California Criminal Law Wiki - User contributions [en]

Domestic Violence

2026-10-19T12:48:59Z

Sysop:

prosecutors should continue to consider charging strangulation as attempted murder, assault with the intent to cause great bodily injury, unlawful restraint, kidnapping, restraining order violations, criminal threats, assault with a deadly weapon, sexual assault, witness intimidation, animal abuse, child endangerment, and other related crimes.

prosecutors should continue to consider charging strangulation as attempted murder, assault with the intent to cause great bodily injury, unlawful restraint, kidnapping, restraining order violations, criminal threats, assault with a deadly weapon, sexual assault, witness intimidation, animal abuse, child endangerment, and other related crimes.

When a victim is threatened with death and strangled multiple times—whether manually and/or with a use of a ligature—and loses consciousness, prosecutors should consider charging attempted murder. There is no reason to continue applying pressure to a limp and unconscious individual unless you intend to kill the person. Continuing to apply pressure after loss of consciousness significantly increases the chances of brain damage and/or death.

==Mission Statement==

CDAA training material suggests the following mission statement:

:The Family Protection Division ethically and aggressively promotes public safety by prosecuting domestic violence, crimes against children, and elder abuse. We are partners with the community we serve. We strongly support victims of crime and work closely and fully cooperate
with criminal justice agencies and community partners who support our efforts. We are dedicated to the long-term professional development of every member of this division who contributes to our mission.

==Written protocols==

CDAA training material suggests the following written protocols:

Every district attorney’s office should have written protocols for handling domestic violence cases, which should identify the philosophy of the office and the policies that guide victim contacts, charging, and case disposition decisions. Some prosecutors may choose not to enunciate all policies of the unit, while others may choose to be extremely detailed in written protocols.

Protocols may also address questions and topics such as:

• Does charging depend on the victim participating?

• What type of pleas will be acceptable plea bargains (e.g., guilty versus no contest.)?

• What is the policy of the unit if the victim is subpoenaed and fails to appear in court?

• What type of counseling programs will be used pursuant to any plea agreement?

• Should victim contacts be treated as confidential communications pursuant to Evidence Code section 1037 et seq.?

• Who is authorized to negotiate dispositions in domestic violence cases?

• How is the victim notified of charging decisions and case dispositions?

• What is the relationship between domestic violence prosecutors and others in the local domestic violence community?

• What is the policy when a victim claims a privilege not to testify?

• Will immunity be granted to domestic violence victims or witnesses? If yes, under what circumstances?

• What is the timeframe for issuing decisions? Language could include, “An issuing decision should be made as soon as reasonably possible on out-of-custody cases, but no later than 45 days after the case is received.”

• What materials should be reviewed prior to issuance?

• How should prosecutors communicate with domestic violence victims when they want to drop the charges?

==Investigation==
Emergency 911 recordings should be reviewed in every case prior to disposition. They accurately capture the victim’s emotional state and often include: (1) statements about the incident; (2) the domestic violence history in the relationship; (3) the victim’s physical condition; (4) the suspect’s level of intoxication and/or use of drugs; (5) the presence of witnesses; (6) the presence of weapons; and (7) the existence of protective orders. The 911 call is a microphone into the violent incident and often records statements from children, witnesses, and/or the abuser.

Spontaneous statement under Evidence Code section 1240

BWCs can also capture the subtle signs and symptoms of strangulation such as redness to the face and neck, voice changes, and/or difficulty breathing.

Evidence of unconsciousness includes loss of memory, an unexplained bump on the head, and bowel or bladder incontinence.

==Relationships==

===Family Code section 6211===

“Domestic violence” is abuse perpetrated against any of the following persons:

(a) A spouse or former spouse.

(b) A cohabitant or former cohabitant, as defined in Section 6209.

(c) A person with whom the respondent is having or has had a dating or engagement relationship.

(d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12).

(e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.

(f) Any other person related by consanguinity or affinity within the second degree.

Penal Code 13700: “cohabitant” means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as spouses, (5) the continuity of the relationship, and (6) the length of the relationship.

Father was not a person “related by consanguinity or affinity” within the second degree to his child's stepfather, and thus was not entitled to seek a Domestic Violence Protection Act (DVPA) injunction against stepfather, even though stepfather was married to the child's mother. Riehl v. Hauck (App. 2 Dist. 2014) 168 Cal.Rptr.3d 795, 224 Cal.App.4th 695.

Prosecution witness Ivan Scott does not qualify as “a person within the third degree of relationship” to Judge Morrow. In Robinson v. Southern Pacific Co. (1895) 105 Cal. 526, 557–558, 38 P. 94, this court explained when someone is within such a relationship. There, the plaintiff moved to disqualify an associate justice of this court, Justice W.C. Van Fleet, on the ground that a first cousin or “cousin-german” of the justice's wife was a stockholder of the defendant corporation. We denied the motion because the relationship between the justice and his wife's cousin was not one within the third degree. We explained: “ ‘In the collateral line the degrees are counted *653 by generations from one of the relations up to a common ancestor, and from the common ancestor to the other relations. In such computation, the decedent is excluded, the relative included, and the ancestor counted but once. Thus, brothers are related in the second degree; uncle and nephew in the third degree; cousins-german in the fourth, and so on.’ ” (Robinson, supra, 105 Cal. at p. 557, 38 P. 94, italics added.)

Here, witness Ivan Scott is the nephew of Judge Morrow's son-in-law. Thus, as uncle and nephew, the relationship between the witness and the son-in-law is in the third degree. But the relationship between the witness and Judge Morrow is not within the third degree. Either the two are not related at all because there is no blood relationship between them (see Code Civ. Proc., § 170. 5, subd. (d) [“The third degree of relationship shall be calculated according to our civil law system.”]; 26A C.J.S., Descent & Distribution § 22, pp. 562–563 [civil law only recognizes relationships of consanguinity] ), or their relationship is in the fifth degree (see former Code Civ. Proc., § 170.1 [recognizing relationships based on marriage but providing that spouses are separated by one degree] ). Accordingly, the disqualification premise of Code of Civil Procedure section 170.1, subdivision (a)(1) does not apply here. (''People v. Williams'' (1997) 16 Cal.4th 635, 652-653.)

==Prior domestic violence==

People v. Kiger (2022) 76 Cal.App.5th 1147

Attempted domestic violence

People v. Kiger (2022) 76 Cal.App.5th 1147

==Domestic Violence for Sentencing Purposes==

Penal Code section 1203.097

People v. Cates (2009) 170 Cal.App.4th 545

==Strangulation==

People v. Sexton (2019) 37 Cal.App.5th 457

People v. Covino (1980) 100 Cal.App.3d 660 where the force of the defendant’s assault by strangulation was likely to produce a serious injury although the victim only had redness to her neck and pain to her throat under section 245.

"The significance of manual strangulation is not a matter of common knowledge and is the proper subject of expert testimony." (People v. Jackson (2013) 221 Cal.App.4th 1222, 1240.)

People v. Steger (1976) 16 Cal.3d 539 (Steger ), his conduct toward Doe during the incident was “ ‘an irrational and unjustifiable attempt’ to control her feelings and demeanor towards him (just as it was in Steger), but the specific, overriding purpose of his conduct was not to cause her extreme pain and suffering, even though pain and suffering resulted from that conduct.”

Victims may protect themselves by pulling the suspect’s hair, pushing, biting, scratching, kicking, or attempting to use a weapon to defend themselves. Depending on the method of strangulation being used or other factors, the suspect may be the only individual with visible injuries.

==Penal Code section 273.5==

===Traumatic condition===

Pen. Code, § 273.5, subd. (d): As used in this section, “traumatic condition” means a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force. For purposes of this section, “strangulation” and “suffocation” include impeding the normal breathing or circulation of the blood of a person by applying pressure on the throat or neck.

People v. Beasley (2003) 105 Cal.App.4th 1078, where the victim had been beaten with a rod on three separate occasions causing bruising. Although the assault did not involve strangulation, the court found that bruising constituted a traumatic condition and that there was sufficient evidence to support the defendant’s felony conviction for that incident. However, as to the other incidents, the victim did not testify to any injury and there were no other witnesses who had observed injuries.

United States v. Hall (9th Cir. 2005) 419 F.3d 980

People v. Silva (1994) 27 Cal.App.4th 1160, 1166 [cert. for part. pub.]. “[Penal Code] Section 273.5 applies to ‘corporal injury resulting in a traumatic condition.’ ... Thus, a defendant who inflicts only ‘minor’ injury violates the statute.” See People v. Wilkins (1993) 14 Cal.App.4th 761, 771 [The victim had redness about her face, and her neck and nose were sore from being hit a few times in her face.].

Absence of traumatic condition

People v. Abrego (1993) 21 Cal.App.4th 133 [cert. for part. pub.], where the defendant slapped or punched the victim five times to the head. At trial, the victim testified she felt no pain and was not injured or bruised. Before trial, the victim reported to police that she felt pain and tenderness where the defendant struck her. The officer did not observe any injury. Pain alone was held insufficient to be a traumatic condition. However, a sore throat—with medical testimony—in a strangulation case proved to be sufficient evidence of a traumatic condition in People v. Romero (discussed below).

Causation of traumatic condition

People v. Jackson (2000) 77 Cal.App.4th 574.

===Attempted PC273.5===

''People v. Kinsey'' (1995) 40 Cal.4th 1621

==General intent==

People v. Thurston (1999) 71 Cal.App.4th 1050.

==Single or multiple charges==

People v. Thompson (1984) 160 Cal.App.3d 220

People v. Healy (1993) 14 Cal.App.4th 1137

==Community property==

People v. Kahanic (1987) 196 Cal.App.3d 461 - You can vandalize your own property, if it is community property.

People v. Aguilera (2016) 244 Cal.App.4th 489 - Robbery of community property. Also robbery can be based on theory that phone was being used to call 911 and that theft of phone was to prevent 911 call.

People v. Llamas (1997) 51 Cal.App.4th 1729 - Theft of community property

Three Strikes

2026-09-25T04:12:35Z

Sysop:

'''Three Strikes Law'''

==Non-strike being third strike==

===Armed with a firearm===

''People v Martinez'' (2014) 225 Cal.App.4th 979

==Strikes==

===Timing of strikes===

To allege a strike prior, the conviction must have already happened on the date of the new offense. (People v. Flood (2003) 108 Cal.App.4th 504.) So when a person commits an ADW in September 2000, and was convicted of a strike in November 2000, the November 2000 strike can't be used as a strike prior, even if the plea to the ADW was in November 2001.

A strike prior becomes a conviction upon entry of plea or verdict, not when judgement is pronounced. (People v. Williams (1996) 49 Cal.App.4th 1632.)

==Crimes==

Offenses below which are listed as "maybe" will usually require an examination of the record of conviction (ROC) to determine if the charged offense meets the crime listed in the statute. A court may look at the entire record of conviction. (''People v. Reed'' (1996) 13 Cal.4th 217, 226.) The record can include the transcript of the preliminary hearing. (''People v. Bartow'' (1996) 46 Cal.App.4th 1573.)

{| class="wikitable"
|-
!Code!!Crime!!Serious!!Violent!!Notes
|-
|PC37||Treason||Yes, PC1192.7(c)(7)||Yes, PC667.5(c)(7)
|-
|PC128||Perjury resulting in execution of innocent person||Yes, PC1192.7(c)(7)||Yes, PC667.5(c)(7)
|-
|PC136.1||Intimidation of victims or witnesses||Yes, PC1192.7(c)(37) ''People v. Neely'' (2004) 124 Cal.App.4th||No||''Neely'' held '''any''' felony violation of 136.1 as serious
|-
|PC148.10||Resisting police officer with SBI or death to officer||Maybe, PC1192.7(c)(8) ''People v. Rodriguez'' (1999) 69 Cal.App.4th 341||No||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)
|-
|PC187||Murder||Yes, PC1192.7(c)(1)||Yes, PC667.5(c)(1)
|-
|PC187/PC664||Attempted murder||Yes, PC1192.7(c)(9)||Yes, PC667.5(c)(12)
|-
|PC191.5||Gross vehicular manslaughter||Maybe, PC1192.7(c)(8), PC1192.8 ''People v. Wilson'' (2013) 219 Cal.App.4th 500, ''People v. Gonzales'' (1994) 29 Cal.App.4th 1684
|-
|PC192(a)||Voluntary manslaughter||Yes||PC1192.7(c)||(1)
|-
|PC192(b)||Involuntary manslaughter||No||''People v. Cook'' (1984) 158 Cal.App.3d 948
|-
|PC192(c)(1)||Gross vehicular manslaughter||Maybe||''People v. Marin'' (2015) 240 Cal.App.4th 1344, 1350–1351 PC1192.8 ''People v. Gonzales'' (1994) 29 Cal.App.4th 1684||(8)||To be serious, must prove personal infliction of GBI to non-accomplice
|-
|PC203||Mayhem||Yes||PC1192.7(c)||(2)
|-
|PC205||Aggravated mayhem||Yes||PC1192.7(c)||(2),(7)
|-
|PC206||Torture||Yes||PC1192.7(c)||(7),(8)
|-
|PC207||Kidnapping||Yes||PC1192.7(c)||(20)
|-
|PC209||Kidnapping for ransom||Yes||PC1192.7(c)||(20)
|-
|PC209.5||Kidnapping during carjacking||Yes||PC1192.7(c)||(20),(27)
|-
|PC211||Robbery||Yes||PC1192.7(c)||(19)
|-
|PC215||Carjacking||Yes||PC1192.7(c)||(27)
|-
|PC220||Assault with the intent to commit mayhem, rape, sodomy, or oral copulation||Maybe||PC1192.7(c)||(10), (29)||Does not include assault with intent to commit PC264.1, PC286, PC288, PC288a, PC289
|-
|PC243(d)||Battery with SBI||Yes||PC1192.7(c)||(8)
|-
|PC244||Throwing acid or flammable substances||Maybe||PC1192.7(c)||(30)||????
|-
|PC245(a)(1)||Assault with a deadly weapon||Yes||PC1192.7(c)||(31)||Use of firearm does not have to be personal.<ref name="Luna">''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>
|-
|PC245(a)(2)||Assault with a firearm||Yes||''People v. Myers'' (2007) 148 Cal.App.4th 546||(31)||Use of firearm does not have to be personal.<ref name="Luna"/>
|-
|PC245(a)(4),former PC245(a)(1)||Assault with means likely to produce GBI||No||''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||''People v. Le'' (2015) 61 Cal.4th 416||(8), (23), or (31)||Use of firearm does not have to be personal.<ref name="Luna"/>
|-
|PC245(c) or (d)||Assault with deadly weapon or firearm on police officer||Yes||PC1192.7(c)||(11)||Does not include assault on firefighter
|-
|PC245.2||Assault with a deadly weapon against a public transit employee||Maybe||PC1192.7(c)||(32)||Does not include assault with means likely to produce GBI
|-
|PC245.3||Assault with a deadly weapon against a custodial officer||Maybe||PC1192.7(c)||(32)||Does not include assault with means likely to produce GBI
|-
|PC245.5||Assault with a deadly weapon against a school employee||Maybe||PC1192.7(c)||(32)||Does not include assault with means likely to produce GBI
|-
|PC246||Discharge of a firearm at an inhabited dwelling, vehicle, or aircraft||Maybe||PC1192.7(c)||(33)||Does not include occupied building
|-
|PC261||Rape||Yes||PC1192.7(c)||(3)
|-
|PC264.1||Commission of rape or sexual penetration in concert with another person||Yes||PC1192.7(c)||(34)
|-
|PC286||Sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person||Maybe||PC1192.7(c)||(4)||???
|-
|PC286(c)||Sodomy on child <14 years old||Yes||''People v. Murphy'' (2001) 25 Cal.4th 136||(6)
|-
|PC288||Lewd and lascivious act on child <14 years old||Yes||PC1192.7(c)||(6)
|-
|PC288a(c)||Oral copulation on child <14 years old||Yes||''People v. Murphy'' (2001) 25 Cal.4th 136||(6)
|-
|PC288a(c)(2)(A)||oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person||???||PC1192.7(c)||(5)||
|-
|PC288.5||Continuous sexual abuse of a child||Yes||PC1192.7(c)||(35)
|-
|PC289(a)(1)||Sexual penetration against the victim’s will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person||Yes||PC1192.7(c)||(25)
|-
|PC289(j)||Sexual penetration on child <14 years old||Probably yes||''People v. Murphy'' (2001) 25 Cal.4th 136||(6)
|-
|PC422||Criminal threats||Yes||PC1192.7(c)||(38)
|-
|PC451||Arson||Yes||PC1192.7(c)||(14)
|-
|PC451.5||Aggravated arson||Yes||PC1192.7(c)||(7),(14)
|-
|PC459 PC460(a)||First-degree Burglary||Yes||''People v. Cruz'' (1996) 13 Cal.4th 764||(18)
|-
|PC487(d)(2)||Grand theft firearm||Yes||PC1192.7(c)||(26)
|-
|PC4500||Assault by life prisoner on non-inmate||Yes||PC1192.7(c)||(12)||Only for non-inmate
|-
|PC4501(a)||Assault with a deadly weapon by an inmate||Yes||PC1192.7(c)||(13)
|-
|PC4503||holding of a hostage by a person confined in a state prison||Yes||PC1192.7(c)||(21)
|-
|PC11418(b) or (c)||Use of weapon of mass destruction||Yes||PC1192.7(c)||(41)
|-
|PC12022.53||Firearm sentence enhancement||Yes||PC1192.7(c)||(40)
|-
|PC18740||Exploding a destructive device or any explosive with intent to injure||Maybe||PC1192.7(c)||(15)||Only for exploding, not for possession Not for intent to intimidate or terrify Requires examination of record of conviction
|-
|PC18745||exploding a destructive device or any explosive with intent to murder||Yes||PC1192.7(c)||(17|
|-
|PC18750||Exploding a destructive device or any explosive causing bodily injury||Yes||PC1192.7(c)||(16)
|-
|PC18750||Exploding a destructive device or any explosive causing GBI or death||Yes||PC1192.7(c)||(16)
|-
|PC26100(c) or (d)||Shooting from a vehicle||Yes||PC1192.7(c)||(36)
|-
|VC20001||Hit and run with injury||Maybe||''People v. Wood'' (2000) 83 Cal.App.4th 862 ''People v. Braz'' (1998) 65 Cal.App.4th 425||(8)||To be serious, flight, not the initial collision, must be cause of injury
|-
|VC23104||Reckless driving with injury||Maybe||PC1192.8 ''People v. Valenzuela'' (2010) 191 Cal.App.4th 316||(8)||To be serious, must prove personal infliction of GBI to non-accomplice. VC23104 can be violated by proximately causing GBI.
|-
|VC23153||DUI with injury||Yes||PC1192.8 ''People v. Bow'' (1993) 13 Cal.App.4th 1551||(8) or (23)
|-
|PC182||Conspiracy of any of the above||Maybe||PC1192.7(c)||(42)
|-
|PC664||Attempt of any of the above||Maybe||PC1192.7(c)||(39)||Does not include attempt to assault<ref>Yes, I know this doesn't exist as a crime. It's what the statute says.</ref>
|}
<references/>

Burglary

2026-09-23T01:11:01Z

Sysop:

'''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

===Live person present===

If victim comes home during the burglary, it's considered "live person present" under PC667.5(c)(21). (''People v. Munguia'' (2016) 7 Cal.App.5th 103.)

==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.)

American with Disabilities Act

2026-09-21T13:41:51Z

Sysop:

The building department of every city, county, or city and county is required to enforce the laws as to access by persons with disabilities to buildings within its jurisdiction.1 Any unauthorized deviation from the regulations or building standards governing access by persons with disabilities to publicly funded structures must be rectified by full compliance within 90 days after discovery of the deviation.2
Any person who is aggrieved or potentially aggrieved by a violation of any of the statutes governing access to structures by persons with disabilities may bring an action to enjoin the violation.3 The prevailing party in the action is entitled to recover reasonable attorney's fees.4 Furthermore, the district attorney, the city attorney, the county counsel if the district attorney does not bring an action, the Department of Rehabilitation acting through the attorney general, or the attorney general may bring an action to enjoin any violation of the requirements as to access by persons with disabilities.5
Observation:
California's Health and Safety Code does not require the plaintiff with disabilities to establish that they were individually denied access to the public accommodation; rather, it allows the plaintiff to enforce compliance, by injunctive relief.6 However, the statutes governing building standards for access by persons with disabilities do not support a private right of action for damages.7 To establish damages, the individual must take the additional step of establishing that the individual was denied equal access on a particular occasion under the Unruh Act.8
Westlaw. © 2026 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Footnotes
1
Health & Saf. Code, § 19958.
2
Gov. Code, § 4452.
3
Health & Saf. Code, § 19953.
As to injunctions, generally, see Cal. Jur. 3d, Injunctions §§ 1 to 141.
4
Health & Saf. Code, § 19953.
5
Health & Saf. Code, §§ 19954, 19958.5; Gov. Code, § 4458.
6
Moore v. Dollar Tree Stores Inc., 85 F. Supp. 3d 1176 (E.D. Cal. 2015).
7
Donald v. Cafe Royale, Inc., 218 Cal. App. 3d 168, 266 Cal. Rptr. 804 (1st Dist. 1990).
8
Donald v. Cafe Royale, Inc., 218 Cal. App. 3d 168, 266 Cal. Rptr. 804 (1st Dist. 1990).
As to the recovery of damages under the Unruh Act for discrimination against persons with disabilities in public accommodations, see Cal. Jur. 3d, Civil Rights § 26.

Individuals with disabilities are entitled to the same full and equal access as are other members of the general public to the accommodations, facilities, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motor buses, streetcars, boats, or any other public conveyances or modes of transportation.1
Observation:
The statutory protections for persons with disabilities are intended to secure, to disabled persons, the right as the general public to the full and free use of facilities open to the public, but they do not entitle a disabled individual to greater access than the public at large.2
Every individual with a disability has the right to be accompanied by a guide dog, signal dog, or service dog, especially trained for the purpose, without being required to pay an extra charge or security deposit for the guide dog, signal dog, or service dog; however, the individual may be liable for any damage done to the premises or facilities by the dog.3 Additionally, subject to liability for provable damage, visually impaired or blind persons, deaf or hard of hearing persons, and other individuals with a disability; persons licensed to train guide dogs; and persons authorized to train signal dogs or service dogs may take dogs, for the purpose of training them, on common carriers or other public conveyances or modes of transportation; the dog must be on a leash and properly tagged.4
Any interference with the exercise of specified rights to be accompanied by a dog is a crime punishable as a misdemeanor.5 The rights so protected by the penal provision include the right of a blind, deaf, or disabled person who is a passenger on a common carrier, or other public conveyance or mode of transportation, to have with him or her a specially trained guide dog, signal dog, or service dog.6 While such persons may be liable for any provable damage done to the premises or facilities by their dog, the exercise of the right to be accompanied by a dog may not be conditioned upon the payment of any extra charge.7 The penal provision also applies to the right of specified persons to be accompanied by such dogs for the purpose of training, provided the dog is on a leash and is properly tagged.8
Westlaw. © 2026 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
Footnotes
1
Civ. Code, § 54.1, subd. (a).
For full discussion of this state's protections against discrimination in public accommodations related to disabilities, see Cal. Jur. 3d, Civil Rights §§ 78 to 89; as to protections afforded persons with disabilities by federal law, see Cal. Jur. 3d, Civil Rights §§ 90 to 95.
2
Turner v. Association of American Medical Colleges, 167 Cal. App. 4th 1401, 85 Cal. Rptr. 3d 94, 237 Ed. Law Rep. 814 (1st Dist. 2008), as modified on denial of reh'g, (Nov. 25, 2008).
3
Civ. Code, § 54.2, subd. (a).
4
Civ. Code, § 54.1, subd. (c).
5
Pen. Code, § 365.5, subd. (c).
6
Pen. Code, § 365.5, subd. (a).
7
Pen. Code, § 365.5, subd. (h).
8
Pen. Code, § 365.5, subd. (i).

American with Disabilities Act

2026-09-21T13:41:19Z

Sysop: Created page with "The building department of every city, county, or city and county is required to enforce the laws as to access by persons with disabilities to buildings within its jurisdiction.1 Any unauthorized deviation from the regulations or building standards governing access by persons with disabilities to publicly funded structures must be rectified by full compliance within 90 days after discovery of the deviation.2 Any person who is aggrieved or potentially aggrieved by a viola..."

Threats

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Sysop: /* Annoying phone calls */

==Criminal Threats==

Section 422 criminalizes threats made to another that are likely to result in death or great bodily injury. Section 422 encompasses conduct directed at one specifically identified person. Moreover, it requires an actual intent to commit a specific type of harm. This statute does not address the situation of cyberbullying in which one person might post disparaging comments about another on the Internet but does not explicitly threaten to harm that person.

===Punishment===

16-2-3 state prison

Serious felony, PC1192.7(c)(38)

===Elements===

(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,”

(2) that the defendant made the threat “with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,”

(3) that the threat—which may be “made verbally, in writing, or by means of an electronic communication device”—was “on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,”

(4) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family's safety,” and

(5) that the threatened person's fear was “reasonabl[e]” under the circumstances.

(People v. Toledo (2001) 26 Cal.4th 221, 227–228.)

In re George T. (2004) 33 Cal.4th 620, 630

People v. Melhado (1998) 60 Cal.App.4th 1529, 1536

====(1) Great Bodily Injury to a person====

PC12022.7

Crime that Will Result in Great Bodily Injury Judged on Objective Standard

People v. Maciel (2003) 113 Cal.App.4th 679, 685.

A police officer is a person within the meaning of PC422. (''People v. Schnathorst'' (2004) 120 Cal.App.4th 1310, 1316.)

“no specific crime must be identified for the jury” to find a victim's fear reasonable. (People v. Butler (2000) 85 Cal.App.4th 745, 755.

====(2)Threat====

“ ‘[T]he determination whether a defendant intended his words to be taken as a threat ... can be based on all the surrounding circumstances and not just on the words alone. The parties’ history can also be considered as one of the relevant circumstances.’ ” (People v. Butler (2000) 85 Cal.App.4th 745, 754.)

[S]ection 422 does not punish such things as ‘mere angry utterances or ranting soliloquies, however violent.’ [Citation.] Accordingly, where the accused did not personally communicate a threat to the victim, it must be shown that he specifically intended that the threat be conveyed to the victim.” (Ryan D., supra, 100 Cal.App.4th at p. 861.)

"[T]he words, “I'm going to get you,” “I'll get back to you,” “I'll get you,” may not, standing alone, convey a threat to commit a crime which will result in death or great bodily injury." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1218.)

‘[T]he nature of the threat cannot be determined only at face value.Section 422 demands that the purported threat be examined “on its face and under the circumstances in which it was made.” The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat,’ and such threats must be ‘judged in their context.’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542.)

Thus, “[a] communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning.” (In re George T., supra, 33 Cal.4th at p. 635, 16 Cal.Rptr.3d 61, 93 P.3d 1007.)

A threat too outlandish reasonably to cause the victims to suffer sustained fear would be legally insufficient to support conviction of an attempted criminal threat. People v. Jackson (App. 6 Dist. 2009) 100 Cal.Rptr.3d 539, 178 Cal.App.4th 590.

A terroristic threat is sufficiently specific where it threatens death or great bodily injury; a threat is not insufficient simply because it does not communicate a time or precise manner of execution. People v. Gaut (App. 2 Dist. 2002) 115 Cal.Rptr.2d 924, 95 Cal.App.4th 1425.

Criminal-threats statute is not violated by mere angry utterances or ranting soliloquies, however violent. People v. Felix (App. 2 Dist. 2001) 112 Cal.Rptr.2d 311, 92 Cal.App.4th 905,

In prosecution for making terroristic threats, evidence was sufficient to find element that defendant's verbal statement was unequivocal, where testimony established that defendant, while victims were talking to police officer, said “shush” as he made a throat-slashing gesture and placed his finger to his lips. People v. Franz (App. 3 Dist. 2001) 106 Cal.Rptr.2d 773, 88 Cal.App.4th 1426,

People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [69 Cal.Rptr.2d 728]; People v.
Butler (2000) 85 Cal.App.4th 745, 752–753 [102 Cal.Rptr.2d 269]; People v.
Martinez (1997) 53 Cal.App.4th 1212, 1218–1221 [62 Cal.Rptr.2d 303]; In re
Ricky T. (2001) 87 Cal.App.4th 1132, 1137–1138 [105 Cal.Rptr.2d 165]; People
v. Solis (2001) 90 Cal.App.4th 1002, 1013–1014 [109 Cal.Rptr.2d 464]; see
People v. Garrett (1994) 30 Cal.App.4th 962, 966–967 [36 Cal.Rptr.2d 33].

A “threatening statement[ ] that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, ‘a serious expression of an intent to commit an act of unlawful violence’, rather than an expression of jest or frustration”, is not protected speech. (People v. Lowery (2011) 52 Cal.4th 419, 427.) People v. Paigly (Cal. Ct. App., Oct. 8, 2025, No. H050724) 2025 WL 2847115, at *3, review denied (Dec. 30, 2025)

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

Threatening Hand Gestures Not Verbal Threats Under Penal Code Section 422

People v. Gonzalez (2017) 2 Cal.5th 1138, 1147 [218 Cal.Rptr.3d 150,
394 P.3d 1074].

A gesture without a statement is not a threat, but a "shush" or "sh" is sufficient to be a statement. (People v. Franz (2001) 88 Cal.App.4th 1426, 1441–1442.)

====(3) Unconditional, Specific, and Immediate Threat====

As to the third element, “ ‘the determination [of] whether a defendant intended [for their] words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate[,] and specific [that] they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat[,] can be based on all the surrounding circumstances and not just on the words alone.’ ” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431.) “ ‘The parties’ history can also be considered as one of the relevant circumstances.’ ” (Ibid.)

