.App.4th 837 - patdown

People v. Vanvalkenburgh (1983) 145 Cal.App.3d 163 - answering phone call

==Sealing==

County of Orange v. Superior Court (2000) 79 Cal.App.4th 759

People v. Hobbs (1994) 7 Cal.4th 948 - sealing of informant

People v. Martinez (2005) 132 Cal.App.4th 233

People v. Galland (2008) 45 Cal.4th 354

People v. Acevedo (2012) 209 Cal.App.4th 1040 - Hobbs dealing of wiretap

Penal Code section 954 deals with confidentiality of witness and victim information, such as address, telephone number, driver license number, social security number, date of birth, place of employment, etc.

==Medical records==

PC1543

PC1545

==Liability for search warrants==

SEARCH WARRANTS: The review of search warrants is within the course and scope of employment for Deputy District Attorneys. Pursuant to Government Code Section 825, the County shall defend any employee in the bargaining unit against whom a claim is made, or a lawsuit is filed, arising out of their review of search warrants as part of their employment with the County. Where the County provides a defense under this section and a subsequent judicial determination is made that at the time of the act giving rise to the liability the employee acted in bad faith, or acted with actual malice, the County may seek reimbursement for defense fees

Search warrants

2026-01-11T05:07:23Z

Sysop: /* Jurisdiction */

Search warrants are used when there is no case. If there is a case, SDTs are an option.

==PC1523==

People v. Fisher (2002) 96 Cal.App.4th 1147 - a search warrant is a court oder.

PC1524(b) - scope of search warrant

PC1524(g) and EC1070 - Newsman Privilege/Shield Law

Article I, section 2(b) of California Constitution

Privacy Protection Act - 42 USC 2000aa et seq

Protection for documentary materials or work product materials that is going to be published.

Zurcher v. Stanford Daily (1978) 436 U.S. 547

42 USC 2000aa-7

(a) documentary materials

(b) work product materials

Violation of PPA is civil liability, not suppression of evidence

Good faith defense

==Probable cause==

PC1527

PC1525

==Affidavit==

Written affidavit - PC1526(a)

Telephone / oral - PC1526(b) and PC1528(b)

Hybrid - typed search warrant and oral affidavit

Charney v. Superior Court (1972) 27 Cal.App.3d 888

People v. Peck (1974) 38 Cal.App.3d 993 - oral affidavit need not be transcribed.

People v. Meza (1984) 162 Cal.App.3d 25

People v. Fortune (1988) 197 Cal.App.3d 941

Bowyer v. Superior Court (1974) 37 Cal.App.3d 151 - Search warrant must be in writing.

Opening

Items List

Affiant's Expertise

Justification

Probable Cause

Your affiant knows by training and experience that victims and suspects involved in domestic violence and stalking incidents exhibit similar
behaviors in past and current relationships. These behaviors are often documented in letters, journals, notes, emails, photographs, videos,
and pictures. These items are often stored digitally on computers, disks, phones, or other electronic storage devices. Domestic violence victims and suspects also conduct Internet research regarding emotional and psychological issues of relationships regarding domestic violence
and/or stalking. This research is often conducted through books and Internet searches. The cell phone that belongs to (victim or suspect’s
name here) is capable of conducting these actions.

Concluding Paragraph

==Special masters==

Special master only apply for searches of lawyers, physicians, psychotherapists, clergy.

PC1524 (c)-(f)

PC1524(d)

People v. Blasquez (1985) 165 Cal.App.3d 408

Attorney-client privilege

People v. Superior Court (1985) 37 Cal.App.4th 1757

PC964

==Anticipatory search warrants==

United States v. Grubbs (2006) 547 U.S. 90

People v. Sousa (1993) 18 Cal.App.4th 549

==PC1529 form of warrant==

Name of affiants

Statutory grounds

Description of persons place and vehicle subject to search

Description of property and things sought

Date search warrant issued

Signature

But good faith under People v. Superior Court (Robinson) (1977) 75 Cal.App.3d 76

==Jurisdiction==
Search warrant is for the county. People v. Emanuel (1978) 87 Cal.App.3d 205, People v. Smead (1985) 175 Cal.App.3d 1101, People v. Easley (1983) 34 Cal.3d 858.

Out-of-county warrant is for offense prosecuted in home county. People v. Ruster (1976) 16 Cal.3d 690; People v. Fleming (1981) 29 Cal.3d 698; People v. Galvan (1992) 5 Cal.App.4th 866.

PC781

PC782

PC1524(i) - Identity theft

People v. Dantzler (1988) 206 Cal.app.3d 289 - Good faith exception

349k915 - Officer from different jurisdiction

==Execution of warrant==

===Press===

Wilson v. Layne (1999) 526 U.S. 603

Hanlon v. Berger (1999) 526 U.S. 808

===Federal agents===

A federal agent may be an affiant in a California search warrant but cannot serve the search warrant.

PC830.8

PC830.85

But can put in federal agent participation in affidavit and in warrant.

Chapter III 10.2.1 of CDAA book

===Dogs===

People v. Russell (1987) 185 Cal.App.3d 186

===Victims===

People v. Superior Court (meyers) 1979) 25 Cal.3d 67

===Civilian Experts===

People v. Eubanks (1996) 14 Cal.4th 580

===Securing scene before warrant issues===

Illegal unless:

Emergency

Arrest inside residence

Consent

Valid need to preserve evidence

People v. Escobedo (1973) 35 Cal.App.3d 32

Illinois v. McArthur (2001) 531 U.S> 326

Segura v. United States (1984) 468 U.S. 796 - 19 hours to get search warrant

Murray v. United States (1988) 487 U.S. 533

===Knock-notice===

Machado v. Superior Court (1975) 45 Cal.App.3d 316

Hudson v. Michigan (2006) 547 U.S. 586

People v. Macioce (1987) 197 Cal.App.3d 262, 271

PC1531

PC1532

PC844

People v. Gonzalez (1989) 211 Cal.App.3d 1043

Wilson v. Arkansas (1995) 514 U.S. 927

Richards v. Wisconsin (1997) 520 U.S. 385

United States v. Ramirez (1998) 523 U.S. 65

United States v. Banks (2003) 540 U.S. 31

People v. Hobbs (1987) 192 Cal.App.3d 959 - screen door

People v. Tacy (1987) 195 Cal.App.3d 1402

People v. Uhler(1989) 208 Cal.App.3d 766 - screen door

People v. Pompa (1989) 212 Cal.App.3d 1308 - inner door

People v. Howard (1993) 18 Cal.App.4th 1544 - inner door

People v. Aguilar (1996) 48 Cal.App.4th 632 - inner door

People v. Mays (1998) 67 Cal.App.4th 969 - inner door

People v. Bencomo (1985) 171 Cal.App.3d 1005 - fence

People v. Mayer (1987) 188 Cal.App.3d 1101 - fence

===Time of search===

PC1534 - within 10 days

GC6800 - definition of day

People v. Clayton (1993) 18 Cal.App.4th 440 - day that search warrant is issued doesn't count

People v. Stevenson (1976) 62 Cal.App.3d 915 - holidays don't count

Execution of the search warrant period does not mean that all forensics must be done within that time.
PC1533 - between 7am and 10pm

Arrest between 6am and 10pm

PC1534(b)(7) - between 6am and 10 pm

People v. Watson (1977) 75 Cal.App.3d 592

People v. Zepeda (1980) 102 Cal.App.3d 1

People v. Kimble (1988) 44 Cal.3d 480 - nighttime service

In re Donald R. (1978) 85 Cal.app.3d 23 - nighttime service

Srgo v. United States (1932) 287 U.S. 206 - expired warrant invalid even if re-issued.

People v. Brocard (1985) 170 Cal.App.3d 239 - search warrant may be re-issued if not stale and new finding of probable cause.

====Search warrant receipt====

PC1535

PC1536

West Covina v. Perkins (1999) 525 U.S. 234

People v. Calabrese (2002) 101 Cal.App.4th 79 - search warrant need not be shown

==Detention==

Michigan v. Summer (1981) 452 U.S. 692

People v. Glaser (1995) 11 Cal.4th 354

Bailey v. United States (2013) 568 U.S. 186

Muehler v. Mena (2005) 544 U.S. 93

Ybarra v. Illinois (1979) 444 U.S. 85 - Cannot search each individual in place.

People v. Ingram (1993) 16 Cal.App.4th 1745 - Detention with reasonable suspicion of relationship between person and place to connect individual to illegal activities

Los Angeles County v. Tettele (2007) 550 U.S. 609 - detention of naked occupants

Franklin v. Foxworth (9th Cir. 1994) 31 F.3d 873

United States v. Thompson (2009) 667 F.Supp.2d 758

People v. Thurman (1989) 209 Cal.App.3d 817 - patdown

People v. Reyes (1990) 223 Cal.App.3d 1218 - patdown bad

People v. Gallant (1990) 225 Cal.app.3d 200 - patdown good

People v. Samples (1996) 48 Cal.App.4th 1197 - patdown good

People v. Hannah (1996) 51 Cal.App.4th 1335 - patdown

People v. Matelski (2000) 82 Cal.App.4th 837 - patdown

People v. Vanvalkenburgh (1983) 145 Cal.App.3d 163 - answering phone call

==Sealing==

County of Orange v. Superior Court (2000) 79 Cal.App.4th 759

People v. Hobbs (1994) 7 Cal.4th 948 - sealing of informant

People v. Martinez (2005) 132 Cal.App.4th 233

People v. Galland (2008) 45 Cal.4th 354

People v. Acevedo (2012) 209 Cal.App.4th 1040 - Hobbs dealing of wiretap

Penal Code section 954 deals with confidentiality of witness and victim information, such as address, telephone number, driver license number, social security number, date of birth, place of employment, etc.

==Medical records==

PC1543

PC1545

==Liability for search warrants==

SEARCH WARRANTS: The review of search warrants is within the course and scope of employment for Deputy District Attorneys. Pursuant to Government Code Section 825, the County shall defend any employee in the bargaining unit against whom a claim is made, or a lawsuit is filed, arising out of their review of search warrants as part of their employment with the County. Where the County provides a defense under this section and a subsequent judicial determination is made that at the time of the act giving rise to the liability the employee acted in bad faith, or acted with actual malice, the County may seek reimbursement for defense fees

Search warrants

2026-01-11T04:26:59Z

Sysop: /* Sealing */

Search warrants are used when there is no case. If there is a case, SDTs are an option.

==PC1523==

People v. Fisher (2002) 96 Cal.App.4th 1147 - a search warrant is a court oder.

PC1524(b) - scope of search warrant

PC1524(g) and EC1070 - Newsman Privilege/Shield Law

Article I, section 2(b) of California Constitution

Privacy Protection Act - 42 USC 2000aa et seq

Protection for documentary materials or work product materials that is going to be published.

Zurcher v. Stanford Daily (1978) 436 U.S. 547

42 USC 2000aa-7

(a) documentary materials

(b) work product materials

Violation of PPA is civil liability, not suppression of evidence

Good faith defense

==Probable cause==

PC1527

PC1525

==Affidavit==

Written affidavit - PC1526(a)

Telephone / oral - PC1526(b) and PC1528(b)

Hybrid - typed search warrant and oral affidavit

Charney v. Superior Court (1972) 27 Cal.App.3d 888

People v. Peck (1974) 38 Cal.App.3d 993 - oral affidavit need not be transcribed.

People v. Meza (1984) 162 Cal.App.3d 25

People v. Fortune (1988) 197 Cal.App.3d 941

Bowyer v. Superior Court (1974) 37 Cal.App.3d 151 - Search warrant must be in writing.

Opening

Items List

Affiant's Expertise

Justification

Probable Cause

Your affiant knows by training and experience that victims and suspects involved in domestic violence and stalking incidents exhibit similar
behaviors in past and current relationships. These behaviors are often documented in letters, journals, notes, emails, photographs, videos,
and pictures. These items are often stored digitally on computers, disks, phones, or other electronic storage devices. Domestic violence victims and suspects also conduct Internet research regarding emotional and psychological issues of relationships regarding domestic violence
and/or stalking. This research is often conducted through books and Internet searches. The cell phone that belongs to (victim or suspect’s
name here) is capable of conducting these actions.

Concluding Paragraph

==Special masters==

Special master only apply for searches of lawyers, physicians, psychotherapists, clergy.

PC1524 (c)-(f)

PC1524(d)

People v. Blasquez (1985) 165 Cal.App.3d 408

Attorney-client privilege

People v. Superior Court (1985) 37 Cal.App.4th 1757

PC964

==Anticipatory search warrants==

United States v. Grubbs (2006) 547 U.S. 90

People v. Sousa (1993) 18 Cal.App.4th 549

==PC1529 form of warrant==

Name of affiants

Statutory grounds

Description of persons place and vehicle subject to search

Description of property and things sought

Date search warrant issued

Signature

But good faith under People v. Superior Court (Robinson) (1977) 75 Cal.App.3d 76

==Jurisdiction==
Search warrant is for the county. People v. Emanuel (1978) 87 Cal.App.3d 205, People v. Smead (1985) 175 Cal.App.3d 1101, People v. Easley (1983) 34 Cal.3d 858.

Out-of-county warrant is for offense prosecuted in home county. People v. Ruster (1976) 16 Cal.3d 690; People v. Fleming (1981) 29 Cal.3d 698; People v. Galvan (1992) 5 Cal.App.4th 866.

PC781

PC782

PC1524(i) - Identity theft

People v. Dantzler (1988) 206 Cal.app.3d 289 - Good faith exception

==Execution of warrant==

===Press===

Wilson v. Layne (1999) 526 U.S. 603

Hanlon v. Berger (1999) 526 U.S. 808

===Federal agents===

A federal agent may be an affiant in a California search warrant but cannot serve the search warrant.

PC830.8

PC830.85

But can put in federal agent participation in affidavit and in warrant.

Chapter III 10.2.1 of CDAA book

===Dogs===

People v. Russell (1987) 185 Cal.App.3d 186

===Victims===

People v. Superior Court (meyers) 1979) 25 Cal.3d 67

===Civilian Experts===

People v. Eubanks (1996) 14 Cal.4th 580

===Securing scene before warrant issues===

Illegal unless:

Emergency

Arrest inside residence

Consent

Valid need to preserve evidence

People v. Escobedo (1973) 35 Cal.App.3d 32

Illinois v. McArthur (2001) 531 U.S> 326

Segura v. United States (1984) 468 U.S. 796 - 19 hours to get search warrant

Murray v. United States (1988) 487 U.S. 533

===Knock-notice===

Machado v. Superior Court (1975) 45 Cal.App.3d 316

Hudson v. Michigan (2006) 547 U.S. 586

People v. Macioce (1987) 197 Cal.App.3d 262, 271

PC1531

PC1532

PC844

People v. Gonzalez (1989) 211 Cal.App.3d 1043

Wilson v. Arkansas (1995) 514 U.S. 927

Richards v. Wisconsin (1997) 520 U.S. 385

United States v. Ramirez (1998) 523 U.S. 65

United States v. Banks (2003) 540 U.S. 31

People v. Hobbs (1987) 192 Cal.App.3d 959 - screen door

People v. Tacy (1987) 195 Cal.App.3d 1402

People v. Uhler(1989) 208 Cal.App.3d 766 - screen door

People v. Pompa (1989) 212 Cal.App.3d 1308 - inner door

People v. Howard (1993) 18 Cal.App.4th 1544 - inner door

People v. Aguilar (1996) 48 Cal.App.4th 632 - inner door

People v. Mays (1998) 67 Cal.App.4th 969 - inner door

People v. Bencomo (1985) 171 Cal.App.3d 1005 - fence

People v. Mayer (1987) 188 Cal.App.3d 1101 - fence

===Time of search===

PC1534 - within 10 days

GC6800 - definition of day

People v. Clayton (1993) 18 Cal.App.4th 440 - day that search warrant is issued doesn't count

People v. Stevenson (1976) 62 Cal.App.3d 915 - holidays don't count

Execution of the search warrant period does not mean that all forensics must be done within that time.
PC1533 - between 7am and 10pm

Arrest between 6am and 10pm

PC1534(b)(7) - between 6am and 10 pm

People v. Watson (1977) 75 Cal.App.3d 592

People v. Zepeda (1980) 102 Cal.App.3d 1

People v. Kimble (1988) 44 Cal.3d 480 - nighttime service

In re Donald R. (1978) 85 Cal.app.3d 23 - nighttime service

Srgo v. United States (1932) 287 U.S. 206 - expired warrant invalid even if re-issued.

People v. Brocard (1985) 170 Cal.App.3d 239 - search warrant may be re-issued if not stale and new finding of probable cause.

====Search warrant receipt====

PC1535

PC1536

West Covina v. Perkins (1999) 525 U.S. 234

People v. Calabrese (2002) 101 Cal.App.4th 79 - search warrant need not be shown

==Detention==

Michigan v. Summer (1981) 452 U.S. 692

People v. Glaser (1995) 11 Cal.4th 354

Bailey v. United States (2013) 568 U.S. 186

Muehler v. Mena (2005) 544 U.S. 93

Ybarra v. Illinois (1979) 444 U.S. 85 - Cannot search each individual in place.

People v. Ingram (1993) 16 Cal.App.4th 1745 - Detention with reasonable suspicion of relationship between person and place to connect individual to illegal activities

Los Angeles County v. Tettele (2007) 550 U.S. 609 - detention of naked occupants

Franklin v. Foxworth (9th Cir. 1994) 31 F.3d 873

United States v. Thompson (2009) 667 F.Supp.2d 758

People v. Thurman (1989) 209 Cal.App.3d 817 - patdown

People v. Reyes (1990) 223 Cal.App.3d 1218 - patdown bad

People v. Gallant (1990) 225 Cal.app.3d 200 - patdown good

People v. Samples (1996) 48 Cal.App.4th 1197 - patdown good

People v. Hannah (1996) 51 Cal.App.4th 1335 - patdown

People v. Matelski (2000) 82 Cal.App.4th 837 - patdown

People v. Vanvalkenburgh (1983) 145 Cal.App.3d 163 - answering phone call

==Sealing==

County of Orange v. Superior Court (2000) 79 Cal.App.4th 759

People v. Hobbs (1994) 7 Cal.4th 948 - sealing of informant

People v. Martinez (2005) 132 Cal.App.4th 233

People v. Galland (2008) 45 Cal.4th 354

People v. Acevedo (2012) 209 Cal.App.4th 1040 - Hobbs dealing of wiretap

Penal Code section 954 deals with confidentiality of witness and victim information, such as address, telephone number, driver license number, social security number, date of birth, place of employment, etc.