We conclude the evidence was sufficient for this purpose. Although the recording does not reveal exactly what condition defendant placed on his threat, from the context and surrounding circumstances the jury reasonably could have determined that defendant essentially threatened to kill S. if she did not cooperate and answer his questions about the slip of paper he had found. Indeed, virtually everything defendant said immediately before and after his threat supports such a determination. Before his threat, he demanded that she “just start answering these fucking questions” and that she “better fucking come clean.” Immediately after the threat, he told her she was “not *1434 escaping this one” and told her to “give [him] information,” “just start talking,” and “[g]et going.” Under these circumstances, the jury did not need to know the exact words of the condition defendant placed on the threat to conclude that the threat was so unconditional as to convey a gravity of purpose and an immediate prospect of execution. Accordingly, defendant's sufficiency of the evidence challenge to his conviction of making a criminal threats fails. People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433–1434 [89 Cal.Rptr.3d 402, 420], as modified on denial of reh'g (Mar. 9, 2009)

But not required to be unconditional

People v. Bolin (1998) 18 Cal.4th 297, 339–340 [75 Cal.Rptr.2d 412, 956 P.2d 374], disapproving People v. Brown (1993) 20 Cal.App.4th 1251, 1256 [25 Cal.Rptr.2d 76];

People v. Stanfield (1995) 32 Cal.App.4th 1152, 1162 [38 Cal.Rptr.2d 328].

Defendant's statement that he would kill victim if she testified against his fellow gang members was a “threat” within meaning of statute prohibiting threatening to commit crime which would result in great bodily injury, although statement was conditional. People v. Brooks (App. 4 Dist. 1994) 31 Cal.Rptr.2d 283, 26 Cal.App.4th 142,

There is no requirement that the threat be unconditional, nor can we judge a threat “solely on the words spoken. It is clear by case law that threats are judged in their context.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137, 105 Cal.Rptr.2d 165, fn. omitted.)

Conditional Threat May Be True Threat, Depending on Context

People v. Melhado (1998) 60 Cal.App.4th 1529, 1540 [70 Cal.Rptr.2d 878].

"The statute specifically requires one to look at the threat on its face and under the circumstances in which it is made." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1220.)

But circumstances can also show no threat. "If surrounding circumstances within the meaning of section 422 can show whether a terrorist threat was made, absence of circumstances can also show that a terrorist threat was not made within the meaning of section 422. Here, there was no evidence of any circumstances occurring after appellant's “threats” which would further a finding of a terrorist threat." (''In re Ricky T.'' (2001) 87 Cal.App.4th 1132, 1139.)

The immediacy of the threat can still be found if the threatener is arrested (''People v. Franz'' (2001) 88 Cal.App.4th 1426) or even if in jail (''People v. Gaut'' (2002) 95 Cal.App.4th 1425.) The immediacy of threat can be found even if the threatened person is in a different state. (''People v. Smith'' (2009) 178 Cal.App.4th 475.)

Prisoners. (''People v. Mosley'' (2007) 155 Cal.App.4th 313.)

A threat need only convey “ ‘ “a gravity of purpose and an immediate prospect of execution of the threat.” ’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542, italics added.) “[I]t ‘does not require an immediate ability to carry out the threat.’ ” (Ibid.)

Threat by prisoner that when he is released on parole in 10 months is sufficient for PC422. (''People v. Wilson'' (2010) 186 Cal.App.4th 789.)

Pharmacy manager's fear of defendant was reasonable under the circumstances, as required for the offense of making a criminal threat, after a telephone call in which defendant told the manager he was “dead,” since it was reasonable for the manager to believe that defendant could carry and fire a gun despite a disability that required defendant to use a motorized wheelchair, and defendant previously told the manager to “expect something when you least expect it.” People v. Orloff (App. 2 Dist. 2016) 206 Cal.Rptr.3d 755

Immediate Ability to Carry Out Threat Not Required
People v. Lopez (1999) 74 Cal.App.4th 675, 679 [88 Cal.Rptr.2d 252].

Crime of criminal threat does not require an immediate ability or even an actual intention to carry out the threat. People v. Holmes, McClain and Newborn (2022) 289 Cal.Rptr.3d 582, 503 P.3d 668

Defendant's commands to stepson “Don't lie to me,” and “Don't call me that” were sufficiently unequivocal, unconditional, immediate and specific they conveyed to stepson an immediacy of purpose and immediate prospect of execution of the threat, as required for the offense of criminal threat, where defendant made the commands while pointing a gun at stepson's head. People v. Culbert (App. 2 Dist. 2013) 159 Cal.Rptr.3d 853, 218 Cal.App.4th 184.

Finding that threats made against a victim in California by her former cohabitant, an unemployed drug-user in Texas, were “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,” in convicting the former cohabitant of criminal threats, was supported by substantial evidence, including victim's testimony that cohabitant threatened to kill her, that he threatened to come to California and hurt her, and that victim felt cohabitant had nothing left to lose, as well as evidence of the long and escalating history of cohabitant's violence, and evidence that cohabitant had made a prior trip to California and assaulted the victim. People v. Smith (App. 2 Dist. 2009) 100 Cal.Rptr.3d 471, 178 Cal.App.4th 475,

Threat can be shown by prior bad acts. (''People v. Stern'' (2003) 111 Cal.App.4th 283

====(4) Sustained Fear====

Sustained fear must occur over “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7.) Courts have held, for instance, 15 minutes satisfies the sustained fear requirement. (Ibid.) In addition, sustained fear must be objectively and subjectively reasonable. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140, 105 Cal.Rptr.2d 165 [“A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances”].)

''People v. Fierro'' (2010) 180 Cal.App.4th 1342 [15 minutes afterwards is still sustained fear]

In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139–1140 [105
Cal.Rptr.2d 165]; People v. Solis (2001) 90 Cal.App.4th 1002, 1024 [109
Cal.Rptr.2d 464]; People v. Allen (1995) 33 Cal.App.4th 1149, 1155–1156 [40
Cal.Rptr.2d 7].

Defendant's violent history can be relevant for sustained fear element. (''People v. Garrett'' (1994) 30 Cal.App.4th 962, 967.)

A person's fear is “sustained” if it “extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) “The victim's knowledge of defendant's prior conduct is relevant in establishing that [they were] in a state of sustained fear.” (Ibid.)

So are the circumstances surrounding the defendant's threats and their subsequent actions. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1221.)

===Attempted Criminal Threats===
People v. Chandler (2014) 60 Cal.4th 508, 525 [176 Cal.Rptr.3d 548, 332 P.3d 538].

===Only One Conviction and One Punishment Per Victim, Per Threatening Encounter===

“[S]ection 422 authorizes only one conviction and one punishment per victim, per threatening encounter during which the victim suffers a single period of sustained fear.” (People v. Wilson (2015) 234 Cal.App.4th 193, 202.)

People v. Roles (2020) 44 Cal.App.5th 935, 942

===Through Third Party Intermediaries===
;''In re Ryan D.'' (2002) 100 Cal.App.4th 854
:Painting a picture of a shot school officer which was for a school project and not intended to be shown to the officer was not a criminal threat

;''People v. Felix'' (2001) 92 Cal.App.4th 905, 911–915
:Statements made during a therapy session are not meant to be conveyed.

;''In re David L.'' (1991) 234 Cal.App.3d 1655
:"The kind of threat contemplated by section 422 may as readily be conveyed by the threatener through a third party as personally to the intended victim. Where the threat is conveyed through a third party intermediary, the specific intent element of the statute is implicated. Thus, if the threatener intended the threat to be taken seriously by the victim, he must necessarily have intended it to be conveyed. Here, the climate of hostility between the minor and the victim in which the threat was made and the manner in which it was made readily support the inference the minor intended the victim to feel threatened. The communication of the threat to a friend of the victim who was also witness to certain of the antecedent hostilities supports the inference the minor intended the friend act as intermediary to convey the threat to the victim." (In re David L., at p. 1659.)

;''People v. Roles'' (2020) 44 Cal.App.4th 935

A defendant may be convicted of a criminal threat made to a third party so long as “he specifically intended that the threat be conveyed to the victim.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 861, 123 Cal.Rptr.2d 193; see People v. Felix (2001) 92 Cal.App.4th 905, 913, 112 Cal.Rptr.2d 311 (Felix); In re David L. (1991) 234 Cal.App.3d 1655, 1659, 286 Cal.Rptr. 398 (David L.).) In David L., for example, sufficient evidence showed a minor intended a criminal threat to be conveyed to the victim when he made the threat to the victim's friend and it “followed a series of hostile *763 encounters between the minor and the victim culminating in a fight at school,” which the friend had witnessed. (David L., supra, at p. 1660, 286 Cal.Rptr. 398.)

===Internet and phone apps===

In this case, the juvenile court found defendant A.G., a minor high school student, made criminal threats when he posted a photo of a realistic looking replica gun on his Snapchat account, which was visible to about 60 people he identified as friends. The photo bore the caption, “Everybody go to school tomorrow. I'm taking gum.”

The record contains sufficient evidence A.G. intended his Snapchat post to be understood as a threat and that he willfully threatened to kill or cause great bodily injury In re A.G. (2020) 58 Cal.App.5th 647, 655 [272 Cal.Rptr.3d 602, 609], as modified (Dec. 23, 2020)

===Jury Instruction===

====CALCRIM 1300 Criminal Threat====
The defendant is charged [in Count ] with having made a criminal threat [in violation of Penal Code section 422].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to <insert name
of complaining witness or member[s] of complaining witness’s immediate family>;

2. The defendant made the threat (orally/in writing/by electronic communication device);

3. The defendant intended that (his/her) statement be understood as a threat [and intended that it be communicated to
<insert name of complaining witness>];

4. The threat was so clear, immediate, unconditional, and specific that it communicated to <insert name of complaining
witness> a serious intention and the immediate prospect that the threat would be carried out;

5. The threat actually caused <insert name of complaining witness> to be in sustained fear for (his/her) own safety [or for the safety of (his/her) immediate family];

AND

6._____________’s <insert name of complaining witness> fear was reasonable under the circumstances.

Someone commits an act ''willfully'' when he or she does it willingly or on purpose.

In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the
surrounding circumstances.

Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act [or intend to
have someone else do so].

''Great bodily injury'' means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

''Sustained fear'' means fear for a period of time that is more than momentary, fleeting, or transitory.

<nowiki>[An immediate ability to carry out the threat is not required.]</nowiki>

<nowiki>[An electronic communication device includes, but is not limited to: a telephone, cellular telephone, pager, computer, video recorder, or fax machine.]</nowiki>

<nowiki>[Immediate family means (a) any spouse, parents, and children; (b) any grandchildren, grandparents, brothers and sisters related by blood or marriage; or (c) any person who regularly lives in the other person’s household [or who regularly lived there within the prior six months].]</nowiki>

====CALJIC 9.94====

<nowiki>[Defendant is accused [in Count[s] ] of having violated section 422 of the Penal Code, a crime.]</nowiki>

Every person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which threat, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, is guilty of a violation of Penal Code section 422, a crime.

<nowiki>[“Great bodily injury” means significant or substantial bodily injury or damage. It does not refer to trivial, insignificant, or moderate injury or harm.]</nowiki>

<nowiki>[“Immediate family” means any spouse, whether by marriage or not, parent, child, (relative), or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.]</nowiki>

<nowiki>[“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers.]</nowiki>

The term “sustained fear” means a period of time that extends beyond what is momentary, fleeting, or transitory.

There are different degrees of unconditionality. A threat which may appear conditional on its face can be unconditional under the circumstances. Conditional threats are true threats if their context reasonably conveys to the victim that they are intended.

The word “immediate” means that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met.

<nowiki>[Evidence of an out-of-court statement of a defendant, including any purported threat, ought to be viewed with caution.]</nowiki>

In order to prove this crime, each of the following elements must be proved:

1. A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person;

2. The person who made the threat did so with the specific intent that the statement be taken as a threat;

3. The threat was contained in a statement that was made verbally, in writing, or by means of an electronic communication device;

4. The threatening statement on its face, and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat; and

<nowiki>5. The threatening statement caused the person threatened reasonably to be in sustained fear [for [his] [or] [her] own safety] [or] [for [his] [or] [her] immediate family's safety].</nowiki>

It is immaterial whether the person who made the threat actually intended to carry it out.

===Lesser Included Offense===

====Attempted 422====
People v. Toledo (2001) 26 Cal.4th 221, 230–231 [109 Cal.Rptr.2d 315, 26 P.3d 1051].

===Constitutionality===

True threats are not protected speech. (''Counterman v. Colorado'' (2023) 600 U.S. 66.)

People v. Maciel (2003) 113 Cal. App. 4th 679 (Penal Code § 422 is not unconstitutionally vague in its language of "willfully threatens to commit a crime which will result in death or great bodily injury")

People v. Lopez (1999) 74 Cal. App. 4th 675, 88 Cal. Rptr. 2d 252 (upholding constitutionality of Penal Code § 422, because it includes immediacy element and prohibits speech not protected by First Amendment).

People v. Fisher (1993) 12 Cal.App.4th 1556 (upholding upholding constitutionality of Penal Code § 422, even though it does not require declarant intended to carry out threat).

It is settled that Penal Code section 422 is not unconstitutionally overbroad because it is narrowly tailored to true threats, which are not protected by the First Amendment. (People v. Toledo (2001) 26 Cal.4th 221, 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051; In re Ryan D. (2002) 100 Cal.App.4th 854, 861–862, 123 Cal.Rptr.2d 193; People v. Fisher (1993) 12 Cal.App.4th 1556, 1558–1560, 15 Cal.Rptr.2d 889.) “[T]he type of threat satisfying the criminal threat provisions of section 422—that is, a threat ‘to commit a crime which will result in death or great bodily injury to another person ... which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat’—constitutes speech that falls outside the protection of the First Amendment.” (Toledo, at p. 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051.) (People v. Morera-Munoz (2016) 5 Cal.App.5th 838, 851, fn. 7.)

===Secondary Sources===
*19 Cal. Jur. 3d Criminal Law: Miscellaneous Offenses § 181 Overview of criminal threat statutes

A cautionary instruction is applicable when evidence of a defendant’s out-of-court statements is received, including when the statements form the basis of a prosecution for making criminal threats. However the instruction is not required to be given sua sponte. People v. Diaz (2015) 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.2d 62.
The court must instruct on the elements of the threatened crime. It is the fact that a crime is threatened which along with the other elements, makes the utterance criminal.
“Willfully” is defined in CALJIC 1.20
Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily included offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539.
COMMENT
Penal Code § 422; 2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Public Peace and Welfare §§ 24 to 29.
This crime is committed, even though the threat is communicated through a third person to the victim. (In re David L., 234 Cal.App.3d 1655, 286 Cal.Rptr. 398 (3d Dist.1991).)
Penal Code § 422 is a crime of moral turpitude. (People v. Thornton, 3 Cal.App.4th 419, 4 Cal.Rptr.2d 519 (4th Dist.1992).)
The court, in People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283, 287 (4th Dist.1994), opined that an apparently conditional threat is a true threat, for purposes of this crime, if the context of the threat reasonably conveys to the victim that the threat is intended (cases cited). (Accord: People v. Stanfield, 32 Cal.App.4th 1152, 38 Cal.Rptr.2d 328 (2d Dist.1995).)
A violation of Penal Code § 422 does not require an unconditional threat of death or great bodily injury. (People v. Bolin, 18 Cal.4th 297, 338, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998).)
In People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7, 11 (2d Dist.1995), the court opined that “sustained fear” means a period of time that extends beyond what is momentary, fleeting or transitory, and that 15 minutes of fear, under the circumstances, was sufficient.
“Sustained fear” is taken from People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7 (2d Dist.1995). “Conditional threats” is derived from People v. Stanfield, 32 Cal.App.4th 1152, 1158, 38 Cal.Rptr.2d 328 (2d Dist.1995); People v. Bolin, 18 Cal.4th 297, 340, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998); and People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283 (4th Dist.1994). “Immediate” is derived from People v. Melhado, 60 Cal.App.4th 1529, 1538, 70 Cal.Rptr.2d 878 (1st Dist.1998).
Section 422 requires a verbal statement. Conduct alone is not sufficient (when there is no writing or electronic communication). People v. Franz, 88 Cal.App.4th 1426, 106 Cal.Rptr.2d 773 (3d Dist.2001).
In People v. Gonzalez (2017) 2 Cal.5th 1138, 218 Cal.Rptr.3d 150, 394 P.3d 1074, the court approved the holding in People v. Franz (2001) supra, and held that a hand gesture in a threatening manner was not a verbal threat which is required for a violation of Penal Code § 422.
A police officer is a person who can be a victim of this crime. (People v. Schnathorst, 120 Cal.App.4th 1310, 16 Cal.Rptr.3d 312 (3d Dist.2004).)
Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541.

Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541.
A cautionary instruction is applicable when evidence is received of a defendant’s out-of-court statements, including when statements form the basis of a prosecution for making criminal threats. However the instruction is not required to be given sua sponte. People v. Diaz (2015) 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.2d 62.
The court in People v. Chandler (2014) 60 Cal.4th 508, 176 Cal.Rptr.3d 548, 332 P.3d 538, held that the lesser and necessarily “offense of attempted criminal threat requires not only proof of a subjective intent to threaten but also proof that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear.”
Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily include offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539.

===Statute===

====Current version from 06/30/11 to present (AB117, Stats. 2011, ch. 39, § 16.)====
(a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

(b) For purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

(c) “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

====From 04/04/11 to 06/30/11 (AB109, Stats. 2011, ch. 15, § 351.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment '''pursuant to subdivision (h) of Section 1170.'''

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

====From 01/01/1998 to 04/04/11 (SB1796, Stats. 1998, ch. 825, § 3.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement<<+, made verbally, in writing, or by means of an electronic communication device,+>> is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

'''“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.'''

=====Legislative Counsel's Digest=====
(2) Existing law prohibits the willful issuance of a threat to commit a crime which will result in the death or great bodily injury of another, with the specific intent that the statement be taken as a threat even if there is no actual intent of carrying out the crime, where the threat is so unequivocal, immediate, and specific so as to cause the recipient to reasonably be in sustained fear for his or her own safety or the safety of his or her immediate family.

This bill would clarify that this provision applies to threatening statements made verbally, in writing, or by means of an electronic communication device, and would incorporate the definition of “electronic communication” used in a specified provision of federal law. By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

====From 01/01/1990 to 12/31/1998 (AB1667, Stats. 1989, ch. 1135, § 1.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made''',''' is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened''',''' a gravity of purpose and an immediate prospect of execution '''OF THE THREAT, AND THEREBY CAUSES THAT PERSON REASONABLY TO BE IN SUSTAINED FEAR FOR HIS OR HER OWN SAFETY OR FOR HIS OR HER IMMEDIATE FAMILY'S SAFETY''', shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison <del>if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety</del>.
For the purposes of this section, <del>the term</del> “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

=====Legislative Counsel's Digest=====
Under existing law, it is a public offense, punishable as specified, for any person to willfully threaten to commit a crime which will result in death or great bodily injury to another person, if under the circumstances the threat causes the threatened person reasonably to be in sustained fear for his or her own safety or his or her immediate family's safety, as specified.

This bill would make technical, nonsubstantive changes to those provisions.

====From 09/23/1988 to 12/31/1999 (SB1555, Stats 1988 ch. 1256, § 4.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety. For the purposes of this section, the term “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

=====Legislative Counsel's Digest=====
This bill would prohibit any person from willfully threatening to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent to actually carry it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution. This bill would make this offense either a misdemeanor or a felony punishable either by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison, thereby imposing a state-mandated local program.

==PC71==
Threatening a public officer of an educational institution in violation of Penal Code section 71 may be a lesser included offense of a section 422 criminal threat under the accusatory pleadings test. (In re Marcus T. (2001) 89 Cal.App.4th 468, 472–473 [107 Cal.Rptr.2d 451].) But see People v. Chaney (2005) 131 Cal.App.4th 253, 257–258 [31 Cal.Rptr.3d 714], finding that a violation of section 71 is not a lesser included offense of section 422 under the accusatory pleading test when the pleading does not specifically allege the intent to cause (or attempt to cause) a public officer to do (or refrain from doing) an act in the performance of official duty.

we noted that the prosecution's proof of an asserted violation of section 71 was deficient, in that the defendant was locked in his cell at the time he made the alleged threat and *920 thus was not then “in a position to carry out the threat.” (38 Cal.3d at p. 777, 215 Cal.Rptr. 1, 700 P.2d 782.) In People v. Tuilaepa (1992) 4 Cal.4th 569, 15 Cal.Rptr.2d 382, 842 P.2d 1142, we cited the fact that the defendant was locked in his cell for the night when he threatened **535 to burn a pair of pants and an adviser's face, along with the absence of a “substantial showing that [the] defendant harbored the requisite intent—interfering with the performance of official duties”—in rejecting the Attorney General's contention the threats in that case violated section 71. (4 Cal.4th at p. 590, 15 Cal.Rptr.2d 382, 842 P.2d 1142.) In neither case, however, did we consider that section 71, unlike section 422 (prohibiting criminal threats) and section 404.6 (prohibiting inciting to riot) contains no requirement of immediacy.

People v. Dunkle, 36 Cal. 4th 861, 919–20, 116 P.3d 494, 534–35 (2005), disapproved of by People v. Doolin, 45 Cal. 4th 390, 198 P.3d 11 (2009)

==PC76==

Threatening certain public officials, appointees, judges, staff, or their immediate families; intent and apparent ability to carry out threat; punishment

(a) Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, or the staff, immediate family, or immediate family of the staff of any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense, punishable as follows:
(1) Upon a first conviction, the offense is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both that fine and imprisonment.

(2) If the person has been convicted previously of violating this section, the previous conviction shall be charged in the accusatory pleading, and if the previous conviction is found to be true by the jury upon a jury trial, or by the court upon a court trial, or is admitted by the defendant, the offense is punishable by imprisonment pursuant to subdivision (h) of Section 1170.

(b) Any law enforcement agency that has knowledge of a violation of this section involving a constitutional officer of the state, a Member of the Legislature, or a member of the judiciary shall immediately report that information to the Department of the California Highway Patrol.

(c) For purposes of this section, the following definitions shall apply:

(1) “Apparent ability to carry out that threat” includes the ability to fulfill the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date.

(2) “Serious bodily harm” includes serious physical injury or serious traumatic condition.

(3) “Immediate family” means a spouse, parent, or child, or anyone who has regularly resided in the household for the past six months.

(4) “Staff of a judge” means court officers and employees, including commissioners, referees, and retired judges sitting on assignment.

(5) “Threat” means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.

(d) As for threats against staff or immediate family of staff, the threat must relate directly to the official duties of the staff of the elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(e) A threat must relate directly to the official duties of a Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(Added by Stats.1982, c. 1405, p. 5360, § 1. Amended by Stats.1984, c. 627, § 1; Stats.1992, c. 887 (A.B.3816), § 8; Stats.1993, c. 134 (S.B.1042), § 1; Stats.1994, c. 820 (S.B.1463), § 1; Gov.Reorg.Plan No. 1 of 1995, § 42, eff. July 12, 1995; Stats.1995, c. 354 (A.B.1866), § 1; Stats.1996, c. 305 (A.B.3103), § 43; Stats.1998, c. 606 (S.B.1880), § 6; Stats.2000, c. 233 (S.B.1859), § 1; Stats.2004, c. 512 (A.B.1433), § 1; Stats.2011, c. 15 (A.B.109), § 239, eff. April 4, 2011, operative Oct. 1, 2011.)

==Annoying phone calls==

===Penal Code 653m(a)===
(a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.

A single use of obscene language or threats.

===Penal Code 653m(b)===
(b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

PC653m(b) required repeated telephone conduct.

''People v. Astalis'' (2014) 226 Cal.App.4th Supp. 1

===Penal Code 148.3 swatting reporting false emergency===

===Penal Code 653x using 911 to annoy or harass person===

(b) An intent to annoy or harass is established by proof of repeated calls or communications over a period of time, however short, that are unreasonable under the circumstances.

===Penal Code 653y using 911 for non-emergencies===

This section does not apply to uses of the 911 emergency system by a person with an intellectual disability or other mental disability that makes it difficult or impossible for the person to understand the potential consequences of their actions.

==Stalking==

Section 646.9 requires a willful, malicious, and repeated following or harassment of another, coupled with a credible threat with an intent to place that person or their family in reasonable fear for their safety. This statute requires that an actual threat of harm be made; malicious teasing or bullying will not suffice.

==Doxxing==

People v. Shivers (2015) 235 Cal.App.4th Supp. 8
The tweets posted on July 4, 2012, and July 8, 2012, which were the basis for the Penal Code section 653.2 charge, stated, respectively, “HAPPY FOURTH OF JULY EVERYONE. SEE YOU ON MY USUAL HANGOUT, CAHUENGA!! (If you see my stalker Pauley Perrette follow me there call LAPD!!!)” and “Speakin of # Cahuenga i'll be there 2nite as usual. If you see my stalker # NCIS Pauley Perrette follow me there report her to LAPD immediately!” (Original capitalization.)

The plain meaning of the words used reveals no requirement that actual incitement or actual production of the enumerated unlawful effects be caused by a person's electronic distribution of a message. The only requirement is that a defendant's message is likely to incite or produce third party actions. People v. Shivers (2015) 235 Cal.App.4th Supp. 8, 13.

“One, the defendant by means of an electronic communication device and acted [sic ] without the consent of [Perrette] electronically distributed or published an electronic message of a harassing nature; and [¶] Two, the defendant electronically distributed or published the electronic **358 message about [Perrette] for the purpose of imminently causing [Perrette] unwanted physical contact or injury or harassment by a third party; and [¶] Three, the defendant distributed the electronic message and a reasonable person would consider that electronic message likely to incite or produce unwanted physical contact, injury or harassment by a third party; and [¶] Four, the defendant at the time of the electronic distribution of the electronic message acted with the intent to place [Perrette] in reasonable fear for her safety or safety of her immediate family.”

Section 653.2 makes it a misdemeanor for any person who--with intent to place another person or their immediate family in reasonable fear for their safety by means of an electronic communication device and for the purpose of imminently causing unwanted harassment--electronically distributes, publishes, emails, hyperlinks, or makes available for downloading personal identifying information, including, but not limited to, a digital image of another person, or a harassing message about another person, which would likely incite or produce unlawful action. Section 653.2 is too narrow to cover all cyberbullying-type conduct because it requires the dissemination of personal identifying information and is really just a modification of the existing California criminal stalking statute to prohibit “the type of harassment that has become all to[o] commonplace in this digital age, harassment committed using e-mail, cell phone, or some other electronic communication device.” The purpose of section 653.2 is to “simply [[close] an electronic loophole in the stalking statute and [give] law enforcement the ability to hold accountable those who would prey on victims using electronic means.”

==Online impersonation==
Penal Code 528.5

Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).

Threats

2026-09-19T01:59:48Z

Sysop: /* Annoying phone calls */

==Criminal Threats==

Section 422 criminalizes threats made to another that are likely to result in death or great bodily injury. Section 422 encompasses conduct directed at one specifically identified person. Moreover, it requires an actual intent to commit a specific type of harm. This statute does not address the situation of cyberbullying in which one person might post disparaging comments about another on the Internet but does not explicitly threaten to harm that person.

===Punishment===

16-2-3 state prison

Serious felony, PC1192.7(c)(38)

===Elements===

(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,”

(2) that the defendant made the threat “with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,”

(3) that the threat—which may be “made verbally, in writing, or by means of an electronic communication device”—was “on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,”

(4) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family's safety,” and

(5) that the threatened person's fear was “reasonabl[e]” under the circumstances.

(People v. Toledo (2001) 26 Cal.4th 221, 227–228.)

In re George T. (2004) 33 Cal.4th 620, 630

People v. Melhado (1998) 60 Cal.App.4th 1529, 1536

====(1) Great Bodily Injury to a person====

PC12022.7

Crime that Will Result in Great Bodily Injury Judged on Objective Standard

People v. Maciel (2003) 113 Cal.App.4th 679, 685.

A police officer is a person within the meaning of PC422. (''People v. Schnathorst'' (2004) 120 Cal.App.4th 1310, 1316.)

“no specific crime must be identified for the jury” to find a victim's fear reasonable. (People v. Butler (2000) 85 Cal.App.4th 745, 755.

====(2)Threat====

“ ‘[T]he determination whether a defendant intended his words to be taken as a threat ... can be based on all the surrounding circumstances and not just on the words alone. The parties’ history can also be considered as one of the relevant circumstances.’ ” (People v. Butler (2000) 85 Cal.App.4th 745, 754.)

[S]ection 422 does not punish such things as ‘mere angry utterances or ranting soliloquies, however violent.’ [Citation.] Accordingly, where the accused did not personally communicate a threat to the victim, it must be shown that he specifically intended that the threat be conveyed to the victim.” (Ryan D., supra, 100 Cal.App.4th at p. 861.)

"[T]he words, “I'm going to get you,” “I'll get back to you,” “I'll get you,” may not, standing alone, convey a threat to commit a crime which will result in death or great bodily injury." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1218.)

‘[T]he nature of the threat cannot be determined only at face value.Section 422 demands that the purported threat be examined “on its face and under the circumstances in which it was made.” The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat,’ and such threats must be ‘judged in their context.’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542.)

Thus, “[a] communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning.” (In re George T., supra, 33 Cal.4th at p. 635, 16 Cal.Rptr.3d 61, 93 P.3d 1007.)

A threat too outlandish reasonably to cause the victims to suffer sustained fear would be legally insufficient to support conviction of an attempted criminal threat. People v. Jackson (App. 6 Dist. 2009) 100 Cal.Rptr.3d 539, 178 Cal.App.4th 590.

A terroristic threat is sufficiently specific where it threatens death or great bodily injury; a threat is not insufficient simply because it does not communicate a time or precise manner of execution. People v. Gaut (App. 2 Dist. 2002) 115 Cal.Rptr.2d 924, 95 Cal.App.4th 1425.

Criminal-threats statute is not violated by mere angry utterances or ranting soliloquies, however violent. People v. Felix (App. 2 Dist. 2001) 112 Cal.Rptr.2d 311, 92 Cal.App.4th 905,

In prosecution for making terroristic threats, evidence was sufficient to find element that defendant's verbal statement was unequivocal, where testimony established that defendant, while victims were talking to police officer, said “shush” as he made a throat-slashing gesture and placed his finger to his lips. People v. Franz (App. 3 Dist. 2001) 106 Cal.Rptr.2d 773, 88 Cal.App.4th 1426,

People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [69 Cal.Rptr.2d 728]; People v.
Butler (2000) 85 Cal.App.4th 745, 752–753 [102 Cal.Rptr.2d 269]; People v.
Martinez (1997) 53 Cal.App.4th 1212, 1218–1221 [62 Cal.Rptr.2d 303]; In re
Ricky T. (2001) 87 Cal.App.4th 1132, 1137–1138 [105 Cal.Rptr.2d 165]; People
v. Solis (2001) 90 Cal.App.4th 1002, 1013–1014 [109 Cal.Rptr.2d 464]; see
People v. Garrett (1994) 30 Cal.App.4th 962, 966–967 [36 Cal.Rptr.2d 33].

A “threatening statement[ ] that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, ‘a serious expression of an intent to commit an act of unlawful violence’, rather than an expression of jest or frustration”, is not protected speech. (People v. Lowery (2011) 52 Cal.4th 419, 427.) People v. Paigly (Cal. Ct. App., Oct. 8, 2025, No. H050724) 2025 WL 2847115, at *3, review denied (Dec. 30, 2025)

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

Threatening Hand Gestures Not Verbal Threats Under Penal Code Section 422

People v. Gonzalez (2017) 2 Cal.5th 1138, 1147 [218 Cal.Rptr.3d 150,
394 P.3d 1074].

A gesture without a statement is not a threat, but a "shush" or "sh" is sufficient to be a statement. (People v. Franz (2001) 88 Cal.App.4th 1426, 1441–1442.)

====(3) Unconditional, Specific, and Immediate Threat====

As to the third element, “ ‘the determination [of] whether a defendant intended [for their] words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate[,] and specific [that] they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat[,] can be based on all the surrounding circumstances and not just on the words alone.’ ” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431.) “ ‘The parties’ history can also be considered as one of the relevant circumstances.’ ” (Ibid.)

We conclude the evidence was sufficient for this purpose. Although the recording does not reveal exactly what condition defendant placed on his threat, from the context and surrounding circumstances the jury reasonably could have determined that defendant essentially threatened to kill S. if she did not cooperate and answer his questions about the slip of paper he had found. Indeed, virtually everything defendant said immediately before and after his threat supports such a determination. Before his threat, he demanded that she “just start answering these fucking questions” and that she “better fucking come clean.” Immediately after the threat, he told her she was “not *1434 escaping this one” and told her to “give [him] information,” “just start talking,” and “[g]et going.” Under these circumstances, the jury did not need to know the exact words of the condition defendant placed on the threat to conclude that the threat was so unconditional as to convey a gravity of purpose and an immediate prospect of execution. Accordingly, defendant's sufficiency of the evidence challenge to his conviction of making a criminal threats fails. People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433–1434 [89 Cal.Rptr.3d 402, 420], as modified on denial of reh'g (Mar. 9, 2009)

But not required to be unconditional

People v. Bolin (1998) 18 Cal.4th 297, 339–340 [75 Cal.Rptr.2d 412, 956 P.2d 374], disapproving People v. Brown (1993) 20 Cal.App.4th 1251, 1256 [25 Cal.Rptr.2d 76];

People v. Stanfield (1995) 32 Cal.App.4th 1152, 1162 [38 Cal.Rptr.2d 328].

Defendant's statement that he would kill victim if she testified against his fellow gang members was a “threat” within meaning of statute prohibiting threatening to commit crime which would result in great bodily injury, although statement was conditional. People v. Brooks (App. 4 Dist. 1994) 31 Cal.Rptr.2d 283, 26 Cal.App.4th 142,

There is no requirement that the threat be unconditional, nor can we judge a threat “solely on the words spoken. It is clear by case law that threats are judged in their context.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137, 105 Cal.Rptr.2d 165, fn. omitted.)

Conditional Threat May Be True Threat, Depending on Context

People v. Melhado (1998) 60 Cal.App.4th 1529, 1540 [70 Cal.Rptr.2d 878].

"The statute specifically requires one to look at the threat on its face and under the circumstances in which it is made." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1220.)

But circumstances can also show no threat. "If surrounding circumstances within the meaning of section 422 can show whether a terrorist threat was made, absence of circumstances can also show that a terrorist threat was not made within the meaning of section 422. Here, there was no evidence of any circumstances occurring after appellant's “threats” which would further a finding of a terrorist threat." (''In re Ricky T.'' (2001) 87 Cal.App.4th 1132, 1139.)

The immediacy of the threat can still be found if the threatener is arrested (''People v. Franz'' (2001) 88 Cal.App.4th 1426) or even if in jail (''People v. Gaut'' (2002) 95 Cal.App.4th 1425.) The immediacy of threat can be found even if the threatened person is in a different state. (''People v. Smith'' (2009) 178 Cal.App.4th 475.)

Prisoners. (''People v. Mosley'' (2007) 155 Cal.App.4th 313.)

A threat need only convey “ ‘ “a gravity of purpose and an immediate prospect of execution of the threat.” ’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542, italics added.) “[I]t ‘does not require an immediate ability to carry out the threat.’ ” (Ibid.)

Threat by prisoner that when he is released on parole in 10 months is sufficient for PC422. (''People v. Wilson'' (2010) 186 Cal.App.4th 789.)

Pharmacy manager's fear of defendant was reasonable under the circumstances, as required for the offense of making a criminal threat, after a telephone call in which defendant told the manager he was “dead,” since it was reasonable for the manager to believe that defendant could carry and fire a gun despite a disability that required defendant to use a motorized wheelchair, and defendant previously told the manager to “expect something when you least expect it.” People v. Orloff (App. 2 Dist. 2016) 206 Cal.Rptr.3d 755

Immediate Ability to Carry Out Threat Not Required
People v. Lopez (1999) 74 Cal.App.4th 675, 679 [88 Cal.Rptr.2d 252].

Crime of criminal threat does not require an immediate ability or even an actual intention to carry out the threat. People v. Holmes, McClain and Newborn (2022) 289 Cal.Rptr.3d 582, 503 P.3d 668

Defendant's commands to stepson “Don't lie to me,” and “Don't call me that” were sufficiently unequivocal, unconditional, immediate and specific they conveyed to stepson an immediacy of purpose and immediate prospect of execution of the threat, as required for the offense of criminal threat, where defendant made the commands while pointing a gun at stepson's head. People v. Culbert (App. 2 Dist. 2013) 159 Cal.Rptr.3d 853, 218 Cal.App.4th 184.

Finding that threats made against a victim in California by her former cohabitant, an unemployed drug-user in Texas, were “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,” in convicting the former cohabitant of criminal threats, was supported by substantial evidence, including victim's testimony that cohabitant threatened to kill her, that he threatened to come to California and hurt her, and that victim felt cohabitant had nothing left to lose, as well as evidence of the long and escalating history of cohabitant's violence, and evidence that cohabitant had made a prior trip to California and assaulted the victim. People v. Smith (App. 2 Dist. 2009) 100 Cal.Rptr.3d 471, 178 Cal.App.4th 475,

Threat can be shown by prior bad acts. (''People v. Stern'' (2003) 111 Cal.App.4th 283

====(4) Sustained Fear====

Sustained fear must occur over “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7.) Courts have held, for instance, 15 minutes satisfies the sustained fear requirement. (Ibid.) In addition, sustained fear must be objectively and subjectively reasonable. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140, 105 Cal.Rptr.2d 165 [“A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances”].)

''People v. Fierro'' (2010) 180 Cal.App.4th 1342 [15 minutes afterwards is still sustained fear]

In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139–1140 [105
Cal.Rptr.2d 165]; People v. Solis (2001) 90 Cal.App.4th 1002, 1024 [109
Cal.Rptr.2d 464]; People v. Allen (1995) 33 Cal.App.4th 1149, 1155–1156 [40
Cal.Rptr.2d 7].

Defendant's violent history can be relevant for sustained fear element. (''People v. Garrett'' (1994) 30 Cal.App.4th 962, 967.)

A person's fear is “sustained” if it “extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) “The victim's knowledge of defendant's prior conduct is relevant in establishing that [they were] in a state of sustained fear.” (Ibid.)

So are the circumstances surrounding the defendant's threats and their subsequent actions. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1221.)

===Attempted Criminal Threats===
People v. Chandler (2014) 60 Cal.4th 508, 525 [176 Cal.Rptr.3d 548, 332 P.3d 538].

===Only One Conviction and One Punishment Per Victim, Per Threatening Encounter===

“[S]ection 422 authorizes only one conviction and one punishment per victim, per threatening encounter during which the victim suffers a single period of sustained fear.” (People v. Wilson (2015) 234 Cal.App.4th 193, 202.)

People v. Roles (2020) 44 Cal.App.5th 935, 942

===Through Third Party Intermediaries===
;''In re Ryan D.'' (2002) 100 Cal.App.4th 854
:Painting a picture of a shot school officer which was for a school project and not intended to be shown to the officer was not a criminal threat

;''People v. Felix'' (2001) 92 Cal.App.4th 905, 911–915
:Statements made during a therapy session are not meant to be conveyed.

;''In re David L.'' (1991) 234 Cal.App.3d 1655
:"The kind of threat contemplated by section 422 may as readily be conveyed by the threatener through a third party as personally to the intended victim. Where the threat is conveyed through a third party intermediary, the specific intent element of the statute is implicated. Thus, if the threatener intended the threat to be taken seriously by the victim, he must necessarily have intended it to be conveyed. Here, the climate of hostility between the minor and the victim in which the threat was made and the manner in which it was made readily support the inference the minor intended the victim to feel threatened. The communication of the threat to a friend of the victim who was also witness to certain of the antecedent hostilities supports the inference the minor intended the friend act as intermediary to convey the threat to the victim." (In re David L., at p. 1659.)

;''People v. Roles'' (2020) 44 Cal.App.4th 935

A defendant may be convicted of a criminal threat made to a third party so long as “he specifically intended that the threat be conveyed to the victim.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 861, 123 Cal.Rptr.2d 193; see People v. Felix (2001) 92 Cal.App.4th 905, 913, 112 Cal.Rptr.2d 311 (Felix); In re David L. (1991) 234 Cal.App.3d 1655, 1659, 286 Cal.Rptr. 398 (David L.).) In David L., for example, sufficient evidence showed a minor intended a criminal threat to be conveyed to the victim when he made the threat to the victim's friend and it “followed a series of hostile *763 encounters between the minor and the victim culminating in a fight at school,” which the friend had witnessed. (David L., supra, at p. 1660, 286 Cal.Rptr. 398.)

===Internet and phone apps===

In this case, the juvenile court found defendant A.G., a minor high school student, made criminal threats when he posted a photo of a realistic looking replica gun on his Snapchat account, which was visible to about 60 people he identified as friends. The photo bore the caption, “Everybody go to school tomorrow. I'm taking gum.”

The record contains sufficient evidence A.G. intended his Snapchat post to be understood as a threat and that he willfully threatened to kill or cause great bodily injury In re A.G. (2020) 58 Cal.App.5th 647, 655 [272 Cal.Rptr.3d 602, 609], as modified (Dec. 23, 2020)

===Jury Instruction===

====CALCRIM 1300 Criminal Threat====
The defendant is charged [in Count ] with having made a criminal threat [in violation of Penal Code section 422].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to <insert name
of complaining witness or member[s] of complaining witness’s immediate family>;

2. The defendant made the threat (orally/in writing/by electronic communication device);

3. The defendant intended that (his/her) statement be understood as a threat [and intended that it be communicated to
<insert name of complaining witness>];

4. The threat was so clear, immediate, unconditional, and specific that it communicated to <insert name of complaining
witness> a serious intention and the immediate prospect that the threat would be carried out;

5. The threat actually caused <insert name of complaining witness> to be in sustained fear for (his/her) own safety [or for the safety of (his/her) immediate family];

AND

6._____________’s <insert name of complaining witness> fear was reasonable under the circumstances.

Someone commits an act ''willfully'' when he or she does it willingly or on purpose.

In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the
surrounding circumstances.

Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act [or intend to
have someone else do so].

''Great bodily injury'' means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

''Sustained fear'' means fear for a period of time that is more than momentary, fleeting, or transitory.

<nowiki>[An immediate ability to carry out the threat is not required.]</nowiki>

<nowiki>[An electronic communication device includes, but is not limited to: a telephone, cellular telephone, pager, computer, video recorder, or fax machine.]</nowiki>

<nowiki>[Immediate family means (a) any spouse, parents, and children; (b) any grandchildren, grandparents, brothers and sisters related by blood or marriage; or (c) any person who regularly lives in the other person’s household [or who regularly lived there within the prior six months].]</nowiki>

====CALJIC 9.94====

<nowiki>[Defendant is accused [in Count[s] ] of having violated section 422 of the Penal Code, a crime.]</nowiki>

Every person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which threat, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, is guilty of a violation of Penal Code section 422, a crime.

<nowiki>[“Great bodily injury” means significant or substantial bodily injury or damage. It does not refer to trivial, insignificant, or moderate injury or harm.]</nowiki>

<nowiki>[“Immediate family” means any spouse, whether by marriage or not, parent, child, (relative), or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.]</nowiki>

<nowiki>[“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers.]</nowiki>

The term “sustained fear” means a period of time that extends beyond what is momentary, fleeting, or transitory.

There are different degrees of unconditionality. A threat which may appear conditional on its face can be unconditional under the circumstances. Conditional threats are true threats if their context reasonably conveys to the victim that they are intended.

The word “immediate” means that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met.

<nowiki>[Evidence of an out-of-court statement of a defendant, including any purported threat, ought to be viewed with caution.]</nowiki>

In order to prove this crime, each of the following elements must be proved:

1. A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person;

2. The person who made the threat did so with the specific intent that the statement be taken as a threat;

3. The threat was contained in a statement that was made verbally, in writing, or by means of an electronic communication device;

4. The threatening statement on its face, and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat; and

<nowiki>5. The threatening statement caused the person threatened reasonably to be in sustained fear [for [his] [or] [her] own safety] [or] [for [his] [or] [her] immediate family's safety].</nowiki>

It is immaterial whether the person who made the threat actually intended to carry it out.

===Lesser Included Offense===

====Attempted 422====
People v. Toledo (2001) 26 Cal.4th 221, 230–231 [109 Cal.Rptr.2d 315, 26 P.3d 1051].

===Constitutionality===

True threats are not protected speech. (''Counterman v. Colorado'' (2023) 600 U.S. 66.)

People v. Maciel (2003) 113 Cal. App. 4th 679 (Penal Code § 422 is not unconstitutionally vague in its language of "willfully threatens to commit a crime which will result in death or great bodily injury")

People v. Lopez (1999) 74 Cal. App. 4th 675, 88 Cal. Rptr. 2d 252 (upholding constitutionality of Penal Code § 422, because it includes immediacy element and prohibits speech not protected by First Amendment).

People v. Fisher (1993) 12 Cal.App.4th 1556 (upholding upholding constitutionality of Penal Code § 422, even though it does not require declarant intended to carry out threat).

It is settled that Penal Code section 422 is not unconstitutionally overbroad because it is narrowly tailored to true threats, which are not protected by the First Amendment. (People v. Toledo (2001) 26 Cal.4th 221, 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051; In re Ryan D. (2002) 100 Cal.App.4th 854, 861–862, 123 Cal.Rptr.2d 193; People v. Fisher (1993) 12 Cal.App.4th 1556, 1558–1560, 15 Cal.Rptr.2d 889.) “[T]he type of threat satisfying the criminal threat provisions of section 422—that is, a threat ‘to commit a crime which will result in death or great bodily injury to another person ... which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat’—constitutes speech that falls outside the protection of the First Amendment.” (Toledo, at p. 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051.) (People v. Morera-Munoz (2016) 5 Cal.App.5th 838, 851, fn. 7.)

===Secondary Sources===
*19 Cal. Jur. 3d Criminal Law: Miscellaneous Offenses § 181 Overview of criminal threat statutes

A cautionary instruction is applicable when evidence of a defendant’s out-of-court statements is received, including when the statements form the basis of a prosecution for making criminal threats. However the instruction is not required to be given sua sponte. People v. Diaz (2015) 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.2d 62.
The court must instruct on the elements of the threatened crime. It is the fact that a crime is threatened which along with the other elements, makes the utterance criminal.
“Willfully” is defined in CALJIC 1.20
Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily included offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539.
COMMENT
Penal Code § 422; 2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Public Peace and Welfare §§ 24 to 29.
This crime is committed, even though the threat is communicated through a third person to the victim. (In re David L., 234 Cal.App.3d 1655, 286 Cal.Rptr. 398 (3d Dist.1991).)
Penal Code § 422 is a crime of moral turpitude. (People v. Thornton, 3 Cal.App.4th 419, 4 Cal.Rptr.2d 519 (4th Dist.1992).)
The court, in People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283, 287 (4th Dist.1994), opined that an apparently conditional threat is a true threat, for purposes of this crime, if the context of the threat reasonably conveys to the victim that the threat is intended (cases cited). (Accord: People v. Stanfield, 32 Cal.App.4th 1152, 38 Cal.Rptr.2d 328 (2d Dist.1995).)
A violation of Penal Code § 422 does not require an unconditional threat of death or great bodily injury. (People v. Bolin, 18 Cal.4th 297, 338, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998).)
In People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7, 11 (2d Dist.1995), the court opined that “sustained fear” means a period of time that extends beyond what is momentary, fleeting or transitory, and that 15 minutes of fear, under the circumstances, was sufficient.
“Sustained fear” is taken from People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7 (2d Dist.1995). “Conditional threats” is derived from People v. Stanfield, 32 Cal.App.4th 1152, 1158, 38 Cal.Rptr.2d 328 (2d Dist.1995); People v. Bolin, 18 Cal.4th 297, 340, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998); and People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283 (4th Dist.1994). “Immediate” is derived from People v. Melhado, 60 Cal.App.4th 1529, 1538, 70 Cal.Rptr.2d 878 (1st Dist.1998).
Section 422 requires a verbal statement. Conduct alone is not sufficient (when there is no writing or electronic communication). People v. Franz, 88 Cal.App.4th 1426, 106 Cal.Rptr.2d 773 (3d Dist.2001).
In People v. Gonzalez (2017) 2 Cal.5th 1138, 218 Cal.Rptr.3d 150, 394 P.3d 1074, the court approved the holding in People v. Franz (2001) supra, and held that a hand gesture in a threatening manner was not a verbal threat which is required for a violation of Penal Code § 422.
A police officer is a person who can be a victim of this crime. (People v. Schnathorst, 120 Cal.App.4th 1310, 16 Cal.Rptr.3d 312 (3d Dist.2004).)
Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541.

Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541.
A cautionary instruction is applicable when evidence is received of a defendant’s out-of-court statements, including when statements form the basis of a prosecution for making criminal threats. However the instruction is not required to be given sua sponte. People v. Diaz (2015) 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.2d 62.
The court in People v. Chandler (2014) 60 Cal.4th 508, 176 Cal.Rptr.3d 548, 332 P.3d 538, held that the lesser and necessarily “offense of attempted criminal threat requires not only proof of a subjective intent to threaten but also proof that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear.”
Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily include offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539.

===Statute===

====Current version from 06/30/11 to present (AB117, Stats. 2011, ch. 39, § 16.)====
(a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

(b) For purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

(c) “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

====From 04/04/11 to 06/30/11 (AB109, Stats. 2011, ch. 15, § 351.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment '''pursuant to subdivision (h) of Section 1170.'''

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

====From 01/01/1998 to 04/04/11 (SB1796, Stats. 1998, ch. 825, § 3.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement<<+, made verbally, in writing, or by means of an electronic communication device,+>> is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

'''“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.'''

=====Legislative Counsel's Digest=====
(2) Existing law prohibits the willful issuance of a threat to commit a crime which will result in the death or great bodily injury of another, with the specific intent that the statement be taken as a threat even if there is no actual intent of carrying out the crime, where the threat is so unequivocal, immediate, and specific so as to cause the recipient to reasonably be in sustained fear for his or her own safety or the safety of his or her immediate family.

This bill would clarify that this provision applies to threatening statements made verbally, in writing, or by means of an electronic communication device, and would incorporate the definition of “electronic communication” used in a specified provision of federal law. By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

====From 01/01/1990 to 12/31/1998 (AB1667, Stats. 1989, ch. 1135, § 1.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made''',''' is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened''',''' a gravity of purpose and an immediate prospect of execution '''OF THE THREAT, AND THEREBY CAUSES THAT PERSON REASONABLY TO BE IN SUSTAINED FEAR FOR HIS OR HER OWN SAFETY OR FOR HIS OR HER IMMEDIATE FAMILY'S SAFETY''', shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison <del>if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety</del>.
For the purposes of this section, <del>the term</del> “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

=====Legislative Counsel's Digest=====
Under existing law, it is a public offense, punishable as specified, for any person to willfully threaten to commit a crime which will result in death or great bodily injury to another person, if under the circumstances the threat causes the threatened person reasonably to be in sustained fear for his or her own safety or his or her immediate family's safety, as specified.

This bill would make technical, nonsubstantive changes to those provisions.

====From 09/23/1988 to 12/31/1999 (SB1555, Stats 1988 ch. 1256, § 4.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety. For the purposes of this section, the term “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

=====Legislative Counsel's Digest=====
This bill would prohibit any person from willfully threatening to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent to actually carry it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution. This bill would make this offense either a misdemeanor or a felony punishable either by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison, thereby imposing a state-mandated local program.

==PC71==
Threatening a public officer of an educational institution in violation of Penal Code section 71 may be a lesser included offense of a section 422 criminal threat under the accusatory pleadings test. (In re Marcus T. (2001) 89 Cal.App.4th 468, 472–473 [107 Cal.Rptr.2d 451].) But see People v. Chaney (2005) 131 Cal.App.4th 253, 257–258 [31 Cal.Rptr.3d 714], finding that a violation of section 71 is not a lesser included offense of section 422 under the accusatory pleading test when the pleading does not specifically allege the intent to cause (or attempt to cause) a public officer to do (or refrain from doing) an act in the performance of official duty.

we noted that the prosecution's proof of an asserted violation of section 71 was deficient, in that the defendant was locked in his cell at the time he made the alleged threat and *920 thus was not then “in a position to carry out the threat.” (38 Cal.3d at p. 777, 215 Cal.Rptr. 1, 700 P.2d 782.) In People v. Tuilaepa (1992) 4 Cal.4th 569, 15 Cal.Rptr.2d 382, 842 P.2d 1142, we cited the fact that the defendant was locked in his cell for the night when he threatened **535 to burn a pair of pants and an adviser's face, along with the absence of a “substantial showing that [the] defendant harbored the requisite intent—interfering with the performance of official duties”—in rejecting the Attorney General's contention the threats in that case violated section 71. (4 Cal.4th at p. 590, 15 Cal.Rptr.2d 382, 842 P.2d 1142.) In neither case, however, did we consider that section 71, unlike section 422 (prohibiting criminal threats) and section 404.6 (prohibiting inciting to riot) contains no requirement of immediacy.

People v. Dunkle, 36 Cal. 4th 861, 919–20, 116 P.3d 494, 534–35 (2005), disapproved of by People v. Doolin, 45 Cal. 4th 390, 198 P.3d 11 (2009)

==PC76==

Threatening certain public officials, appointees, judges, staff, or their immediate families; intent and apparent ability to carry out threat; punishment

(a) Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, or the staff, immediate family, or immediate family of the staff of any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense, punishable as follows:
(1) Upon a first conviction, the offense is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both that fine and imprisonment.

(2) If the person has been convicted previously of violating this section, the previous conviction shall be charged in the accusatory pleading, and if the previous conviction is found to be true by the jury upon a jury trial, or by the court upon a court trial, or is admitted by the defendant, the offense is punishable by imprisonment pursuant to subdivision (h) of Section 1170.

(b) Any law enforcement agency that has knowledge of a violation of this section involving a constitutional officer of the state, a Member of the Legislature, or a member of the judiciary shall immediately report that information to the Department of the California Highway Patrol.

(c) For purposes of this section, the following definitions shall apply:

(1) “Apparent ability to carry out that threat” includes the ability to fulfill the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date.

(2) “Serious bodily harm” includes serious physical injury or serious traumatic condition.

(3) “Immediate family” means a spouse, parent, or child, or anyone who has regularly resided in the household for the past six months.

(4) “Staff of a judge” means court officers and employees, including commissioners, referees, and retired judges sitting on assignment.

(5) “Threat” means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.

(d) As for threats against staff or immediate family of staff, the threat must relate directly to the official duties of the staff of the elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(e) A threat must relate directly to the official duties of a Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(Added by Stats.1982, c. 1405, p. 5360, § 1. Amended by Stats.1984, c. 627, § 1; Stats.1992, c. 887 (A.B.3816), § 8; Stats.1993, c. 134 (S.B.1042), § 1; Stats.1994, c. 820 (S.B.1463), § 1; Gov.Reorg.Plan No. 1 of 1995, § 42, eff. July 12, 1995; Stats.1995, c. 354 (A.B.1866), § 1; Stats.1996, c. 305 (A.B.3103), § 43; Stats.1998, c. 606 (S.B.1880), § 6; Stats.2000, c. 233 (S.B.1859), § 1; Stats.2004, c. 512 (A.B.1433), § 1; Stats.2011, c. 15 (A.B.109), § 239, eff. April 4, 2011, operative Oct. 1, 2011.)

==Annoying phone calls==

===Penal Code 653m(a)===
(a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.

A single use of obscene language or threats.

===Penal Code 653m(b)===
(b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

PC653m(b) required repeated telephone conduct.

===Penal Code 148.3 swatting reporting false emergency===

===Penal Code 653x using 911 to annoy or harass person===

(b) An intent to annoy or harass is established by proof of repeated calls or communications over a period of time, however short, that are unreasonable under the circumstances.

===Penal Code 653y using 911 for non-emergencies===

This section does not apply to uses of the 911 emergency system by a person with an intellectual disability or other mental disability that makes it difficult or impossible for the person to understand the potential consequences of their actions.

==Stalking==

Section 646.9 requires a willful, malicious, and repeated following or harassment of another, coupled with a credible threat with an intent to place that person or their family in reasonable fear for their safety. This statute requires that an actual threat of harm be made; malicious teasing or bullying will not suffice.

==Doxxing==

People v. Shivers (2015) 235 Cal.App.4th Supp. 8
The tweets posted on July 4, 2012, and July 8, 2012, which were the basis for the Penal Code section 653.2 charge, stated, respectively, “HAPPY FOURTH OF JULY EVERYONE. SEE YOU ON MY USUAL HANGOUT, CAHUENGA!! (If you see my stalker Pauley Perrette follow me there call LAPD!!!)” and “Speakin of # Cahuenga i'll be there 2nite as usual. If you see my stalker # NCIS Pauley Perrette follow me there report her to LAPD immediately!” (Original capitalization.)

The plain meaning of the words used reveals no requirement that actual incitement or actual production of the enumerated unlawful effects be caused by a person's electronic distribution of a message. The only requirement is that a defendant's message is likely to incite or produce third party actions. People v. Shivers (2015) 235 Cal.App.4th Supp. 8, 13.

“One, the defendant by means of an electronic communication device and acted [sic ] without the consent of [Perrette] electronically distributed or published an electronic message of a harassing nature; and [¶] Two, the defendant electronically distributed or published the electronic **358 message about [Perrette] for the purpose of imminently causing [Perrette] unwanted physical contact or injury or harassment by a third party; and [¶] Three, the defendant distributed the electronic message and a reasonable person would consider that electronic message likely to incite or produce unwanted physical contact, injury or harassment by a third party; and [¶] Four, the defendant at the time of the electronic distribution of the electronic message acted with the intent to place [Perrette] in reasonable fear for her safety or safety of her immediate family.”

Section 653.2 makes it a misdemeanor for any person who--with intent to place another person or their immediate family in reasonable fear for their safety by means of an electronic communication device and for the purpose of imminently causing unwanted harassment--electronically distributes, publishes, emails, hyperlinks, or makes available for downloading personal identifying information, including, but not limited to, a digital image of another person, or a harassing message about another person, which would likely incite or produce unlawful action. Section 653.2 is too narrow to cover all cyberbullying-type conduct because it requires the dissemination of personal identifying information and is really just a modification of the existing California criminal stalking statute to prohibit “the type of harassment that has become all to[o] commonplace in this digital age, harassment committed using e-mail, cell phone, or some other electronic communication device.” The purpose of section 653.2 is to “simply [[close] an electronic loophole in the stalking statute and [give] law enforcement the ability to hold accountable those who would prey on victims using electronic means.”

==Online impersonation==
Penal Code 528.5

Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).

Probation conditions

2026-09-19T01:54:24Z

Sysop:

==Search conditions or 4th Waivers==
''People v. Bryant'' (Apr. 17, 2017, No. B271300), available at [http://www.courts.ca.gov/opinions/documents/B271300M.PDF]

==Social media sites==

''People v. Prowell'' (2020) 48 Cal.App.5th 1094.

==Communication devices==

''People v. Prowell'' (2020) 48 Cal.App.5th 1094.

==Pornography==

''In re D.H.'' (Oct. 25, 2016, No. A147361)

''People v. Connors'' (Sept. 27, 2016, No. H042385)

==Curfew==
''People v. Nassetta'' (Sept. 26, 2016, No. A144049)

==Ban from stores==
''People v. Moran'' (Aug. 4, 2016, S215914)

==Traveling, changing residences, or banishment==
;''People v. Soto'' (2016) 245 Cal.App.4th 1219
:For a VC23152(b) conviction, a probation condition requiring approval before moving out of the county or leaving California was not related to the crime or to future criminality and therefore an unreasonable condition.

Bail

2026-09-16T07:13:37Z

Sysop: /* Humphrey and Kowalczyk */

==Humphrey and Kowalczyk==

"The totality of the circumstances also includes a defendant's financial situation and resources available to satisfy a monetary bail order. '''This does not mean that bail may only be set in an amount that is easily affordable or convenient to the defendant, or that the court must accept unsupported, conclusory assertions of indigency or an inability to pay.''' Rather, consistent with constitutional framework regarding bail determinations and our prior precedent, bail must generally be set in an amount that is reasonably attainable, in order to effectuate the defendant's constitutional right to pretrial release on bail." (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 607-608.)