==Medical records==

PC1543

PC1545

==Liability for search warrants==

SEARCH WARRANTS: The review of search warrants is within the course and scope of employment for Deputy District Attorneys. Pursuant to Government Code Section 825, the County shall defend any employee in the bargaining unit against whom a claim is made, or a lawsuit is filed, arising out of their review of search warrants as part of their employment with the County. Where the County provides a defense under this section and a subsequent judicial determination is made that at the time of the act giving rise to the liability the employee acted in bad faith, or acted with actual malice, the County may seek reimbursement for defense fees

Confidential information

2026-01-11T02:58:34Z

Sysop:

==Evidence Code sections 1040 to 1042==

Protects confidential information as well informants.

Evidence Code 1040(b): “official information” means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.

Evidence Code 200: "“Public entity” includes a nation, state, county, city and county, city, district, public authority, public agency, or any other political subdivision or public corporation, whether foreign or domestic."

In re David W. (1976) 62 Cal.App.3d 840, allowed location of VIN information to be kept confidential.

People v. Otte (1989) 214 Cal.App.3d 1522, clarified what "furnished in confidence" means.

==Confidential informants==

People v. Johnson (1970) 13 Cal.App.3d 742 - DA is holder of privilege not to disclose the informatn's identity.
Communications are not privileged except if communications would assist in identifying the informant.

1042 in camera hearing

People v. Alderrou (1987) 191 Cal.App.3d 1074 - defense failed to establish need for in camera holding becaues it would not exonerate the defendant

People v. Fried (1989) 214 Cal.App.3d 1309

PC701.5 - minor informants. <12-yo prohibited. 12<x<18 only allowed with court order.

Chapter II, section 1.3 of CDAA Search Warrants book.

Roviaro v. United States (1957) 353 U.S. 53 - disclosure required

Honore v. Superior Court of Alameda County (1969) 70 Cal.2d 162 - disclosure required

People v. Garcia (1967) 67 Cal.2d 830 - disclosure required

In re Tracy J. (1979) 94 Cal.App.3d 472

People v. McCoy (1970) 13 Cal.App.3d 6 - disclosure not required.

People v. Hardeman (1982) 137 Cal.App.3d 823 - disclosure not required when CI is not present when search warrant is served

People v. Oppel (1990) 222 Cal.App.3d 1146 - Affidavit of attorney based on informatn and belief is not evidence.

Eleazer v. Superior Court (1970) 1 Cal.3d 847 - LE's duty towards informant.

People v. Holiday (1973) 8 Cal.3d 771

People v. Callen (1987) 194 Cal.App.3d 558

===Appellate review===

People v. Barkins (1978) 81 Cal.App.3d 30

===Types of informants===

Citizen informants

People v. Ramey (1976) 16 Cal.3d 263

People v. Hill (1974) 12 Cal.3d 731, 761

People v. Kurland (1980) 28 Cal.3d 376

People v. Lombera (1989) 210 Cal.App.3d 29 - citizen informant need not be disclosed.

People v. Schulle (1975) 51 Cal.App.3d 809 - citizen informant with record is still citizen informant. Motivated by good citizenship.

Untested informant

Confidential reliable informant

Police officers are reliable - Hill

Victims or witnesses of crimes are reliable - Ramey

Humphrey v. Appellate Division (2002) 29 Cal.4th 569

Skelton v. Superior Court (1969) 1 Cal.3d 144 - procedure for making a CI reliable

People v. Mayer (1986) 188 Cal.App.3d 1101

People v. Murphy (1974) 42 Cal.App.3d 81

People v. French (2011) 201 Cal.App.4th 1307 - informant found not reliable, but good faith exception

Criminal history

People v. Kurland (1980) 28 Cal.3d 376
People v. Webb (1993) 6 Cval.4th 494

People v. Aho (1985) 166 Cal.App.3d 984

People v. Cobb (1983) 146 Cal.App.3d 290 - omissions from an affidavit of negative background information about an informant as well as informant's motivation for assisting the police are material facts and failing to include them in a search warrant affidavit will lead to search warrant being quashed.

===Defense counsel===

Boulas v. Superior Court (1986) 188 Cal.App.3d 422

People v. Hayes (1988) 200 Cal.App.3d 400

==Surveillance locations==

Hines v. Superior Court (1988) 203 Cal.App.3d 1231

People v. Montgomery (1988) 205 Cal.App.3d 1011

People v. Walker (1991) 230 Cal.App.3d 230

In re Sergio M. (1993) 13 Cal.App.4th 809

People v. Haider (1995) 34 Cal.App.4th 661

People v. Garza (1995) 32 Cal.App.4th 148

People v. Lewis (2009) 172 Cal.App.4th 1426

==Jail snitches==

PC1127a

PC1111.5

PC1191.25

PC4001.1

People v. Huggins (2015) 235 Cal.App.4th 715

People v. Williams (1997) 16 Cal.4th 153

Animal Cruelty

2025-12-26T05:11:59Z

Sysop: Created page with " Penal Code section 597, subdivision (l): (l) :(1) Upon the conviction of a person charged with a violation of this section, or Section 597 or 597a, all animals lawfully seized and impounded with respect to the violation shall be adjudged by the court to be forfeited and shall thereupon be transferred to the impounding officer or appropriate public entity for proper adoption or other disposition. A person convicted of a violation of this section shall be personally liab..."

Penal Code section 597, subdivision (l):

(l)
:(1) Upon the conviction of a person charged with a violation of this section, or Section 597 or 597a, all animals lawfully seized and impounded with respect to the violation shall be adjudged by the court to be forfeited and shall thereupon be transferred to the impounding officer or appropriate public entity for proper adoption or other disposition. A person convicted of a violation of this section shall be personally liable to the seizing agency for all costs of impoundment from the time of seizure to the time of proper disposition. Upon conviction, the court shall order the convicted person to make payment to the appropriate public entity for the costs incurred in the housing, care, feeding, and treatment of the seized or impounded animals. Each person convicted in connection with a particular animal may be held jointly and severally liable for restitution for that particular animal. The payment shall be in addition to any other fine or sentence ordered by the court.

:(2) The court may also order, as a condition of probation, that the convicted person be prohibited from owning, possessing, caring for, or residing with, animals of any kind, and require the convicted person to immediately deliver all animals in the convicted person’s possession to a designated public entity for adoption or other lawful disposition or provide proof to the court that the person no longer has possession, care, or control of any animals. In the event of the acquittal or final discharge without conviction of the person charged, if the animal is still impounded, the animal has not been previously deemed abandoned pursuant to subdivision (h), the court has not ordered that the animal be forfeited pursuant to subdivision (k), the court shall, on demand, direct the release of seized or impounded animals to the defendant upon a showing of proof of ownership.

Penal Code section 608:

(a) For a defendant who is granted probation for an offense specified in subdivision (d), the court shall order the defendant to successfully complete counseling, as determined by the court, designed to evaluate and treat behavior or conduct disorders, unless the defendant is ordered to complete treatment as specified in subdivision (b).

(b) The court shall consider whether to order the convicted person to undergo a mental health evaluation by an evaluator chosen by the court. Upon evaluation, if the evaluating mental health professional deems a higher level of treatment than described in subdivision (a) is necessary, the defendant shall complete such treatment as directed by the court.

(c) Counseling or mental health evaluations and any subsequent treatment described in subdivisions (a) and (b) shall be paid for by the defendant. The court shall determine the defendant’s ability to pay. If the court finds that the defendant is financially unable to pay, the court may develop a sliding fee schedule based on the defendant’s ability to pay. A person who meets the criteria set forth in Section 68632 of the Government Code shall not be responsible for any costs. The counseling specified in this section shall be in addition to any other terms and conditions of probation, including any term of imprisonment and fine.

(d) This section applies to a conviction for any of the following offenses:

(1) Section 286.5.

(2) Section 596.

(3) Section 597.

(4) Section 597.1.

(5) Section 600.5.

(e) A finding that the defendant suffers from a mental disorder, and any progress reports concerning the defendant’s treatment, or any other records created pursuant to this section, shall be confidential and shall not be released or used in connection with any civil or criminal proceeding without the defendant’s consent.

Sentencing

2025-12-19T14:08:43Z

Sysop: /* Resentencing */

“In a criminal case, judgment is rendered when the trial court orally pronounces sentence.” (People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9.)

==Charging==
Penal Code Section 12022.1
This is a two-year enhancement for committing a crime while released on bail or
own recognizance. Subdivision (c) specifically states that the allegation may be
pleaded in a Complaint, but need not be proved at the preliminary hearing. The
allegation must, however, be pleaded in the Information or Indictment.
2. Prior Convictions
Prior convictions, which are status enhancements, may be added to the Information
or Indictment whenever it is discovered that not all prior convictions have been
alleged. (Pen. Code § 969a; Miranda v. Superior Court of Los Angeles County (1995)
38 Cal.App.4th 902; Thompson v. Superior Court of Los Angeles County (2001)
91 Cal.App.4th 144; People v. Casillas (2001) 92 Cal.App.4th 171.)

==Admissible evidence==

“A probation report is required following every felony conviction in this state. [Citation.] [California Rules of Court, r]ule 4.411.5 details the contents of presentence reports, and contemplates that police reports will be used to prepare crime summaries contained therein. (Rule 4.411.5(a)(7)(i).) Defendants are required by statute to have an opportunity to review and challenge inaccuracies in the presentence report. [Citations.] [Defendant] does not contend he failed to receive such an opportunity in the underlying criminal prosecution. [¶] Superior courts consider and rely upon hearsay statements contained in a presentence report to determine whether to place a defendant on probation, and to evaluate his [or her] level of culpability when selecting an appropriate sentence. [Citations.]” (People v. Otto (2001) 26 Cal.4th 200, 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061 (Otto ).) “A sentencing judge ‘may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or ‘out-of-court’ information relative to the circumstances of the crime and to the convicted person's life and characteristics.’ [Citation.]” (People v. Arbuckle (1978) 22 Cal.3d 749, 754, 150 Cal.Rptr. 778, 587 P.2d 220.) The court may also consider and rely upon hearsay statements contained in a probation report, including the police reports used to prepare the crime summaries contained in the report. (Otto, at p. 212, 109 Cal.Rptr.2d 327, 26 P.3d 1061.)

By stating in section 1204 that mitigating evidence must be presented through “the testimony of witnesses examined in open court” rather than verbal representations, the Legislature has declared that a criminal defendant wishing to make an oral statement to the court in mitigation of punishment must do so through testimony given under oath.6 (A defendant may also provide an unsworn written statement either by submitting the statement to the probation officer for inclusion in the probation report (Cal. Rules of Court, rule 4.411.5(a)(4)), if one is prepared; or by including such a statement in a “written report” filed by the defense that “presents a study of his background and personality and suggests a rehabilitation program” (§ 1204).) People v. Evans (2008) 44 Cal.4th 590, 598

==Granting probation==

“The sentencing court has broad discretion to determine whether an eligible defendant is suitable for probation....” (People v. Welch (1993) 5 Cal.4th 228, 233, 19 Cal.Rptr.2d 520, 851 P.2d 802.)

“The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]” (People v. Birmingham (1990) 217 Cal.App.3d 180, 185, 265 Cal.Rptr. 780.)

In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rule 4.406(b)(2); rule 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.)
67 “The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance **27 of the evidence. [Citations.]” (People v. Leung (1992) 5 Cal.App.4th 482, 506, 7 Cal.Rptr.2d 290.) Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court's finding that a particular factor was applicable. (Id. at pp. 506–507, 7 Cal.Rptr.2d 290.)

People v. Weaver (2007) 149 Cal.App.4th 1301, 1313 disapproved of by People v. Cook (2015) 60 Cal.4th 922 on other grounds

Note: Allegations that mandate probation denial, or the facts that support them, must be
alleged and proved, for example, Penal Code section 1203(k); however, allegations that
merely create a presumptive denial of probation, do not. (People v. Lo Cicero (1969) 71
Cal.2d 1186; In re Varnell (2003) 30 Cal.4th 1132; People v. Lara (2012) 54 Cal.4th 896;
McKissick, supra.)

(People v. Hood (2014) 223 Cal.App.4th 1356 [depublished].)

===Mandatory inelgibile===

===Presumptive ineligible===
There is likewise broad discretion to determine whether a given case is “unusual” and entitles the defendant to probation in the interests of justice. (People v. Superior Court (Du ) (1992) 5 Cal.App.4th 822, 831, 7 Cal.Rptr.2d 177.

A VC20001 hit-and-run is not "a deadly weapon," to make one presumptively eligible under PC1203(e)(2). (People v. Nuno (2018) 26 Cal.App.5th 43.)

And it does not apply the criteria in rule 4.414 to determine whether to grant probation unless it first finds any statutory presumption against probation is rebutted. (Rule 4.413(b); **584 People v. Superior Court (Dorsey ) (1996) 50 Cal.App.4th 1216, 1229, 58 Cal.Rptr.2d 165.)

===Statement of reasons===
“Generally speaking, the trial court must state reasons for granting or denying probation.” (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

"At an initial sentencing hearing, when the court has the discretion to grant probation, the decision to grant probation is a sentence choice which requires a statement of reasons." (§ 1170, subd. (c); Cal. Rules of Court, rule 405(f)Court, rule 405(f). (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792.)

"The denial of probation, in and of itself, is not a sentence choice requiring a statement of reasons. (People v. Gopal (1985) 171 Cal.App.3d 524, 547–549, 217 Cal.Rptr. 487, cert. den. 476 U.S. 1105, 106 S.Ct. 1949, 90 L.Ed.2d 359; People v. Crouch (1982) 131 Cal.App.3d 902, 904, 182 Cal.Rptr. 701.) The rationale is that the denial of probation is not the ultimate disposition of the case, but rather is part and parcel of the concomitant decision to sentence to state prison, and that is the sentence choice which requires a statement of reasons. (People v. Butler (1980) 107 Cal.App.3d 251, 254–255, 165 Cal.Rptr. 709; accord People v. Golliver, supra, 219 Cal.App.3d at p. 1616, fn. 2, 269 Cal.Rptr. 191.) (People v. Hawthorne (1991) 226 Cal.App.3d 789, 792, fn. 2)

But it need not provide reasons for declining to find a case “unusual” so as to rebut any presumptive ineligibility for probation. (People v. Lesnick (1987) 189 Cal.App.3d 637, 644.)

==Prison sentencing==

PC1170.1(c)

McCart

''People v. Roseberry'' (2020) 57 Cal.App.5th 543

5y sentence for PC273.5. Commit PC4573 and sentenced to full consecutive 3 years. New offense of PC4530 escape.

Being released on parole, breaks up the chain for McCart issues. (''People v. Reed'' (1993) 17 Cal.App.4th 302.)'
1981-4y sentence
1984-while serving sentence, sentenced to full 2y consecutive for PC4501.5
Paroled
1991-PC4501.5 while at Pelican Bay.
1991-not under McCart.

People v. Brantley (2019) 43 Cal.App.5th 917. section 1170.1, subdivision (c) “does not apply [when a] defendant completed the prison term he was serving *549 before being sentenced **508 on the” in-prison offense. (People v. Brantley (2019) 43 Cal.App.5th 917, 920 [257 Cal.Rptr.3d 98] (Brantley), italics added; see id. at p. 922 [“a reading of the plain language of subdivision (c) makes apparent that this provision does not apply once the prisoner has completed the sentence he or she was serving when the in-prison crime was committed”].)

Credits. In re Rojas (1979) 23 Cal.3d 152; People v. Phoenix (2014) 231 Cal.App.4th 1119

==Misdemeanor sentencing==

"A trial court in a misdemeanor case may properly look for guidance to what the rules consider to be aggravating and mitigating." (People v. Faber (2017) 15 Cal.App.5th Supp. 41, 48.)

A misdemeanor can be a full-boat consecutive in jail after a prison term. (''People v. Endelsen'' (1996) 46 Cal.App.4th 86.) A misdemeanor can be a full-boat consecutive in jail after a PC1170(h) jail sentence. (''People v. Brown (2016) 247 Cal.App.4th 1430.)

==Sentencing error==

===Failing to state reasons===

Rule 4.403

People v. Dixon (1993) 20 Cal.App.4th 1029, 1037, found it reversible error, when failing to state reasons for consecutive sentences.

Sentencing can't just incorporate by reference, such as just the probation report. People v. Pierce (1995) 40 Cal.App.4th 1317; People v. Fernandez (1990) 226 Cal.App.3d 669; People v. Deloach (1989) 207 Cal.App.3d 323; People v. Davis (1980) 103 Cal.App.3d 270; People v. Turner (1978) 87 Cal.App.3d 244

==Housing under PC1170(h)==

Unstricken juvenile strike priors keep defendants out of county jail. (''People v. Delgado'' (2013) 214 Cal.App.4th 914.)

But what about juvenile strike priors and PC1170(f)?

==Enhancements==

An enhancement is defined as an additional term of imprisonment or penalty added to the
base term. (People v. Smith (1985) 163 Cal.App.3d 908; Sentencing Rules for Superior Court,
California Rules of Court, Rule 4.405(3).) An enhancement is not, however, a separate crime.
(People v. Muhammad (2007) 157 Cal.App.4th 484; People v. Wims (1995) 10 Cal.4th 293;
People v. Mustafaa (1994) 22 Cal.App.4th 1305; People v. White (1976) 16 Cal.3d 791.) Thus, it
is inextricably bound to the underlying crime, and the facts that are relied upon to establish the
enhancement must have occurred during the time of the offense. (People v. Walls (1978)
85 Cal.App.3d 447; People v. Dozier (1979) 90 Cal.App.3d 174.)

Because enhancements are not crimes, the corpus delicti rule does not apply to them. (People v.
Shoemake (1993) 16 Cal.App.4th 243.)

Generally, with determinate term sentences, a conduct enhancement is added to the base term
set for each offense, and a status enhancement is added once at the end of the determinate term
calculation. (People v. Jefferson (1999) 21 Cal.4th 86.) [Note: Enhancements for prior convictions
are added to each indeterminate term. (People v. Williams (2004) 34 Cal.4th 397.)] Penal Code
section 1170.11 lists specific enhancements that relate to the circumstances of the crime.
Enhancement allegations are not considered part of the accusatory pleading for purposes of
defining lesser included offenses. (People v. Wolcott (1983) 34 Cal.3d 92; People v. Richmond
(1991) 2 Cal.App.4th 610.) Nor may they be considered when applying the multiple conviction
rule—the rule prohibiting multiple convictions based on necessarily included offenses. (People v.
Izaguirre (2007) 42 Cal.4th 126.) Further, Penal Code section 805(a) provides that enhancements
are disregarded when determining the applicable statute of limitations. In other words, the
enhancement is not part of the maximum punishment calculation.

Enhancements apply equally to juveniles as they do to adults. (Welf. & Inst. § 726(d); In re Jovan B. (1993) 6 Cal.4th 801.

Relevant enhancements should be attached to each applicable underlying offense. (Pen. Code
§ 1170.1(d).) Subject to Penal Code sections 654 and 1170.1, enhancements may be imposed for
each separate crime for which the enhancement is found true. In other words, the law does not
limit charging or imposing enhancements only once for a criminal event; rather enhancements
should be charged and imposed for each crime during that event. (See People v. King (1993)
5 Cal.4th 59, overruling the rule in In re Culbreth (1976) 17 Cal.3d 330.)

All enhancements must be pled and either admitted by the defendant or proved to the trier
of fact beyond a reasonable doubt. (Pen. Code § 1170.1(e); Apprendi v. New Jersey (2000)
Defendant Conduct Enhancements (2015) 3
530 U.S. 466; People v. Sengpadychith (2001) 26 Cal.4th 316; People v. Mancebo (2002)
27 Cal.4th 735.)
Conduct enhancements should be pled in the criminal Complaint and proved at the
preliminary hearing. An enhancement may be included on the Information, even if not
initially alleged in the Complaint, provided sufficient evidence to support the enhancement
was presented at the preliminary hearing. Otherwise, the defendant may challenge the
sufficiency of an enhancement allegation by way of a Penal Code section 995 motion.
(People v. Superior Court of Marin County (Mendella) (1983) 33 Cal.3d 754.)
If the incorrect code section is pled or the enhancement is attached to the wrong count, the
court may still apply the enhancement. (People v. McKissick (1984) 151 Cal.App.3d 439;
People v. Riva (2003) 112 Cal.App.4th 981; Pen. Code § 960.)

Burden of Proof
Enhancement allegations must be proved beyond a reasonable doubt. (Apprendi, supra;
People v. Sloan (2007) 42 Cal.4th 110.)

Plea Bargaining
When the defendant enters into a plea bargain that includes an enhancement that the
defendant knows is unauthorized by law, in exchange for a lesser sentence than could
otherwise be imposed, the defendant will be estopped from attacking the imposition
of sentence for the enhancement. (People v. Ellis (1987) 195 Cal.App.3d 334; People v.
Otterstein (1987) 189 Cal.App.3d 1548; People v. Jones (1989) 210 Cal.App.3d 124.)

“During the Commission” Defined
Most enhancements require the prohibited conduct to be “during the commission” or “in
the commission” of a crime. The phrase “in the commission” has been given an expansive
interpretation and means more than simply “while committing” or “while engaged in.”
(People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.].) The following cases
illustrate this concept:
• People v. Canela (2014) 224 Cal.App.4th 703 [cert. for part. pub.]—The defendant
was “in the commission” of a robbery when he was in flight from officers and struck a
pedestrian.
• People v. Elder (2014) 227 Cal.App.4th 411 [cert. for part. pub.]—The robbery
victim sustained GBI while trying to push the fleeing defendant from a van.
• People v. Calles (2012) 209 Cal.App.4th 1200 [cert. for part. pub.]—A GBI
enhancement may apply to leaving the scene of an accident in violation of Vehicle
Code section 20001(a) if the injury was inflicted as part of one continuous transaction,
but not if the injury was inflicted prior to the flight.
• People v. Frausto (2009) 180 Cal.App.4th 890—The phrase “in the commission of”
in Penal Code section 12022.53(d) has the same meaning as identical or equivalent
language in sections 667.61, 12022.3, 12022.5, and the felony-murder statutes. Thus,
a firearm is discharged “in the commission of” a felony within the meaning of Penal
Code section 12022.53(d) if the underlying felony and the discharge of the firearm
are part of one continuous transaction, including flight after the felony to a place of
temporary safety.
• People v. Pitto (2008) 43 Cal.4th 228—Whenever (1) the defendant knows of the
presence and location of a firearm near the drugs, (2) the gun’s proximity to the drugs
is not “accidental or coincidental,” and (3) the defendant is in a position to use the gun
offensively or defensively to aid in the commission of the offense, the gun facilitates
that crime and has the requisite purpose or effect with respect to its commission.
• People v. Carrasco (2006) 137 Cal.App.4th 1050—With a gun use enhancement
“during the commission” of a robbery, the robbery may be spread over a considerable
distance and varying periods of time. A robbery begins with the commission of any of
the elements and concludes after all the elements have been satisfied and the defendant
has reached a place of relative safety. The gun use enhancement applies if the “use” aids
in completing any of the essential elements of the crime.
• People v. Alvarado (2001) 87 Cal.App.4th 178—For the purpose of Penal Code
section 667.61(e)(2), “during the commission of a burglary” refers to that period of
time between the burglar’s initial entry with the requisite intent and the burglar’s escape
to a place of temporary safety
People v. Jones (2001) 25 Cal.4th 98—In the case of a weapons-use enhancement,
such use may be deemed to occur “in the commission of” the offense if it occurred
before, during, or after the technical completion of the felonious sex act. The operative
question is whether the sex offense posed a greater threat of harm, i.e., was more
culpable because the defendant used a deadly weapon to threaten or maintain control
over the victim.
• People v. Becker (2000) 83 Cal.App.4th 294 [cert. for part. pub.]—A defendant’s
sentence may be enhanced for arming as long as he [or she] has a weapon available for
use at any point during the course of a continuing offense (conspiracy).
• People v. Masbruch (1996) 13 Cal.4th 1001—In this case, the defendant initially
used a firearm to subdue the two female victims and tie them up. He then committed
robbery, rape, sodomy, false imprisonment, and torture. The defendant appealed the
enhancement for gun use in the sex crimes, claiming that he only displayed the gun at
the outset of the crime spree. The court held that the firearm use enhancement liability
continued for as long as the defendant “utilized a gun at least as an aid in completing
an essential element of a subsequent crime.” The court explained:
In considering whether a gun use occurred, the jury may consider a
“video” of the entire encounter; it is not limited to a “snapshot” of
the moments immediately preceding a sex offense. Thus, a jury could
reasonably conclude that although defendant’s presence with the victims
was sporadic, the control and fear created by his initial firearm display
continued throughout the encounter. (Id. at 1011.)
[Note: This case has an excellent and extensive discussion on the definition of “use” of a
firearm.]
• People v. Taylor (1995) 32 Cal.App.4th 578—For the purpose of Penal Code
section 12022.5, the use of a firearm during escape from the crime scene is a use during
the commission of the crime. The defendant had left the burglary scene with a police
officer in pursuit, but his companion was detained at the scene, and the defendant
used the weapon when he returned to free her. The companion had stolen items on her
person and could implicate the defendant in the burglary. Thus, the burglary had not
been completed.
• People v. Heston (1991) 1 Cal.App.4th 471 [cert. for part. pub.]—Penal Code
section 12022.4 creates an enhancement for furnishing a firearm during the
commission of a crime. Although the defendant actually furnished it before the crime,
the court held that the statutory language must be read as contemplating a time frame
other than simply the time of the actual act element of the felony.
• People v. Mixon (1990) 225 Cal.App.3d 1471—Infliction of injury on the victim
after removal from a burglary situs is “during the commission” of the burglary.
• People v. Walls (1978) 85 Cal.App.3d 447—During a burglary, the defendant used a
gun and inflicted GBI. (Pen. Code § 12022.7.) On appeal he urged that the burglary
was complete upon entry with the requisite intent and that the alleged enhancement
conduct did not occur “during the commission” of the burglary. This was rejected by
the court, which held that the burglary continued after entry.

The court does not need to state a reason for imposing an enhancement that was found
true (Pen. Code § 1170(d); Rule 4.428); however, the court must state reasons for striking
the enhancement. (In re Renfrow (2008) 164 Cal.App.4th 1251.)
Enhancements imposed on attempted crimes are not reduced by half the normal term for
the enhancement. (In re Anthony H. (1980) 108 Cal.App.3d 494.

However, only one
weapon enhancement (the greatest) and only one injury enhancement (the greatest) may be
imposed for a single victim on a single crime. (Pen. Code § 1170.1(f) and (g); Rule 4.447;
People v. Ahmed (2011) 53 Cal.4th 156; People v. Mercado (2013) 216 Cal.App.4th 67.)
1. Multiple Firearm and Weapon Use on a Single Crime—Penal Code
Section 1170.1(f)
The defendant’s use of a firearm or weapon during the commission of a crime
may implicate several enhancements (e.g., Pen. Code §§ 12022.5 and 12022.53);
however, only the greatest may be imposed for each crime. (Pen. Code § 1170.1(f);
People v. Rodriguez (2009) 47 Cal.4th 501.) This rule applies even if the defendant
uses two weapons during the commission of the crime. (People v. Jones (2000)
82 Cal.App.4th 485.)
2. Multiple Weapon Enhancements on Multiple Crimes
When the defendant uses a weapon during the commission of multiple crimes, a
weapons enhancement is permitted for each crime. (King, supra; People v. Palacios
(2007) 41 Cal.4th 720.)
3. Multiple Injury Enhancements on the Same Victim on a Single Crime—
Penal Code Section 1170.1(g)
The defendant’s infliction of injury during the commission of a crime may result in
the filing of several injury enhancements (e.g., Pen. Code § 12022.7(a) and (b));
however, only the greatest may be imposed. (Pen. Code § 1170.1(g); People v. Eck
(1999) 76 Cal.App.4th 759 [cert. for part. pub.].)
4. Multiple Injury Enhancements for Multiple Victims
Where multiple victims are injured, multiple injury enhancements are permitted.
(People v. Arndt (1999) 76 Cal.App.4th 387; People v. Ausbie (2004) 123 Cal.App.
4th 855 [cert. for part. pub.].)

he court can strike almost all enhancements—or just the additional punishment
for the enhancement—with stated reasons based on the general provisions of Penal
Code section 1385. (People v. Meloney (2003) 30 Cal.4th 1145; People v. Luckett
(1996) 48 Cal.App.4th 1214; Rule 4.406(b)(7) and (b)(10); see also former Pen.
Code § 1170.1(h) [pre-Jan. 1, 1998].) The court can strike an enhancement with
respect to one count but not another. (People v. Torres (2008) 163 Cal.App.4th
1420 [cert. for part. pub.].)

Example: The defendant is convicted of robbery with an enhancement for the
personal infliction of GBI. As nothing limits or prohibits the imposition of this
enhancement, it must be imposed or stricken, not stayed. (Pen. Code §§ 1170.1(d)
and 1385(c); People v. Langston (2004) 33 Cal.4th 1237; Vega, supra.)

his issue was addressed in the context of multiple firearm enhancements pursuant
to Penal Code sections 12022.5 and 12022.53(b) and (c) attached to a single
underlying crime. In reviewing the statutory construction of section 12022.53,
and harmonizing that statute with the rationale of section 654 and Rule 4.447,
the California Supreme Court held that an enhancement whose imposition is
prohibited should be stayed, not stricken. (People v. Gonzalez (2008) 43 Cal.4th
1118.)
Should the court wish to avoid the additional prison term for the enhancement
but retain the offense as a serious or violent felony for “strike” or credit limitation
purposes, the court should impose the enhancement and dismiss only the
additional punishment. (Pen. Code § 1385(c); Pope, supra; In re Pacheco (2007)
155 Cal.App.4th 1439; In re Borlik (2011) 194 Cal.App.4th 30.)

===PC12022(a) firearm +1===

“Armed” is knowingly carrying a firearm as a means of offense or defense.
Bland, supra, 10 Cal.4th 991, held that a defendant convicted of a possessory
drug offense is subject to the “armed with a firearm” enhancement when he or
she possesses both drugs and a gun, and keeps them together, but is not present
when the police seize them. (People v. Hayes (1990) 52 Cal.3d 577; People v.
Wandick (1991) 227 Cal.App.3d 918; Alvarado, supra, 146 Cal.App.4th 993;
Pen. Code § 1203.06(b)(3).)
• Applies to completed and attempted crimes.
• Vicarious liability is permitted for all principals. Two people can be personally
armed with one gun. (People v. Mendival (1992) 2 Cal.App.4th 562 [cert. for
part. pub.].)
• “Firearm” is defined as “a device, designed to be used as a weapon, from which
is expelled through a barrel a projectile by the force of an explosion or other
form of combustion.” (See Pen. Code § 16520(a).) This does not include the
mere “receiver.” (People v. Gailord (1993) 13 Cal.App.4th 1643.) The fact that
the object is a firearm can be established by direct or circumstantial evidence
(People v. Law (2011) 195 Cal.App.4th 976 [cert. for part. pub.]); however, toy
guns, pellet guns, and BB guns do not qualify as firearms. (People v. Monjaras
(2008) 164 Cal.App.4th 1432 [cert. for part. pub.].)
• The firearm need not be loaded or operable. (Masbruch, supra; People v. Nelums
(1982) 31 Cal.3d 355; People v. Steele (1991) 235 Cal.App.3d 788.)
• There is no requirement to prove that the defendant knew or should have
known that the crime partner was armed. (People v. Overten (1994)
28 Cal.App.4th 1497.)
• Not applicable if arming is an element of the offense.

===PC12022(b) Assault Weapon +3===

Applies to completed or attempted crimes.
• “Assault weapon” defined. (Pen. Code § 30510.) “Machine gun” defined.
(Pen. Code §§ 30530 and 16880.)
• Applies even if arming is an element of the offense.
Defendant Conduct Enhancements (2015) 13
• Vicarious liability is permitted for all principals.
• There must be proof the defendant knew or reasonably should have known the
weapon was an assault weapon. (In re Jorge M. (2000) 23 Cal.4th 877.)

===PC12022(c) Armed while having controlled substances +3-4-5===
Personally armed” refers to the person who acts, not that person’s action.
Hence, two people can be personally armed with the same weapon if it is
equally available for use to both. (People v. Superior Court of San Diego County
(Pomilia) (1991) 235 Cal.App.3d 1464; Mendival, supra; People v. Gonzales
(1992) 8 Cal.App.4th 1658.)
• In the commission or attempted commission of violating Health and Safety
Code section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5,
11379, 11379.5, or 11379.6.
• There must be proof that the defendant had knowledge of the presence of the
firearm. (People v. Singh (2004) 119 Cal.App.4th 905 [cert. for part. pub.].)

===PC12022(d) Vicariously armed +1-2-3===
Penal Code section 12022(c) applies to those who actually and knowingly have
a firearm available for use, and section 12022(d) applies to those who do not,
but who know that one of their co-principals does. (People v. Smith (1992)
9 Cal.App.4th 196 [cert. for part. pub.].)

===PC30615 assault weapon +1===

===PC12022(b)(1) Deadly Weapon +1 Serious===

“Deadly or dangerous weapon” refers to any weapon, instrument, or object that
is inherently deadly or is used in such a way it is capable of causing and is likely
to cause great bodily injury or death. (CALCRIM 3145; People v. Reid (1982)
133 Cal.App.3d 354). Examples:
- BB gun (In re Bartholomew D. (2005) 131 Cal.App.4th 317 [cert. for part.
pub.]; People v. Brown (2012) 210 Cal.App.4th 1)
- Dirk or blackjack (People v. Aguilar (1997) 16 Cal.4th 1023)
- Knife (People v. Smith (1963) 223 Cal.App.2d 431)
- Broken glass or bottle (People v. Neal (1984) 159 Cal.App.3d 69 [cert. for
part. pub.]; People v. Zermeno (1999) 21 Cal.4th 927)
- Dog (People v. Frazier (2009) 173 Cal.App.4th 613 [cert. for part. pub.])
- Car (Calderon, supra)
• Personal use is required; there is no vicarious liability.
• The enhancement is not applicable if use of a deadly or dangerous weapon is an
element of the offense. (People v. McGee (1993) 15 Cal.App.4th 107 [cert. for
part. pub.] [interpreting former Pen. Code § 245].)
• This enhancement qualifies the underlying crime as a serious felony (Pen. Code
§ 1192.7(c)(23)), but not a violent felony

===PC12022.5 Firearms +3-4-10===

Applies to completed and attempted crimes.
• The court cannot strike this enhancement. (Pen. Code § 12022.5(c); Thomas,
supra.)
• The requirement of use of a firearm does not create a specific intent to injure
or assault the victim; however, the use must be intentional. (In re Tameka C.
(2000) 22 Cal.4th 190; Johnson, supra, 38 Cal.App.4th 1315.)
• The firearm may be used as a bludgeon. (Walls, supra; People v. Miceli (2002)
104 Cal.App.4th 256 [cert. for part. pub.].)
• Personal use is required; there is no vicarious liability. (People v. Walker (1976)
18 Cal.3d 232; People v. Hays (1983) 147 Cal.App.3d 534.)
• The enhancement is applicable if the defendant who personally uses the firearm
is vicariously liable for the underlying offense. (In re Antonio R. (1990)
226 Cal.App.3d 476 [cert. for part. pub.]; Berry, supra; Thiessen, supra.)
• The firearm need not be loaded or operable. (Nelums, supra.) See definition of
“firearm” in Section V.A.1.
• This enhancement is not applicable (Pen. Code § 12022.5(d)) if the use of a
firearm is an element of the offense, except if the offense is:
- any violation of Penal Code section 245, or
- murder perpetrated by means of shooting a firearm from a motor vehicle
intentionally at another person outside of the vehicle with the intent to
inflict GBI or death. (People v. Joachim (1995) 38 Cal.App.4th 1526;
People v. Johnson (1996) 51 Cal.App.4th 1329.)
• Mandatory state prison (Pen. Code § 1203.06(a)(1)) for most violent crimes.
• Multiple enhancements are permitted for multiple crimes committed
on a single occasion (King, supra); however, if multiple types of firearm
enhancements are alleged for a single crime, only the greatest may be imposed
(Pen. Code § 1170.1(f)). See discussion in Section IV.C.
• Qualifies the underlying crime as a serious felony (Pen. Code § 1192.7(c)(8))
and violent felony (Pen. Code § 667.5(c)(8)); therefore, conduct credits for the
aggregate term are limited to 15 percent. (Pen. Code § 2933.1; Reeves, supra.)
• Gang implications: The court cannot impose both a Penal Code section
12022.5 and a section 186.22(b)(1) enhancement if the gun is what makes the
crime a serious or violent felony. (Rodriguez, supra.)