"When it comes to considering monetary bail, the defendant must do more than present conclusory assertions of indigency or an inability to pay." (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 625.)

Kowalczyk said "a defendant cannot rely on conclusory assertions of excessiveness to prevail in every case," and quotes with approval Ex Parte Duncan, "Consistent with the totality of the circumstances approach we adopt here, we reasoned with respect to excessiveness: 'Undoubtedly the extent of the pecuniary ability of a prisoner to furnish bail is a circumstance among other circumstances to be considered in fixing the amount in which it is to be required, but it is not in itself controlling. [Otherwise], ... '''the fact that the prisoner had no means of his own, and no friends who were able or willing to become sureties for him, even in the smallest sum, would constitute a case of excessive bail, and would entitle him to go at large upon his own recognizance.'''' (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 627.)

"'''This does not mean that, once a court determines that setting monetary bail is necessary to vindicate state interests, it must set bail in an amount that is easily affordable or convenient to the defendant, or that a court should accept a defendant's conclusory allegations regarding indigency, excessiveness, or an inability to pay. That is, if a defendant alleges the inability to pay a certain bail amount, the burden is on the defendant to support that allegation with reliable evidence.'''" (In re Kowalczyk (2026) 19 Cal.5th 593, 630.)

"When defendants are accused of felonies involving domestic abuse, child neglect, or drug trafficking, detention may be authorized under section 12 if the charges involve violence or threatened violence. In some cases, detention may be authorized even when the defendant was not the direct perpetrator." (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 634 (conc. opn. of Groban, J.)

"The issues in this case pertain to pretrial bail." (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 610, fn. 4.)

==Bail==

"The California Supreme Court has recognized that release on bail and OR release are separate and distinct procedures." (''Williams v. County of San Joaquin'' (1990) 225 Cal.App.3d 1326, citing ''Van Atta v. Scott'' (1980) 27 Cal.3d 424, 452 ["Release on own recognizance and release on bail are alternative and complementary systems"]]

==Own Recognizance (OR) Release==

PC1318 defines the legal agreement for OR Release.

==Bail or OR conditions==

In re Webb

===Compliance with PC1318 by written agreement===
In order to be legally considered an OR release, PC1318 must be complied with. (''People v. Jenkins'' (1983) 146 Cal.App.3d 22 ["However else it might be characterized, a release without bail which does not comply with the specific requirements of section 1318 is not a release 'under an own recognizance'"] There must be a written agreement. Otherwise, it is not an OR release. (''People v. Hernandez'' (2009) 177 Cal.App.4th 1182, 1191 [holding that compliance with PC1318 includes "the necessity of a signed release agreement containing the required stipulations, an essential part of what constitutes an O.R. release."].) In ''Jenkins'', the defendant signed an agreement for a release, but it did not contain a provision "inform[ing] of the consequences and penalties applicable to violation of the conditions of release." (Penal Code, §1318, subd. (a)(4).) Because of that, it could not be considered legally an OR release, so PC1320 was not violated. In ''People v. Mohammed'' (2008) 162 Cal.App.4th 920, there was no written agreement, but it was argued that PC1318 was substantially complied with. ''Mohammed'' rejected substantial compliance as an excuse for not complying with PC1318. On the other hand, ''People v. Carroll'' (2014) 222 Cal.App.4th 1406, held that substantial compliance with PC1318 will permit a PC1320 prosecution. In ''Carroll'', the defendant signed a written agreement that did contain language from PC1318(a)(2) ("The defendant’s promise to obey all reasonable conditions imposed by the court or magistrate.") or PC1318(a)(3) ("The defendant’s promise not to depart this state without leave of the court.") The written agreement did include the consequences of FTAing. The missing language had no effect on the FTA. So contrary to ''Mohammed'', ''Carroll'' held there was substantial compliance and that substantial compliance was a valid theory for PC1320 prosecutions.

"Similar to a bail bond being in the nature of a contract between the government and the surety that ensures the appearance of the defendant ([citation].), an OR written agreement is a contract between government and the defendant in which the defendant not only promises to appear, but is informed of the consequences of nonappearance." ''(People v. Mohammed'' (2008) 162 Cal.App.4th 920.)

===Penal Code section 1318===

(a) The defendant shall not be released from custody under an own recognizance until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement which includes:
:(1) The defendant’s promise to appear at all times and places, as ordered by the court or magistrate and as ordered by any court in which, or any magistrate before whom the charge is subsequently pending.
:(2) The defendant’s promise to obey all reasonable conditions imposed by the court or magistrate.
:(3) The defendant’s promise not to depart this state without leave of the court.
:(4) Agreement by the defendant to waive extradition if the defendant fails to appear as required and is apprehended outside of the State of California.
:(5) The acknowledgment of the defendant that he or she has been informed of the consequences and penalties applicable to violation of the conditions of release.

==Failure to Appear (FTA)==
PC1320 punishes FTAs for OR release. FTA on a misdemeanor is a misdemeanor. FTA on a felony is a felony.
PC1320.5 punishes FTA while on bail for felonies.

FTA is in itself a crime. It does not matter what happened on the underlying offense. (''People v. Walker'' (2002) 29 Cal.4th 577, 583 ["The language and history of section 1320.5 also reflect the Legislature's view that fulfillment of this purpose requires punishment whether or not the defendant ultimately is convicted of the charge for which he or she was out on bail when failing to appear in court as ordered."].)

==PC12022.1 On bail enhancement==

PC12022.1(b): Any person arrested for a secondary offense that was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years, which shall be served consecutive to any other term imposed by the court.

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

On bail for a case outside of California counts as being on bail. (''People v. Griffin'' (2005) 128 Cal.App.4th 1112.)

If a felony with a PC12022.1 on-bail enhancement is reduced to a misdemeanor under Prop 47, the PC12022.1 enhancement disappears. (People v. Buycks (2018) 5 Cal.5th 857, 896, citing People v. Buycks (2015) 241 Cal.App.4th 519.)

If the primary offense pleads out to a misdemeanor, then no PC12022.1 enhancement. (''People v. Reyes'' (2016) 3 Cal.App.5th 1222, 1227.)

Determination of whether primary offense is a felony is at time of sentencing. (''People v. Smith'' (2006) 142 Cal.App.4th 923, 935, fn. 4.)

An arrest for the secondary offense is required for the on-bail enhancement to be imposed. Arrest means "the defendant is taken into custody for the commission of the secondary offense." (''In re Mazur'' (2022) 81 Cal.App.5th 203, 210.)

''People v. Johnson'' (2012) 208 Cal.App.4th 1092, held that even after ''Apprendi'', a defendant does not have a right to a jury trial on the on-bail enhancement, because it falls within the prior conviction exception. However, ''Johnson'' relied upon a series of California cases that were overruled by People v. Gallardo (2017) 4 Cal.5th 120.

''People v. Smith'' (2006) held that the conviction of the primary offense is not an element of the enhancement that has to be found by a jury.

The appropriate jury instruction is CALCRIM 3250.

“If you find the defendant guilty of the crime charged in Count XXX, you must then decide whether the People have proved the additional allegation that at the time of the commission of Count YYYY, that the Defendant was released from custody on bail or his own recognizance for Count XXXX,

To prove this allegation, the People must prove that

1) At the time the Defendant committed the acts alleged in Count YYYY, he had been released from custody on bail or on his or her own recognizance pending trial for Count XXX,
and

2) and that he was taken into custody for the commission of Count YYYY”

“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.].)

What is final judgment? For purposes of appeal, under PC1237, order granting probation is final judgment. But People v. McKenzie (2018) 25 Cal.App.5th 1207, gives many distinctions. “It is true that, under [Penal Code] section 1237, an order granting probation is deemed a ‘final judgment’ for the purpose of taking an appeal. [Citation.] [The Supreme Court has] explained, however, that such an order ‘does not have the effect of a judgment for other purposes.’ ” (People v. Chavez (2018) 4 Cal.5th 771, 786, 231 Cal.Rptr.3d 634, 415 P.3d 707; Howard, supra, 16 Cal.4th at p. 1087, 68 Cal.Rptr.2d 870, 946 P.2d 828 [“The probation order is considered to be a final judgment only for the ‘limited purpose of taking an appeal therefrom.’ ”]; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796, 114 Cal.Rptr. 596, 523 P.2d 636 [same].) Indeed, it has been held that an order granting probation does not have the effect of a final judgment in the context of Estrada's retroactivity. (In re May (1976) 62 Cal.App.3d 165, 169, 133 Cal.Rptr. 33 (May) [order suspending proceedings and granting probation did not have the effect of a final judgment for purposes of this case; “the rationale of Estrada applies to this case because the amendatory statute became effective after the commission of the act but before the judgment of conviction was final”].)

==Supervision revocation==

The constitutional and statutory provisions with respect to right to bail, while absolute except in a narrow class of cases, pertain only to persons incarcerated on a charge of the commission of a criminal offense, and do not entitle to release on bail a person subject to a “parole hold” by reason of alleged parole violation. (''In re Law'' (1973) 10 Cal.3d 21, 25-26.)

In re Law was interpreting California Constitution Article I, section 6, which is now section 12.

Federal 8th Amendment doesn't apply to probation revocation. (In re Whitney (1st Cir. 1970) 421 F.2d 337, 338.)

Kowalczyk does cite to In re Law and in no way suggests it is overruling In re Law. "The issues in this case pertain to pretrial bail. Different principles apply to bail pending appeal. (In re Kowalczyk (2026) 19 Cal.5th 593, 610, fn.4)

Probationers have limited constitutional rights to due process under Morrisey and Vickers, such as right to counsel, right to present evidence, right to confront and cross-examine witnesses,

Bail

2026-09-16T07:04:40Z

Sysop:

==Humphrey and Kowalczyk==

"The totality of the circumstances also includes a defendant's financial situation and resources available to satisfy a monetary bail order. '''This does not mean that bail may only be set in an amount that is easily affordable or convenient to the defendant, or that the court must accept unsupported, conclusory assertions of indigency or an inability to pay.''' Rather, consistent with constitutional framework regarding bail determinations and our prior precedent, bail must generally be set in an amount that is reasonably attainable, in order to effectuate the defendant's constitutional right to pretrial release on bail." (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 607-608.)

"When it comes to considering monetary bail, the defendant must do more than present conclusory assertions of indigency or an inability to pay." (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 625.)

Kowalczyk said "a defendant cannot rely on conclusory assertions of excessiveness to prevail in every case," and quotes with approval Ex Parte Duncan, "Consistent with the totality of the circumstances approach we adopt here, we reasoned with respect to excessiveness: 'Undoubtedly the extent of the pecuniary ability of a prisoner to furnish bail is a circumstance among other circumstances to be considered in fixing the amount in which it is to be required, but it is not in itself controlling. [Otherwise], ... '''the fact that the prisoner had no means of his own, and no friends who were able or willing to become sureties for him, even in the smallest sum, would constitute a case of excessive bail, and would entitle him to go at large upon his own recognizance.'''' (''In re Kowalczyk'' (2026) 19 Cal.5th 593, 627.)

==Bail==

"The California Supreme Court has recognized that release on bail and OR release are separate and distinct procedures." (''Williams v. County of San Joaquin'' (1990) 225 Cal.App.3d 1326, citing ''Van Atta v. Scott'' (1980) 27 Cal.3d 424, 452 ["Release on own recognizance and release on bail are alternative and complementary systems"]]

==Own Recognizance (OR) Release==

PC1318 defines the legal agreement for OR Release.

==Bail or OR conditions==

In re Webb

===Compliance with PC1318 by written agreement===
In order to be legally considered an OR release, PC1318 must be complied with. (''People v. Jenkins'' (1983) 146 Cal.App.3d 22 ["However else it might be characterized, a release without bail which does not comply with the specific requirements of section 1318 is not a release 'under an own recognizance'"] There must be a written agreement. Otherwise, it is not an OR release. (''People v. Hernandez'' (2009) 177 Cal.App.4th 1182, 1191 [holding that compliance with PC1318 includes "the necessity of a signed release agreement containing the required stipulations, an essential part of what constitutes an O.R. release."].) In ''Jenkins'', the defendant signed an agreement for a release, but it did not contain a provision "inform[ing] of the consequences and penalties applicable to violation of the conditions of release." (Penal Code, §1318, subd. (a)(4).) Because of that, it could not be considered legally an OR release, so PC1320 was not violated. In ''People v. Mohammed'' (2008) 162 Cal.App.4th 920, there was no written agreement, but it was argued that PC1318 was substantially complied with. ''Mohammed'' rejected substantial compliance as an excuse for not complying with PC1318. On the other hand, ''People v. Carroll'' (2014) 222 Cal.App.4th 1406, held that substantial compliance with PC1318 will permit a PC1320 prosecution. In ''Carroll'', the defendant signed a written agreement that did contain language from PC1318(a)(2) ("The defendant’s promise to obey all reasonable conditions imposed by the court or magistrate.") or PC1318(a)(3) ("The defendant’s promise not to depart this state without leave of the court.") The written agreement did include the consequences of FTAing. The missing language had no effect on the FTA. So contrary to ''Mohammed'', ''Carroll'' held there was substantial compliance and that substantial compliance was a valid theory for PC1320 prosecutions.

"Similar to a bail bond being in the nature of a contract between the government and the surety that ensures the appearance of the defendant ([citation].), an OR written agreement is a contract between government and the defendant in which the defendant not only promises to appear, but is informed of the consequences of nonappearance." ''(People v. Mohammed'' (2008) 162 Cal.App.4th 920.)

===Penal Code section 1318===

(a) The defendant shall not be released from custody under an own recognizance until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement which includes:
:(1) The defendant’s promise to appear at all times and places, as ordered by the court or magistrate and as ordered by any court in which, or any magistrate before whom the charge is subsequently pending.
:(2) The defendant’s promise to obey all reasonable conditions imposed by the court or magistrate.
:(3) The defendant’s promise not to depart this state without leave of the court.
:(4) Agreement by the defendant to waive extradition if the defendant fails to appear as required and is apprehended outside of the State of California.
:(5) The acknowledgment of the defendant that he or she has been informed of the consequences and penalties applicable to violation of the conditions of release.

==Failure to Appear (FTA)==
PC1320 punishes FTAs for OR release. FTA on a misdemeanor is a misdemeanor. FTA on a felony is a felony.
PC1320.5 punishes FTA while on bail for felonies.

FTA is in itself a crime. It does not matter what happened on the underlying offense. (''People v. Walker'' (2002) 29 Cal.4th 577, 583 ["The language and history of section 1320.5 also reflect the Legislature's view that fulfillment of this purpose requires punishment whether or not the defendant ultimately is convicted of the charge for which he or she was out on bail when failing to appear in court as ordered."].)

==PC12022.1 On bail enhancement==

PC12022.1(b): Any person arrested for a secondary offense that was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years, which shall be served consecutive to any other term imposed by the court.

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

On bail for a case outside of California counts as being on bail. (''People v. Griffin'' (2005) 128 Cal.App.4th 1112.)

If a felony with a PC12022.1 on-bail enhancement is reduced to a misdemeanor under Prop 47, the PC12022.1 enhancement disappears. (People v. Buycks (2018) 5 Cal.5th 857, 896, citing People v. Buycks (2015) 241 Cal.App.4th 519.)

If the primary offense pleads out to a misdemeanor, then no PC12022.1 enhancement. (''People v. Reyes'' (2016) 3 Cal.App.5th 1222, 1227.)

Determination of whether primary offense is a felony is at time of sentencing. (''People v. Smith'' (2006) 142 Cal.App.4th 923, 935, fn. 4.)

An arrest for the secondary offense is required for the on-bail enhancement to be imposed. Arrest means "the defendant is taken into custody for the commission of the secondary offense." (''In re Mazur'' (2022) 81 Cal.App.5th 203, 210.)

''People v. Johnson'' (2012) 208 Cal.App.4th 1092, held that even after ''Apprendi'', a defendant does not have a right to a jury trial on the on-bail enhancement, because it falls within the prior conviction exception. However, ''Johnson'' relied upon a series of California cases that were overruled by People v. Gallardo (2017) 4 Cal.5th 120.

''People v. Smith'' (2006) held that the conviction of the primary offense is not an element of the enhancement that has to be found by a jury.

The appropriate jury instruction is CALCRIM 3250.

“If you find the defendant guilty of the crime charged in Count XXX, you must then decide whether the People have proved the additional allegation that at the time of the commission of Count YYYY, that the Defendant was released from custody on bail or his own recognizance for Count XXXX,

To prove this allegation, the People must prove that

1) At the time the Defendant committed the acts alleged in Count YYYY, he had been released from custody on bail or on his or her own recognizance pending trial for Count XXX,
and

2) and that he was taken into custody for the commission of Count YYYY”

“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.].)

What is final judgment? For purposes of appeal, under PC1237, order granting probation is final judgment. But People v. McKenzie (2018) 25 Cal.App.5th 1207, gives many distinctions. “It is true that, under [Penal Code] section 1237, an order granting probation is deemed a ‘final judgment’ for the purpose of taking an appeal. [Citation.] [The Supreme Court has] explained, however, that such an order ‘does not have the effect of a judgment for other purposes.’ ” (People v. Chavez (2018) 4 Cal.5th 771, 786, 231 Cal.Rptr.3d 634, 415 P.3d 707; Howard, supra, 16 Cal.4th at p. 1087, 68 Cal.Rptr.2d 870, 946 P.2d 828 [“The probation order is considered to be a final judgment only for the ‘limited purpose of taking an appeal therefrom.’ ”]; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796, 114 Cal.Rptr. 596, 523 P.2d 636 [same].) Indeed, it has been held that an order granting probation does not have the effect of a final judgment in the context of Estrada's retroactivity. (In re May (1976) 62 Cal.App.3d 165, 169, 133 Cal.Rptr. 33 (May) [order suspending proceedings and granting probation did not have the effect of a final judgment for purposes of this case; “the rationale of Estrada applies to this case because the amendatory statute became effective after the commission of the act but before the judgment of conviction was final”].)

==Supervision revocation==

The constitutional and statutory provisions with respect to right to bail, while absolute except in a narrow class of cases, pertain only to persons incarcerated on a charge of the commission of a criminal offense, and do not entitle to release on bail a person subject to a “parole hold” by reason of alleged parole violation. (''In re Law'' (1973) 10 Cal.3d 21, 25-26.)

In re Law was interpreting California Constitution Article I, section 6, which is now section 12.

Federal 8th Amendment doesn't apply to probation revocation. (In re Whitney (1st Cir. 1970) 421 F.2d 337, 338.)

Kowalczyk does cite to In re Law and in no way suggests it is overruling In re Law. "The issues in this case pertain to pretrial bail. Different principles apply to bail pending appeal. (In re Kowalczyk (2026) 19 Cal.5th 593, 610, fn.4)

Probationers have limited constitutional rights to due process under Morrisey and Vickers, such as right to counsel, right to present evidence, right to confront and cross-examine witnesses,

Pleadings

2026-09-14T04:24:41Z

Sysop: /* Accusatory Pleadings */

==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)

When a statute lists several acts in the disjunctive, any one of which constitutes an offense, the complaint, in alleging more than one act, should do so in the conjunctive to avoid uncertainty. However, the allegations do not require the prosecutor to prove that the defendant committed the crime in more than one way.

In re Bushman, 1 Cal. 3d 767, 83 Cal. Rptr. 375, 463 P.2d 727 (1970) (disapproved of on other grounds by, People v. Lent, 15 Cal. 3d 481, 124 Cal. Rptr. 905, 541 P.2d 545 (1975)); People v. Lopez, 129 Cal. App. 4th 1508, 29 Cal. Rptr. 3d 586 (6th Dist. 2005).

"When a statute such as Penal Code section 415 lists several acts in the disjunctive, any one of which constitutes an offense, the complaint, in alleging more than one of such acts, should do so in the conjunctive to avoid uncertainty. (People v. Ah Woo (1865) 28 Cal. 205, 212; People v. O'Brien (1900) 130 Cal. 1, 3—4, 62 P. 297.) Merely because the complaint is phrased in the conjunctive, however, does not prevent a trier of fact from convicting a defendant if the evidence proves only one of the alleged acts. (People v. McClennegen (1925) 195 Cal. 445, 452, 234 P. 91.) The jury could have found petitioner guilty of ‘tumultuous conduct’ if the evidence proved that his conduct was maliciously and wilfully violent, endangering public safety and order. They might also have found him guilty of ‘offensive conduct’ if his malicious and wilful actions incited others to violence, although his own conduct was not in itself violent." (In re Bushman (1970) 1 Cal.3d 767, 775 [83 Cal.Rptr. 375, 380, 463 P.2d 727, 732] disapproved of by People v. Lent (1975) 15 Cal.3d 481 [124 Cal.Rptr. 905, 541 P.2d 545].)

When a crime can be committed in more than one way, it is standard practice *1533 to allege in the conjunctive that it was committed every way. Such allegations do not require the prosecutor to prove that the defendant committed the crime in more than one way. People v. Lopez (2005) 129 Cal.App.4th 1508, 1532–1533 [29 Cal.Rptr.3d 586, 605]

If a statute contains several provisions the violation of any of which is an offense, the statement of the offense should clearly indicate which provision was allegedly violated. If several separate and distinct offenses are enumerated in a statute under a generic designation, it is not sufficient to charge the defendant under the generic designation without further charging the specific offense or offenses.

People v. Plath, 166 Cal. 227, 135 P. 954 (1913); In re Rudolfo A., 110 Cal. App. 3d 845, 168 Cal. Rptr. 338 (2d Dist. 1980).

==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.

A charge made using the statutory language is sufficient, even though it contains conclusions of law.2 Lorenson v. Superior Court in and for Los Angeles County, 35 Cal. 2d 49, 61, 216 P.2d 859 (1950).

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

Sallas v. Municipal Court, 86 Cal. App. 3d 737, 743, 150 Cal. Rptr. 543 (1st Dist. 1978)

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]

Judge's duty on lesser included offense.

People v. Toro, 47 Cal. 3d 966, 975, 254 Cal. Rptr. 811, 766 P.2d 577 (1989) (disapproved of by, People v. Guiuan, 18 Cal. 4th 558, 76 Cal. Rptr. 2d 239, 957 P.2d 928 (1998)).

People v. Eilers, 231 Cal. App. 3d 288, 295, 282 Cal. Rptr. 252 (4th Dist. 1991) (court must instruct on lesser included offense despite defense objection because jury entitled to consider full range of possible verdicts).

==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)

Pleadings

2026-09-14T04:16:46Z

Sysop: /* Charging Language */

==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.

A charge made using the statutory language is sufficient, even though it contains conclusions of law.2 Lorenson v. Superior Court in and for Los Angeles County, 35 Cal. 2d 49, 61, 216 P.2d 859 (1950).

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

Sallas v. Municipal Court, 86 Cal. App. 3d 737, 743, 150 Cal. Rptr. 543 (1st Dist. 1978)

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]

Judge's duty on lesser included offense.

People v. Toro, 47 Cal. 3d 966, 975, 254 Cal. Rptr. 811, 766 P.2d 577 (1989) (disapproved of by, People v. Guiuan, 18 Cal. 4th 558, 76 Cal. Rptr. 2d 239, 957 P.2d 928 (1998)).

People v. Eilers, 231 Cal. App. 3d 288, 295, 282 Cal. Rptr. 252 (4th Dist. 1991) (court must instruct on lesser included offense despite defense objection because jury entitled to consider full range of possible verdicts).

==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)

Double jeopardy

2026-09-14T04:06:35Z

Sysop: /* Multiple offenses */

Double jeopardy

Penal Code 656, 793 - double jeopardy

Penal Code 778a - continuous transaction over state lines

* People v. Mason (1962) 200 Cal.App.2d 282

* People v. Bell (2015) 241 Cal.App.4th 315

* People v. Vigghiany (1960) 181 Cal.App.2d 621

* People v. Conson (1925) 72 Cal.App. 509.

* People v. Burkhart (1936) 5 Cal.2d 641

* People v. O'Leary (1888) 77 Cal.30

* Ex Parte Berman (1930) 104 Cal.App. 259

* People v. Gonzalez (2015) 241 Cal.App.4th 1103

* People v. Sanchez (2020) 49 Cal.App.5th 961

* People v. Braum (2020) 49 Cal.App.5th 342

* People v. Precaido (1916) 31 Cal.App. 519)

* People v. Jackson (1936) 24 Cal.App.2d 182

==Multiple offenses==

People v. Vidana (2016) 1 Cal.5th 632, 651 ["We therefore conclude section 954 does not authorize multiple convictions for different statements of the same offense."]

PC245(a)(1) and PC245(a)(4) - ''People v. Aguayo'' (2022) 13 Cal.5th 974.

''People v. Cota'' (2020) 44 Cal.App.5th 720

==Duplicative filings==

PC1387

Berardi v. Superior Court (2008) 160 Cal.App.4th 210

“A procedure to dismiss one of those duplicative accessory pleadings is for the trial court to consolidate those pleadings and then dismiss the duplicate counts alleged in the consolidated pleadings.”

People v. Rodriguez (2013) 217 Cal.App.4th 326

People v. Elias (1990) 218 Cal.App.3d 1161 - “A statutory procedure which would achieve the desired result of disposing of the duplicate complaint would be to consolidate the pleadings under the newly filed complaint number as two counts and then strike one count.”

Mins v. Superior Court in and for Sutter County (1955) 137 Cal.App.2d 728

People v. Superior Court (Martinez) (1993) 19 Cal.App.4th 738

People v. Boyle (19920 4 Cal.App.4th 400

==Information and indictments==

People v. Cossio (1977) 76 Cal.App.3d 369

People v. Schlosser (1978) 77 Cal.App.3d 1007

Pleadings

2026-09-14T03:52:12Z

Sysop: /* Charging Language */

==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.

A charge made using the statutory language is sufficient, even though it contains conclusions of law.2 Lorenson v. Superior Court in and for Los Angeles County, 35 Cal. 2d 49, 61, 216 P.2d 859 (1950).

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

Sallas v. Municipal Court, 86 Cal. App. 3d 737, 743, 150 Cal. Rptr. 543 (1st Dist. 1978)

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]

Judge's duty on lesser included offense.

People v. Toro, 47 Cal. 3d 966, 975, 254 Cal. Rptr. 811, 766 P.2d 577 (1989) (disapproved of by, People v. Guiuan, 18 Cal. 4th 558, 76 Cal. Rptr. 2d 239, 957 P.2d 928 (1998)).

People v. Eilers, 231 Cal. App. 3d 288, 295, 282 Cal. Rptr. 252 (4th Dist. 1991) (court must instruct on lesser included offense despite defense objection because jury entitled to consider full range of possible verdicts).

==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)

Pleadings

2026-09-14T03:41:52Z

Sysop: /* lesser included */

==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]

Judge's duty on lesser included offense.

People v. Toro, 47 Cal. 3d 966, 975, 254 Cal. Rptr. 811, 766 P.2d 577 (1989) (disapproved of by, People v. Guiuan, 18 Cal. 4th 558, 76 Cal. Rptr. 2d 239, 957 P.2d 928 (1998)).

People v. Eilers, 231 Cal. App. 3d 288, 295, 282 Cal. Rptr. 252 (4th Dist. 1991) (court must instruct on lesser included offense despite defense objection because jury entitled to consider full range of possible verdicts).

==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)

Pleadings

2026-09-14T03:41:02Z

Sysop: /* lesser included */

==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.
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(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]

Judge shouldn't give lesser included offense sua sponte but must if defense requests it.

People v. Toro, 47 Cal. 3d 966, 975, 254 Cal. Rptr. 811, 766 P.2d 577 (1989) (disapproved of by, People v. Guiuan, 18 Cal. 4th 558, 76 Cal. Rptr. 2d 239, 957 P.2d 928 (1998)).

==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)

Bail

2026-09-10T05:45:21Z

Sysop: /* Supervision revocation */

"The California Supreme Court has recognized that release on bail and OR release are separate and distinct procedures." (''Williams v. County of San Joaquin'' (1990) 225 Cal.App.3d 1326, citing ''Van Atta v. Scott'' (1980) 27 Cal.3d 424, 452 ["Release on own recognizance and release on bail are alternative and complementary systems"]]

==Bail==

==Own Recognizance (OR) Release==

PC1318 defines the legal agreement for OR Release.

==Bail or OR conditions==

In re Webb

===Compliance with PC1318 by written agreement===
In order to be legally considered an OR release, PC1318 must be complied with. (''People v. Jenkins'' (1983) 146 Cal.App.3d 22 ["However else it might be characterized, a release without bail which does not comply with the specific requirements of section 1318 is not a release 'under an own recognizance'"] There must be a written agreement. Otherwise, it is not an OR release. (''People v. Hernandez'' (2009) 177 Cal.App.4th 1182, 1191 [holding that compliance with PC1318 includes "the necessity of a signed release agreement containing the required stipulations, an essential part of what constitutes an O.R. release."].) In ''Jenkins'', the defendant signed an agreement for a release, but it did not contain a provision "inform[ing] of the consequences and penalties applicable to violation of the conditions of release." (Penal Code, §1318, subd. (a)(4).) Because of that, it could not be considered legally an OR release, so PC1320 was not violated. In ''People v. Mohammed'' (2008) 162 Cal.App.4th 920, there was no written agreement, but it was argued that PC1318 was substantially complied with. ''Mohammed'' rejected substantial compliance as an excuse for not complying with PC1318. On the other hand, ''People v. Carroll'' (2014) 222 Cal.App.4th 1406, held that substantial compliance with PC1318 will permit a PC1320 prosecution. In ''Carroll'', the defendant signed a written agreement that did contain language from PC1318(a)(2) ("The defendant’s promise to obey all reasonable conditions imposed by the court or magistrate.") or PC1318(a)(3) ("The defendant’s promise not to depart this state without leave of the court.") The written agreement did include the consequences of FTAing. The missing language had no effect on the FTA. So contrary to ''Mohammed'', ''Carroll'' held there was substantial compliance and that substantial compliance was a valid theory for PC1320 prosecutions.

"Similar to a bail bond being in the nature of a contract between the government and the surety that ensures the appearance of the defendant ([citation].), an OR written agreement is a contract between government and the defendant in which the defendant not only promises to appear, but is informed of the consequences of nonappearance." ''(People v. Mohammed'' (2008) 162 Cal.App.4th 920.)

===Penal Code section 1318===

(a) The defendant shall not be released from custody under an own recognizance until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement which includes:
:(1) The defendant’s promise to appear at all times and places, as ordered by the court or magistrate and as ordered by any court in which, or any magistrate before whom the charge is subsequently pending.
:(2) The defendant’s promise to obey all reasonable conditions imposed by the court or magistrate.
:(3) The defendant’s promise not to depart this state without leave of the court.
:(4) Agreement by the defendant to waive extradition if the defendant fails to appear as required and is apprehended outside of the State of California.
:(5) The acknowledgment of the defendant that he or she has been informed of the consequences and penalties applicable to violation of the conditions of release.

==Failure to Appear (FTA)==
PC1320 punishes FTAs for OR release. FTA on a misdemeanor is a misdemeanor. FTA on a felony is a felony.
PC1320.5 punishes FTA while on bail for felonies.

FTA is in itself a crime. It does not matter what happened on the underlying offense. (''People v. Walker'' (2002) 29 Cal.4th 577, 583 ["The language and history of section 1320.5 also reflect the Legislature's view that fulfillment of this purpose requires punishment whether or not the defendant ultimately is convicted of the charge for which he or she was out on bail when failing to appear in court as ordered."].)

==PC12022.1 On bail enhancement==

PC12022.1(b): Any person arrested for a secondary offense that was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years, which shall be served consecutive to any other term imposed by the court.

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

On bail for a case outside of California counts as being on bail. (''People v. Griffin'' (2005) 128 Cal.App.4th 1112.)

If a felony with a PC12022.1 on-bail enhancement is reduced to a misdemeanor under Prop 47, the PC12022.1 enhancement disappears. (People v. Buycks (2018) 5 Cal.5th 857, 896, citing People v. Buycks (2015) 241 Cal.App.4th 519.)

If the primary offense pleads out to a misdemeanor, then no PC12022.1 enhancement. (''People v. Reyes'' (2016) 3 Cal.App.5th 1222, 1227.)

Determination of whether primary offense is a felony is at time of sentencing. (''People v. Smith'' (2006) 142 Cal.App.4th 923, 935, fn. 4.)

An arrest for the secondary offense is required for the on-bail enhancement to be imposed. Arrest means "the defendant is taken into custody for the commission of the secondary offense." (''In re Mazur'' (2022) 81 Cal.App.5th 203, 210.)

''People v. Johnson'' (2012) 208 Cal.App.4th 1092, held that even after ''Apprendi'', a defendant does not have a right to a jury trial on the on-bail enhancement, because it falls within the prior conviction exception. However, ''Johnson'' relied upon a series of California cases that were overruled by People v. Gallardo (2017) 4 Cal.5th 120.

''People v. Smith'' (2006) held that the conviction of the primary offense is not an element of the enhancement that has to be found by a jury.

The appropriate jury instruction is CALCRIM 3250.

“If you find the defendant guilty of the crime charged in Count XXX, you must then decide whether the People have proved the additional allegation that at the time of the commission of Count YYYY, that the Defendant was released from custody on bail or his own recognizance for Count XXXX,

To prove this allegation, the People must prove that

1) At the time the Defendant committed the acts alleged in Count YYYY, he had been released from custody on bail or on his or her own recognizance pending trial for Count XXX,
and

2) and that he was taken into custody for the commission of Count YYYY”

“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.].)

What is final judgment? For purposes of appeal, under PC1237, order granting probation is final judgment. But People v. McKenzie (2018) 25 Cal.App.5th 1207, gives many distinctions. “It is true that, under [Penal Code] section 1237, an order granting probation is deemed a ‘final judgment’ for the purpose of taking an appeal. [Citation.] [The Supreme Court has] explained, however, that such an order ‘does not have the effect of a judgment for other purposes.’ ” (People v. Chavez (2018) 4 Cal.5th 771, 786, 231 Cal.Rptr.3d 634, 415 P.3d 707; Howard, supra, 16 Cal.4th at p. 1087, 68 Cal.Rptr.2d 870, 946 P.2d 828 [“The probation order is considered to be a final judgment only for the ‘limited purpose of taking an appeal therefrom.’ ”]; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796, 114 Cal.Rptr. 596, 523 P.2d 636 [same].) Indeed, it has been held that an order granting probation does not have the effect of a final judgment in the context of Estrada's retroactivity. (In re May (1976) 62 Cal.App.3d 165, 169, 133 Cal.Rptr. 33 (May) [order suspending proceedings and granting probation did not have the effect of a final judgment for purposes of this case; “the rationale of Estrada applies to this case because the amendatory statute became effective after the commission of the act but before the judgment of conviction was final”].)

==Supervision revocation==

The constitutional and statutory provisions with respect to right to bail, while absolute except in a narrow class of cases, pertain only to persons incarcerated on a charge of the commission of a criminal offense, and do not entitle to release on bail a person subject to a “parole hold” by reason of alleged parole violation. (''In re Law'' (1973) 10 Cal.3d 21, 25-26.)

In re Law was interpreting California Constitution Article I, section 6, which is now section 12.

Federal 8th Amendment doesn't apply to probation revocation. (In re Whitney (1st Cir. 1970) 421 F.2d 337, 338.)

Kowalczyk does cite to In re Law and in no way suggests it is overruling In re Law. "The issues in this case pertain to pretrial bail. Different principles apply to bail pending appeal. (In re Kowalczyk (2026) 19 Cal.5th 593, 610, fn.4)

Probationers have limited constitutional rights to due process under Morrisey and Vickers, such as right to counsel, right to present evidence, right to confront and cross-examine witnesses,

Bail

2026-09-10T05:35:21Z

Sysop:

"The California Supreme Court has recognized that release on bail and OR release are separate and distinct procedures." (''Williams v. County of San Joaquin'' (1990) 225 Cal.App.3d 1326, citing ''Van Atta v. Scott'' (1980) 27 Cal.3d 424, 452 ["Release on own recognizance and release on bail are alternative and complementary systems"]]

==Bail==

==Own Recognizance (OR) Release==

PC1318 defines the legal agreement for OR Release.

==Bail or OR conditions==

In re Webb

===Compliance with PC1318 by written agreement===
In order to be legally considered an OR release, PC1318 must be complied with. (''People v. Jenkins'' (1983) 146 Cal.App.3d 22 ["However else it might be characterized, a release without bail which does not comply with the specific requirements of section 1318 is not a release 'under an own recognizance'"] There must be a written agreement. Otherwise, it is not an OR release. (''People v. Hernandez'' (2009) 177 Cal.App.4th 1182, 1191 [holding that compliance with PC1318 includes "the necessity of a signed release agreement containing the required stipulations, an essential part of what constitutes an O.R. release."].) In ''Jenkins'', the defendant signed an agreement for a release, but it did not contain a provision "inform[ing] of the consequences and penalties applicable to violation of the conditions of release." (Penal Code, §1318, subd. (a)(4).) Because of that, it could not be considered legally an OR release, so PC1320 was not violated. In ''People v. Mohammed'' (2008) 162 Cal.App.4th 920, there was no written agreement, but it was argued that PC1318 was substantially complied with. ''Mohammed'' rejected substantial compliance as an excuse for not complying with PC1318. On the other hand, ''People v. Carroll'' (2014) 222 Cal.App.4th 1406, held that substantial compliance with PC1318 will permit a PC1320 prosecution. In ''Carroll'', the defendant signed a written agreement that did contain language from PC1318(a)(2) ("The defendant’s promise to obey all reasonable conditions imposed by the court or magistrate.") or PC1318(a)(3) ("The defendant’s promise not to depart this state without leave of the court.") The written agreement did include the consequences of FTAing. The missing language had no effect on the FTA. So contrary to ''Mohammed'', ''Carroll'' held there was substantial compliance and that substantial compliance was a valid theory for PC1320 prosecutions.

"Similar to a bail bond being in the nature of a contract between the government and the surety that ensures the appearance of the defendant ([citation].), an OR written agreement is a contract between government and the defendant in which the defendant not only promises to appear, but is informed of the consequences of nonappearance." ''(People v. Mohammed'' (2008) 162 Cal.App.4th 920.)

===Penal Code section 1318===

(a) The defendant shall not be released from custody under an own recognizance until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement which includes:
:(1) The defendant’s promise to appear at all times and places, as ordered by the court or magistrate and as ordered by any court in which, or any magistrate before whom the charge is subsequently pending.
:(2) The defendant’s promise to obey all reasonable conditions imposed by the court or magistrate.
:(3) The defendant’s promise not to depart this state without leave of the court.
:(4) Agreement by the defendant to waive extradition if the defendant fails to appear as required and is apprehended outside of the State of California.
:(5) The acknowledgment of the defendant that he or she has been informed of the consequences and penalties applicable to violation of the conditions of release.

==Failure to Appear (FTA)==
PC1320 punishes FTAs for OR release. FTA on a misdemeanor is a misdemeanor. FTA on a felony is a felony.
PC1320.5 punishes FTA while on bail for felonies.

FTA is in itself a crime. It does not matter what happened on the underlying offense. (''People v. Walker'' (2002) 29 Cal.4th 577, 583 ["The language and history of section 1320.5 also reflect the Legislature's view that fulfillment of this purpose requires punishment whether or not the defendant ultimately is convicted of the charge for which he or she was out on bail when failing to appear in court as ordered."].)

==PC12022.1 On bail enhancement==

PC12022.1(b): Any person arrested for a secondary offense that was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years, which shall be served consecutive to any other term imposed by the court.

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

On bail for a case outside of California counts as being on bail. (''People v. Griffin'' (2005) 128 Cal.App.4th 1112.)

If a felony with a PC12022.1 on-bail enhancement is reduced to a misdemeanor under Prop 47, the PC12022.1 enhancement disappears. (People v. Buycks (2018) 5 Cal.5th 857, 896, citing People v. Buycks (2015) 241 Cal.App.4th 519.)

If the primary offense pleads out to a misdemeanor, then no PC12022.1 enhancement. (''People v. Reyes'' (2016) 3 Cal.App.5th 1222, 1227.)

Determination of whether primary offense is a felony is at time of sentencing. (''People v. Smith'' (2006) 142 Cal.App.4th 923, 935, fn. 4.)

An arrest for the secondary offense is required for the on-bail enhancement to be imposed. Arrest means "the defendant is taken into custody for the commission of the secondary offense." (''In re Mazur'' (2022) 81 Cal.App.5th 203, 210.)

''People v. Johnson'' (2012) 208 Cal.App.4th 1092, held that even after ''Apprendi'', a defendant does not have a right to a jury trial on the on-bail enhancement, because it falls within the prior conviction exception. However, ''Johnson'' relied upon a series of California cases that were overruled by People v. Gallardo (2017) 4 Cal.5th 120.

''People v. Smith'' (2006) held that the conviction of the primary offense is not an element of the enhancement that has to be found by a jury.

The appropriate jury instruction is CALCRIM 3250.

“If you find the defendant guilty of the crime charged in Count XXX, you must then decide whether the People have proved the additional allegation that at the time of the commission of Count YYYY, that the Defendant was released from custody on bail or his own recognizance for Count XXXX,

To prove this allegation, the People must prove that

1) At the time the Defendant committed the acts alleged in Count YYYY, he had been released from custody on bail or on his or her own recognizance pending trial for Count XXX,
and

2) and that he was taken into custody for the commission of Count YYYY”

“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.].)

What is final judgment? For purposes of appeal, under PC1237, order granting probation is final judgment. But People v. McKenzie (2018) 25 Cal.App.5th 1207, gives many distinctions. “It is true that, under [Penal Code] section 1237, an order granting probation is deemed a ‘final judgment’ for the purpose of taking an appeal. [Citation.] [The Supreme Court has] explained, however, that such an order ‘does not have the effect of a judgment for other purposes.’ ” (People v. Chavez (2018) 4 Cal.5th 771, 786, 231 Cal.Rptr.3d 634, 415 P.3d 707; Howard, supra, 16 Cal.4th at p. 1087, 68 Cal.Rptr.2d 870, 946 P.2d 828 [“The probation order is considered to be a final judgment only for the ‘limited purpose of taking an appeal therefrom.’ ”]; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796, 114 Cal.Rptr. 596, 523 P.2d 636 [same].) Indeed, it has been held that an order granting probation does not have the effect of a final judgment in the context of Estrada's retroactivity. (In re May (1976) 62 Cal.App.3d 165, 169, 133 Cal.Rptr. 33 (May) [order suspending proceedings and granting probation did not have the effect of a final judgment for purposes of this case; “the rationale of Estrada applies to this case because the amendatory statute became effective after the commission of the act but before the judgment of conviction was final”].)

==Supervision revocation==

The constitutional and statutory provisions with respect to right to bail, while absolute except in a narrow class of cases, pertain only to persons incarcerated on a charge of the commission of a criminal offense, and do not entitle to release on bail a person subject to a “parole hold” by reason of alleged parole violation. (''In re Law'' (1973) 10 Cal.3d 21, 25-26.)

Kowalczyk does cite to In re Law and in no way suggests it is overruling In re Law. "The issues in this case pertain to pretrial bail. Different principles apply to bail pending appeal. (In re Kowalczyk (2026) 19 Cal.5th 593, 610, fn.4)

Probationers have limited constitutional rights to due process under Morrisey and Vickers.

Jurisdiction and venue

2026-09-10T05:16:11Z

Sysop: /* Jurisdiction */

==Jurisdiction==

KeyNumber 110k97(1)

Jurisdiction is issue decided by trial court pretrial, not by jury. (People v. Betts (2005) 34 Cal.4th 1039.)

“jurisdictional facts need be proved only by a preponderance of the evidence and not beyond a reasonable doubt.” (Betts, at p. 1053.)

PC778: When the commission of a public offense, commenced without the State, is consummated within its boundaries by a defendant, himself outside the State, through the intervention of an innocent or guilty agent or any other means proceeding directly from said defendant, he is liable to punishment therefor in this State in any competent court within the jurisdictional territory of which the offense is consummated.

California has jurisdiction over Internet crime committed outside California but having directed impact on California resident. (Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399, 1419.)

It is not necessary to “detrimental effect” theory of extraterritorial jurisdiction in criminal cases that defendant be physically present in state during some portion of time during which his alleged criminal act took place, or that he act through agent physically present in state, or that there exist a statute or judicially declared exception extending state's territorial jurisdiction for particular crime with which defendant is charged. Hageseth v. Superior Court (App. 1 Dist. 2007) 59 Cal.Rptr.3d 385, 150 Cal.App.4th 1399, review denied. Criminal Law Key Number 97(1)

Under detrimental effect theory of extraterritorial jurisdiction, state had jurisdiction over foreign state defendant, charged with felony offense of practicing medicine in California without license, who engaged entirely in Internet-mediated communications while outside state and prescribed drugs to California resident, even though he was absent from state, did not act through local agent, and acted through intermediaries who were also out of state.

Where a statute, in addition to prohibiting conduct, includes within its definition of the offense a specific result, the crime is not completed, and thus not “consummated” for jurisdictional statutes, until that result occurs. (Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399.)

All persons who commit any crime in whole or in part within the state are liable to punishment under its laws, where defendant from Mexico mailed forged check on Arizona bank to bank in California, which sent check for collection to bank in Arizona, he was guilty of forgery and subject to punishment under California law. (People v. Sansom (1918) 37 Cal.App. 435.)

==Venue==

Jurisdiction and venue

2026-09-10T05:02:50Z

Sysop: /* Jurisdiction */

==Jurisdiction==

Jurisdiction is issue decided by trial court pretrial, not by jury. (People v. Betts (2005) 34 Cal.4th 1039.)

“jurisdictional facts need be proved only by a preponderance of the evidence and not beyond a reasonable doubt.” (Betts, at p. 1053.)

PC778: When the commission of a public offense, commenced without the State, is consummated within its boundaries by a defendant, himself outside the State, through the intervention of an innocent or guilty agent or any other means proceeding directly from said defendant, he is liable to punishment therefor in this State in any competent court within the jurisdictional territory of which the offense is consummated.

California has jurisdiction over Internet crime committed outside California but having directed impact on California resident. (Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399, 1419.)

It is not necessary to “detrimental effect” theory of extraterritorial jurisdiction in criminal cases that defendant be physically present in state during some portion of time during which his alleged criminal act took place, or that he act through agent physically present in state, or that there exist a statute or judicially declared exception extending state's territorial jurisdiction for particular crime with which defendant is charged. Hageseth v. Superior Court (App. 1 Dist. 2007) 59 Cal.Rptr.3d 385, 150 Cal.App.4th 1399, review denied. Criminal Law Key Number 97(1)

Under detrimental effect theory of extraterritorial jurisdiction, state had jurisdiction over foreign state defendant, charged with felony offense of practicing medicine in California without license, who engaged entirely in Internet-mediated communications while outside state and prescribed drugs to California resident, even though he was absent from state, did not act through local agent, and acted through intermediaries who were also out of state.

Where a statute, in addition to prohibiting conduct, includes within its definition of the offense a specific result, the crime is not completed, and thus not “consummated” for jurisdictional statutes, until that result occurs. (Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399.)

All persons who commit any crime in whole or in part within the state are liable to punishment under its laws, where defendant from Mexico mailed forged check on Arizona bank to bank in California, which sent check for collection to bank in Arizona, he was guilty of forgery and subject to punishment under California law. (People v. Sansom (1918) 37 Cal.App. 435.)

==Venue==

Jurisdiction and venue

2026-09-10T05:01:33Z

Sysop:

==Jurisdiction==

Jurisdiction is issue decided by trial court pretrial, not by jury. (People v. Betts (2005) 34 Cal.4th 1039.)

PC778: When the commission of a public offense, commenced without the State, is consummated within its boundaries by a defendant, himself outside the State, through the intervention of an innocent or guilty agent or any other means proceeding directly from said defendant, he is liable to punishment therefor in this State in any competent court within the jurisdictional territory of which the offense is consummated.

California has jurisdiction over Internet crime committed outside California but having directed impact on California resident. (Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399, 1419.)

It is not necessary to “detrimental effect” theory of extraterritorial jurisdiction in criminal cases that defendant be physically present in state during some portion of time during which his alleged criminal act took place, or that he act through agent physically present in state, or that there exist a statute or judicially declared exception extending state's territorial jurisdiction for particular crime with which defendant is charged. Hageseth v. Superior Court (App. 1 Dist. 2007) 59 Cal.Rptr.3d 385, 150 Cal.App.4th 1399, review denied. Criminal Law Key Number 97(1)

Under detrimental effect theory of extraterritorial jurisdiction, state had jurisdiction over foreign state defendant, charged with felony offense of practicing medicine in California without license, who engaged entirely in Internet-mediated communications while outside state and prescribed drugs to California resident, even though he was absent from state, did not act through local agent, and acted through intermediaries who were also out of state.

Where a statute, in addition to prohibiting conduct, includes within its definition of the offense a specific result, the crime is not completed, and thus not “consummated” for jurisdictional statutes, until that result occurs. (Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399.)

All persons who commit any crime in whole or in part within the state are liable to punishment under its laws, where defendant from Mexico mailed forged check on Arizona bank to bank in California, which sent check for collection to bank in Arizona, he was guilty of forgery and subject to punishment under California law. (People v. Sansom (1918) 37 Cal.App. 435.)

==Venue==

Jurisdiction and venue

2026-09-10T04:50:14Z

Sysop:

==Jurisdiction==

PC778: When the commission of a public offense, commenced without the State, is consummated within its boundaries by a defendant, himself outside the State, through the intervention of an innocent or guilty agent or any other means proceeding directly from said defendant, he is liable to punishment therefor in this State in any competent court within the jurisdictional territory of which the offense is consummated.

California has jurisdiction over Internet crime committed outside California but having directed impact on California resident. (Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399, 1419.)

Where a statute, in addition to prohibiting conduct, includes within its definition of the offense a specific result, the crime is not completed, and thus not “consummated” for jurisdictional statutes, until that result occurs. (Hageseth v. Superior Court (2007) 150 Cal.App.4th 1399.)

All persons who commit any crime in whole or in part within the state are liable to punishment under its laws, where defendant from Mexico mailed forged check on Arizona bank to bank in California, which sent check for collection to bank in Arizona, he was guilty of forgery and subject to punishment under California law. (People v. Sansom (1918) 37 Cal.App. 435.)

==Venue==

Preliminary Hearing

2026-08-26T23:37:24Z

Sysop: /* Hearsay under Prop 115 */

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.)

“We find that section 872, subdivision (b), is not restricted in its application to “traditional” law enforcement officers authorized to carry weapons and make arrests, but rather is intended to encompass officers and agents with knowledge of the pertinent laws underlying the charged crime who can provide meaningful testimony at preliminary hearings. For that reason, we conclude section 872, subdivision (b), applies to officers and agents employed by a federal, state or local government agency: 1) who meet the threshold training and experience requirements set forth in that provision; and 2) whose primary responsibility is to investigate and prepare for prosecution cases involving violations of laws.” (Sims v. Superior Court (1993) 18 Cal.App.4th 463, 465 .) Sims was about a Franchise Tax Board investigator under PC830.5 who had taken the POST course on testifying at preliminary hearings. Similarly, Martin v. Superior Court (1991) 230 Cal.App.3d 1992, held that a Kern County Fire Department arson investigator under PC830.37 with seven years’ experience could testify as to hearsay.

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

Extradition

2026-08-11T03:52:45Z

Sysop:

The extradition clause affords no discretion to the executive officers or courts of the asylum state, but, rather, creates a mandatory duty to deliver up fugitives on proper demand. Puerto Rico v. Branstad, 483 U.S. 219, 226, 107 S. Ct. 2802, 97 L. Ed. 2d 187 (1987).

If a criminal prosecution has been instituted against a person charged pursuant to statute under the laws of California and is still pending, the Governor, with the consent of the Attorney General, may surrender the person on demand of the executive authority of another state or hold him or her until the person has been tried and discharged or convicted and served his or her sentence in California. The defendant does not have a choice as to which of the two prosecutions may proceed first. (People v. Albin (1970) 9 Cal. App. 3d 31. If a criminal prosecution has been instituted under the laws of California against the person, the restrictions on the length of commitment will not be applicable during the period that the criminal prosecution is pending in the state.

==Writ of Habeas Corpus==

Michigan v. Doran, 439 U.S. 282, 289, 99 S. Ct. 530, 534–535, 58 L. Ed. 2d 521 (1978); California v. Superior Court of California, San Bernardino County, 482 U.S. 400, 107 S. Ct. 2433, 96 L. Ed. 2d 332 (1987))

Under PC1550.1: "If the accused or his counsel desires to test the legality of the arrest, the magistrate shall remand the accused to custody, and fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus."

According to CEB book, section 50.38, "If the fugitive wishes to challenge extradition by way of habeas corpus, the court must allow a 'reasonable time' within which to file the petition, and the actual surrender of the fugitive to the demanding state's agents must be stayed during that period. People v. Superior Court (Lopez) 1982) 130 Cal.App. 33d 776, 786. Typically, California courts allow about 10 days within which to file the petition. The fugitive must remain in custody during the period the habeas corpus attack on the Governor's warrant is pending. Pen Code 1550.1"

Also, under PC1550.1, "the person named in the warrant shall be held in custody at all times, and shall not be eligible for release on bail."

"Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive." (Michigan v. Doran (1978) 439 U.S. 282, 289.)

Michigan v. Doran is a detailed explanation of the United States Constitution, Article IV, section 2, the Extradition Clause, which mandates that states extradite.

California courts have quoted Michigan v. Doran in deciding habeas corpus on extradition cases in California. (People v. Superior Court (Lopez)) (1982) 130 Cal.App.3d 776, 783.)

Penal Code 1553.2 makes it clear: "The guilt or innocence of the accused as to the crime with which he is charged may not be inquired into by the Governor or in any proceeding after the demand for extradition accompanied by the charge of crime in legal form as above provided has been presented to the Governor, except as such inquiry may be involved in identifying the person held as the person charged with the crime."

A factual inquiry cannot be done. (California v. Superior Court (Smolin) (1987) 482 U.S. 400.)

Defenses cannot be raised. (Pacileo v. Walker (1980) 440 U.S. 86.)

Under the federal Violence Against Women Act, 18 USC 2265, family orders from out-of-state have full faith and credit across all states. California formally adopts the Full Faith and Credit provisions in California Family Code 6402. An ex parte order/TRO in which the respondent has not yet had an opportunity to respond could not be subject to Full Faith and Credit for the lack of notice and due process. In any case, these all seems to be issues better addressed on habeas corpus.

Pen. Code, §§ 1473 et seq., 1550.1.
California v. Superior Court of California, San Bernardino County, 482 U.S. 400, 107 S. Ct. 2433, 96 L. Ed. 2d 332 (1987).
In re Golden, 65 Cal. App. 3d 789, 135 Cal. Rptr. 512 (3d Dist. 1977).

Once the Governor's warrant is issued and served, the fugitive must be taken into custody, and immediately taken before a magistrate and arraigned (Pen. Code, § 1550.1). The defendant, at this point, has the right to challenge the validity of the warrant by seeking a writ of habeas corpus (Pen. Code, § 1550.1). Bail, or other conditional release from custody, is expressly precluded after service of the Governor's warrant (Pen. Code, § 1550.1).
Stay of extradition: If the defendant challenges the extradition by a writ of habeas corpus, the court must allow a “reasonable time” within which to file a habeas corpus petition. The surrender of the defendant to the demanding state must be stayed during that period (Pen. Code, § 1550.1).
Issues that may be raised: Only four issues may be raised on habeas corpus to challenge a fugitive's extradition: (1) whether the accused is the same person named in the Governor's warrant; (2) whether the accused was in the demanding state at the time of the offense (Pen. Code, § 1549.1); (3) whether the person is charged with or convicted of a crime in the demanding state; and (4) whether the extradition documents on their face are in order (Pen. Code, § 1550.1; California v. Superior Court of California, San Bernardino County, 482 U.S. 400, 107 S. Ct. 2433, 96 L. Ed. 2d 332 (1987)).
Issues that may not be raised: Issues that may not be raised are: (1) questions of guilt or innocence (Pen. Code, § 1553.2); (2) going behind an extradition request to determine whether the charging documents in the demanding state can be dismissed for any reason (California v. Superior Court of California, San Bernardino County, 482 U.S. 400, 410–411, 107 S. Ct. 2433, 96 L. Ed. 2d 332 (1987)); (3) no substantive defense to the crime may be raised (Pacileo v. Walker, 449 U.S. 86, 101 S. Ct. 308, 66 L. Ed. 2d 304 (1980)); and (4) no constitutional violations may be litigated in the asylum state (Price v. Pitchess, 556 F.2d 926 (9th Cir. 1977)).
Burden of proof: There is authority for the proposition that petitioner must prove “beyond a reasonable doubt” that he or she is not the person named in the extradition warrant or is not a fugitive from justice (State of South Carolina v. Bailey, 289 U.S. 412, 422, 53 S. Ct. 667, 77 L. Ed. 1292 (1933)). However, other courts have stated that
although the evidence upon the question whether the prisoner was absent or present in the demanding state when the crime charged against him was committed is conflicting, if, nevertheless, the court is convinced from the whole record that the fact that he is a fugitive from justice has not been satisfactorily shown, the prisoner will be discharged.
(Ex parte Shoemaker, 25 Cal. App. 551, 559–560, 144 P. 985 (3d Dist. 1914), citing People ex rel. Genna v. McLaughlin, 145 A.D. 513, 130 N.Y.S. 458, 464 (2d Dep't 1911)).
The burden of proof is clearly on the state to establish an extraditable offense, although its burden is slight. (See Com. v. Valentin, 448 Pa. Super. 519, 523–524, 672 A.2d 338 (1996) (“The burden of proof is a minimal one, since the asylum forum is not permitted to inquire into the guilt of the defendant, and alibi is such a determination. Therefore, where there is evidence presented that defendant was present in the demanding state, which evidence may be believed by the ultimate factfinder, the asylum state must extradite.”).)
Challenge not admissible: The fact the defendant exercised his right to challenge the extradition is not relevant evidence at trial in the receiving state. It constitutes a “violation of procedural due process” to admit evidence regarding the defendant's exercise of his extradition rights in another state (People v. Sutton, 19 Cal. App. 4th 795, 23 Cal. Rptr. 2d 632 (3d Dist. 1993)).

Strike

2026-07-31T22:29:17Z

Sysop: /* Timing of strike */

==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.)

==Timing of strike==

The application of the Three Strikes law is triggered by the defendant's conviction of a strike offense prior to the commission of the current felony. (People v. Flood (2003) 108 Cal. App. 4th 504, 507-507.)

In the context of the Three Strikes law, the date of conviction is the date of the verdict or the plea of guilty and not the date of sentencing or judgment (People v. Castello (1998) 65 Cal. App. 4th 1242, 1253-1254).

Prior conviction

2026-07-31T22:28:35Z

Sysop:

'''Prior convictions''' can enhance sentences in various ways.

In the context of the Three Strikes law, the date of conviction is the date of the verdict or the plea of guilty and not the date of sentencing or judgment (People v. Castello (1998) 65 Cal. App. 4th 1242, 1253-1254).

==Proving a prior conviction==

===Apprendi issue===
As a general rule, under ''Apprendi'' and the Sixth Amendment right to trial by jury, any fact that increases a sentence beyond the statutory maximum must be found by a jury. The big exception to this rule are prior convictions.

===Hearsay===
Paper records of a prior conviction are not usually not excluded by the hearsay rule.

====Evidence Code section 452.5====
(a) The official acts and records specified in subdivisions (c) and (d) of Section 452 include any computer-generated official court records, as specified by the Judicial Council which relate to criminal convictions, when the record is certified by a clerk of the superior court pursuant to Section 69844.5 of the Government Code at the time of computer entry.

(b)
:(1) An official record of conviction certified in accordance with subdivision (a) of Section 1530, or an electronically digitized copy thereof, is admissible under Section 1280 to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition, or event recorded by the record.