===PC12022.5(b) assault weapons +5-6-10===

===PC21022.53 10-20-life===

* Section 187 (murder)
* Section 203 or 205 (mayhem)
* Section 207, 209, or 209.5 (kidnapping)
* Section 211 (robbery)
* Section 215 (carjacking)
* Section 220 (assault with intent to commit a specified felony)
* Section 245(d) (assault with a firearm on a peace officer or firefighter)
* Section 261 or 262 (rape)
* Section 264.1 (rape or sexual penetration in concert)
* Section 286 (sodomy)
* Section 288 or 288.5 (lewd act on a child
* Section 288a (oral copulation)
* Section 289 (sexual penetration)
* Section 4500 (assault by a life prisoner)
* Section 4501 (assault by a prisoner)
* Section 4503 (holding hostage by a prisoner)
* Any felony punishable by death or imprisonment in the state prison for life.
* Any attempt to commit a listed crime other than an assault.

===PC12022.55 Discharge of firearm from motor vehicle +5-6-10===

===PC12022.7 Great bodily injury +3===
Personal infliction is required. (People v. Cole (1982) 31 Cal.3d 568; People v.
Cross (2008) 45 Cal.4th 58.) Personal infliction can include “joint infliction”
when the defendant contributes to the GBI. (People v. Modiri (2006)
39 Cal.4th 481; People v. Dunkerson (2007) 155 Cal.App.4th 1413.) The
definition can include a failure to act if the defendant has a duty to act and
failure leads to GBI. (People v. Warwick (2010) 182 Cal.App.4th 788.)
• Applies to completed and attempted crimes.
• Specific intent to inflict injury is no longer required. Specific intent is required
for crimes committed prior to January 1, 1996. (People v. Fong (2013)
217 Cal.App.4th 263.)
• For the crimes listed in Penal Code section 1203.075, the infliction of GBI
means a mandatory denial of probation. It is no longer necessary to plead
and prove the section 1203.075 allegation together with the section 12022.7
enhancement. Prior to September 20, 2006, Penal Code section 1203.075
required intentional infliction so a separate probation denial allegation was
required when specific intent was deleted from the GBI enhancement itself.
Note: The probations denial allegation of Penal Code section 1203.075 does
apply to murder and should be alleged.
• Penal Code section 12022.7(f) defines GBI as “a significant or substantial
physical injury” beyond that inherent in the underlying felony. (People v.
Washington (2012) 210 Cal.App.4th 1042.) The California Supreme Court in
People v. Caudillo (1978) 21 Cal.3d 562 [overruled on another point in
People v. Escobar, infra, at 751, fn. 5] required that the injury be “severe or
protracted.” The California Supreme Court returned to the code section
standard of “significant or substantial physical injury” in People v. Escobar
(1992) 3 Cal.4th 740. Consequently, the injury sustained under the new
standard need not be as serious as that required by Caudillo. The injuries that
qualified as GBI in Escobar were: “extensive bruises and abrasions over the
victim’s legs, knees and elbows, injury to her neck and soreness in her vaginal
area of such severity that it significantly impaired her ability to walk.” (Escobar,
supra, at 750.)
• Other cases with examples of GBI:
- People v. Mendias (1993) 17 Cal.App.4th 195. Gunshot wound to upper
thigh. The victim was released from the hospital the next day, but the bullet
was not removed. At the trial five months later, the victim said the bullet
moves, but is not painful.
- People v. Wallace (1993) 14 Cal.App.4th 651. Two victims, one with cuts on
wrists and ankles from being flex-tied. One victim’s finger had no feeling
for two months. The other victim’s wrists were burned from flex-ties and
bandaged for two days. Insecticide-like substance caused “really, really bad”
burning in her eyes, vagina, and anus for 24 hours.
- People v. Bustos (1994) 23 Cal.App.4th 1747, 1755. The wounds inflicted
by this defendant (not including fatal stab wounds inflicted by another)
were contusions to the nose, left elbow, and left thigh; lacerations to the left
upper lip; and abrasions to the right elbow, left knee, and anus.
- People v. Le (2006) 137 Cal.App.4th 54. Soft tissue and muscular injury to
both legs caused by gunshot wound causing pain and restricted mobility for
weeks.
• Additional examples of GBI were discussed and approved using the more
stringent standard set forth in Caudillo, supra (pre-Escobar law):
- Knocked unconscious, numerous cuts with scars still evident at trial,
intense headaches
- Prolonged loss of consciousness
- Severe concussion
- Protracted loss of any bodily member or organ
- Protracted impairment of function of any bodily member or organ or bone
- A wound or wounds requiring extensive suturing
- Serious disfigurement
- Severe physical pain inflicted by torture
[Note: These categories were included in the section as originally enacted,
but were deleted by an amendment in 1977.]
• Other examples of GBI:
- Multiple contusions, swelling, and discoloration of the body. (People v.
Jaramillo (1979) 98 Cal.App.3d 830.)
- A broken hand swollen to twice its normal size. (People v. Kent (1979)
96 Cal.App.3d 130.
- A fractured jaw. (People v. Johnson (1980) 104 Cal.App.3d 598.)
- Hot grease in face. “Blistering 2nd burns … visible discoloration and
disfigurement for a month at least.” (People v. Harvey (1992)
7 Cal.App.4th 823.)
- Six sutures to the vagina for a cut of 2.5 cm. (People v. Brown (1985)
174 Cal.App.3d 762.)
• The jury need not unanimously agree on which injury or injuries support the
GBI. It is a “measuring function.” The jury determines whether the victim
suffered that quantum of injury that is defined as GBI. (People v. Robbins
(1989) 209 Cal.App.3d 261 [cert. for part. pub.].)
• The enhancement is not applicable if GBI is an element of the offense.
(Pen. Code § 12022.7(g).) Penal Code section 243(d), Battery with “Serious
Bodily Injury” is “Great Bodily Injury,” and the enhancement is not applicable.
(People v. Hawkins (1993) 15 Cal.App.4th 1373.) The enhancement is
inapplicable to mayhem as well. (People v. Hill (1994) 23 Cal.App.4th 1566.)
The code section specifically exempts murder, manslaughter, or arson.
(People v. Martinez (2014) 226 Cal.App.4th 1169; but see People v. Weaver
(2007) 149 Cal.App.4th 1301; Pen. Code § 12022.7 applies to additional
injured victims in a vehicular manslaughter case.) This enhancement does apply
to attempted murder or attempted manslaughter. (Allen, supra; People v. Lewis
(1994) 21 Cal.App.4th 243.)
• Qualifies the underlying crime as a serious felony (Pen. Code § 1192.7(c)(8))
and a violent felony (Pen. Code § 667.5(c)(8)); therefore, conduct credits for
the aggregate term are limited to 15 percent. (Pen. Code § 2933.1; Reeves,
supra.)
• If multiple GBI enhancements are attached to the underlying crime, only the
greatest may be imposed. (Pen. Code § 1170.1(g); Eck, supra.)

===PC12022.1 OR enhancement +3===
Enhancement for Offenses Committed While Released on Bail / Own Recognizance—
Penal Code Section 12022.1 [+ 3 years]
Any person convicted of a felony offense (secondary offense) committed while the
defendant was released from custody on bail or on his or her own recognizance (O.R.) for
another offense (primary offense), before the judgment became final for that other offense,
including the disposition of any appeal, must have his or her sentence for the secondary
offense enhanced by two years.
“Primary offense” refers to the felony offense for which a person was released on bail / O.R.
prior to final judgment. Conviction for the primary offense is not an element of Penal
Code section 12022.1, but is a prerequisite to the imposition of the enhancement on the
secondary offense. (People v. Johnson (2012) 208 Cal.App.4th 1092 [cert. for part. pub.].)
“Secondary offense” refers to the felony offense committed by the defendant while released
on the primary offense.
Whenever there is a conviction for the secondary offense and the enhancement is proved,
and the person is sentenced on the secondary offense prior to the conviction of the primary
offense, the court for the secondary offense may strike the enhancement or imposition of
the enhancement must be stayed, pending sentencing for the primary offense per Penal
Code § 12022.1(d). The sentencing court on the primary offense will lift any stay of the
enhancement. (Meloney, supra.)
If the person is convicted of a felony for the primary offense, is sentenced to state prison for
the primary offense, and is convicted of a felony for the secondary offense, then any state
prison sentence for the secondary offense must be consecutive to the primary sentence.
(Pen. Code § 12022.1(e); People v. Sanchez (1991) 230 Cal.App.3d 768.)
If the person is convicted of a felony for the primary offense, is granted probation for
the primary offense, and is convicted of a felony for the secondary offense, then any state
prison sentence for the secondary offense must be enhanced by an additional term of two
years. (Pen. Code § 12022.1(f).)
If the primary offense conviction is reversed on appeal, the enhancement shall be
suspended pending retrial of that felony. On retrial and reconviction, the enhancement
must be re-imposed. If the person is no longer in custody for the secondary offense
on reconviction of the primary offense, the court may, at its discretion, re-impose the
enhancement and order the defendant to custody. (Pen. Code § 12022.1(g).)
• Multiple enhancements are possible if the defendant is released on multiple cases.
(People v. Mackabee (1989) 214 Cal.App.3d 1250 [cert. for part. pub.].) But only one
enhancement is permitted if there are multiple secondary offenses and one primary
offense. (People v. McNeely (1994) 28 Cal.App.4th 739.)
• Imposing this enhancement and a prior conviction enhancement for the same
primary offense is not a violation of Penal Code section 654. (People v. Juarez (1993)
21 Cal.App.4th 318 [cert. for part. pub.].)
• The enhancement is applicable to juvenile proceedings. (In re Jovan B., supra.) This
includes a “general release” of a juvenile. (In re Rottanak K. (1995) 37 Cal.App.4th
260.)
• The enhancement need not be proved at the preliminary hearing. (Pen. Code
§ 12022.1(c).)
• The defendant is not entitled to a jury trial on the allegation. (Johnson, supra, 208 Cal.
App.4th 1092.)
• Applicable to Penal Code section 1320.5 [felony failure to appear]. (People v. Walker
(2002) 29 Cal.4th 577 [cert. for part. pub.].) The enhancement does not apply to
release pursuant to Penal Code section 1000. (People v. Ormiston (2003)
105 Cal.App.4th 676 [cert. for part. pub.].)

Impersonating a peace officer.
Penal Code section 667.17 [+ 1 year]: Impersonating a peace officer in violation of
Penal Code section 538d during the commission of a felony.

Penal Code section 667.85 [+ 5 years]: Kidnapping a child under 14 with the intent to permanently deprive the parent or legal guardian of custody.

==Rules of Court==

===Rule 4.410 General objectives in sentencing===

(a) General objectives of sentencing include:

(1) Protecting society;

(2) Punishing the defendant;

(3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses;

(4) Deterring others from criminal conduct by demonstrating its consequences;

(5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration;

(6) Securing restitution for the victims of crime;

(7) Achieving uniformity in sentencing; and

(8) Increasing public safety by reducing recidivism through community-based corrections programs and evidence-based practices.

(b) Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by
statutory statements of policy, the criteria in these rules, and any other facts and circumstances relevant to the case.

===Rule 4.413. Grant of probation when defendant is presumptively ineligible for probation===

(a) Consideration of eligibility
The court must determine whether the defendant is eligible for probation. In most cases, the defendant is presumptively eligible for probation; in some cases, the defendant is presumptively ineligible; and in some cases, probation is not allowed.

(b) Probation in cases when defendant is presumptively ineligible
If the defendant comes under a statutory provision prohibiting probation “except in unusual cases where the interests of justice would best be served,” or a substantially equivalent provision, the court should apply the criteria in

(c) to evaluate whether the statutory limitation on probation is overcome; and if it is, the court should then apply the criteria in rule 4.414 to decide whether to grant probation.

(c) Factors overcoming the presumption of ineligibility
The following factors may indicate the existence of an unusual case in which probation may be granted if otherwise appropriate:

(1) Factors relating to basis for limitation on probation
A factor or circumstance indicating that the basis for the statutory limitation on probation, although technically present, is not fully applicable to the case, including:

(A) The factor or circumstance giving rise to the limitation on probation is, in this case, substantially less serious than the circumstances typically present in other cases involving the same probation limitation, and the defendant has no recent record of committing similar crimes or crimes of violence; and

(B) The current offense is less serious than a prior felony conviction that is the cause of the limitation on probation, and the defendant has been free from incarceration and serious violation of the law for a substantial time before the current offense.

(2) Factors limiting defendant's culpability
A factor or circumstance not amounting to a defense, but reducing the defendant's culpability for the offense, including:

(A) The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence;

(B) The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation; and

(C) The defendant is youthful or aged, and has no significant record of prior criminal offenses.

(3) Results of risk/needs assessment

Along with all other relevant information in the case, the court may consider the results of a risk/needs assessment of the defendant, if one was performed. The weight of a risk/needs assessment is for the court to consider in its sentencing discretion.

Victim “[v]ulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act.” (People v. Smith (1979) 94 Cal.App.3d 433, 436, 156 Cal.Rptr. 502 [describing that term in the context of rule 4.421(a)(3) ].

People v. Weaver (2007) 149 Cal.App.4th 1301, 1314 disapproved of by People v. Cook (2015) 60 Cal.4th 922

===Rule 4.421 Circumstances in aggravation===

Circumstances in aggravation include factors relating to the crime and factors relating to the defendant.
(a) Factors relating to the crime
Factors relating to the crime, whether or not charged or chargeable as enhancements include that:
(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness;
(2) The defendant was armed with or used a weapon at the time of the commission of the crime;
(3) The victim was particularly vulnerable;
(4) The defendant induced others to participate in the commission of the crime or occupied a position of leadership or dominance of other participants in its commission;
(5) The defendant induced a minor to commit or assist in the commission of the crime;
(6) The defendant threatened witnesses, unlawfully prevented or dissuaded witnesses from testifying, suborned perjury, or in any other way illegally interfered with the judicial process;
(7) The defendant was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed;
(8) The manner in which the crime was carried out indicates planning, sophistication, or professionalism;
(9) The crime involved an attempted or actual taking or damage of great monetary value;
(10) The crime involved a large quantity of contraband; and
(11) The defendant took advantage of a position of trust or confidence to commit the offense.
(12) The crime constitutes a hate crime under section 422.55 and:
(A) No hate crime enhancements under section 422.75 are imposed; and
(B) The crime is not subject to sentencing under section 1170.8.
(b) Factors relating to the defendant
Factors relating to the defendant include that:
(1) The defendant has engaged in violent conduct that indicates a serious danger to society;
(2) The defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness;
(3) The defendant has served a prior term in prison or county jail under section 1170(h);
(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.
(c) Other factors
Any other factors statutorily declared to be circumstances in aggravation or that reasonably relate to the defendant or the circumstances under which the crime was committed.
Credits
(Formerly Rule 421, adopted, eff. July 1, 1977. As amended, eff. Jan. 1, 1991. Renumbered Rule 4.421, eff. Jan. 1, 2001. As amended, eff. Jan. 1, 2007; May 23, 2007; Jan. 1, 2017; Jan. 1, 2018.)

====Comment====
ADVISORY COMMITTEE COMMENT

Circumstances in aggravation may justify imposition of the middle or upper of three possible terms of imprisonment. (Section 1170(b).)
The list of circumstances in aggravation includes some facts that, if charged and found, may be used to enhance the sentence. This rule does not deal with the dual use of the facts; the statutory prohibition against dual use is included, in part, in the comment to rule 4.420.

Conversely, such facts as infliction of bodily harm, being armed with or using a weapon, and a taking or loss of great value may be circumstances in aggravation even if not meeting the statutory definitions for enhancements or charged as an enhancement.

Facts concerning the defendant's prior record and personal history may be considered. By providing that the defendant's prior record and simultaneous convictions of other offenses may not be used both for enhancement and in aggravation, section 1170(b) indicates that these and other facts extrinsic to the commission of the crime may be considered in aggravation in appropriate cases.

Refusal to consider the personal characteristics of the defendant in imposing sentence may raise serious constitutional questions. The California Supreme Court has held that sentencing decisions must take into account “the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society.” (In re Rodriguez (1975) 14 Cal.3d 639, 654, quoting In re Lynch (1972) 8 Cal.3d 410, 425.) In Rodriguez the court released petitioner from further incarceration because “it appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment.” (Id. at p. 655, fn. omitted, italics added.) “For the determination of sentences, justice generally requires . . . that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” (Pennsylvania ex rel. Sullivan v. Ashe (1937) 302 U.S. 51, 55, quoted with approval in Gregg v. Georgia (1976) 428 U.S. 153, 189.)

Former subdivision (a)(4), concerning multiple victims, was deleted to avoid confusion. Some of the cases that had relied on that circumstance in aggravation were reversed on appeal because there was only a single victim in a particular count.

Old age or youth of the victim may be circumstances in aggravation; see section 1170.85(b). Other statutory circumstances in aggravation are listed, for example, in sections 422.76, 1170.7, 1170.71, 1170.8, and 1170.85.