:(2) For purposes of this subdivision, “electronically digitized copy” means a copy that is made by scanning, photographing, or otherwise exactly reproducing a document, is stored or maintained in a digitized format, and bears an electronic signature or watermark unique to the entity responsible for certifying the document.

===Prior felony convictions versus prior misdemeanor convictions===
People v. Duran (2002) 97 Cal.App.4th 1448 say that records of misdemeanor convictions are admissible under EC452.5. People v. Wheeler (1992) 4 Cal.4th 284 say that only misdemeanor conduct, not a misdemeanor conviction, is admissible. It should be noted Wheeler was decided in 1992, before EC452.5 was adopted in 1996.

Retroactive changes

2026-07-02T05:11:39Z

Sysop:

In re Estrada

''People v. Rossi'' (1976) 18 Cal.3d 295

Mandatory supervision is not final under In re Estrada and therefore may receive ameliorative changes. (''People v. Conaster'' (2020) 53 Cal.App.5th 1223.)

Disqualification of Judge

2026-06-03T01:01:45Z

Sysop:

''People v. Superior Court (Broadbent)'' (2025) 112 Cal.App.5th 854 - Behavioral Health Court is a contested matter of law or fact.

==NOT a contested hearing of the facts on the merits==

*Arraignment. (''Moreira v. Superior Court'' (1989) 215 Cal.App.3d 42.)
*Motion to amend information. (''People v. Hunter'' (1977) 71 Cal.App.3d 634, 638, fn.2)
*Preliminary examination. (''Barrett v. Superior Court (1999) 77 Cal.App.4th 1, 5–7.)
*995. (''Kohn v. Superior Court'' (1966) 239 Cal.App.2d 428, 431.)
*Marsden. (''People v. Whitfield'' (1986) 183 Cal.App.3d 299, 304.)
*1368. (''Waldon v. Superior Court'' (1987) 196 Cal.App.3d 809.)
*Plea bargains and chambers conferences. (''People v. Montalvo'' (1981) 117 Cal.App.3d 790, 795 but see ''People v. Reynolds'' (1984) 154 Cal.App.3d 796.)
*Summary revocation. (''Depper v. Superior Court'' (1999) 74 Cal.App.4th 15, 18–21.)

==IS a contested hearing of the facts on the merits==

*1538.5 (''In re Abdul Y.'' (1982) 130 Cal.App.3d 847, 857-861.)

*Hitch/Trombetta-Youngblood motion (''People v. Bean'' (1988) 46 Cal.3d 919, 949.)

===Plea bargains===
''People v. Montalvo'' (1981) 117 Cal.App.3d 790, 795;''Faijo v. Superior Court'' (1973) 34 Cal.App.3d 222, 225; but see ''Lyons v. Superior Court'' (1977) 73 Cal.App.3d 625

===After plea, but before sentencing===
''Smith v. Superior Court'' (1977) 71 Cal.App.3d 151; ''People v. Reynolds'' (1984) 154 Cal.App.3d 796.)

==What matters may a disqualified judge can hear==

170.4(a)(4) default matters

Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42

==Blanket disqualification==

So since the California Supreme Court’s decision in Solberg (1977) 19 Cal.3d 182, blanket disqualification of a judge under CCP170.6 allowed. A blanket disqualification is when a party tries to disqualify a judge on a substantial number of cases, which can be used to choose to decide which judge hears a case, and it can be particularly powerful if exercised by a district attorney’s office, a public defender’s office, or a firm that is contracted for a particular type of case such as juvenile dependency. It can also be disruptive if the challenge is made to a judge is assigned to a specialized court. So in Solberg is overruled.

So if a party makes a 170.6 motion, opposing counsel can object. “the opponent of a section 170.6 motion must first timely object to a section 170.6 motion and demonstrate a prima facie case that the motion’s proponent is lodging bad faith blanket challenges against a particular judge. More specifically, the opponent of a section 170.6 motion must show that the totality of the relevant facts gives rise to an inference of a bad faith blanket policy, as opposed to a good faith belief that a judge is prejudiced in a specific case. Among the factors that may be considered in making this prima facie determination are whether the party has lodged persistent strikes against the same judge in all or a substantial portion of cases assigned to that judge, or all or a substantial portion of cases of a particular type. Such a showing may alone be persuasive in establishing a prima facie case of a bad faith blanket policy. As described below, the burden then shifts to the proponent of the motion
to give an adequate explanation for the challenges.”

The above procedure is deliberately modeled after Batson-Wheeler/AB3070. So Party X makes a 170.6 motion before judge A. Party Y would object and state a prima facie case to Judge A why it’s a bad faith blanket challenge. If the judge who is being disqualified, judge A, finds prima facie that it’s a bad-faith blanket disqualification, then it gets sent to a different judge, judge B, and party X has to explain it’s not bad-faith.

Disqualification of Judge

2026-05-30T18:08:47Z

Sysop:

==NOT a contested hearing of the facts on the merits==

*Arraignment. (''Moreira v. Superior Court'' (1989) 215 Cal.App.3d 42.)
*Motion to amend information. (''People v. Hunter'' (1977) 71 Cal.App.3d 634, 638, fn.2)
*Preliminary examination. (''Barrett v. Superior Court (1999) 77 Cal.App.4th 1, 5–7.)
*995. (''Kohn v. Superior Court'' (1966) 239 Cal.App.2d 428, 431.)
*Marsden. (''People v. Whitfield'' (1986) 183 Cal.App.3d 299, 304.)
*1368. (''Waldon v. Superior Court'' (1987) 196 Cal.App.3d 809.)
*Plea bargains and chambers conferences. (''People v. Montalvo'' (1981) 117 Cal.App.3d 790, 795 but see ''People v. Reynolds'' (1984) 154 Cal.App.3d 796.)
*Summary revocation. (''Depper v. Superior Court'' (1999) 74 Cal.App.4th 15, 18–21.)

==IS a contested hearing of the facts on the merits==

*1538.5 (''In re Abdul Y.'' (1982) 130 Cal.App.3d 847, 857-861.)

*Hitch/Trombetta-Youngblood motion (''People v. Bean'' (1988) 46 Cal.3d 919, 949.)

===Plea bargains===
''People v. Montalvo'' (1981) 117 Cal.App.3d 790, 795;''Faijo v. Superior Court'' (1973) 34 Cal.App.3d 222, 225; but see ''Lyons v. Superior Court'' (1977) 73 Cal.App.3d 625

===After plea, but before sentencing===
''Smith v. Superior Court'' (1977) 71 Cal.App.3d 151; ''People v. Reynolds'' (1984) 154 Cal.App.3d 796.)

==What matters may a disqualified judge can hear==

170.4(a)(4) default matters

Yolo County Dept. of Child Support Services v. Myers (2016) 248 Cal.App.4th 42

==Blanket disqualification==

So since the California Supreme Court’s decision in Solberg (1977) 19 Cal.3d 182, blanket disqualification of a judge under CCP170.6 allowed. A blanket disqualification is when a party tries to disqualify a judge on a substantial number of cases, which can be used to choose to decide which judge hears a case, and it can be particularly powerful if exercised by a district attorney’s office, a public defender’s office, or a firm that is contracted for a particular type of case such as juvenile dependency. It can also be disruptive if the challenge is made to a judge is assigned to a specialized court. So in Solberg is overruled.

So if a party makes a 170.6 motion, opposing counsel can object. “the opponent of a section 170.6 motion must first timely object to a section 170.6 motion and demonstrate a prima facie case that the motion’s proponent is lodging bad faith blanket challenges against a particular judge. More specifically, the opponent of a section 170.6 motion must show that the totality of the relevant facts gives rise to an inference of a bad faith blanket policy, as opposed to a good faith belief that a judge is prejudiced in a specific case. Among the factors that may be considered in making this prima facie determination are whether the party has lodged persistent strikes against the same judge in all or a substantial portion of cases assigned to that judge, or all or a substantial portion of cases of a particular type. Such a showing may alone be persuasive in establishing a prima facie case of a bad faith blanket policy. As described below, the burden then shifts to the proponent of the motion
to give an adequate explanation for the challenges.”

The above procedure is deliberately modeled after Batson-Wheeler/AB3070. So Party X makes a 170.6 motion before judge A. Party Y would object and state a prima facie case to Judge A why it’s a bad faith blanket challenge. If the judge who is being disqualified, judge A, finds prima facie that it’s a bad-faith blanket disqualification, then it gets sent to a different judge, judge B, and party X has to explain it’s not bad-faith.

Public corruption

2026-05-29T16:27:13Z

Sysop:

==Penal Code 165 bribery of local elected officials==

Every person who gives or offers a bribe to any member of any common council, board of supervisors, or board of trustees of any county, city and county, city, or public corporation, with intent to corruptly influence such member in his action on any matter or subject pending before, or which is afterward to be considered by, the body of which he is a member, and every member of any of the bodies mentioned in this section who receives, or offers or agrees to receive any bribe upon any understanding that his official vote, opinion, judgment, or action shall be influenced thereby, or shall be given in any particular manner or upon any particular side of any question or matter, upon which he may be required to act in his official capacity, is punishable by imprisonment in the state prison for two, three or four years, and upon conviction thereof shall, in addition to said punishment, forfeit his office, and forever be disfranchised and disqualified from holding any public office or trust.

==Gov Code 9054 Bribery of legislator==

Every person who obtains, or seeks to obtain, money or other thing of value from another person upon a pretense, claim, or representation that he can or will improperly influence in any manner the action of any member of a legislative body in regard to any vote or legislative matter, is guilty of a felony. Upon the trial no person otherwise competent as a witness may be excused from testifying concerning the offense charged on the grounds that the testimony may criminate himself, or subject him to public infamy. The testimony shall not afterwards be used against him in any judicial proceeding except for perjury in giving the testimony.

==Eligibility for public officer==

Relevant Statutes:
Educ. Code § 35107
Elec. Code §§ 2000, 2150,
18100, 18203, 18501,
15860
Gov. Code § 36502
Penal Code §§ 118, 127
Water Code § 71501

===Quo Warranto===
Although residency within the political district is required by the statutes mentioned, the statutes are not criminal and a failure to comply cannot be prosecuted criminally. An elected official who did not reside within the district at the time of election, or who moved out of the district during his term of office, vacates that office. Remaining in office subjects the office holder to a civil action in quo warranto removing him or her from the illegally held position.

The procedures for prosecuting a quo warranto action are found in California Code of Civil Procedure §§ 803-811 (actions for usurpation of an
office). Additional quo warranto procedural information is found in the California Code of Regulations, Title 11. Actions in quo warranto are brought by the Attorney General's Office on its own or upon the complaint of a private party. Quo warranto actions brought by private parties or district attorney's offices cannot proceed without the permission and oversight of the Attorney General's Office.

California Code of Civil Procedure § 809 states: "When a defendant, against whom such action has been brought, is adjudged guilty of usurping or intruding into, or unlawfully holding any office, franchise, or privilege, judgment must be rendered that such defendant be excluded from the office, franchise, or privilege, and that he pay the costs of the action." Thus, the result of a successful quo warranto action is the removal of the offending official from office. Quo warranto actions are more commonly brought in "incompatible office" type cases
than in residency disputes.

Although violations of the residency requirements for holding specific offices are not criminal, non-resident candidates commit other crimes in order to run for the office.

False candidacy papers:
Candidates for most public offices are required to file some type of document with the city clerk when they declare their candidacy. These documents usually (but not always) require the candidate to state their residence. Knowingly filing a false candidacy paper violates Elections Code § 18203, which is a criminal statute. Section 18203 is a wobbler.

Perjury:
The false candidacy papers filed with the city clerk may require the candidate to sign under penalty of perjury. Additionally, the city clerk may place the candidate under oath and have them state that the information contained in the document is true and correct. In such situations, the prosecutor should consider prosecution pursuant to Penal Code § 118, Perjury. Perjury is a felony
punishable by two, three or four years in state prison.

In order to be consistent in his or her false claim of residency, the candidate may also sign other documents under penalty of perjury providing the false address, including voter registration forms, DMV documents, school records for school aged children or home loan documents in which the candidate states that the home will be his/her primary residency.

The most common issue arising in a perjury prosecution is the materiality of the false statement. To violate P.C. § 118, the declarant must willfully state as true a "material matter" that he knows to be false. In a perjury prosecution arising out of a residency matter, the domicile of the defendant will always be material. In some residency cases, the candidate will ask others to sign documents under penalty of perjury to bolster his or her false claim of residency. In those situations consider California Penal Code § 127, subornation of perjury.

Voter fraud:

In addition to the residency requirements for holding office, there are residency requirements for voting in public elections. California Elections Code § 2000 lists the requirements for voting in public elections held within the state and allows qualified voters to vote in any election held within the territory within which the voter resides.

Prior to voting in an election, each voter must register to vote and fill out an affidavit of registration described in California Elections Code § 2150. In addition to other personal information, the voter must state on the affidavit their place of residence. The actual words on the affidavit of registration state: "The place where you live." Just so there is no confusion, there is a place for the voter to include his mailing address, if different from his residence address. The voter certifies under penalty of perjury that the content of the affidavit is true and correct

Elections Code § 18100 prohibits the registration of a voter who is not qualified. (A wobbler subject to a maximum penalty of 16 months in state prison.) If the candidate actually votes in the election, they are subject to Elections Code § 18560, which prohibits casting a fraudulent ballot. (A straight felony subject to a maximum penalty of 16 months in state prison.) If the candidate is an incumbent who commits voter fraud the officeholder can be prosecuted for a violation of Elections Code § 18501, which prohibits a public official from knowingly allowing fraud in connection with a vote. Section 18501 is also a straight felony with a maximum sentence of 16 months state prison and a lifetime bar on holding office in California.

Since the affidavit of registration is signed under penalty of perjury, consider P.C. § 118 charges as well. If residency within the voting precinct is a requirement for registration, then voter's residence is demonstrably material.

Residence versus Domicile
The Government Code sections requiring school board and water board
members to reside within the districts they represent do not define the term
"residence." Government Code § 36502, pertaining to city officials, requires the
city official to be a registered voter of the city. For purposes of voting, the
Elections Code contains several statutes defining residence.
Elections Code § 349 defines residence, for voting purposes, to mean a
person's domicile. A persons' domicile is defined as "that place in which his or
her habitation is fixed, wherein the person has the intention of remaining, and to
which, whenever he or she is absent, the person has the intention of returning. At
a given time, a person may have only one domicile."
Section 349(c) defines a person's residence as "that place in which the
person's habitation is fixed for some period of time, but wherein he or she does
not have the intention of remaining. At a given time, a person may have more
than one residence."

Additional Elections Code sections further define residence and domicile:
Elections Code § 2021
(a) A person who leaves his or her home to go into another state or
precinct in this state for temporary purposes merely, with the
intention of returning, does not lose his or her domicile.
(b) A person does not gain a domicile in any precinct into which he
or she comes for temporary purposes merely, without the
intention of making that precinct his or her home.

Elections Code § 2024
The mere intention to acquire a new domicile, without the fact of
removal, avails nothing; neither does the fact of removal without the
intention.
Elections Code § 2027
The place where a person's family is domiciled is his or her
domicile unless it is a place for temporary establishment for his or
her family or for transient objects.
Residence in a trailer or vehicle or at any public camp or camping
ground may constitute a domicile for voting purposes if the
registrant complies with the other requirements of this article.

Based upon a reading of these statutes, it is clear that a person can only
have one domicile. Acquiring a new, legal domicile requires action plus the intent
to making the new location the permanent, sole domicile. Temporarily changing
where one lives does not result in a change of domicile because a legal change
of domicile requires permanency.

Certain public offices require the office holder to reside within the district served. These include city council members, city clerks, city treasurers, school board members and water board members.

===Government Code § 36502===

(a) A person is not eligible to hold office as council member, city clerk, or city treasurer unless he or she is at the time of assuming the office an elector of the city, and was a registered voter of the city at the time nomination papers are issued to the candidate as provided for in Section 10227 of the Elections Code. If, during his or her term of office, he or she moves his or her place of residence outside of the city limits or ceases to be an elector of the city, his or her office shall immediately become vacant.

Therefore, in order to be eligible to hold office as an elected city official, there are two requirements: the council member elect must be an elector of the city at the time of assuming office (in other words he must be a United States citizen, 18 years or older, and a resident of an election precinct at least 29 days prior to an election), and he must be a registered voter of the city at the time the
nomination papers are issued.

===Education Code 35107===
California Education Code § 35107 requires school board members to be 18 years of age or older, a citizen of the state, a resident of the school district and a registered voter.

===Water Code 71501===
California Water Code § 71501 requires each director of a water board to be a resident of the division he represents.

===Irrigation district===

Water Code 21100, subdivision (c), as amended by SB1939 in 2000 says:

(c) In a district providing retail electricity for residents of the district, each director, except as otherwise provided in this division, shall be a voter of the district and a resident of the division that he or she represents at the time of his or her nomination or appointment and during his or her entire term, . . . . .

Election Code 349:

(a) “Residence” for voting purposes means a person’s domicile.

(b) The domicile of a person is that place in which his or her habitation is fixed, wherein the person has the intention of remaining, and to which, whenever he or she is absent, the person has the intention of returning. At a given time, a person may have only one domicile.

(c) The residence of a person is that place in which the person’s habitation is fixed for some period of time, but wherein he or she does not have the intention of remaining. At a given time, a person may have more than one residence.

Government Code section 244 says:

In determining the place of residence the following rules shall be observed:

(a) It is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he or she returns in seasons of repose.

(b) There can only be one residence.

(c) A residence cannot be lost until another is gained.

(d) The residence of the parent with whom an unmarried minor child maintains his or her place of abode is the residence of such unmarried minor child.

(e) The residence of an unmarried minor who has a parent living cannot be changed by his or her own act.

(f) The residence can be changed only by the union of act and intent.

(g) A married person shall have the right to retain his or her legal residence in the State of California notwithstanding the legal residence or domicile of his or her spouse.

Residence and domicile for purposes of elections are essentially the same. (Walters v. Weed (1988) 45 Cal.3d 1, 7.) A change in domicile requires an intent to live there. (DeMiglio v. Mashore (1992) 4 Cal.App.4th 1260, 1268.) As in, “whether there is an intent to return or an intent to make a new home.” (Ibid.)

In the context of determining a person's residence for the purpose of registering to vote, or running for certain elected positions, residence means domicile, a place in which a person's habitation is fixed, wherein she has the intention of remaining, and to which, whenever she is absent, she has the intention of returning. At any given time, a person may have only one domicile, and a person does not lose their domicile, or gain a new one, by going to another place for a temporary purpose. However, residence does not always mean domicile. Residence can also mean a place in which a person's habitation is fixed for some shorter period, but wherein she does not have the intention of remaining indefinitely. At any given time, a person may have more than one residence for various purposes other than voting or running for office.

False nomination paperwork would be prosecuted under Elections Code 18203.

Perjury is Penal Code 118.

Voter registration history

The nomination paperwork

DMV records, including both license and vehicle registration

Property records

USPS records about change-of-address

FPPC filings

Firearm purchase records

Social media

CLEAR / Lexis

License Plate Readers

Business filing with Secretary of State

Witness interviews

Surveillance

Lease agreements

Call records

Cell phone location data

With some qualifications, a person must generally be a resident of the state in order to qualify as an elector,1 and an "elector" is a resident of an election precinct in California on or before the day of an election.2 "Residence" for voting purposes means a person's domicile.3 The domicile of a person is that place in which his or her habitation is fixed, wherein the person has the intention of remaining, and to which, whenever he or she is absent, the person has the intention of returning. At a given time, a person may have only one domicile.4 The residence of a person is that place in which the person's habitation is fixed for some period of time but wherein he or she does not have the intention of remaining. At a given time, a person may have more than one residence.5 One purpose of the requirement of residence is to afford some assurance that the voter has become a member of the community.6 It preserves the basic conception of a political community, and therefore can withstand even close scrutiny on a claim under the First Amendment.7
Caution:
California requires that candidates register to vote before filing nomination papers.8 Registering to vote, in turn, requires candidates to complete a registration form and, as stated above, to reside in the state. California's requirement that candidates for membership in the United States House of Representatives reside in California when filing nomination papers violates the United States Constitution's Qualifications Clause9 inasmuch as it handicaps a class of nonresident candidates who otherwise would satisfy the Qualifications Clause.10
The Elections Code provides specifically for the determination of residence and domicile.11 Residence in a trailer or vehicle or at any public camp or camping ground may constitute a domicile for voting purposes if the registrant complies with the other statutory requirements.12 For voting purposes, the term of domicile is computed by including the day on which a person's domicile commenced and by excluding the day of the election.13
The domicile of a member of the legislature or a representative in the Congress of the United States is conclusively presumed to be at the residence address indicated on that person's currently filed affidavit of registration, as long as the address is a residence as defined in the Elections Code,14 and notwithstanding that the member or representative may have another residence at which certain conditions apply.15 This presumption applies only if the address indicated on the member's currently filed affidavit of voter registration is one of the member's legal residences.16
A person domiciled in a house or apartment lying in more than one precinct will be registered as domiciled in the precinct designated by the county elections official on the basis of the street address or other precinct that the county elections official considers appropriate unless the person requests, either by letter or in person at the office of the county elections official, that he or she wishes to be domiciled for registration purposes in another precinct in which his or her house or apartment lies. In order to fulfill the requirements of this statute, the letter of request must include the name, signature, and residence address of the requester.17
A new resident, which means a person who meets all requirements of an elector of the State of California except that his or her residency was established subsequent to the 15th day prior to the election, is eligible to vote for President and Vice President and for no other office.18
A rational basis test applies to a determination of whether the equal protection clause prevents a city from using a residency requirement to determine who can vote on the city's imposition of a tax when nonresident landowners are the largest source of revenue under the tax, where the election is not one of special interest, and the expenditure of funds to be raised by the tax is to provide benefits that are not limited to special interests.19

1
§ 37.

2
§ 37.

3
Elec. Code, § 349, subd. (a).

4
Elec. Code, § 349, subd. (b).

5
Elec. Code, § 349, subd. (c).

6
Bryan v. Regents of University of Cal., 188 Cal. 559, 205 P. 1071 (1922).

7
Chula Vista Citizens for Jobs and Fair Competition v. Norris, 782 F.3d 520 (9th Cir. 2015).

8
Elec. Code, § 201.

9
U.S. Const. Art. I, § 2, cl. 2.

10
Schaefer v. Townsend, 215 F.3d 1031 (9th Cir. 2000).
As to registration, see §§ 58 to 83.

11
Elec. Code, §§ 2020 to 2035.

12
Elec. Code, § 2027.

13
Elec. Code, § 2020.

14
Elec. Code, § 349, subd. (c).

15
Elec. Code, § 2026.

16
People v. Superior Court (Wright), 197 Cal. App. 4th 511, 128 Cal. Rptr. 3d 362 (2d Dist. 2011).

17
Elec. Code, § 2034.

18
Elec. Code, § 332.

19
Neilson v. City of California City, 133 Cal. App. 4th 1296, 35 Cal. Rptr. 3d 453 (5th Dist. 2005).

Public corruption

2026-05-29T04:27:38Z

Sysop: /* Irrigation district */

Public corruption

2026-05-29T04:20:49Z

Sysop: Created page with " ==Penal Code 165 bribery of local elected officials== Every person who gives or offers a bribe to any member of any common council, board of supervisors, or board of trustees of any county, city and county, city, or public corporation, with intent to corruptly influence such member in his action on any matter or subject pending before, or which is afterward to be considered by, the body of which he is a member, and every member of any of the bodies mentioned in this s..."

Witness

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Sysop: /* Detention of witness */

==Detention of witness==

California Constitution article I, section 10.

PC1332
PC878

In re Francisco M (2001) 76 Cal.App.4th 1061

In re D.W. (2004) 123 Cal.App.4th 491

People v. Cogswell (2010) 48 Cal.4th 467

When faced with a witness whom both sides want to call at trial, counsel should not be lured into relying on the prosecution to locate, subpoena and produce the witness at trial. Our Supreme Court has held it does not constitute bad faith for the prosecution to announce, for the first time, during trial it will not call such a witness, even if the defense had relied on their representations that they would attempt to produce the witness. “The defense was responsible for securing the presence of any witness it wanted to call at trial, regardless of whether the prosecution would also be using that witness” (People v. Harrison, 35 Cal. 4th 208, 241, 25 Cal. Rptr. 3d 224, 106 P.3d 895 (2005)).

Sentencing

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Sysop: /* Consecutive vs concurrent 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.)

==Consecutive vs concurrent sentencing==

Rule 4.452 is the Court rule on how to do consecutive sentencing across multiple cases and even multiple counties. We will need abstract of judgment from Riverside County to do the credits and fines. "If a former principal term is made a consecutive subordinate term in the resentencing, it generally will be limited by the “one-third the midterm” rule of section 1170.1(a)."

In re Reeves, 35 Cal. 4th 765, 773, 28 Cal. Rptr. 3d 4, 110 P.3d 1218 (2005); People v. Allison, 39 Cal. App. 5th 688, 703, 252 Cal. Rptr. 3d 321 (1st Dist. 2019) [subsequent court has no jurisdiction to change the consecutive or concurrent sentence structure imposed by the previous court]

If the court resentences the defendant under California Rules of Court, Rule 4.452, and the defendant already is serving a term in state prison imposed in a different case, the court must calculate all actual time credits earned prior to the re-sentencing, whether earned in state prison or local jail. (People v. Saibu, 191 Cal. App. 4th 1005, 1011–1012, 120 Cal. Rptr. 3d 84 (4th Dist. 2011), reh'g denied, (Feb. 1, 2011) and review denied, (Apr. 27, 2011).) The calculation of conduct credit while in prison should be left to the Department of Corrections and Rehabilitation. (People v. Buckhalter, 26 Cal. 4th 20, 26 Cal. 4th 994a, 108 Cal. Rptr. 2d 625, 25 P.3d 1103 (2001), as modified, (Aug. 29, 2001).)

PC669(d) When a court imposes a concurrent term of imprisonment and imprisonment for one of the crimes is required to be served in the state prison, the term for all crimes shall be served in the state prison, even if the term for any other offense specifies imprisonment in a county jail pursuant to subdivision (h) of Section 1170

People v. Torres, 213 Cal. App. 4th 1151, 152 Cal. Rptr. 3d 836 (5th Dist. 2013)

==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

Sentencing

2026-04-29T04:42:58Z

Sysop:

“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.)

==Consecutive vs concurrent sentencing==

Rule 4.452 is the Court rule on how to do consecutive sentencing across multiple cases and even multiple counties. We will need abstract of judgment from Riverside County to do the credits and fines. "If a former principal term is made a consecutive subordinate term in the resentencing, it generally will be limited by the “one-third the midterm” rule of section 1170.1(a)."

In re Reeves, 35 Cal. 4th 765, 773, 28 Cal. Rptr. 3d 4, 110 P.3d 1218 (2005); People v. Allison, 39 Cal. App. 5th 688, 703, 252 Cal. Rptr. 3d 321 (1st Dist. 2019) [subsequent court has no jurisdiction to change the consecutive or concurrent sentence structure imposed by the previous court]

If the court resentences the defendant under California Rules of Court, Rule 4.452, and the defendant already is serving a term in state prison imposed in a different case, the court must calculate all actual time credits earned prior to the re-sentencing, whether earned in state prison or local jail. (People v. Saibu, 191 Cal. App. 4th 1005, 1011–1012, 120 Cal. Rptr. 3d 84 (4th Dist. 2011), reh'g denied, (Feb. 1, 2011) and review denied, (Apr. 27, 2011).) The calculation of conduct credit while in prison should be left to the Department of Corrections and Rehabilitation. (People v. Buckhalter, 26 Cal. 4th 20, 26 Cal. 4th 994a, 108 Cal. Rptr. 2d 625, 25 P.3d 1103 (2001), as modified, (Aug. 29, 2001).)

PC669(d) When a court imposes a concurrent term of imprisonment and imprisonment for one of the crimes is required to be served in the state prison, the term for all crimes shall be served in the state prison, even if the term for any other offense specifies imprisonment in a county jail pursuant to subdivision (h) of Section 1170

==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

Credits

2026-04-29T04:32:51Z

Sysop:

==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

==Foreign jurisdictions==

he court also may sentence the California case concurrently with the foreign judgment. “A defendant ordered to serve concurrent terms by a California state court is entitled to be transferred to the foreign jurisdiction if that foreign jurisdiction will not credit him with time served in California. (In re Stoliker (1957) 49 Cal.2d 75, 78, 315 P.2d 12 [a prisoner is entitled to effectuate concurrent sentencing by filing a writ of habeas corpus to seek transfer of custody to federal authorities].) The appellate courts have interpreted this rule to mean that California has a duty to make a defendant available to the foreign authorities. (In re Riddle (1966) 240 Cal.App.2d 707, 708, 49 Cal.Rptr. 919; In re Tomlin (1966) 241 Cal.App.2d 668, 669, 50 Cal.Rptr. 805 (Tomlin).) This duty is not a matter of judicial or administrative discretion. Further, no formal court order (apart from a concurrent state sentence) is needed to trigger that duty or to effect that transfer. (Id. at p. 671, 50 Cal.Rptr. 805.) However, California cannot compel the foreign jurisdiction to take the defendant into custody. (Ibid.) ¶ In 1963, the State Legislature amended section 2900 to ‘facilitate and implement concurrency [of sentences].’ (Tomlin, supra, 241 Cal.App.2d at p. 670, 50 Cal.Rptr. 805.) Section 2900, subdivision (b)(2) states, in pertinent part: ‘[If] the judge of the California court orders that the California sentence shall run concurrently with the sentence which such person is already serving, the Director of Corrections shall designate the institution of the other jurisdiction as the place for reception of such person within the meaning of the preceding provisions of this section.’” (People v. Antonio, 10 Cal. App. 5th 1064, 1068, 216 Cal. Rptr. 3d 523 (4th Dist. 2017); emphasis in original.) It is not the duty of the court to order action to be taken by the Director of Corrections. If the director refuses to carry out the statutory duty imposed by section 2900, the defendant should seek administrative relief. (Id., a tp. 1069.)

Fraud

2026-04-28T04:28:55Z

Sysop: /* Medi-Cal Fraud */

==Medi-Cal Fraud==

(4) A person knowingly and willfully executes, or attempts to execute, a scheme or artifice to do either of the following:
(A) Defraud the Medi-Cal program or any other health care program administered by the department or its agents or contractors.

Presenting false claims to Medi Cal for services or merchandise, with an intent to defraud, violates Welf. & Inst. Code § 14107(b)(1).1 “An intent to defraud is an intent to deceive another person for the purpose of gaining a material advantage over that person or to induce that person to part with property or later that person's position by some false statement or false representation of act, wrongful concealment or suppression of the truth or by any artifice or act designed to deceive.” Intentional submission of false invoices constitutes Medi Cal fraud.

People v. Pugh, 104 Cal. App. 4th 66, 72, 127 Cal. Rptr. 2d 770 (4th Dist. 2002).

People v. Guzman, 201 Cal. App. 4th 1090, 134 Cal. Rptr. 3d 66 (2d Dist. 2011).

==Welfare fraud==

Welfare and Institutions Code section 10980

Welfare and Institutions Code section 11054 - affirmation of elgibility, punished as perjury.

Nonentitlement to welfare is an element of the offenses of welfare and food stamp fraud that must be decided as factual question by the jury.
People v. Ochoa, 231 Cal. App. 3d 1413, 282 Cal. Rptr. 805 (4th Dist. 1991)

A person will not be subject to criminal prosecution for an overpayment or over-issuance of benefits, obtained under the California Work Opportunity and Responsibility to Kids program or the CalFresh program, for any month in which the county human services agency was in receipt of any Income and Eligibility Verification System data match information indicating any potential for an overpayment or an over-issuance and for which the county human services agency has not provided to the person a timely and adequate notice of action for the collection of the overpayment or the over-issuance. (Welf & Inst. Code, § 10980, subd. (j)(1).)

===Statutes of limitations===

Gasaway v. Superior Court (1977) 70 Cal.App.3d 545

People v. Keehley (1987) 193 Cal.App.3d 1381

Fraud

2026-04-28T04:18:42Z

Sysop:

==Medi-Cal Fraud==

Presenting false claims to Medi Cal for services or merchandise, with an intent to defraud, violates Welf. & Inst. Code § 14107(b)(1).1 “An intent to defraud is an intent to deceive another person for the purpose of gaining a material advantage over that person or to induce that person to part with property or later that person's position by some false statement or false representation of act, wrongful concealment or suppression of the truth or by any artifice or act designed to deceive.” Intentional submission of false invoices constitutes Medi Cal fraud.

People v. Pugh, 104 Cal. App. 4th 66, 72, 127 Cal. Rptr. 2d 770 (4th Dist. 2002).

People v. Guzman, 201 Cal. App. 4th 1090, 134 Cal. Rptr. 3d 66 (2d Dist. 2011).

==Welfare fraud==

Welfare and Institutions Code section 10980

Welfare and Institutions Code section 11054 - affirmation of elgibility, punished as perjury.

Nonentitlement to welfare is an element of the offenses of welfare and food stamp fraud that must be decided as factual question by the jury.
People v. Ochoa, 231 Cal. App. 3d 1413, 282 Cal. Rptr. 805 (4th Dist. 1991)

A person will not be subject to criminal prosecution for an overpayment or over-issuance of benefits, obtained under the California Work Opportunity and Responsibility to Kids program or the CalFresh program, for any month in which the county human services agency was in receipt of any Income and Eligibility Verification System data match information indicating any potential for an overpayment or an over-issuance and for which the county human services agency has not provided to the person a timely and adequate notice of action for the collection of the overpayment or the over-issuance. (Welf & Inst. Code, § 10980, subd. (j)(1).)

===Statutes of limitations===

Gasaway v. Superior Court (1977) 70 Cal.App.3d 545

People v. Keehley (1987) 193 Cal.App.3d 1381

Mental Disorder Diversion

2026-04-25T01:07:50Z

Sysop:

Gomez v. Superior Court (Aug. 6, 2025, C102211) - discretion of court

''People v. Superior Court'' (2026) 118 Cal.App.4th 1153

“In my opinion, the defendant would not pose an unreasonable risk of danger to public safety if his psychiatric symptoms were controlled with treatment. Given that his untreated psychiatric disorder was a significant and proximal cause of his behavior at the time of the alleged offense, if his symptoms are under good control with medication and psychosocial support, he would not present an unreasonable risk. If the defendant abstains from substance use, his risk would be further reduced. [¶] ... In my opinion, the defendant would not be at risk of committing any [offenses specified in section 1001.36] if treated in the community and would not present an unreasonable risk of danger to public safety.” (Italics added.) Dr. Campbell reserved the right to alter her opinion upon the receipt of information contradicting the information the alternate public defender had given her.

A hearing on the suitability for diversion “shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel.” (§ 1001.36, subd. (e).) “The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant's treatment plan, the defendant's violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.” (§ 1001.36, subd. (c)(4).) People v. Superior Court of Los Angeles County (2026) 118 Cal.App.5th 1153 [342 Cal.Rptr.3d 199, 206], review filed (Apr. 14, 2026)

In Whitmill, supra, 86 Cal.App.5th 1138, 303 Cal.Rptr.3d 444, Division Eight of this district reversed an order denying diversion where the trial court found the defendant would present such an unreasonable risk. The defendant was charged with possession of a firearm by a felon, discharge of a firearm with gross negligence, and criminal threats stemming from an incident in which the defendant, an honorably discharged veteran diagnosed with a severe mental disorder, threatened to kill his girlfriend and others nearby, fired a shot into the air, then threw the gun away and turned himself in to law enforcement. The defendant had no prior history of violence. (Id. at pp. 1150–1154, 303 Cal.Rptr.3d 444.)
Whitmill distinguished the opinion of Division Six of this district in People v. Pacheco (2022) 75 Cal.App.5th 207, 290 Cal.Rptr.3d 370 (Pacheco), which affirmed an order denying diversion in which the trial court concluded that the defendant presented an unreasonable risk to public safety. In Pacheco, Whitmill stated, the defendant “deliberately set a forest fire *208 near a homeless encampment and ranch, which could have created a mass casualty event as it required 15 firefighting units, helicopters, and a specialized airplane. This is unlike [Whitmill] who negligently fired a single shot in the air away from those nearby and then threw the gun away and turned himself in to [law enforcement] with ‘no incident.’ [¶] The expert in Pacheco opined that if the defendant ‘ “does not take his antipsychotic medication as prescribed and/or returns to using methamphetamine, then he would become unstable and psychotic and be likely to reoffend in some bizarre manner.” ’ ” (Whitmill, supra, 86 Cal.App.5th at p. 1155, 303 Cal.Rptr.3d 444.)

*[[File:MHDiversion - AB1810.docx]]

==When to make motion==

"We conclude the trial court could proceed with granting defendant diversion despite the proceedings being suspended pursuant to section 1368." (People v. Velador (2024) 103 Cal.App.5th 687, 698.)

Accordingly, we hold that, to be timely, a request for diversion must be made before attachment of jeopardy at trial or the entry of a guilty or no contest plea, whichever occurs first. (People v. Braden (2023) 14 Cal.5th 791, 819.)

<strike>Term “at any stage of the proceedings” as used in statute providing for mental health diversion program, refers to proceedings before trial. People v. Braden (App. 4 Dist. 2021) 277 Cal.Rptr.3d 563, review granted 280 Cal.Rptr.3d 580, 489 P.3d 699.</strike>

<strike>Phrase “until adjudication,” in statute authorizing trial courts to grant pretrial diversion to defendants diagnosed with qualifying mental disorders, means until the judgment of conviction, which occurs at sentencing, rather than until adjudication of guilt. People v. Curry (App. 3 Dist. 2021) 276 Cal.Rptr.3d 406, review denied, vacated, review granted 280 Cal.Rptr.3d 580, 489 P.3d 699.</strike>

Amended criminal statute authorizing trial courts to grant “pretrial diversion” to defendants diagnosed with qualifying mental disorders does not apply retroactively to cases that have progressed beyond adjudication but are not yet final; statute concerned pretrial diversion and expressly stated it would apply only “until adjudication,” which could not occur after conviction. People v. Lipsett (App. 6 Dist. 2020) 258 Cal.Rptr.3d 903, rehearing denied, review granted 265 Cal.Rptr.3d 604, 468 P.3d 1121, transferred 267 Cal.Rptr.3d 695, 471 P.3d 1001, transferred to 2020 WL 5511849, unpublished

Pretrial diversion is literally and functionally impossible once a defendant has been tried, found guilty, and sentenced; upon reaching this point of adjudication, the prosecution is over and there is nothing left to postpone. People v. Weaver (App. 6 Dist. 2019) 249 Cal.Rptr.3d 223, review granted 253 Cal.Rptr.3d 624, 450 P.3d 237, review dismissed, cause remanded 2020 WL 4356821.

Statute governing pretrial diversion for defendants suffering from mental disorders applied retroactively to defendant, who was convicted of making criminal threats and exhibiting a deadly weapon; defendant's conviction was not yet final on appeal, and nothing in pretrial diversion statute overcame presumption that newly enacted legislation mitigating criminal punishment be applied retroactively. People v. Weaver (App. 6 Dist. 2019) 249 Cal.Rptr.3d 223, review granted 253 Cal.Rptr.3d 624, 450 P.3d 237, review dismissed, cause remanded 2020 WL 4356821.

Statute authorizing pretrial diversion in certain cases involving mentally disordered offenders does not apply retroactively to defendants whose cases have progressed beyond trial, adjudication of guilt, and sentencing. People v. Craine (App. 5 Dist. 2019) 247 Cal.Rptr.3d 564, review granted 252 Cal.Rptr.3d 227, 448 P.3d 238.

The Court of Appeal cannot unconditionally reverse a defendant's conviction to undo an adjudication where there was no trial error requiring reversal merely to allow a trial court to consider the defendant for pretrial diversion, because that disposition would implicate the prohibition against double jeopardy. People v. Khan (App. 6 Dist. 2019) 254 Cal.Rptr.3d 392, review granted 257 Cal.Rptr.3d 784, 456 P.3d 933

Phrase “until adjudication,” as used in statute permitting mental health diversion, limited eligibility to period before defendant was convicted, and thus defendant who had entered guilty plea two years earlier was not eligible for mental health diversion, even though she was still on probation. People v. Rodriguez (App. 4 Dist. 2021) 283 Cal.Rptr.3d 501, review filed.

Among the threshold eligibility requirements for a pretrial mental health diversion program is that, unless the defendant has been found to be mentally incompetent, he or she must consent to diversion and waive his or her right to a speedy trial. People v. Braden (App. 4 Dist. 2021) 277 Cal.Rptr.3d 563, review granted 280 Cal.Rptr.3d 580, 489 P.3d 699.

Eligibility for mental health diversion unequivocally makes defendant's consent to consideration for diversion contingent upon simultaneous waiver of speedy trial rights. People v. Braden (App. 4 Dist. 2021) 277 Cal.Rptr.3d 563, review granted 280 Cal.Rptr.3d 580, 489 P.3d 699.

A defendant is ineligible for a pretrial mental health diversion program after his trial begins. People v. Braden (App. 4 Dist. 2021) 277 Cal.Rptr.3d 563, review granted 280 Cal.Rptr.3d 580, 489 P.3d 699.

A trial court may grant mental health diversion after first broaching its prospects with parties, but there is no sua sponte duty to do so in the absence of request by the defendant or any other person. People v. Banner (Cal.App. 5 Dist. 2022) 2022 WL 190310.

Request for pretrial diversion is timely only if it is made prior to jury's guilty verdict. People v. Graham (App. 2 Dist. 2021) 279 Cal.Rptr.3d 255, rehearing denied, review granted 282 Cal.Rptr.3d 638, 493 P.3d 195.

Statute authorizing trial courts to grant pretrial diversion for certain defendants suffering from mental health disorders applies retroactively to all cases in which the judgment is not yet final. People v. Williams (App. 1 Dist. 2021) 278 Cal.Rptr.3d 332.

Statute that created a pretrial diversion program for certain defendants with mental health disorders applied retroactively to defendant appealing robbery conviction, where statute provided possible benefit to class of criminal defendants and did not contain an express savings clause that limited program to prospective-only application, statute's definition of “pretrial” diversion to apply “until adjudication” did not clearly signal intent to overcome inference of retroactive application, and Legislature was deemed aware of need to clearly and directly indicate intent if it did not want statute to apply retroactively to nonfinal judgments; disapproving People v. Lipsett, 45 Cal.App.5th 569, 258 Cal.Rptr.3d 903 , People v. Khan, 41 Cal.App.5th 460, 254 Cal.Rptr.3d 392 , People v. Craine, 35 Cal.App.5th 744, 247 Cal.Rptr.3d 564. People v. Frahs (2020) 264 Cal.Rptr.3d 292, 466 P.3d 844.

Statute providing for pretrial diversion of defendants for purposes of mental health treatment did not apply retroactively to defendant who was convicted of arson and sentenced before passage of statute, even though statute had salutary, remedial purposes; permitting unconditional reversal of convictions to undo adjudications in the absence of trial error would implicate prohibition against double jeopardy, express language of statute allowed for pretrial diversion only up to the point of adjudication, conditional reversal of convictions under the pretense that no “adjudication” had occurred would defy legislature's intent of granting diversion early in criminal process and avoiding costs of trial and incarceration. People v. Khan (App. 6 Dist. 2019) 254 Cal.Rptr.3d 392, review granted 257 Cal.Rptr.3d 784, 456 P.3d 933.

Statute giving trial court discretion to grant pretrial diversion for defendants suffering from mental disorders applied retroactively to defendant who had been convicted of attempted murder of peace officer, assault with firearm on peace officer, and related gun charges, but whose judgment was not yet final, and thus trial court was required, at resentencing, to determine defendant's eligibility for diversion. People v. Hughes (App. 1 Dist. 2019) 252 Cal.Rptr.3d 510, review granted 255 Cal.Rptr.3d 392, 453 P.3d 37, review dismissed, cause remanded 2020 WL 4355706.

Statute authorizing pretrial diversion to defendants diagnosed with certain mental disorders does not apply retroactively to defendants tried, convicted, and sentenced before the effective date of statute. People v. Torres (App. 2 Dist. 2019) 252 Cal.Rptr.3d 484, review denied.

Statute authorizing pretrial diversion of defendants with qualifying mental disorders applied retroactively to defendant whose convictions for false imprisonment, evading police vehicle, and related offenses were not final as of statute's effective date, thus requiring remand for determination whether defendant was eligible for pretrial diversion, despite People's assertion that remand would be futile because trial court had stricken only one strike prior that defendant posed danger to community if paroled early; physician who conducted postconviction psychological evaluation diagnosed defendant with qualifying mental disorder, and trial court's evaluation of defendant's dangerousness in connection with parole determination presented different question from its consideration of mental health diversion, in that trial court made no findings as to whether, during or after inpatient or outpatient mental health treatment, defendant would pose unreasonable risk of danger to public safety. People v. Burns (App. 4 Dist. 2019) 251 Cal.Rptr.3d 442, review granted 254 Cal.Rptr.3d 193, 450 P.3d 1256, review dismissed, cause remanded 2020 WL 4356818.

Defendant did not require certificate of probable cause to challenge the trial court's sentencing discretion relating to his attorney failing to request a hearing on his eligibility for mental health diversion; defendant pleaded no contest to one count of carrying a concealed dirk or dagger, which carried a minimum sentence of 16 months and a maximum sentence of three years, defendant admitted a violation of probation, pursuant to the plea agreement parties agreed to a maximum aggregate sentence of two years eight months, and trial court denied probation and imposed midterm sentence of two years and midterm sentence of eight months for being a felon in possession of a firearm. People v. Hill (App. 1 Dist. 2021) 274 Cal.Rptr.3d 153, rehearing denied.

Term “adjudication,” as used in statute providing for mental health diversion program, does not refer to a point after the trial begin, but rather refers to the process of adjudicating an issue, such as court's adjudication of guilt or innocence through trial. People v. Braden (App. 4 Dist. 2021) 277 Cal.Rptr.3d 563, review granted 280 Cal.Rptr.3d 580, 489 P.3d 699.

Defendant's judgment was final when the time for filing an appeal from the court's order imposing, but suspending execution of sentence expired, and because the judgment was final, defendant was not entitled to any retroactive relief pursuant to newly enacted statute, governing pretrial diversion program for individuals diagnosed with qualifying mental disorders; the judgment was final long before the court subsequently issued its ruling revoking defendant's probation, its ruling imposing the suspended sentence, and defendant's filing of the notice of appeal. People v. Sapienza (App. 4 Dist. 2019) 251 Cal.Rptr.3d 594, review granted 255 Cal.Rptr.3d 705, 453 P.3d 783, transferred 262 Cal.Rptr.3d 823, 464 P.3d 265.

Defendant forfeited her right to raise the issue of pretrial diversion in prosecution for attempted premeditated murder, where defendant failed to make the request under statute governing the granting of pretrial diversion for the nearly 12 months that the statute was effective before the jury returned its verdict, there was nothing to indicate that defendant suffered from a mental illness, it was reasonable to assume that defense counsel was aware of the statute being in effect for almost an entire year, and issue was not raised until her appeal. People v. Graham (Cal.App. 2 Dist. 2021) 2021 WL 2154093.

Defendant forfeited for appellate review his contention that his substance use disorders qualified him for mental health diversion, in prosecution for second-degree robbery and first-degree burglary, where defendant did not present the issue to trial court. People v. Oneal (Cal.App. 5 Dist. 2021) 279 Cal.Rptr.3d 142.

Defendant's contention, on appeal, that his substance use disorders qualified him for mental health diversion, was untimely, in prosecution for second-degree robbery and first-degree burglary, where defendant argued his contention for the first time in the reply brief. People v. Oneal (Cal.App. 5 Dist. 2021) 279 Cal.Rptr.3d 142.

==What offenses can be diverted==
Defendant convicted of murder for shooting teenager attempting to steal defendant's truck was not entitled to remand for consideration of pretrial mental health diversion, although defendant may have been briefly eligible for pretrial diversion as diversion statute was originally enacted, since diversion eligibility was excluded by murder conviction. People v. McShane (App. 4 Dist. 2019) 248 Cal.Rptr.3d 322, rehearing denied, review granted 252 Cal.Rptr.3d 666, 449 P.3d 347.

Even if mental health pretrial diversion program applied to juveniles generally, juvenile's offense, second degree murder of her murder, did not qualify for such diversion programs, since murder was exempted from the diversion program's eligibility. In re M.S. (App. 2 Dist. 2019) 244 Cal.Rptr.3d 580, modified on denial of rehearing, review denied.

Juvenile was not entitled to remand to allow the juvenile court to make eligibility determination regarding mental health pretrial diversion, according to newly enacted statutes, following second degree murder regarding her newborn; distinctions between adult criminal prosecutions and juvenile delinquency proceedings precluded application of mental health diversion law to juvenile cases, and juvenile court imposed a rehabilitation program for juvenile consistent with purposes of juvenile law. In re M.S. (App. 2 Dist. 2019) 244 Cal.Rptr.3d 580, modified on denial of rehearing, review denied.

Applying rational basis standard, excluding juveniles from mental health diversion law available to adult offenders did not violate equal protection guarantee; there were material differences between adult and juvenile justice schemes with regard to their underlying purposes and to the treatment of offenders with mental health issues, and thus legislature could rationally devise and maintain a separate statutory scheme for juveniles that addressed their rehabilitative needs in delinquency proceedings and provided different criteria for potential diversion. In re J.M. (App. 1 Dist. 2019) 248 Cal.Rptr.3d 191, rehearing denied, review denied.

Amendment to statutory diversion program eliminating eligibility for defendants required to register as sex offenders did not violate the ex post facto clauses of the state or federal Constitutions, and thus defendant was ineligible for mental health diversion following his convictions for communicating with a minor with the intent to commit a specified sexual offense and annoying or molesting a child, where statutory diversion program did not exist when defendant committed underlying offenses. People v. Cawkwell (App. 4 Dist. 2019) 246 Cal.Rptr.3d 744, review granted 250 Cal.Rptr.3d 720, 446 P.3d 234.

===DUIs===
Defendants charged with driving under the influence (DUI) offenses are categorically ineligible for pretrial mental health diversion. Moore v. Superior Court of Riverside County (Cal.App. 4 Dist. 2020) 2020 WL 7296513

Driving under the influence (DUI) offenses are ineligible for pretrial mental health diversion. Tellez v. Superior Court of Riverside County (App. 4 Dist. 2020) 270 Cal.Rptr.3d 418, rehearing denied, review denied.

==Eligibility==

Even if trial court had a sua sponte duty to consider pretrial mental health diversion, record supported court's conclusion that defendant's mental health was not a significant factor underlying defendant's robbery charges, and thus defendant was not entitled to pretrial mental health diversion, even though there was significant evidence of that defendant had mental health conditions, where defendant testified he was innocent, his interview with police officer at crime scene was coherent, and no witness believed defendant was a person with a mental health condition during the incident. People v. Banner (Cal.App. 5 Dist. 2022) 2022 WL 190310.

A defendant diagnosed with a mental disorder that is listed as an excluded disorder in the statute governing mental-health pretrial diversion is not categorically barred from establishing eligibility for diversion based on a different, qualifying disorder. Negron v. Superior Court of Kern County (Cal.App. 5 Dist. 2021) 286 Cal.Rptr.3d 20.

Defendant did not suffer from qualifying mental disorder that played a significant role in commission of charged offenses, and thus defendant was not eligible for pretrial mental health diversion, where defendant denied any history of mental illness, defendant stated he was of sound mind and fully aware of his actions during commission of crimes, and none of the doctors who examined defendant to determine competency to stand trial diagnosed defendant with mental disorder. People v. Torres (App. 2 Dist. 2019) 252 Cal.Rptr.3d 484, review denied

There are six statutory requirements for pretrial diversion program for individuals diagnosed with qualifying mental disorders: (1) court must be satisfied that defendant suffers from mental disorder listed in statute; (2) court must be satisfied that defendant's mental disorder played significant role in commission of charged offense; (3) qualified mental health expert must opine that defendant's symptoms motivating the criminal behavior will respond to mental health treatment; (4) subject to certain exceptions, defendant must consent to diversion and waive his right to speedy trial; (5) defendant must agree to comply with the treatment as condition of diversion; and (6)court must be satisfied that defendant will not pose unreasonable risk of danger to public safety if treated in the community. People v. Sapienza (App. 4 Dist. 2019) 251 Cal.Rptr.3d 594, review granted 255 Cal.Rptr.3d 705, 453 P.3d 783, transferred 262 Cal.Rptr.3d 823, 464 P.3d 265.

Defendant could raise claim on appeal that statute, governing pretrial diversion program for individuals diagnosed with qualifying mental disorders, should be retroactively applied to defendant, even though defendant did not specify this claim in his notice of appeal; statute became effective after defendant filed his appeal, defendant could not be expected to have the prescience to know that this issue might become cognizable in his appeal, and he obtained certificate of probable cause. People v. Sapienza (App. 4 Dist. 2019) 251 Cal.Rptr.3d 594, review granted 255 Cal.Rptr.3d 705, 453 P.3d 783, transferred 262 Cal.Rptr.3d 823, 464 P.3d 265.

==Court's discretion==

In enacting a mental health diversion program, the Legislature sought to expand the use of community-based mental health treatment in order to prevent defendants with treatable mental illness from cycling in and out of the criminal justice system. People v. Williams (App. 1 Dist. 2021) 278 Cal.Rptr.3d 332.

Trial court, on remand in robbery prosecution, was required to make eligibility determination regarding pretrial diversion for defendants with mental disorders while treating the matter, to the extent possible, as though defendant had moved for pretrial diversion after charges had been filed but prior to their adjudication; statute governing diversion program applied retroactively, and evidence suggested defendant had been diagnosed with schizoaffective disorder. People v. Frahs (App. 4 Dist. 2018) 238 Cal.Rptr.3d 483, review granted 242 Cal.Rptr.3d 417, 433 P.3d 1, affirmed and remanded 264 Cal.Rptr.3d 292, 466 P.3d 844.

Trial court abuses its discretion in determining whether to grant mental health diversion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence. People v. Gerson (Cal.App. 4 Dist. 2022) 2022 WL 263438.

The mental health diversion statute affords trial court discretion to grant or deny diversion if defendant meets statutory eligibility requirements. People v. Oneal (App. 5 Dist. 2021) 279 Cal.Rptr.3d 142, review denied.

Court of Appeal would exercise its discretion to address the merits of waived issue of whether the mental health diversion statute permitted consideration of reports prepared in relation to an insanity plea, where the issue was a question of law and no published decision had addressed the evidence a court could rely on in considering a defendant's eligibility for mental health diversion. People v. Oneal (Cal.App. 5 Dist. 2021) 279 Cal.Rptr.3d 142.

Trial court, being in the best position to decide the matter, has broad discretion to determine whether a given defendant is a good candidate for mental health diversion. People v. Curry (App. 3 Dist. 2021) 276 Cal.Rptr.3d 406, review denied, vacated, review granted 280 Cal.Rptr.3d 580, 489 P.3d 699.

For purposes of statute authorizing trial courts to grant pretrial diversion to defendants diagnosed with certain mental disorders and defining pretrial diversion to include postponement of prosecution at any point in the judicial process from point at which accused is charged until adjudication, “until adjudication” means before the jury is impaneled and sworn. People v. Torres (App. 2 Dist. 2019) 252 Cal.Rptr.3d 484, review denied.

Substantial evidence supported trial court's finding that defendant did not meet his burden of showing that he suffered from bipolar disorder, and thus that pretrial mental health diversion was not warranted in prosecution for attempted voluntary manslaughter and related offenses; court-appointed licensed psychologist opined that defendant's violent behavior resulted from his voluntary substance use combined with his interpersonal reactivity, grandiose self-importance, entitlement, and hostility, and neither defense expert nor court-appointed psychiatrist, who opined that defendant's drug use leading up to incident did not cause his behavioral change before incident, determined whether defendant had personality disorder. People v. Gerson (Cal.App. 4 Dist. 2022) 2022 WL 263438.

Defendant who had filed a motion for mental health diversion forfeited any challenges to trial court's use and consideration of psychiatrist's and forensic psychologist's report related to defendant's insanity plea in his motion, in prosecution for second-degree robbery, and first-degree burglary, even though defense counsel suggested that the report were “not the right reports” for the court to rely on, where defense counsel clarified to trial court that he was not objecting to court considering the report, but instead suggested court “use it with caution.” Cal. People v. Oneal (Cal.App. 5 Dist. 2021) 279 Cal.Rptr.3d 142.

Whether a court may consider a report prepared in relation to a defendant's insanity plea when evaluating that defendant's eligibility for mental health diversion ultimately turns on the relevance of that report in determining whether defendant's mental disorder was a significant factor in the commission of the charged offense. People v. Oneal (Cal.App. 5 Dist. 2021) 279 Cal.Rptr.3d 142.

Reports prepared by psychiatrist and forensic psychologist for defendant's insanity plea were relevant to defendant's motion for mental health diversion, arising from charges for second-degree robbery and first-degree burglary, and therefore were properly considered by trial court; experts attributed defendant's commission of offenses to drug use, rather than psychotic or schizoaffective disorder, they rendered their opinions after considering a wide array of materials, including police reports, medical records, defense counsel's communication with and documents, and their own clinical interviews of defendant, and their conclusions bore directly on, and had a tendency to prove whether defendant's mental disorder was a significant factor in commission of the offenses. People v. Oneal (Cal.App. 5 Dist. 2021) 279 Cal.Rptr.3d 142.

Substantial evidence supported trial court's determination that defendant's mental health disorder was not a significant factor in the commission of the charged offenses of burglary and robbery, and thus defendant was ineligible for mental health diversion on those grounds, although defendant's expert opined that defendant's schizoaffective disorder played a significant role in commission of the offenses; psychiatrist and forensic psychologist, who evaluated records for defendant's insanity plea, opined that defendant's psychotic or schizoaffective disorder was not responsible for, or a motivating factor in, his commission of the crimes, and defendant's expert did not engage defendant in a clinical interview or address the role of defendant's substance use in his criminal behavior. People v. Oneal (App. 5 Dist. 2021) 279 Cal.Rptr.3d 142, review denied.

Evidence supported trial court's finding that any mental illness defendant was allegedly suffering did not have any bearing on his criminal conduct, and thus defendant was not entitled to remand for evidentiary hearing on eligibility for pretrial mental health diversion, on charges for attempted second-degree robbery, assault with semiautomatic firearm, and possession of firearm by convicted felon, arising out of defendant's attempt to rob store; defendant had pled not guilty by reason of insanity, mental health experts who examined defendant opined that he was legally sane at time of crime, although defendant had history of anxiety and depression, experts did not see evidence of bipolar disorder or psychosis, and recording of interview with police within hours after arrest indicated that defendant knew what he was doing when he entered store armed with gun, pointed gun in store employee's face, and demanded that she empty cash from cash register into bag, and that he knew what he was doing was wrong. People v. Jefferson (App. 5 Dist. 2019) 251 Cal.Rptr.3d 170, review denied, appeal after new sentencing hearing 2021 WL 1624972, unpublished.

Remand was required for new hearing on defendant's eligibility for mental-health pretrial diversion; trial court rested its denial of diversion on finding defendant statutorily ineligible because he had been diagnosed with antisocial personality disorder (ASPD), which was listed as excluded disorder in statute governing mental-health pretrial diversion, despite also being diagnosed with three qualifying disorders, such that trial court did not consider remaining diversion eligibility prerequisites, including whether defendant's qualifying disorders were significant factors in commission of offenses and whether any qualifying disorders that motivated criminal behavior were treatable. Negron v. Superior Court of Kern County (Cal.App. 5 Dist. 2021) 286 Cal.Rptr.3d 20.