==Resentencing==

[https://www.courts.ca.gov/opinions/documents/C090767.PDF People v. McMurray (Mar. 30, 2022, C090767)

Appellate jurisdiction

People v. Scarbrough (2015) 240 Cal.App.4th 916
People v. Nelms (2008) 165 Cal.App.4th 1465
People v. Acosta (1996) 48 Cal.App 4th 411, 427

==Upper term==

===Upper term imposed before passage of SB567===

''People v. Berdoll'' (2022) 85 Cal.App.5th 159

''People v. Mitchell'' (2022) 83 Cal.App.5th 1051, review granted, S277314

==Split-sentence==

''People v. Camp'' (2015) 233 Cal.App.4th 461

''People v. Arce'' (2017) 11 Cal.App.5th 613

Juvenile Delinquency

2025-12-08T05:45:11Z

Sysop: /* Informal supervision */

A juvenile court may impose on a minor on probation “any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” (Welf. & Inst. Code, § 730, subd. (b).) Generally, the conditions imposed on juveniles may be broader than criminal probation conditions. (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) In fact, “[a] juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a
condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile.” (In re Binh L. (1992) 5 Cal.App.4th 194, 203; In re Josh W. (1997) 55 Cal.App.4th 1, 5; In re Sheena K. (2007) 40 Cal.4th 875, 889; In re Michael D. (1989) 214 Cal.App.3d 1610, 1616.) In planning the conditions of a minor’s supervision, the juvenile court considers not only the circumstances of the crime, but also the minor’s entire social history. (In re Binh L., supra, 5 Cal.App.4th 192, 203.) However, probation conditions may be void for vagueness or for being overbroad. “An order must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.” (People v. Reinerston (1986) 178 Cal.App.3d 320, 324- 325.)

In People v. Lent (1975) 15 Cal.3d 481, the California Supreme Court articulated the following test to determine whether a probation condition constitutes an abuse of discretion: “A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.’” (Id. at p. 486.) “This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.” (People v. Olguin (2008) 45 Cal.4th 375, 379.) “As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.” (Id. at pp. 379-380.)

The Lent test applies to juvenile probation conditions. (In re P.O. (2016) 246 Cal.App.4th 288, 294; In re D.G. (2010) 187 Cal.App.4th 47, 52.) In In re Ricardo P. (2019) 7 Cal.5th 1113, the California Supreme Court observed that “Lent’s requirement that a probation condition must be ‘reasonably related to future criminality’ contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Id. at p. 1122.)

In re Travis J. (2013) 222 Cal.App.4th 187

No right to bail. (Aubrey v. Gadbois (1975) 50 Cal.App.3d 470, 473

No right to jury trial (In re Myresheia W. (1998) 61 Cal.App.4th 734, 741.)

Nonsecure or home detention is not custody. (In re Randy J. (1994) 22 Cal.App.4th 1497, 1506.)

Discovery is under Rules of Court rule 5.546

Criminal Discovery Act doesn't apply. (Robert S. v. Superior Court (1992) 9 Cal.App.4th 1417, 1422; In re Thomas F. (2003) 113 Cal.App.4th 1429, 1254.) But sort of (Clinton K. v. Superior Court (1995) 37 Cal.App.4th 1244, 1248.)

==Informal supervision==

Court can order informal supervision over objection of probation officer (Raymond B. v. Superior Court (1980) 102 Cal.App.2d 372, 378-378) and over objection of prosecutor (Charles S. v. Superior Court (1982) 32 Cal.3d 741).

Under WIC654.3, the following disqualify someone from informal supervision.

(a) A minor shall not be eligible for the program of supervision set forth in Section 654 or 654.2 in the following cases, except where the interests of justice would best be served and the court specifies on the record the reasons for its decision:

(1) A petition alleges that the minor has violated Section 245.5, 626.9, or 626.10 of the Penal Code.

(2) A petition alleges that the minor has violated Section 186.22 of the Penal Code.

(3) The minor has previously participated in a program of supervision pursuant to Section 654.

(4) The minor has previously been adjudged a ward of the court pursuant to Section 602.

(5) (A) A petition alleges that the minor has violated an offense in which the restitution owed to the victim exceeds five thousand dollars ($5,000). However, a minor’s inability to pay restitution due to the minor’s indigence shall not be grounds for finding a minor ineligible for the program of supervision or a finding that the minor has failed to comply with the terms of the program of supervision.

(B) For purposes of this paragraph, the definition of “victim” in paragraph (1) of subdivision (a) of Section 730.6 and “restitution” in subdivision (h) of Section 730.6 shall apply.

(b) A minor shall not be eligible for the program of supervision set forth in Section 654 or 654.2 in the case of a petition alleging that the minor has violated an offense listed in subdivision (b) of Section 707, except in unusual cases where the court determines the interests of justice would be best served and the court specified on the record the reason for its decision.

Once complete, it's sealed as under WIC786. (WIC654.2(a).)

Juvenile Delinquency

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Sysop: /* Informal supervision */

Juvenile Delinquency

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Sysop: /* Informal supervision */

A juvenile court may impose on a minor on probation “any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.” (Welf. & Inst. Code, § 730, subd. (b).) Generally, the conditions imposed on juveniles may be broader than criminal probation conditions. (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) In fact, “[a] juvenile court enjoys broad discretion to fashion conditions of probation for the purpose of rehabilitation and may even impose a
condition of probation that would be unconstitutional or otherwise improper so long as it is tailored to specifically meet the needs of the juvenile.” (In re Binh L. (1992) 5 Cal.App.4th 194, 203; In re Josh W. (1997) 55 Cal.App.4th 1, 5; In re Sheena K. (2007) 40 Cal.4th 875, 889; In re Michael D. (1989) 214 Cal.App.3d 1610, 1616.) In planning the conditions of a minor’s supervision, the juvenile court considers not only the circumstances of the crime, but also the minor’s entire social history. (In re Binh L., supra, 5 Cal.App.4th 192, 203.) However, probation conditions may be void for vagueness or for being overbroad. “An order must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated.” (People v. Reinerston (1986) 178 Cal.App.3d 320, 324- 325.)

In People v. Lent (1975) 15 Cal.3d 481, the California Supreme Court articulated the following test to determine whether a probation condition constitutes an abuse of discretion: “A condition of probation will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.’” (Id. at p. 486.) “This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.” (People v. Olguin (2008) 45 Cal.4th 375, 379.) “As such, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.” (Id. at pp. 379-380.)

The Lent test applies to juvenile probation conditions. (In re P.O. (2016) 246 Cal.App.4th 288, 294; In re D.G. (2010) 187 Cal.App.4th 47, 52.) In In re Ricardo P. (2019) 7 Cal.5th 1113, the California Supreme Court observed that “Lent’s requirement that a probation condition must be ‘reasonably related to future criminality’ contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Id. at p. 1122.)

In re Travis J. (2013) 222 Cal.App.4th 187

No right to bail. (Aubrey v. Gadbois (1975) 50 Cal.App.3d 470, 473

No right to jury trial (In re Myresheia W. (1998) 61 Cal.App.4th 734, 741.)

Nonsecure or home detention is not custody. (In re Randy J. (1994) 22 Cal.App.4th 1497, 1506.)

Discovery is under Rules of Court rule 5.546

Criminal Discovery Act doesn't apply. (Robert S. v. Superior Court (1992) 9 Cal.App.4th 1417, 1422; In re Thomas F. (2003) 113 Cal.App.4th 1429, 1254.) But sort of (Clinton K. v. Superior Court (1995) 37 Cal.App.4th 1244, 1248.)

==Informal supervision==

Court can order informal supervision over objection of probation officer (Raymond B. v. Superior Court (1980) 102 Cal.App.2d 372, 378-378) and over objection of prosecutor (Charles S. v. Superior Court (1982) 32 Cal.3d 741).

Under WIC654.3, the following disqualify someone from informal supervision.

(1) A petition alleges that the minor has violated Section 245.5, 626.9, or 626.10 of the Penal Code.

(2) A petition alleges that the minor has violated Section 186.22 of the Penal Code.

(3) The minor has previously participated in a program of supervision pursuant to Section 654.

(4) The minor has previously been adjudged a ward of the court pursuant to Section 602.

(5) (A) A petition alleges that the minor has violated an offense in which the restitution owed to the victim exceeds five thousand dollars ($5,000). However, a minor’s inability to pay restitution due to the minor’s indigence shall not be grounds for finding a minor ineligible for the program of supervision or a finding that the minor has failed to comply with the terms of the program of supervision.

(B) For purposes of this paragraph, the definition of “victim” in paragraph (1) of subdivision (a) of Section 730.6 and “restitution” in subdivision (h) of Section 730.6 shall apply.

(b) A minor shall not be eligible for the program of supervision set forth in Section 654 or 654.2 in the case of a petition alleging that the minor has violated an offense listed in subdivision (b) of Section 707, except in unusual cases where the court determines the interests of justice would be best served and the court specified on the record the reason for its decision.

Juvenile Delinquency

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Juvenile Delinquency

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Juvenile Delinquency

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Juvenile Delinquency

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Juvenile Delinquency

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Juvenile Delinquency

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Juvenile Delinquency

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Sysop: Created page with "In re Travis J. (2013) 222 Cal.App.4th 187"

In re Travis J. (2013) 222 Cal.App.4th 187

Strike

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Sysop: /* Crimes */

Trespass

2025-11-20T13:41:12Z

Sysop: /* Penal Code 602(o) */

Trespass is 2 Witkin, Cal. Crim. Law (5th ed. 2025) Crimes--Property §§ 309 to 328

41 A.L.R.4th 773 [trespass prosecution for unauthorized entry or occupation of business, industrial, or utility premises to stage public demonstration]

=Penal Code 602(i) destroying fence or leaving gate open=

(i) Willfully opening, tearing down, or otherwise destroying a fence on the enclosed land of another, or opening a gate, bar, or fence of another and willfully leaving it open without the written permission of the owner, or maliciously tearing down, mutilating, or destroying a sign, signboard, or other notice forbidding shooting on private property.

P.C. 602(i) (Opening gate): Opening a gate, bar, or fence and willfully leaving it open without written permission.

=Penal Code 602(k)=

Penal Code 602(k): (k) Entering lands, whether unenclosed or enclosed by fence, for the purpose of injuring property or property rights or with the intention of interfering with, obstructing, or injuring a lawful business or occupation carried on by the owner of the land, the owner’s agent, or the person in lawful possession.

P.C. 602(k) (Business interference): Entering lands for the purpose of injuring property or with the intention of interfering with, obstructing, or injuring a business or occupation. (See In re Wallace (1970) 3 C.3d 289, 295, 90 C.R. 176, 475 P.2d 208 [distributing leaflets at county fair to protest effect of automation on farm workers did not violate what is now P.C. 602(k); although defendants distributed literature near tomato harvester, members of public could freely inspect machine]; People v. Brown (1965) 236 C.A.2d Supp. 915, 919, 47 C.R. 662 [“lands” includes unimproved lands and urban land occupied by buildings]; In re Ball (1972) 23 C.A.3d 380, 386, 100 C.R. 189 [defendant was properly convicted of trespass where, after being denied permission to do so and not leaving on request, he set up table in amusement park parking lot to raise money and gather signatures for antipollution initiative and in so doing caused passenger tram to divert to another area; distinguishing Wallace]

CALCRIM 2930

The defendant is charged [in Count ] with trespassing [in violation of Penal Code section 602(k)].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully entered (land/ [or] a building) belonging to someone else;

2. When the defendant entered, (he/she) intended (to damage someone else's property [or property right]/ [or] to interfere with, obstruct, or damage a lawful business or occupation carried on by the (owner of the land[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the land));

AND

3. The defendant actually did (damage someone else's property [or property right]/ [or] interfere with, obstruct, or damage a lawful business or occupation carried on by the (owner of the land[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the land)).

Someone commits an act willfully when he or she does it willingly or on purpose.

[An agent is a person who is authorized to act for someone else in dealings with third parties.]

BENCH NOTES

The statute uses the term “injure.” (Pen. Code, § 602(k).) The committee has replaced the word “injure” with the word “damage” because the word “injure” generally refers to harm to a person rather than to property.

• Elements. Pen. Code, § 602(k).

• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].

• Actual Damage Required. In re Wallace (1970) 3 Cal.3d 289, 295 [90 Cal.Rptr. 176, 475 P.2d 208]; In re Ball (1972) 23 Cal.App.3d 380, 386 [100 Cal.Rptr. 189].

• “Land” Includes Building on the Land. People v. Brown (1965) 236 Cal.App.2d Supp. 915, 917–919 [47 Cal.Rptr. 662].

• Agent Defined. Civ. Code, § 2295.

''In re Wallace'' (1970) 3 Cal.3d 289, 295 [interpreting former 602(j), currently 602(k), about distribution of leaflets at county fair]; ''In re Ball'' (1972) 23 Cal.App.3d 380, 386 [interpreting former 602(j), currently 602(k), about signature-gathering at Disneyland.]

CALJIC 16.330

[Defendant is accused [in Count[s] ] of having violated section 602, subdivision (k) of the Penal Code, a misdemeanor.]

Every person who willfully enters upon any land, whether unenclosed or enclosed by fence, [with the specific intent to injure any property or property rights thereon] [or] [with the specific intent to interfere with, obstruct, or injure any lawful business or occupation being carried on [by the owner of the land or [his] [her] agent] [by the person in lawful possession of the land]] is guilty of a violation of Penal Code section 602, subdivision (k), a misdemeanor.

[“Land” includes improved or unimproved real property.]

In order to prove this crime, each of the following elements must be proved:

1. A person willfully entered land of another, whether unenclosed or enclosed by fence; and

2. The person did so with the specific intent [to injure any property or property rights thereon] [or] [to interfere with, obstruct, or injure any lawful business or occupation being carried on by the [owner of the land or [his] [her] agent] [or] [person in lawful possession of land]].

The 2003 Legislature renumbered subdivisions of Penal Code § 602, resulting in a change from subdivision (j) to (k). There was no other substantive change.

2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Property § 288.

Evidence of an actual interference or obstruction or injury is relevant to whether the defendant possessed the required specific intent. (In re Wallace, 3 Cal. 3d 289, 90 Cal. Rptr. 176, 475 P.2d 208 (1970); In re Ball, 23 Cal. App. 3d 380, 100 Cal. Rptr. 189 (4th Dist. 1972).)

“Land” includes improved or unimproved real property. (People v. Brown, 236 Cal. App.2d Supp. 915, 917, 47 Cal. Rptr. 662, 663 (1965).)

Penal Code § 602(j) is not unconstitutionally over broad or vague as it relates to willfully entering property with the intention of interfering with the lawful business carried on by the owner. (In re Ball, 23 Cal. App. 3d 380, 387, 100 Cal. Rptr. 189, 193 (4th Dist. 1972).)

=Penal Code 602(m)=

P.C. 602(m) (Entering and occupying): Entering and occupying real property or structures of any kind without consent of the owner or possessor. (See People v. Brown, supra, 236 C.A.2d Supp. at 920 [in civil cases consent to enter may be withdrawn, and person remaining on land may become trespasser, but criminal statute cannot have that effect without express provision; hence, when defendants entered bank open to public, they could not be convicted of violating statute for remaining after being asked to leave]; People v. Wilkinson (1967) 248 C.A.2d Supp. 906, 910, 56 C.R. 261 [legislative purpose was to prevent squatter occupancy; hence, statute applies to continuous type of possession not to transient overnight occupancy of land by campers]; People v. Harper (1969) 269 C.A.2d 221, 222, 74 C.R. 859 [criminal trespass is not offense included in burglary; trespass may be on vacant property and is nontransient, continuous possession whereas burglary is limited to specified structures and requires only entry with no intent to occupy]; In re Y.R. (2014) 226 C.A.4th 1114, 1118, 172 C.R.3d 554 [defendant's stay in condominium clubhouse bathroom for several hours was only transient use and did not constitute “occupying” bathroom within meaning of trespass statute]; CALCRIM, No. 2931 [Trespass: Unlawfully Occupying Property]; CALJIC, No. 16.340 [Entering and Occupying Real Property].)

CALCRIM 2931

The defendant is charged [in Count ] with trespassing [in violation of Penal Code section 602(m)].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully entered (land/ [or] a building) belonging to someone else without the consent of the (owner[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the property);

2. After the defendant entered, (he/she) occupied the (land/ [or] building) without the consent of the (owner[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the property);

3. The defendant occupied some part of the (land/ [or] building) continuously until removed.
Someone commits an act willfully when he or she does it willingly or on purpose.

[An agent is a person who is authorized to act for someone else in dealings with third parties.]

• Elements. Pen. Code, § 602(m).

• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].

• Entry Must Be Without Consent. People v. Brown (1965) 236 Cal.App.2d Supp. 915, 920–921 [47 Cal.Rptr. 662]; People v. Poe (1965) 236 Cal.App.2d Supp. 928, 932 [47 Cal.Rptr. 670], disapproved on other grounds in In re Hayes (1969) 70 Cal.2d 604, 614, fn. 2 [75 Cal.Rptr. 790, 451 P.2d 430].

• Occupy Defined. People v. Wilkinson (1967) 248 Cal.App.2d Supp. 906, 909–911 [56 Cal.Rptr. 261].

• “Land” Includes Building on the Land. People v. Brown (1965) 236 Cal.App.2d Supp. 915, 917–919 [47 Cal.Rptr. 662] [partially abrogated by statute].

• Agent Defined. Civ. Code, § 2295.

2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Property, §§ 287- 288.

CALJIC 16.340

[Defendant is accused [in Count[s] ] of having violated section 602, subdivision (m) of the Penal Code, a misdemeanor.]

Every person who willfully enters upon land or into buildings of any kind without the consent of [its owner, or [his] [her] agent] [the person in lawful possession thereof] and who occupies some portion or all thereof continuously or until ousted therefrom and with the specific intent to dispossess those lawfully entitled to possession of the property from that portion of the property occupied is guilty of a violation of Penal Code section 602, subdivision (m), a misdemeanor.

In order to prove this crime, each of the following elements must be proved:

1. A person willfully entered upon the land [or into buildings of any kind] of another person;

2. The person did so without the consent of the (owner, etc.);

3. That person occupied some portion, or all thereof, continuously or until ousted therefrom; and

4. That person entered and occupied the property with the specific intent to dispossess those lawfully entitled to possession from that portion of the property actually occupied.

USE NOTE

The 2003 Legislature amended Penal Code § 602, resulting in the renumbering of subdivision (l) to subdivision (m). There was no other substantive change.
COMMENT

2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Property § 288; People v. Brown, 236 Cal. App. 2d Supp. 915, 917, 47 Cal. Rptr. 662, 663 (1965); People v. Poe, 236 Cal. App. 2d Supp. 928, 931–932, 47 Cal. Rptr. 670, 670–672 (1965), adhered to 236 Cal. App. 2d Supp. 943, 47 Cal. Rptr. 679.
Occupancy intended must be permanent or until ousted. (People v. Wilkinson, 248 Cal. App. 2d Supp. 906, 910, 56 Cal. Rptr. 261, 263–264 (1967).)
Union activity which is authorized by the state labor law constitutes an exception to the criminal trespass statutes: In re Catalano, 29 Cal. 3d 1, 13, 171 Cal. Rptr. 667, 623 P.2d 228, 236 (1981); Penal Code § 602(n).

=Penal Code 602(n) Driving a vehicle=

P.C. 602(n) (Driving vehicle): Driving a vehicle on land not open to the general public without consent from the owner or lawful possessor. This provision does not apply to a registered process server if the process server immediately attempts service on exiting a vehicle and leaves immediately on completing the service or on request of the property's owner or lawful possessor.

=Penal Code 602(o)=

(Refusing to leave): Refusing or failing to leave land, real property, or structures not open to the general public, on request by the owner or lawful possessor or by a peace officer at the request of the owner or lawful possessor. This provision does not apply to persons engaged in lawful labor union activities. (See In re Catalano (1981) 29 C.3d 1, 13, 171 C.R. 667, 623 P.2d 228, infra, § 319 [union officials entering construction site to complete safety reports].)

Alternatively, a reasonable officer could conclude that Blankenhorn's conduct satisfied the elements under section 602(n). His return to The Block constituted a “[r]efus[al] or fail[ure] to leave” after being issued the Notice Forbidding Trespass. While a shopping center, under California law, is generally “open to the public,” the Notice Forbidding Trespass arguably rendered The Block “not open to the public” with respect to Blankenhorn. Cf. Picray v. Sealock, 138 F.3d 767, 772 (9th Cir.1998) (discussing a similar requirement in an Oregon trespassing statute and recognizing that “premises are not considered ‘open to the public’ with regard to a particular individual when that person previously has been barred from the property.”). And the Notice Forbidding Trespass issued to Blankenhorn could constitute at least part of a “request to leave” under section 602(n).

Section 602(n) requires a “separate request to the peace officer [by the owner] on each occasion when the peace officer's assistance in dealing with a trespass is requested” and the undisputed facts indicate Defendants gave The Block a chance to fulfill this requirement and that it was fulfilled. Nguyen declared that “I tried to explain to Blankenhorn that he was being stopped so that we could determine his identity and confirm with security whether or not he was allowed at the location.... Block security confirmed that Mr. Blankenhorn had previously been banned from the Block and that they wished to place him under arrest for trespassing.” Similarly, Gray indicated that they were determining “whether Block security wished to have [Blankenhorn] removed or take some other action” and that “security further confirmed that they wished to place Mr. Blankenhorn under arrest for trespassing. ... Block security then advised Mr. Blankenhorn that he was under arrest for trespassing.”

As it turns out, upon close parsing of the statutory language and California case law, it appears an actual conviction for trespass might have been difficult
without additional evidence. The California Penal Code does not define “injury to property” nor “interfer[ence] with” any lawful business as those terms are used in section 602(j). Rather, section 602(j) is to be interpreted “according to its general usage.” People v. Harris, 191 Cal.App.2d 754, 12 Cal.Rptr. 916, 919 n. 4 (1961). In a criminal context under California law, “[t]he word ‘interfere’ is a word of ‘well recognized, defined meaning.’ ... It imports to ‘disarrange,’ ‘disturb,’ or ‘hinder.’ ” People v. Agnello, 259 Cal.App.2d 785, 66 Cal.Rptr. 571, 574 (1968) (citations omitted). A fact-finder could certainly infer that Blankenhorn was at The Block deliberately and that he knew his presence was not welcome. But it might be more difficult to prove such a deliberate presence was intended to “injure property rights” or “interfere” with its business. Compare In re Ball, 23 Cal.App.3d 380, 100 Cal.Rptr. 189, 193 (1972) (concluding that the requisite intent under section 602(j) could be inferred from the defendant “deliberately entering [a Disneyland] parking lot and engaging in the conduct disclosed after having requested and been denied permission to do so and from his refusal to leave when asked to do so.”) (emphases added).9

Likewise, actually convicting under section 602(n) might have been difficult. It is undisputed that Blankenhorn was not asked to leave the premises on that night (i.e., other than the Notice Forbidding Trespass issued in February of 2001). Although the statute does require a “request to leave,” it does not specifically provide that the request must be contemporaneous. (The statute specifically requires a “separate request to the peace officer on each occasion when the peace officer's request in dealing with a trespass is required,” but the statute does not provide that a specific request is required “on each occasion” to the accused trespasser.) But a version of the statute has been interpreted to require “dual requests to leave, one from a peace officer, the other from the property possessor.” People v. Medrano, 78 Cal.App.3d 198, 144 Cal.Rptr. 217, 227 (1978), disapproved of on other grounds, Vista Verde Farms v. Agricultural Relations Bd., 29 Cal.3d 307, 172 Cal.Rptr. 720, 625 P.2d 263 (1981). In any event, Defendants appear to concede that Blankenhorn should have been asked to leave that night before he could be convicted under 602(n).

(Blankenhorn v. City of Orange (9th Cir. 2007) 485 F.3d 463

=Penal Code 602(q)=
P.C. 602(q) (Closed public building): Failing to leave a public building when closed or on request of the custodian, if the circumstances indicate that the defendant has no apparent lawful business there. (See In re Bacon (1966) 240 C.A.2d 34, 46, 49 C.R. 322 [protest assembly in university administration building]; Parrish v. Municipal Court (1968) 258 C.A.2d 497, 503, 65 C.R. 862 [test of what “circumstances indicate” is objective, i.e., how they appear to reasonable person, and is question for jury].)

=Penal Code 602(t)=
P.C. 602(t) (Violent felon): Entering on or refusing to leave private property, by a person who has been convicted of a violent felony as specified in P.C. 667.5(c) (see 3 Cal. Crim. Law (5th), Punishment, § 463) on the particular property, and who has been informed of the request by a peace officer acting at the request of the owner or the lawful possessor. (P.C. 602(t)(1).) A single notification or request is valid until rescinded. (P.C. 602(t)(3).) The statute is applicable only to a person who has been convicted of a crime committed on the particular private property. (P.C. 602(t)(2).) In addition, where the defendant has been convicted of a violent felony as specified in P.C. 667.5, the provisions of P.C. 602(t) apply without time limitation. However, if the defendant has been convicted of “any other felony,” the provisions apply for only 5 years from the date of conviction. If the conviction was for a misdemeanor, the provisions apply for only 2 years from conviction. If the conviction is for an infraction under P.C. 490.1 (petty theft where value is under $50), the provisions apply for only 1 year from conviction. The provisions do not apply to convictions for any other infraction. (P.C. 602(t)(4).)

=Penal Code 602.1 Commercial business or public agency=
P.C. 602.1 generally prohibits intentional interference with the lawful business carried on by a business establishment or public agency that is open to the public. Hence, it is a misdemeanor to (a) obstruct or intimidate those attempting to transact business with either entity, and (b) refuse to leave the premises after being asked to do so by the owner of the business establishment, or the office manager or supervisor of the public agency, or by a peace officer acting at the request of either the owner or manager or supervisor. A violation is punishable by imprisonment in a county jail for up to 90 days, or a fine of up to $400, or both. (P.C. 602.1(a) and (b).) It is an infraction, punishable by a maximum fine of $400, to intentionally interfere with the lawful business carried on by employees of a public agency by knowingly making a material misrepresentation of the law to those there to transact business, and refusing to leave the premises on the request of an office manager, supervisor, or peace officer. (P.C. 602.1(c).) P.C. 602.1 does not apply to persons engaging in lawful labor union or constitutionally protected activities. (P.C. 602.1(d).) (See People v. Turner (2017) 13 C.A.5th 397, 406, 220 C.R.3d 449 [probable cause existed to arrest defendant for interference with lawful business; manager repeatedly asked defendant to leave restaurant, interrupting her duties to call police and fill out paperwork, and police had been contacted on several other occasions when defendant had refused to leave].)

=Penal Code 602.5 Trespassing at residence=

(1) In General. Entering or remaining in a noncommercial dwelling house, apartment, or similar place without consent of the owner or lawful possessor, except in the course and scope of public employment in performance of a legal duty, is a misdemeanor. (P.C. 602.5(a).) (See CALCRIM, No. 2932 [Trespass: Entry Into Dwelling]; CALJIC, No. 16.350 [Unauthorized Entry of Property].)

(2) Aggravated Trespass. A person, other than a public officer or employee performing a legal duty, who enters or remains in a noncommercial dwelling without consent of the owner or lawful possessor is guilty of aggravated trespass if a resident or authorized occupant is present during the incident. Punishment is by imprisonment in a county jail for up to 1 year, or by a fine of up to $1,000, or both. (P.C. 602.5(b).) In addition, the court may impose 3 years of supervised probation that includes participation in specified counseling (P.C. 602.5(c)) and may issue an order restraining the defendant from contact with the victim for up to 3 years (P.C. 602.5(d)). In determining the length of a restraining order, the court must consider the seriousness of the facts, the probability of future violations, and the safety of the victim and the victim's immediate family. (P.C. 602.5(d).) P.C. 602.5 does not preclude a prosecution for burglary or other violations. (P.C. 602.5(e).) (See CALCRIM, No. 2933 [Trespass: Person Present].)

Penal Code 603. Every person other than a peace officer engaged in the performance of his duties as such who forcibly and without the consent of the owner, representative of the owner, lessee or representative of the lessee thereof, enters a dwelling house, cabin, or other building occupied or constructed for occupation by humans, and who damages, injures or destroys any property of value in, around or appertaining to such dwelling house, cabin or other building, is guilty of a misdemeanor.

=Penal Code 602.8=
(6) Trespass on Cultivated, Fenced, or Posted Land. It is a public offense to willfully enter, without written permission, land that is under cultivation or fenced off, or where specifically placed signs forbid trespass. (P.C. 602.8(a).) Punishment is as follows: (a) A first offense is an infraction punishable by a fine of $75; (b) a second offense on the same land or contiguous land of the same owner is an infraction punishable by a fine of $250; (c) subsequent offenses are considered misdemeanors. (P.C. 602.8(b).) The provisions of P.C. 602.8 do not apply to (a) licensed surveyors lawfully performing their duties, (b) persons exercising constitutionally protected activity, (c) the lawful service of process, or (d) persons engaged in lawful union activities. (P.C. 602.8(c).)

=Penal Code 602.9=
(7) Unlawful Possession of Residence. A person who claims ownership or claims or takes possession of a residential dwelling to rent it to another, or who causes another person to enter or remain in the dwelling to rent it to another, without the consent of the owner, or the owner's agent, is guilty of a misdemeanor. The punishment is a county jail term of not more than 1 year, a fine of not more than $2,500, or both. Each violation is a separate offense. (P.C. 602.9(a), (b).) These provisions do not apply to a person having a lawful occupancy interest in the dwelling. (P.C. 602.9(c).) Nothing in P.C. 602.9 precludes prosecution under any other applicable law. (P.C. 602.9(d).) (See P.C. 602.9(e) [legislative finding and intent that P.C. 602.9 has never precluded prosecution for grand theft or fraud].)

=Penal Code 634 Trespass to invade privacy=
Trespass To Invade Privacy. Trespassing to invade privacy is punishable by a fine, imprisonment, or both. (P.C. 634, 2 Cal. Crim. Law (5th), Crimes Against Public Peace and Welfare, § 604.)

=Fish and Game Code 2016=
Hunting on Private Lands. (See Fish & Game C. 2016 [unlawful to take mammal or bird from, or discharge firearm on, land owned or occupied by another that is either under cultivation or enclosed by fence or posted with signs forbidding trespass or hunting]; Fish & Game C. 2018 [prohibiting unauthorized posting and malicious mutilation or destruction of posted notices].)

Trespass

2025-11-20T13:40:56Z

Sysop: /* Penal Code 602(o) */

Trespass is 2 Witkin, Cal. Crim. Law (5th ed. 2025) Crimes--Property §§ 309 to 328

41 A.L.R.4th 773 [trespass prosecution for unauthorized entry or occupation of business, industrial, or utility premises to stage public demonstration]

=Penal Code 602(i) destroying fence or leaving gate open=

(i) Willfully opening, tearing down, or otherwise destroying a fence on the enclosed land of another, or opening a gate, bar, or fence of another and willfully leaving it open without the written permission of the owner, or maliciously tearing down, mutilating, or destroying a sign, signboard, or other notice forbidding shooting on private property.

P.C. 602(i) (Opening gate): Opening a gate, bar, or fence and willfully leaving it open without written permission.

=Penal Code 602(k)=

Penal Code 602(k): (k) Entering lands, whether unenclosed or enclosed by fence, for the purpose of injuring property or property rights or with the intention of interfering with, obstructing, or injuring a lawful business or occupation carried on by the owner of the land, the owner’s agent, or the person in lawful possession.

P.C. 602(k) (Business interference): Entering lands for the purpose of injuring property or with the intention of interfering with, obstructing, or injuring a business or occupation. (See In re Wallace (1970) 3 C.3d 289, 295, 90 C.R. 176, 475 P.2d 208 [distributing leaflets at county fair to protest effect of automation on farm workers did not violate what is now P.C. 602(k); although defendants distributed literature near tomato harvester, members of public could freely inspect machine]; People v. Brown (1965) 236 C.A.2d Supp. 915, 919, 47 C.R. 662 [“lands” includes unimproved lands and urban land occupied by buildings]; In re Ball (1972) 23 C.A.3d 380, 386, 100 C.R. 189 [defendant was properly convicted of trespass where, after being denied permission to do so and not leaving on request, he set up table in amusement park parking lot to raise money and gather signatures for antipollution initiative and in so doing caused passenger tram to divert to another area; distinguishing Wallace]

CALCRIM 2930

The defendant is charged [in Count ] with trespassing [in violation of Penal Code section 602(k)].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully entered (land/ [or] a building) belonging to someone else;

2. When the defendant entered, (he/she) intended (to damage someone else's property [or property right]/ [or] to interfere with, obstruct, or damage a lawful business or occupation carried on by the (owner of the land[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the land));

AND

3. The defendant actually did (damage someone else's property [or property right]/ [or] interfere with, obstruct, or damage a lawful business or occupation carried on by the (owner of the land[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the land)).

Someone commits an act willfully when he or she does it willingly or on purpose.

[An agent is a person who is authorized to act for someone else in dealings with third parties.]

BENCH NOTES

The statute uses the term “injure.” (Pen. Code, § 602(k).) The committee has replaced the word “injure” with the word “damage” because the word “injure” generally refers to harm to a person rather than to property.

• Elements. Pen. Code, § 602(k).

• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].

• Actual Damage Required. In re Wallace (1970) 3 Cal.3d 289, 295 [90 Cal.Rptr. 176, 475 P.2d 208]; In re Ball (1972) 23 Cal.App.3d 380, 386 [100 Cal.Rptr. 189].

• “Land” Includes Building on the Land. People v. Brown (1965) 236 Cal.App.2d Supp. 915, 917–919 [47 Cal.Rptr. 662].

• Agent Defined. Civ. Code, § 2295.

''In re Wallace'' (1970) 3 Cal.3d 289, 295 [interpreting former 602(j), currently 602(k), about distribution of leaflets at county fair]; ''In re Ball'' (1972) 23 Cal.App.3d 380, 386 [interpreting former 602(j), currently 602(k), about signature-gathering at Disneyland.]

CALJIC 16.330

[Defendant is accused [in Count[s] ] of having violated section 602, subdivision (k) of the Penal Code, a misdemeanor.]

Every person who willfully enters upon any land, whether unenclosed or enclosed by fence, [with the specific intent to injure any property or property rights thereon] [or] [with the specific intent to interfere with, obstruct, or injure any lawful business or occupation being carried on [by the owner of the land or [his] [her] agent] [by the person in lawful possession of the land]] is guilty of a violation of Penal Code section 602, subdivision (k), a misdemeanor.

[“Land” includes improved or unimproved real property.]

In order to prove this crime, each of the following elements must be proved:

1. A person willfully entered land of another, whether unenclosed or enclosed by fence; and

2. The person did so with the specific intent [to injure any property or property rights thereon] [or] [to interfere with, obstruct, or injure any lawful business or occupation being carried on by the [owner of the land or [his] [her] agent] [or] [person in lawful possession of land]].

The 2003 Legislature renumbered subdivisions of Penal Code § 602, resulting in a change from subdivision (j) to (k). There was no other substantive change.

2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Property § 288.

Evidence of an actual interference or obstruction or injury is relevant to whether the defendant possessed the required specific intent. (In re Wallace, 3 Cal. 3d 289, 90 Cal. Rptr. 176, 475 P.2d 208 (1970); In re Ball, 23 Cal. App. 3d 380, 100 Cal. Rptr. 189 (4th Dist. 1972).)

“Land” includes improved or unimproved real property. (People v. Brown, 236 Cal. App.2d Supp. 915, 917, 47 Cal. Rptr. 662, 663 (1965).)

Penal Code § 602(j) is not unconstitutionally over broad or vague as it relates to willfully entering property with the intention of interfering with the lawful business carried on by the owner. (In re Ball, 23 Cal. App. 3d 380, 387, 100 Cal. Rptr. 189, 193 (4th Dist. 1972).)

=Penal Code 602(m)=

P.C. 602(m) (Entering and occupying): Entering and occupying real property or structures of any kind without consent of the owner or possessor. (See People v. Brown, supra, 236 C.A.2d Supp. at 920 [in civil cases consent to enter may be withdrawn, and person remaining on land may become trespasser, but criminal statute cannot have that effect without express provision; hence, when defendants entered bank open to public, they could not be convicted of violating statute for remaining after being asked to leave]; People v. Wilkinson (1967) 248 C.A.2d Supp. 906, 910, 56 C.R. 261 [legislative purpose was to prevent squatter occupancy; hence, statute applies to continuous type of possession not to transient overnight occupancy of land by campers]; People v. Harper (1969) 269 C.A.2d 221, 222, 74 C.R. 859 [criminal trespass is not offense included in burglary; trespass may be on vacant property and is nontransient, continuous possession whereas burglary is limited to specified structures and requires only entry with no intent to occupy]; In re Y.R. (2014) 226 C.A.4th 1114, 1118, 172 C.R.3d 554 [defendant's stay in condominium clubhouse bathroom for several hours was only transient use and did not constitute “occupying” bathroom within meaning of trespass statute]; CALCRIM, No. 2931 [Trespass: Unlawfully Occupying Property]; CALJIC, No. 16.340 [Entering and Occupying Real Property].)

CALCRIM 2931

The defendant is charged [in Count ] with trespassing [in violation of Penal Code section 602(m)].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully entered (land/ [or] a building) belonging to someone else without the consent of the (owner[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the property);

2. After the defendant entered, (he/she) occupied the (land/ [or] building) without the consent of the (owner[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the property);

3. The defendant occupied some part of the (land/ [or] building) continuously until removed.
Someone commits an act willfully when he or she does it willingly or on purpose.

[An agent is a person who is authorized to act for someone else in dealings with third parties.]

• Elements. Pen. Code, § 602(m).

• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].

• Entry Must Be Without Consent. People v. Brown (1965) 236 Cal.App.2d Supp. 915, 920–921 [47 Cal.Rptr. 662]; People v. Poe (1965) 236 Cal.App.2d Supp. 928, 932 [47 Cal.Rptr. 670], disapproved on other grounds in In re Hayes (1969) 70 Cal.2d 604, 614, fn. 2 [75 Cal.Rptr. 790, 451 P.2d 430].

• Occupy Defined. People v. Wilkinson (1967) 248 Cal.App.2d Supp. 906, 909–911 [56 Cal.Rptr. 261].

• “Land” Includes Building on the Land. People v. Brown (1965) 236 Cal.App.2d Supp. 915, 917–919 [47 Cal.Rptr. 662] [partially abrogated by statute].

• Agent Defined. Civ. Code, § 2295.

2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Property, §§ 287- 288.

CALJIC 16.340

[Defendant is accused [in Count[s] ] of having violated section 602, subdivision (m) of the Penal Code, a misdemeanor.]

Every person who willfully enters upon land or into buildings of any kind without the consent of [its owner, or [his] [her] agent] [the person in lawful possession thereof] and who occupies some portion or all thereof continuously or until ousted therefrom and with the specific intent to dispossess those lawfully entitled to possession of the property from that portion of the property occupied is guilty of a violation of Penal Code section 602, subdivision (m), a misdemeanor.

In order to prove this crime, each of the following elements must be proved:

1. A person willfully entered upon the land [or into buildings of any kind] of another person;

2. The person did so without the consent of the (owner, etc.);

3. That person occupied some portion, or all thereof, continuously or until ousted therefrom; and

4. That person entered and occupied the property with the specific intent to dispossess those lawfully entitled to possession from that portion of the property actually occupied.

USE NOTE

The 2003 Legislature amended Penal Code § 602, resulting in the renumbering of subdivision (l) to subdivision (m). There was no other substantive change.
COMMENT

2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Property § 288; People v. Brown, 236 Cal. App. 2d Supp. 915, 917, 47 Cal. Rptr. 662, 663 (1965); People v. Poe, 236 Cal. App. 2d Supp. 928, 931–932, 47 Cal. Rptr. 670, 670–672 (1965), adhered to 236 Cal. App. 2d Supp. 943, 47 Cal. Rptr. 679.
Occupancy intended must be permanent or until ousted. (People v. Wilkinson, 248 Cal. App. 2d Supp. 906, 910, 56 Cal. Rptr. 261, 263–264 (1967).)
Union activity which is authorized by the state labor law constitutes an exception to the criminal trespass statutes: In re Catalano, 29 Cal. 3d 1, 13, 171 Cal. Rptr. 667, 623 P.2d 228, 236 (1981); Penal Code § 602(n).

=Penal Code 602(n) Driving a vehicle=

P.C. 602(n) (Driving vehicle): Driving a vehicle on land not open to the general public without consent from the owner or lawful possessor. This provision does not apply to a registered process server if the process server immediately attempts service on exiting a vehicle and leaves immediately on completing the service or on request of the property's owner or lawful possessor.

=Penal Code 602(o)=

(Refusing to leave): Refusing or failing to leave land, real property, or structures not open to the general public, on request by the owner or lawful possessor or by a peace officer at the request of the owner or lawful possessor. This provision does not apply to persons engaged in lawful labor union activities. (See In re Catalano (1981) 29 C.3d 1, 13, 171 C.R. 667, 623 P.2d 228, infra, § 319 [union officials entering construction site to complete safety reports].)

Alternatively, a reasonable officer could conclude that Blankenhorn's conduct satisfied the elements under section 602(n). His return to The Block constituted a “[r]efus[al] or fail[ure] to leave” after being issued the Notice Forbidding Trespass. While a shopping center, under California law, is generally “open to the public,” the Notice Forbidding Trespass arguably rendered The Block “not open to the public” with respect to Blankenhorn. Cf. Picray v. Sealock, 138 F.3d 767, 772 (9th Cir.1998) (discussing a similar requirement in an Oregon trespassing statute and recognizing that “premises are not considered ‘open to the public’ with regard to a particular individual when that person previously has been barred from the property.”). And the Notice Forbidding Trespass issued to Blankenhorn could constitute at least part of a “request to leave” under section 602(n).

Section 602(n) requires a “separate request to the peace officer [by the owner] on each occasion when the peace officer's assistance in dealing with a trespass is requested” and the undisputed facts indicate Defendants gave The Block a chance to fulfill this requirement and that it was fulfilled. Nguyen declared that “I tried to explain to Blankenhorn that he was being stopped so that we could determine his identity and confirm with security whether or not he was allowed at the location.... Block security confirmed that Mr. Blankenhorn had previously been banned from the Block and that they wished to place him under arrest for trespassing.” Similarly, Gray indicated that they were determining “whether Block security wished to have [Blankenhorn] removed or take some other action” and that “security further confirmed that they wished to place Mr. Blankenhorn under arrest for trespassing. ... Block security then advised Mr. Blankenhorn that he was under arrest for trespassing.”

As it turns out, upon close parsing of the statutory language and California case law, it appears an actual conviction for trespass might have been difficult
without additional evidence. The California Penal Code does not define “injury to property” nor “interfer[ence] with” any lawful business as those terms are used in section 602(j). Rather, section 602(j) is to be interpreted “according to its general usage.” People v. Harris, 191 Cal.App.2d 754, 12 Cal.Rptr. 916, 919 n. 4 (1961). In a criminal context under California law, “[t]he word ‘interfere’ is a word of ‘well recognized, defined meaning.’ ... It imports to ‘disarrange,’ ‘disturb,’ or ‘hinder.’ ” People v. Agnello, 259 Cal.App.2d 785, 66 Cal.Rptr. 571, 574 (1968) (citations omitted). A fact-finder could certainly infer that Blankenhorn was at The Block deliberately and that he knew his presence was not welcome. But it might be more difficult to prove such a deliberate presence was intended to “injure property rights” or “interfere” with its business. Compare In re Ball, 23 Cal.App.3d 380, 100 Cal.Rptr. 189, 193 (1972) (concluding that the requisite intent under section 602(j) could be inferred from the defendant “deliberately entering [a Disneyland] parking lot and engaging in the conduct disclosed after having requested and been denied permission to do so and from his refusal to leave when asked to do so.”) (emphases added).9

Likewise, actually convicting under section 602(n) might have been difficult. It is undisputed that Blankenhorn was not asked to leave the premises on that night (i.e., other than the Notice Forbidding Trespass issued in February of 2001). Although the statute does require a “request to leave,” it does not specifically provide that the request must be contemporaneous. (The statute specifically requires a “separate request to the peace officer on each occasion when the peace officer's request in dealing with a trespass is required,” but the statute does not provide that a specific request is required “on each occasion” to the accused trespasser.) But a version of the statute has been interpreted to require “dual requests to leave, one from a peace officer, the other from the property possessor.” People v. Medrano, 78 Cal.App.3d 198, 144 Cal.Rptr. 217, 227 (1978), disapproved of on other grounds, Vista Verde Farms v. Agricultural Relations Bd., 29 Cal.3d 307, 172 Cal.Rptr. 720, 625 P.2d 263 (1981). In any event, Defendants appear to concede that Blankenhorn should have been asked to leave that night before he could be convicted under 602(n).

(Blankenhorn v. City of Orange (2007) 485 F.3d 463

=Penal Code 602(q)=
P.C. 602(q) (Closed public building): Failing to leave a public building when closed or on request of the custodian, if the circumstances indicate that the defendant has no apparent lawful business there. (See In re Bacon (1966) 240 C.A.2d 34, 46, 49 C.R. 322 [protest assembly in university administration building]; Parrish v. Municipal Court (1968) 258 C.A.2d 497, 503, 65 C.R. 862 [test of what “circumstances indicate” is objective, i.e., how they appear to reasonable person, and is question for jury].)

=Penal Code 602(t)=
P.C. 602(t) (Violent felon): Entering on or refusing to leave private property, by a person who has been convicted of a violent felony as specified in P.C. 667.5(c) (see 3 Cal. Crim. Law (5th), Punishment, § 463) on the particular property, and who has been informed of the request by a peace officer acting at the request of the owner or the lawful possessor. (P.C. 602(t)(1).) A single notification or request is valid until rescinded. (P.C. 602(t)(3).) The statute is applicable only to a person who has been convicted of a crime committed on the particular private property. (P.C. 602(t)(2).) In addition, where the defendant has been convicted of a violent felony as specified in P.C. 667.5, the provisions of P.C. 602(t) apply without time limitation. However, if the defendant has been convicted of “any other felony,” the provisions apply for only 5 years from the date of conviction. If the conviction was for a misdemeanor, the provisions apply for only 2 years from conviction. If the conviction is for an infraction under P.C. 490.1 (petty theft where value is under $50), the provisions apply for only 1 year from conviction. The provisions do not apply to convictions for any other infraction. (P.C. 602(t)(4).)

=Penal Code 602.1 Commercial business or public agency=
P.C. 602.1 generally prohibits intentional interference with the lawful business carried on by a business establishment or public agency that is open to the public. Hence, it is a misdemeanor to (a) obstruct or intimidate those attempting to transact business with either entity, and (b) refuse to leave the premises after being asked to do so by the owner of the business establishment, or the office manager or supervisor of the public agency, or by a peace officer acting at the request of either the owner or manager or supervisor. A violation is punishable by imprisonment in a county jail for up to 90 days, or a fine of up to $400, or both. (P.C. 602.1(a) and (b).) It is an infraction, punishable by a maximum fine of $400, to intentionally interfere with the lawful business carried on by employees of a public agency by knowingly making a material misrepresentation of the law to those there to transact business, and refusing to leave the premises on the request of an office manager, supervisor, or peace officer. (P.C. 602.1(c).) P.C. 602.1 does not apply to persons engaging in lawful labor union or constitutionally protected activities. (P.C. 602.1(d).) (See People v. Turner (2017) 13 C.A.5th 397, 406, 220 C.R.3d 449 [probable cause existed to arrest defendant for interference with lawful business; manager repeatedly asked defendant to leave restaurant, interrupting her duties to call police and fill out paperwork, and police had been contacted on several other occasions when defendant had refused to leave].)

=Penal Code 602.5 Trespassing at residence=

(1) In General. Entering or remaining in a noncommercial dwelling house, apartment, or similar place without consent of the owner or lawful possessor, except in the course and scope of public employment in performance of a legal duty, is a misdemeanor. (P.C. 602.5(a).) (See CALCRIM, No. 2932 [Trespass: Entry Into Dwelling]; CALJIC, No. 16.350 [Unauthorized Entry of Property].)

(2) Aggravated Trespass. A person, other than a public officer or employee performing a legal duty, who enters or remains in a noncommercial dwelling without consent of the owner or lawful possessor is guilty of aggravated trespass if a resident or authorized occupant is present during the incident. Punishment is by imprisonment in a county jail for up to 1 year, or by a fine of up to $1,000, or both. (P.C. 602.5(b).) In addition, the court may impose 3 years of supervised probation that includes participation in specified counseling (P.C. 602.5(c)) and may issue an order restraining the defendant from contact with the victim for up to 3 years (P.C. 602.5(d)). In determining the length of a restraining order, the court must consider the seriousness of the facts, the probability of future violations, and the safety of the victim and the victim's immediate family. (P.C. 602.5(d).) P.C. 602.5 does not preclude a prosecution for burglary or other violations. (P.C. 602.5(e).) (See CALCRIM, No. 2933 [Trespass: Person Present].)

Penal Code 603. Every person other than a peace officer engaged in the performance of his duties as such who forcibly and without the consent of the owner, representative of the owner, lessee or representative of the lessee thereof, enters a dwelling house, cabin, or other building occupied or constructed for occupation by humans, and who damages, injures or destroys any property of value in, around or appertaining to such dwelling house, cabin or other building, is guilty of a misdemeanor.

=Penal Code 602.8=
(6) Trespass on Cultivated, Fenced, or Posted Land. It is a public offense to willfully enter, without written permission, land that is under cultivation or fenced off, or where specifically placed signs forbid trespass. (P.C. 602.8(a).) Punishment is as follows: (a) A first offense is an infraction punishable by a fine of $75; (b) a second offense on the same land or contiguous land of the same owner is an infraction punishable by a fine of $250; (c) subsequent offenses are considered misdemeanors. (P.C. 602.8(b).) The provisions of P.C. 602.8 do not apply to (a) licensed surveyors lawfully performing their duties, (b) persons exercising constitutionally protected activity, (c) the lawful service of process, or (d) persons engaged in lawful union activities. (P.C. 602.8(c).)

=Penal Code 602.9=
(7) Unlawful Possession of Residence. A person who claims ownership or claims or takes possession of a residential dwelling to rent it to another, or who causes another person to enter or remain in the dwelling to rent it to another, without the consent of the owner, or the owner's agent, is guilty of a misdemeanor. The punishment is a county jail term of not more than 1 year, a fine of not more than $2,500, or both. Each violation is a separate offense. (P.C. 602.9(a), (b).) These provisions do not apply to a person having a lawful occupancy interest in the dwelling. (P.C. 602.9(c).) Nothing in P.C. 602.9 precludes prosecution under any other applicable law. (P.C. 602.9(d).) (See P.C. 602.9(e) [legislative finding and intent that P.C. 602.9 has never precluded prosecution for grand theft or fraud].)

=Penal Code 634 Trespass to invade privacy=
Trespass To Invade Privacy. Trespassing to invade privacy is punishable by a fine, imprisonment, or both. (P.C. 634, 2 Cal. Crim. Law (5th), Crimes Against Public Peace and Welfare, § 604.)

=Fish and Game Code 2016=
Hunting on Private Lands. (See Fish & Game C. 2016 [unlawful to take mammal or bird from, or discharge firearm on, land owned or occupied by another that is either under cultivation or enclosed by fence or posted with signs forbidding trespass or hunting]; Fish & Game C. 2018 [prohibiting unauthorized posting and malicious mutilation or destruction of posted notices].)

Trespass

2025-11-20T13:40:24Z

Sysop: /* Penal Code 602(o) */

Trespass is 2 Witkin, Cal. Crim. Law (5th ed. 2025) Crimes--Property §§ 309 to 328

41 A.L.R.4th 773 [trespass prosecution for unauthorized entry or occupation of business, industrial, or utility premises to stage public demonstration]

=Penal Code 602(i) destroying fence or leaving gate open=

(i) Willfully opening, tearing down, or otherwise destroying a fence on the enclosed land of another, or opening a gate, bar, or fence of another and willfully leaving it open without the written permission of the owner, or maliciously tearing down, mutilating, or destroying a sign, signboard, or other notice forbidding shooting on private property.

P.C. 602(i) (Opening gate): Opening a gate, bar, or fence and willfully leaving it open without written permission.

=Penal Code 602(k)=

Penal Code 602(k): (k) Entering lands, whether unenclosed or enclosed by fence, for the purpose of injuring property or property rights or with the intention of interfering with, obstructing, or injuring a lawful business or occupation carried on by the owner of the land, the owner’s agent, or the person in lawful possession.

P.C. 602(k) (Business interference): Entering lands for the purpose of injuring property or with the intention of interfering with, obstructing, or injuring a business or occupation. (See In re Wallace (1970) 3 C.3d 289, 295, 90 C.R. 176, 475 P.2d 208 [distributing leaflets at county fair to protest effect of automation on farm workers did not violate what is now P.C. 602(k); although defendants distributed literature near tomato harvester, members of public could freely inspect machine]; People v. Brown (1965) 236 C.A.2d Supp. 915, 919, 47 C.R. 662 [“lands” includes unimproved lands and urban land occupied by buildings]; In re Ball (1972) 23 C.A.3d 380, 386, 100 C.R. 189 [defendant was properly convicted of trespass where, after being denied permission to do so and not leaving on request, he set up table in amusement park parking lot to raise money and gather signatures for antipollution initiative and in so doing caused passenger tram to divert to another area; distinguishing Wallace]

CALCRIM 2930

The defendant is charged [in Count ] with trespassing [in violation of Penal Code section 602(k)].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully entered (land/ [or] a building) belonging to someone else;

2. When the defendant entered, (he/she) intended (to damage someone else's property [or property right]/ [or] to interfere with, obstruct, or damage a lawful business or occupation carried on by the (owner of the land[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the land));

AND

3. The defendant actually did (damage someone else's property [or property right]/ [or] interfere with, obstruct, or damage a lawful business or occupation carried on by the (owner of the land[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the land)).

Someone commits an act willfully when he or she does it willingly or on purpose.

[An agent is a person who is authorized to act for someone else in dealings with third parties.]

BENCH NOTES

The statute uses the term “injure.” (Pen. Code, § 602(k).) The committee has replaced the word “injure” with the word “damage” because the word “injure” generally refers to harm to a person rather than to property.

• Elements. Pen. Code, § 602(k).

• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].

• Actual Damage Required. In re Wallace (1970) 3 Cal.3d 289, 295 [90 Cal.Rptr. 176, 475 P.2d 208]; In re Ball (1972) 23 Cal.App.3d 380, 386 [100 Cal.Rptr. 189].

• “Land” Includes Building on the Land. People v. Brown (1965) 236 Cal.App.2d Supp. 915, 917–919 [47 Cal.Rptr. 662].

• Agent Defined. Civ. Code, § 2295.

''In re Wallace'' (1970) 3 Cal.3d 289, 295 [interpreting former 602(j), currently 602(k), about distribution of leaflets at county fair]; ''In re Ball'' (1972) 23 Cal.App.3d 380, 386 [interpreting former 602(j), currently 602(k), about signature-gathering at Disneyland.]

CALJIC 16.330

[Defendant is accused [in Count[s] ] of having violated section 602, subdivision (k) of the Penal Code, a misdemeanor.]

Every person who willfully enters upon any land, whether unenclosed or enclosed by fence, [with the specific intent to injure any property or property rights thereon] [or] [with the specific intent to interfere with, obstruct, or injure any lawful business or occupation being carried on [by the owner of the land or [his] [her] agent] [by the person in lawful possession of the land]] is guilty of a violation of Penal Code section 602, subdivision (k), a misdemeanor.

[“Land” includes improved or unimproved real property.]

In order to prove this crime, each of the following elements must be proved:

1. A person willfully entered land of another, whether unenclosed or enclosed by fence; and

2. The person did so with the specific intent [to injure any property or property rights thereon] [or] [to interfere with, obstruct, or injure any lawful business or occupation being carried on by the [owner of the land or [his] [her] agent] [or] [person in lawful possession of land]].

The 2003 Legislature renumbered subdivisions of Penal Code § 602, resulting in a change from subdivision (j) to (k). There was no other substantive change.

2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Property § 288.

Evidence of an actual interference or obstruction or injury is relevant to whether the defendant possessed the required specific intent. (In re Wallace, 3 Cal. 3d 289, 90 Cal. Rptr. 176, 475 P.2d 208 (1970); In re Ball, 23 Cal. App. 3d 380, 100 Cal. Rptr. 189 (4th Dist. 1972).)

“Land” includes improved or unimproved real property. (People v. Brown, 236 Cal. App.2d Supp. 915, 917, 47 Cal. Rptr. 662, 663 (1965).)

Penal Code § 602(j) is not unconstitutionally over broad or vague as it relates to willfully entering property with the intention of interfering with the lawful business carried on by the owner. (In re Ball, 23 Cal. App. 3d 380, 387, 100 Cal. Rptr. 189, 193 (4th Dist. 1972).)

=Penal Code 602(m)=

P.C. 602(m) (Entering and occupying): Entering and occupying real property or structures of any kind without consent of the owner or possessor. (See People v. Brown, supra, 236 C.A.2d Supp. at 920 [in civil cases consent to enter may be withdrawn, and person remaining on land may become trespasser, but criminal statute cannot have that effect without express provision; hence, when defendants entered bank open to public, they could not be convicted of violating statute for remaining after being asked to leave]; People v. Wilkinson (1967) 248 C.A.2d Supp. 906, 910, 56 C.R. 261 [legislative purpose was to prevent squatter occupancy; hence, statute applies to continuous type of possession not to transient overnight occupancy of land by campers]; People v. Harper (1969) 269 C.A.2d 221, 222, 74 C.R. 859 [criminal trespass is not offense included in burglary; trespass may be on vacant property and is nontransient, continuous possession whereas burglary is limited to specified structures and requires only entry with no intent to occupy]; In re Y.R. (2014) 226 C.A.4th 1114, 1118, 172 C.R.3d 554 [defendant's stay in condominium clubhouse bathroom for several hours was only transient use and did not constitute “occupying” bathroom within meaning of trespass statute]; CALCRIM, No. 2931 [Trespass: Unlawfully Occupying Property]; CALJIC, No. 16.340 [Entering and Occupying Real Property].)

CALCRIM 2931

The defendant is charged [in Count ] with trespassing [in violation of Penal Code section 602(m)].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully entered (land/ [or] a building) belonging to someone else without the consent of the (owner[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the property);

2. After the defendant entered, (he/she) occupied the (land/ [or] building) without the consent of the (owner[,]/ [or] owner's agent[,]/ [or] person in lawful possession of the property);

3. The defendant occupied some part of the (land/ [or] building) continuously until removed.
Someone commits an act willfully when he or she does it willingly or on purpose.

[An agent is a person who is authorized to act for someone else in dealings with third parties.]

• Elements. Pen. Code, § 602(m).

• Willfully Defined. Pen. Code, § 7(1); People v. Lara (1996) 44 Cal.App.4th 102, 107 [51 Cal.Rptr.2d 402].

• Entry Must Be Without Consent. People v. Brown (1965) 236 Cal.App.2d Supp. 915, 920–921 [47 Cal.Rptr. 662]; People v. Poe (1965) 236 Cal.App.2d Supp. 928, 932 [47 Cal.Rptr. 670], disapproved on other grounds in In re Hayes (1969) 70 Cal.2d 604, 614, fn. 2 [75 Cal.Rptr. 790, 451 P.2d 430].

• Occupy Defined. People v. Wilkinson (1967) 248 Cal.App.2d Supp. 906, 909–911 [56 Cal.Rptr. 261].

• “Land” Includes Building on the Land. People v. Brown (1965) 236 Cal.App.2d Supp. 915, 917–919 [47 Cal.Rptr. 662] [partially abrogated by statute].

• Agent Defined. Civ. Code, § 2295.

2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against Property, §§ 287- 288.

CALJIC 16.340

[Defendant is accused [in Count[s] ] of having violated section 602, subdivision (m) of the Penal Code, a misdemeanor.]

Every person who willfully enters upon land or into buildings of any kind without the consent of [its owner, or [his] [her] agent] [the person in lawful possession thereof] and who occupies some portion or all thereof continuously or until ousted therefrom and with the specific intent to dispossess those lawfully entitled to possession of the property from that portion of the property occupied is guilty of a violation of Penal Code section 602, subdivision (m), a misdemeanor.

In order to prove this crime, each of the following elements must be proved:

1. A person willfully entered upon the land [or into buildings of any kind] of another person;

2. The person did so without the consent of the (owner, etc.);

3. That person occupied some portion, or all thereof, continuously or until ousted therefrom; and

4. That person entered and occupied the property with the specific intent to dispossess those lawfully entitled to possession from that portion of the property actually occupied.

USE NOTE

The 2003 Legislature amended Penal Code § 602, resulting in the renumbering of subdivision (l) to subdivision (m). There was no other substantive change.
COMMENT

2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Property § 288; People v. Brown, 236 Cal. App. 2d Supp. 915, 917, 47 Cal. Rptr. 662, 663 (1965); People v. Poe, 236 Cal. App. 2d Supp. 928, 931–932, 47 Cal. Rptr. 670, 670–672 (1965), adhered to 236 Cal. App. 2d Supp. 943, 47 Cal. Rptr. 679.
Occupancy intended must be permanent or until ousted. (People v. Wilkinson, 248 Cal. App. 2d Supp. 906, 910, 56 Cal. Rptr. 261, 263–264 (1967).)
Union activity which is authorized by the state labor law constitutes an exception to the criminal trespass statutes: In re Catalano, 29 Cal. 3d 1, 13, 171 Cal. Rptr. 667, 623 P.2d 228, 236 (1981); Penal Code § 602(n).

=Penal Code 602(n) Driving a vehicle=

P.C. 602(n) (Driving vehicle): Driving a vehicle on land not open to the general public without consent from the owner or lawful possessor. This provision does not apply to a registered process server if the process server immediately attempts service on exiting a vehicle and leaves immediately on completing the service or on request of the property's owner or lawful possessor.

=Penal Code 602(o)=

(Refusing to leave): Refusing or failing to leave land, real property, or structures not open to the general public, on request by the owner or lawful possessor or by a peace officer at the request of the owner or lawful possessor. This provision does not apply to persons engaged in lawful labor union activities. (See In re Catalano (1981) 29 C.3d 1, 13, 171 C.R. 667, 623 P.2d 228, infra, § 319 [union officials entering construction site to complete safety reports].)

Alternatively, a reasonable officer could conclude that Blankenhorn's conduct satisfied the elements under section 602(n). His return to The Block constituted a “[r]efus[al] or fail[ure] to leave” after being issued the Notice Forbidding Trespass. While a shopping center, under California law, is generally “open to the public,” the Notice Forbidding Trespass arguably rendered The Block “not open to the public” with respect to Blankenhorn. Cf. Picray v. Sealock, 138 F.3d 767, 772 (9th Cir.1998) (discussing a similar requirement in an Oregon trespassing statute and recognizing that “premises are not considered ‘open to the public’ with regard to a particular individual when that person previously has been barred from the property.”). And the Notice Forbidding Trespass issued to Blankenhorn could constitute at least part of a “request to leave” under section 602(n).

Section 602(n) requires a “separate request to the peace officer [by the owner] on each occasion when the peace officer's assistance in dealing with a trespass is requested” and the undisputed facts indicate Defendants gave The Block a chance to fulfill this requirement and that it was fulfilled. Nguyen declared that “I tried to explain to Blankenhorn that he was being stopped so that we could determine his identity and confirm with security whether or not he was allowed at the location.... Block security confirmed that Mr. Blankenhorn had previously been banned from the Block and that they wished to place him under arrest for trespassing.” Similarly, Gray indicated that they were determining “whether Block security wished to have [Blankenhorn] removed or take some other action” and that “security further confirmed that they wished to place Mr. Blankenhorn under arrest for trespassing. ... Block security then advised Mr. Blankenhorn that he was under arrest for trespassing.”

As it turns out, upon close parsing of the statutory language and California case law, it appears an actual conviction for trespass might have been difficult
without additional evidence. The California Penal Code does not define “injury to property” nor “interfer[ence] with” any lawful business as those terms are used in section 602(j). Rather, section 602(j) is to be interpreted “according to its general usage.” People v. Harris, 191 Cal.App.2d 754, 12 Cal.Rptr. 916, 919 n. 4 (1961). In a criminal context under California law, “[t]he word ‘interfere’ is a word of ‘well recognized, defined meaning.’ ... It imports to ‘disarrange,’ ‘disturb,’ or ‘hinder.’ ” People v. Agnello, 259 Cal.App.2d 785, 66 Cal.Rptr. 571, 574 (1968) (citations omitted). A fact-finder could certainly infer that Blankenhorn was at The Block deliberately and that he knew his presence was not welcome. But it might be more difficult to prove such a deliberate presence was intended to “injure property rights” or “interfere” with its business. Compare In re Ball, 23 Cal.App.3d 380, 100 Cal.Rptr. 189, 193 (1972) (concluding that the requisite intent under section 602(j) could be inferred from the defendant “deliberately entering [a Disneyland] parking lot and engaging in the conduct disclosed after having requested and been denied permission to do so and from his refusal to leave when asked to do so.”) (emphases added).9

Likewise, actually convicting under section 602(n) might have been difficult. It is undisputed that Blankenhorn was not asked to leave the premises on that night (i.e., other than the Notice Forbidding Trespass issued in February of 2001). Although the statute does require a “request to leave,” it does not specifically provide that the request must be contemporaneous. (The statute specifically requires a “separate request to the peace officer on each occasion when the peace officer's request in dealing with a trespass is required,” but the statute does not provide that a specific request is required “on each occasion” to the accused trespasser.) But a version of the statute has been interpreted to require “dual requests to leave, one from a peace officer, the other from the property possessor.” People v. Medrano, 78 Cal.App.3d 198, 144 Cal.Rptr. 217, 227 (1978), disapproved of on other grounds, Vista Verde Farms v. Agricultural Relations Bd., 29 Cal.3d 307, 172 Cal.Rptr. 720, 625 P.2d 263 (1981). In any event, Defendants appear to concede that Blankenhorn should have been asked to leave that night before he could be convicted under 602(n).

=Penal Code 602(q)=
P.C. 602(q) (Closed public building): Failing to leave a public building when closed or on request of the custodian, if the circumstances indicate that the defendant has no apparent lawful business there. (See In re Bacon (1966) 240 C.A.2d 34, 46, 49 C.R. 322 [protest assembly in university administration building]; Parrish v. Municipal Court (1968) 258 C.A.2d 497, 503, 65 C.R. 862 [test of what “circumstances indicate” is objective, i.e., how they appear to reasonable person, and is question for jury].)

=Penal Code 602(t)=
P.C. 602(t) (Violent felon): Entering on or refusing to leave private property, by a person who has been convicted of a violent felony as specified in P.C. 667.5(c) (see 3 Cal. Crim. Law (5th), Punishment, § 463) on the particular property, and who has been informed of the request by a peace officer acting at the request of the owner or the lawful possessor. (P.C. 602(t)(1).) A single notification or request is valid until rescinded. (P.C. 602(t)(3).) The statute is applicable only to a person who has been convicted of a crime committed on the particular private property. (P.C. 602(t)(2).) In addition, where the defendant has been convicted of a violent felony as specified in P.C. 667.5, the provisions of P.C. 602(t) apply without time limitation. However, if the defendant has been convicted of “any other felony,” the provisions apply for only 5 years from the date of conviction. If the conviction was for a misdemeanor, the provisions apply for only 2 years from conviction. If the conviction is for an infraction under P.C. 490.1 (petty theft where value is under $50), the provisions apply for only 1 year from conviction. The provisions do not apply to convictions for any other infraction. (P.C. 602(t)(4).)

=Penal Code 602.1 Commercial business or public agency=
P.C. 602.1 generally prohibits intentional interference with the lawful business carried on by a business establishment or public agency that is open to the public. Hence, it is a misdemeanor to (a) obstruct or intimidate those attempting to transact business with either entity, and (b) refuse to leave the premises after being asked to do so by the owner of the business establishment, or the office manager or supervisor of the public agency, or by a peace officer acting at the request of either the owner or manager or supervisor. A violation is punishable by imprisonment in a county jail for up to 90 days, or a fine of up to $400, or both. (P.C. 602.1(a) and (b).) It is an infraction, punishable by a maximum fine of $400, to intentionally interfere with the lawful business carried on by employees of a public agency by knowingly making a material misrepresentation of the law to those there to transact business, and refusing to leave the premises on the request of an office manager, supervisor, or peace officer. (P.C. 602.1(c).) P.C. 602.1 does not apply to persons engaging in lawful labor union or constitutionally protected activities. (P.C. 602.1(d).) (See People v. Turner (2017) 13 C.A.5th 397, 406, 220 C.R.3d 449 [probable cause existed to arrest defendant for interference with lawful business; manager repeatedly asked defendant to leave restaurant, interrupting her duties to call police and fill out paperwork, and police had been contacted on several other occasions when defendant had refused to leave].)

=Penal Code 602.5 Trespassing at residence=

(1) In General. Entering or remaining in a noncommercial dwelling house, apartment, or similar place without consent of the owner or lawful possessor, except in the course and scope of public employment in performance of a legal duty, is a misdemeanor. (P.C. 602.5(a).) (See CALCRIM, No. 2932 [Trespass: Entry Into Dwelling]; CALJIC, No. 16.350 [Unauthorized Entry of Property].)

(2) Aggravated Trespass. A person, other than a public officer or employee performing a legal duty, who enters or remains in a noncommercial dwelling without consent of the owner or lawful possessor is guilty of aggravated trespass if a resident or authorized occupant is present during the incident. Punishment is by imprisonment in a county jail for up to 1 year, or by a fine of up to $1,000, or both. (P.C. 602.5(b).) In addition, the court may impose 3 years of supervised probation that includes participation in specified counseling (P.C. 602.5(c)) and may issue an order restraining the defendant from contact with the victim for up to 3 years (P.C. 602.5(d)). In determining the length of a restraining order, the court must consider the seriousness of the facts, the probability of future violations, and the safety of the victim and the victim's immediate family. (P.C. 602.5(d).) P.C. 602.5 does not preclude a prosecution for burglary or other violations. (P.C. 602.5(e).) (See CALCRIM, No. 2933 [Trespass: Person Present].)

Penal Code 603. Every person other than a peace officer engaged in the performance of his duties as such who forcibly and without the consent of the owner, representative of the owner, lessee or representative of the lessee thereof, enters a dwelling house, cabin, or other building occupied or constructed for occupation by humans, and who damages, injures or destroys any property of value in, around or appertaining to such dwelling house, cabin or other building, is guilty of a misdemeanor.

=Penal Code 602.8=
(6) Trespass on Cultivated, Fenced, or Posted Land. It is a public offense to willfully enter, without written permission, land that is under cultivation or fenced off, or where specifically placed signs forbid trespass. (P.C. 602.8(a).) Punishment is as follows: (a) A first offense is an infraction punishable by a fine of $75; (b) a second offense on the same land or contiguous land of the same owner is an infraction punishable by a fine of $250; (c) subsequent offenses are considered misdemeanors. (P.C. 602.8(b).) The provisions of P.C. 602.8 do not apply to (a) licensed surveyors lawfully performing their duties, (b) persons exercising constitutionally protected activity, (c) the lawful service of process, or (d) persons engaged in lawful union activities. (P.C. 602.8(c).)

=Penal Code 602.9=
(7) Unlawful Possession of Residence. A person who claims ownership or claims or takes possession of a residential dwelling to rent it to another, or who causes another person to enter or remain in the dwelling to rent it to another, without the consent of the owner, or the owner's agent, is guilty of a misdemeanor. The punishment is a county jail term of not more than 1 year, a fine of not more than $2,500, or both. Each violation is a separate offense. (P.C. 602.9(a), (b).) These provisions do not apply to a person having a lawful occupancy interest in the dwelling. (P.C. 602.9(c).) Nothing in P.C. 602.9 precludes prosecution under any other applicable law. (P.C. 602.9(d).) (See P.C. 602.9(e) [legislative finding and intent that P.C. 602.9 has never precluded prosecution for grand theft or fraud].)

=Penal Code 634 Trespass to invade privacy=
Trespass To Invade Privacy. Trespassing to invade privacy is punishable by a fine, imprisonment, or both. (P.C. 634, 2 Cal. Crim. Law (5th), Crimes Against Public Peace and Welfare, § 604.)

=Fish and Game Code 2016=
Hunting on Private Lands. (See Fish & Game C. 2016 [unlawful to take mammal or bird from, or discharge firearm on, land owned or occupied by another that is either under cultivation or enclosed by fence or posted with signs forbidding trespass or hunting]; Fish & Game C. 2018 [prohibiting unauthorized posting and malicious mutilation or destruction of posted notices].)