Trial court abused its discretion in determining that defendant charged with making criminal threats would pose unreasonable risk of danger to public safety if treated in community, and thus was not entitled to pretrial mental health diversion, thus warranting remand for new hearing; defendant had four prior misdemeanor convictions, pending charges--while involving allegations of violence and threats of violence--were not super-strike offenses, two psychiatrists determined that he posed low risk for future assault, and court had released defendant into community on bond for period of over two years. People v. Moine (App. 2 Dist. 2021) 276 Cal.Rptr.3d 668, review denied.

Defendant was entitled to conditional limited remand for trial court to retroactively conduct a mental health diversion eligibility hearing, even though trial court found that there were no significant mitigating factors for robbery conviction and that defendant was ineligible for probation, where trial court could have found that mental disorder criteria for pretrial diversion were met even if court believed defendant's mental disorder did not significantly reduce his “culpability” for crimes, as stated in mitigation rule, and trial court made no finding whether defendant would pose an unreasonable risk of danger to public safety if treated in the community. People v. Frahs (2020) 264 Cal.Rptr.3d 292, 466 P.3d 844.

Conditional reversal of judgment, with directions for trial court to consider defendant's eligibility for mental health diversion, was warranted in prosecution for robbery, where it was difficult to analyze the appellate record to determine whether defendant qualified for diversion since no eligibility hearing was held, and the record affirmatively disclosed that defendant appeared to suffer from one or more qualifying mental disorders, as he told probation officer who prepared presentencing report that he had been diagnosed with “severe depressive disorder” and he told the court, before his sentencing, that he had nervous breakdowns and lost touch with reality around the time of the bank robbery. People v. Curry (App. 3 Dist. 2021) 276 Cal.Rptr.3d 406, review denied, vacated, review granted 280 Cal.Rptr.3d 580, 489 P.3d 699.

A trial court's denial of mental-health pretrial diversion is reviewed for abuse of discretion. People v. Pacheco (Cal.App. 2 Dist. 2022) 2022 WL 453956.

On appeal from a trial court's denial of mental-health pretrial diversion, it is the defendant's burden to establish an abuse of discretion and prejudice. People v. Pacheco (Cal.App. 2 Dist. 2022) 2022 WL 453956.

Trial court's determination whether a defendant's mental disorder played significant role in commission of charged offense, as required for pretrial diversion, is quintessential fact-finding process subject to review for substantial evidence. People v. Gerson (Cal.App. 4 Dist. 2022) 2022 WL 263438.

Court of Appeal reviews for abuse of discretion the trial court's decision whether to grant request for mental health diversion. People v. Gerson (Cal.App. 4 Dist. 2022) 2022 WL 263438.

A trial court's factual findings under the statute governing mental-health pretrial diversion must be supported by substantial evidence, and the court's diversion eligibility determinations are reviewed for abuse of discretion. Negron v. Superior Court of Kern County (Cal.App. 5 Dist. 2021) 286 Cal.Rptr.3d 20.

Court of Appeal will uphold a trial court's factual findings as to whether a defendant's mental health disorder played a significant role in the commission of the charged offense in support of the grant or denial of a mental health diversion if supported by substantial evidence. People v. Oneal (Cal.App. 5 Dist. 2021) 279 Cal.Rptr.3d 142.

Even if trial court erred in denying defendant's motion for mental health diversion on the ground that defendant presented a risk of danger to public safety “based on his behavior prior,” defendant was not entitled to reversal of the denial of his motion, where court's ruling was supported by substantial evidence on another ground, namely, that defendant's mental illness was not a significant factor in his criminal behavior. People v. Oneal (Cal.App. 5 Dist. 2021) 279 Cal.Rptr.3d 142.

Court of Appeals reviews trial court's ruling on a request for mental health diversion for abuse of discretion. People v. Williams (App. 1 Dist. 2021) 278 Cal.Rptr.3d 332.

Trial court's denial of mental health diversion is reviewed for abuse of discretion. People v. Moine (App. 2 Dist. 2021) 276 Cal.Rptr.3d 668, review denied.

==Risk to public safety==

Determination that defendant would pose unreasonable risk of danger to public safety if treated in community, as basis for denying mental-health pretrial diversion, was not an abuse of discretion, in prosecution for arson of forest land; clinical psychologist stated that defendant would not pose unreasonable risk “as long as” he took his psychiatric medication on consistent basis and “stay[ed] abstinent” from using methamphetamine but otherwise he would become unstable and psychotic and would be likely to reoffend “in some bizarre manner,” and trial court reasonably concluded that defendant, who had been using methamphetamine on daily basis for 14 years and who had not been deterred by prior arrests for being under influence of methamphetamine, would not refrain from using methamphetamine. People v. Pacheco (Cal.App. 2 Dist. 2022) 2022 WL 453956

Defendant, charged with felony stalking, was not reasonably likely to commit a “super-strike offense” if granted mental health diversion and treated in the community, and thus was eligible for mental health diversion, although defendant terrorized a family and although after little more than a year of voluntary treatment, defendant continued to harbor resentment against his victims; two uncontroverted opinions of mental health professionals indicated he posed a low risk to public safety, there was no evidence he owned, possessed, or had access to weapons, he was released on bond for more than two years without incident, he had no prior criminal record, faced no other pending charges, and, for all of his horrific threats, he never actually assaulted anyone or engaged in any violence. People v. Williams (App. 1 Dist. 2021) 278 Cal.Rptr.3d 332.

When determining whether a defendant is an unreasonable risk of danger to public safety, as would make him ineligible for mental health diversion, the “risk of danger” is narrowly confined to the likelihood the defendant will commit a limited subset of violent felonies, known as super-strike offenses. People v. Williams (App. 1 Dist. 2021) 278 Cal.Rptr.3d 332.

By requiring assessment of whether defendant, seeking pretrial mental health diversion, “will commit a new violent felony” within meaning of Three Strikes Reform Act, trial court necessarily must find that defendant is likely to commit super-strike offense; thus, risk of danger is narrowly confined to likelihood defendant will commit limited subset of violent felonies. People v. Moine (App. 2 Dist. 2021) 276 Cal.Rptr.3d 668, review denied.

==Statute, Chapter 2.8A Diverison of Individuals with Mental Disorders==
===Penal Code 1001.35===
The purpose of this chapter is to promote all of the following:

(a) Increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

(b) Allowing local discretion and flexibility for counties in the development and implementation of diversion for individuals with mental disorders across a continuum of care settings.

(c) Providing diversion that meets the unique mental health treatment and support needs of individuals with mental disorders.

===Penal Code section 1001.36===

(a) On an accusatory pleading alleging the commission of a misdemeanor or felony offense, the court may, after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant meets all of the requirements specified in subdivision (b).

(b) Pretrial diversion may be granted pursuant to this section if all of the following criteria are met:
:(1) The court is satisfied that the defendant suffers from a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. Evidence of the defendant’s mental disorder shall be provided by the defense and shall include a recent diagnosis by a qualified mental health expert. In opining that a defendant suffers from a qualifying disorder, the qualified mental health expert may rely on an examination of the defendant, the defendant’s medical records, arrest reports, or any other relevant evidence.
:(2) The court is satisfied that the defendant’s mental disorder played a significant role in the commission of the charged offense. A court may conclude that a defendant’s mental disorder played a significant role in the commission of the charged offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant’s mental disorder substantially contributed to the defendant’s involvement in the commission of the offense.
:(3) In the opinion of a qualified mental health expert, the defendant’s symptoms motivating the criminal behavior would respond to mental health treatment.
:(4) The defendant consents to diversion and waives his or her right to a speedy trial, unless a defendant has been found to be an appropriate candidate for diversion in lieu of commitment pursuant to clause (iv) of subparagraph (B) paragraph (1) of subdivision (a) of Section 1370 and, as a result of his or her mental incompetence, cannot consent to diversion or give a knowing and intelligent waiver of his or her right to a speedy trial.
:(5) The defendant agrees to comply with treatment as a condition of diversion.
:(6) The court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community. The court may consider the opinions of the district attorney, the defense, or a qualified mental health expert, and may consider the defendant’s violence and criminal history, the current charged offense, and any other factors that the court deems appropriate.

(c) As used in this chapter, “pretrial diversion” means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment, subject to all of the following:
:(1)
::(A) The court is satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant.
::(B) The defendant may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources. Before approving a proposed treatment program, the court shall consider the request of the defense, the request of the prosecution, the needs of the defendant, and the interests of the community. The treatment may be procured using private or public funds, and a referral may be made to a county mental health agency, existing collaborative courts, or assisted outpatient treatment only if that entity has agreed to accept responsibility for the treatment of the defendant, and mental health services are provided only to the extent that resources are available and the defendant is eligible for those services.
:(2) The provider of the mental health treatment program in which the defendant has been placed shall provide regular reports to the court, the defense, and the prosecutor on the defendant’s progress in treatment.
:(3) The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years.

(d) If any of the following circumstances exists, the court shall, after notice to the defendant, defense counsel, and the prosecution, hold a hearing to determine whether the criminal proceedings should be reinstated, whether the treatment should be modified, or whether the defendant should be conserved and referred to the conservatorship investigator of the county of commitment to initiate conservatorship proceedings for the defendant pursuant to Chapter 3 (commencing with Section 5350) of Part 1 of Division 5 of the Welfare and Institutions Code:
:(1) The defendant is charged with an additional misdemeanor allegedly committed during the pretrial diversion and that reflects the defendant’s propensity for violence.
:(2) The defendant is charged with an additional felony allegedly committed during the pretrial diversion.
:(3) The defendant is engaged in criminal conduct rendering him or her unsuitable for diversion.
:(4) Based on the opinion of a qualified mental health expert whom the court may deem appropriate, either of the following circumstances exists:
::(A) The defendant is performing unsatisfactorily in the assigned program.
::(B) The defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code. A defendant shall only be conserved and referred to the conservatorship investigator pursuant to this finding.

(e) If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion. A court may conclude that the defendant has performed satisfactorily if the defendant has substantially complied with the requirements of diversion, has avoided significant new violations of law unrelated to the defendant’s mental health condition, and has a plan in place for long-term mental health care. If the court dismisses the charges, the clerk of the court shall file a record with the Department of Justice indicating the disposition of the case diverted pursuant to this section. Upon successful completion of diversion, if the court dismisses the charges, the arrest upon which the diversion was based shall be deemed never to have occurred, and the court shall order access to the record of the arrest restricted in accordance with Section 1001.9, except as specified in subdivisions (g) and (h). The defendant who successfully completes diversion may indicate in response to any question concerning his or her prior criminal record that he or she was not arrested or diverted for the offense, except as specified in subdivision (g).

(f) A record pertaining to an arrest resulting in successful completion of diversion, or any record generated as a result of the defendant’s application for or participation in diversion, shall not, without the defendant’s consent, be used in any way that could result in the denial of any employment, benefit, license, or certificate.

(g) The defendant shall be advised that, regardless of his or her completion of diversion, both of the following apply:
:(1) The arrest upon which the diversion was based may be disclosed by the Department of Justice to any peace officer application request and that, notwithstanding subdivision (f), this section does not relieve the defendant of the obligation to disclose the arrest in response to any direct question contained in any questionnaire or application for a position as a peace officer, as defined in Section 830.
:(2) An order to seal records pertaining to an arrest made pursuant to this section has no effect on a criminal justice agency’s ability to access and use those sealed records and information regarding sealed arrests, as described in Section 851.92.

(h) A finding that the defendant suffers from a mental disorder, any progress reports concerning the defendant’s treatment, or any other records related to a mental disorder that were created as a result of participation in, or completion of, diversion pursuant to this section or for use at a hearing on the defendant’s eligibility for diversion under this section may not be used in any other proceeding without the defendant’s consent, unless that information is relevant evidence that is admissible under the standards described in paragraph (2) of subdivision (f) of Section 28 of Article I of the California Constitution. However, when determining whether to exercise its discretion to grant diversion under this section, a court may consider previous records of participation in diversion under this section.

(i) The county agency administering the diversion, the defendant’s mental health treatment providers, the public guardian or conservator, and the court shall, to the extent not prohibited by federal law, have access to the defendant’s medical and psychological records, including progress reports, during the defendant’s time in diversion, as needed, for the purpose of providing care and treatment and monitoring treatment for diversion or conservatorship.

Ex post facto

2026-04-24T01:17:02Z

Sysop: Created page with "So definition of ex post facto is more or less: “A law imposes a prohibited disadvantage if it has ‘one or more of the following four effects: it makes criminal acts that were innocent when done; it makes the crime greater or more aggravated than it was when committed; it inflicts a greater punishment for the crime than was available when the crime was committed; or it alters the rules of evidence or the required proof for conviction.’” In re K.J. (2014) 224 Cal...."

So definition of ex post facto is more or less: “A law imposes a prohibited disadvantage if it has ‘one or more of the following four effects: it makes criminal acts that were innocent when done; it makes the crime greater or more aggravated than it was when committed; it inflicts a greater punishment for the crime than was available when the crime was committed; or it alters the rules of evidence or the required proof for conviction.’” In re K.J. (2014) 224 Cal.App.4th 1194, 1203 [169 Cal.Rptr.3d 484, 489]

So the following paragraph comes from a sentencing book:

The “plead and prove” issue is addressed in People v. Griffis, 212 Cal. App. 4th 956, 151 Cal. Rptr. 3d 508 (3d Dist. 2013). Relying heavily on two California Supreme Court cases, In re Varnell, 30 Cal. 4th 1132, 135 Cal. Rptr. 2d 619, 70 P.3d 1037 (2003), and People v. Lara, 54 Cal. 4th 896, 144 Cal. Rptr. 3d 169, 281 P.3d 72 (2012), Griffis concludes the exclusions under section 1170(h)(3) are merely “sentencing factors” that do not require pleading and proof. The exclusions set forth in the realignment legislation do not change the amount of time to be served, only where it is to be served. Pleading requirements generally are implied only where additional time in jail is required. The court also determined section 1170(f), concerning the inability to use section 1385 to strike a disqualifying factor, did not imply such a requirement.

So here’s the paragraph from Griffis:

Based on Lara 's explanation of the Ford and Lo Cicero rule, and the Supreme Court's application of that rule in Lara and Varnell, there is no basis for implying a pleading and proof requirement here for a prior conviction used to disqualify a defendant from serving his sentence in jail under the Realignment Act. A prior conviction used to determine where a defendant serves his or her sentence under the Realignment Act—prison or jail—does not operate to increase that sentence, prescribe a minimum term, or entirely preclude probation. It is true a prison sentence under the Realignment Act includes a period of parole, while a jail sentence does not, and it has been said in another context that the imposition of a period of parole constitutes an *964 increase in punishment because “[p]arole entails a significant array of impositions and liberty curtailment ....” (In re Carabes (1983) 144 Cal.App.3d 927, 932, 193 Cal.Rptr. 65.) That observation does not inform our inquiry here, however, because the question in this case is not simply whether a prison sentence under the Realignment Act might be characterized, in some manner, as more onerous than a jail sentence of equal length. Rather, the question is one of legislative intent, specifically, did the Legislature intend to require that a prior conviction or other factor disqualifying a defendant from a jail sentence under the Realignment Act be formally pled and proven? In the wake of Varnell and Lara, the answer to that question is plainly “no.”

People v. Griffis (2013) 212 Cal.App.4th 956, 963–964 [151 Cal.Rptr.3d 508, 512]

There may be a little issue because in this particular case, a commitment to state prison will cause post-release community supervision (PRCS) afterwards.

But there’s a case that says PRCS is not punishment. People v. Espinoza (2014) 226 Cal.App.4th 635, 640-641.

There’s also an interesting paragraphy from People v. Cruz (2012) 207 Cal.App.4th 664, 677:

“In our view, the sentencing changes created by section 1170, subdivision (h) do not directly affect a defendant's fundamental interest in liberty. His or her statutorily prescribed sentence is no greater under the law as it existed prior to the Act's operative date than under the Act's provisions. [Citations omitted.] We do not believe he or she has a protectable interest in serving that sentence in county jail as opposed to state prison. [Citations omitted.] Similarly, he or she has no fundamental interest in the possibility of a conditional early release via a hybrid sentence. [Citations omitted.]”

So I think the above is a decent argument that if the length of the sentence isn’t increased, and only the location is changed, that it does not violate ex post facto.

Strike

2026-04-23T18:04:55Z

Sysop:

Cruz waiver

2026-04-23T03:38:11Z

Sysop:

"We do not mean to imply by this holding that a defendant fully advised of his or her rights under section 1192.5 may not expressly waive those rights, such that if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term. Any such waiver, of course, would have to be obtained at the time of the trial court's initial acceptance of the plea, and it must be knowing and intelligent."
(''People v. Cruz'' (1988) 44 Cal.3d 1247, 1254, fn. 5 [246 Cal.Rptr. 1, 752 P.2d 439].)

"A "''Cruz'' waiver" gives a trial court the power to “withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term,” if the defendant willfully fails to appear for sentencing. (''People v. Puente (2008) 165 Cal.App.4th 1143, 1146, fn. 3, citing People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.)

(''People v. Vargas'' (1990) 223 Cal.App.3d 1107.)

(''People v. Masloski'' (2001) 25 Cal.4th 1212.)

''People v. Rabanales'' (2008) 168 Cal.App.4th 494

A defendant may wish to be released from custody to “clean up his or her affairs” prior to reporting to jail or state prison. People v. Cruz, 44 Cal. 3d 1247, 1254 n.5, 246 Cal. Rptr. 1, 752 P.2d 439 (1988), permits the defendant and the court to enter into an agreement that certain sanctions will be imposed if the defendant fails to appear later for sentencing or to commence the custody term. “We do not mean to imply by this holding that a defendant fully advised of his or her rights under section 1192.5 may not expressly waive those rights, such that if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for-term. Any such waiver, of course, would have to be obtained at the time of the trial court's initial acceptance of the plea, and it must be knowing and intelligent.” (Id., fn. 5.)

People v. Vargas, 148 Cal. App. 4th 644, 55 Cal. Rptr. 3d 837 (4th Dist. 2007), discusses an alternative form of Cruz waiver, often referred to as a “Vargas waiver.” There, the court told the defendant he would be sentenced to the upper term if he violated any conditions of the release agreement. While the defendant was released, he committed a robbery. The appellate court found no error in the court imposing the upper term solely because of the agreement with the defendant. (Id. at pp. 649–650.) The defendant also argued that it was improper for the court to impose the upper term because of a new law violation when the guilt had not been determined by a jury. The court rejected the claim because the defendant had agreed to the following: “that any willful violation of these terms will be decided by the sentencing judge without a jury and by a preponderance of the evidence. I further understand and agree, that if the court finds any willful violation of these terms, the court will be free to impose any greater sentence than expressly stated in this agreement, up to the maximum penalty for each offense and enhancement to which I am pleading guilty/no contest or admitting, and I will not have any right to withdraw my plea.” (Id. at p. 652; see also People v. Puente, 165 Cal. App. 4th 1143, 1145 n.2, 81 Cal. Rptr. 3d 380 (4th Dist. 2008); People v. Carr, 143 Cal. App. 4th 786, 49 Cal. Rptr. 3d 548 (4th Dist. 2006), reh'g denied, (Oct. 30, 2006).)

The plea agreement may alternatively provide for increased sentence in the event the defendant fails to appear for sentencing. (People v. Masloski, 25 Cal. 4th 1212, 108 Cal. Rptr. 2d 484, 25 P.3d 681 (2001).) For example, in People v. Rabanales, 168 Cal. App. 4th 494, 85 Cal. Rptr. 3d 607 (4th Dist. 2008), habeas corpus dismissed, 2011 WL 1599619 (C.D. Cal. 2011), the defendant pleaded guilty based on an indicated sentence and was released on his own recognizance with a Cruz/Vargas waiver. The defendant subsequently was arrested for domestic violence and returned to court. The prosecutor submitted a police report and the court found the Vargas waiver had been breached and imposed the higher agreed upon sentence. The court upheld the higher sentence and found no violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Cruz requires the following: “(1) the defendant must be fully advised of his or her rights under section 1192.5, (2) the waiver must be express, (3) the waiver must be obtained at the time of the trial court's initial acceptance of the plea, and (4) the waiver must be knowing and intelligent.” The enhanced punishment may be set aside, however, if the court gives the defendant an incomplete advisement. (See Cruz at p. 1254, fn. 5.)

The following procedure was determined appropriate in People v. Casillas, 60 Cal. App. 4th 445, 451–452, 70 Cal. Rptr. 2d 290 (5th Dist. 1997):

1. If the defendant fails to appear for sentencing after entering a plea bargain but has made no agreement with the court regarding the consequences of such failure, the court may refuse to follow the plea bargain, but the defendant is entitled to withdraw the plea if the court chooses to impose a different sentence.

2. The same rule applies when, during plea proceedings but after the parties have negotiated the plea agreement, the court imposes an additional condition providing for the sanction for nonappearance; e.g., the condition is imposed unilaterally by the court and is not a part of the underlying plea agreement. (People v. Vargas, 148 Cal. App. 4th 644, 650–651, 55 Cal. Rptr. 3d 837 (4th Dist. 2007); People v. Jensen, 4 Cal. App. 4th 978, 984, 6 Cal. Rptr. 2d 201 [1st Dist.] 1992); People v. Morris, 97 Cal. App. 3d 358, 364, 158 Cal. Rptr. 722 [1st Dist.] 1979) (abrogation recognized by, People v. Gonzalez, 2005 WL 914492 (Cal. App. 2d Dist. 2005)).)

3. If the defendant has specifically negotiated the consequences of non-appearance as part of the plea agreement, the court may impose additional consequences consistent with the terms of the agreement without allowing the defendant to withdraw the plea. (People v. Masloski, 25 Cal. 4th 1212, 108 Cal. Rptr. 2d 484, 25 P.3d 681 (2001).)

The procedure discussed in Casillas would be applicable to any condition of release imposed by the court. Typically courts will impose requirements that the defendant return to court or jail at a certain time, not commit any law violations, and return to custody free of any measurable drugs or alcohol. Other conditions could require the defendant to have no contact with the victim, attend a certain number of “self-helps,” check in with the probation officer at specified times, or not leave a certain geographic area. Undoubtedly the court would be free to impose any condition reasonably related to assuring the defendant will return to custody when required and will not cause problems during the short period of release.

The failure to move to withdraw a plea based on a defective Cruz admonishment waives the right to complain of the increased sentence on appeal. (People v. Murray, 32 Cal. App. 4th 1539, 1546, 39 Cal. Rptr. 2d 7 (5th Dist. 1995), reh'g denied, (Mar. 23, 1995): “we conclude appellant waived his right to complain about deviations from the plea bargain when he failed to move to withdraw his plea at the sentencing hearing.”)

If the defendant is to be released from custody, a signed promise to appear back in court is necessary for the future application of the “crime-bail-crime” allegation under section 12022.1 if the defendant subsequently commits a new felony. (People v. Hernandez, 177 Cal. App. 4th 1182, 99 Cal. Rptr. 3d 548 (5th Dist. 2009).)

In In re Duval, 44 Cal. App. 5th 401, 257 Cal. Rptr. 3d 557 (4th Dist. 2020), the court found the defendant was entitled to habeas corpus relief challenging the finding of a willful failure to appear at sentencing after a Cruz waiver; willfulness is a requisite finding to set aside the plea agreement under a Cruz waiver.

Upper term imposed because of a violation of a Cruz waiver. An upper term imposed after a violation of a waver entered under People v. Cruz, 44 Cal. 3d 1247, 246 Cal. Rptr. 1, 752 P.2d 439 (1988), does not require a decision by a jury, provided the upper term was included in the plea agreement and the defendant agreed the court could impose the term after a violation of the waiver. (People v. Vargas, 148 Cal. App. 4th 644, 55 Cal. Rptr. 3d 837 (4th Dist. 2007).)

The defendant cannot withdraw a plea when an express condition subsequent to the bargain occurs, such as defendant's nonappearance at sentencing, and the defendant receives an increased sentence. (People v. Casillas, 60 Cal. App. 4th 445, 70 Cal. Rptr. 2d 290 (5th Dist. 1997) [relying on People v. Cruz, 44 Cal. 3d 1247, 1254 n.5, 246 Cal. Rptr. 1, 752 P.2d 439 (1988);

Cruz waiver

2026-04-23T03:27:33Z

Sysop:

"We do not mean to imply by this holding that a defendant fully advised of his or her rights under section 1192.5 may not expressly waive those rights, such that if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term. Any such waiver, of course, would have to be obtained at the time of the trial court's initial acceptance of the plea, and it must be knowing and intelligent."
(''People v. Cruz'' (1988) 44 Cal.3d 1247, 1254, fn. 5 [246 Cal.Rptr. 1, 752 P.2d 439].)

"A "''Cruz'' waiver" gives a trial court the power to “withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term,” if the defendant willfully fails to appear for sentencing. (''People v. Puente (2008) 165 Cal.App.4th 1143, 1146, fn. 3, citing People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5.)

(''People v. Vargas'' (1990) 223 Cal.App.3d 1107.)

(''People v. Masloski'' (2001) 25 Cal.4th 1212.)

''People v. Rabanales'' (2008) 168 Cal.App.4th 494

A defendant may wish to be released from custody to “clean up his or her affairs” prior to reporting to jail or state prison. People v. Cruz, 44 Cal. 3d 1247, 1254 n.5, 246 Cal. Rptr. 1, 752 P.2d 439 (1988), permits the defendant and the court to enter into an agreement that certain sanctions will be imposed if the defendant fails to appear later for sentencing or to commence the custody term. “We do not mean to imply by this holding that a defendant fully advised of his or her rights under section 1192.5 may not expressly waive those rights, such that if the defendant willfully fails to appear for sentencing the trial court may withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for-term. Any such waiver, of course, would have to be obtained at the time of the trial court's initial acceptance of the plea, and it must be knowing and intelligent.” (Id., fn. 5.)

People v. Vargas, 148 Cal. App. 4th 644, 55 Cal. Rptr. 3d 837 (4th Dist. 2007), discusses an alternative form of Cruz waiver, often referred to as a “Vargas waiver.” There, the court told the defendant he would be sentenced to the upper term if he violated any conditions of the release agreement. While the defendant was released, he committed a robbery. The appellate court found no error in the court imposing the upper term solely because of the agreement with the defendant. (Id. at pp. 649–650.) The defendant also argued that it was improper for the court to impose the upper term because of a new law violation when the guilt had not been determined by a jury. The court rejected the claim because the defendant had agreed to the following: “that any willful violation of these terms will be decided by the sentencing judge without a jury and by a preponderance of the evidence. I further understand and agree, that if the court finds any willful violation of these terms, the court will be free to impose any greater sentence than expressly stated in this agreement, up to the maximum penalty for each offense and enhancement to which I am pleading guilty/no contest or admitting, and I will not have any right to withdraw my plea.” (Id. at p. 652; see also People v. Puente, 165 Cal. App. 4th 1143, 1145 n.2, 81 Cal. Rptr. 3d 380 (4th Dist. 2008); People v. Carr, 143 Cal. App. 4th 786, 49 Cal. Rptr. 3d 548 (4th Dist. 2006), reh'g denied, (Oct. 30, 2006).)

The plea agreement may alternatively provide for increased sentence in the event the defendant fails to appear for sentencing. (People v. Masloski, 25 Cal. 4th 1212, 108 Cal. Rptr. 2d 484, 25 P.3d 681 (2001).) For example, in People v. Rabanales, 168 Cal. App. 4th 494, 85 Cal. Rptr. 3d 607 (4th Dist. 2008), habeas corpus dismissed, 2011 WL 1599619 (C.D. Cal. 2011), the defendant pleaded guilty based on an indicated sentence and was released on his own recognizance with a Cruz/Vargas waiver. The defendant subsequently was arrested for domestic violence and returned to court. The prosecutor submitted a police report and the court found the Vargas waiver had been breached and imposed the higher agreed upon sentence. The court upheld the higher sentence and found no violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

Cruz requires the following: “(1) the defendant must be fully advised of his or her rights under section 1192.5, (2) the waiver must be express, (3) the waiver must be obtained at the time of the trial court's initial acceptance of the plea, and (4) the waiver must be knowing and intelligent.” The enhanced punishment may be set aside, however, if the court gives the defendant an incomplete advisement. (See Cruz at p. 1254, fn. 5.)

The following procedure was determined appropriate in People v. Casillas, 60 Cal. App. 4th 445, 451–452, 70 Cal. Rptr. 2d 290 (5th Dist. 1997):

1. If the defendant fails to appear for sentencing after entering a plea bargain but has made no agreement with the court regarding the consequences of such failure, the court may refuse to follow the plea bargain, but the defendant is entitled to withdraw the plea if the court chooses to impose a different sentence.

2. The same rule applies when, during plea proceedings but after the parties have negotiated the plea agreement, the court imposes an additional condition providing for the sanction for nonappearance; e.g., the condition is imposed unilaterally by the court and is not a part of the underlying plea agreement. (People v. Vargas, 148 Cal. App. 4th 644, 650–651, 55 Cal. Rptr. 3d 837 (4th Dist. 2007); People v. Jensen, 4 Cal. App. 4th 978, 984, 6 Cal. Rptr. 2d 201 [1st Dist.] 1992); People v. Morris, 97 Cal. App. 3d 358, 364, 158 Cal. Rptr. 722 [1st Dist.] 1979) (abrogation recognized by, People v. Gonzalez, 2005 WL 914492 (Cal. App. 2d Dist. 2005)).)

3. If the defendant has specifically negotiated the consequences of non-appearance as part of the plea agreement, the court may impose additional consequences consistent with the terms of the agreement without allowing the defendant to withdraw the plea. (People v. Masloski, 25 Cal. 4th 1212, 108 Cal. Rptr. 2d 484, 25 P.3d 681 (2001).)

The procedure discussed in Casillas would be applicable to any condition of release imposed by the court. Typically courts will impose requirements that the defendant return to court or jail at a certain time, not commit any law violations, and return to custody free of any measurable drugs or alcohol. Other conditions could require the defendant to have no contact with the victim, attend a certain number of “self-helps,” check in with the probation officer at specified times, or not leave a certain geographic area. Undoubtedly the court would be free to impose any condition reasonably related to assuring the defendant will return to custody when required and will not cause problems during the short period of release.

The failure to move to withdraw a plea based on a defective Cruz admonishment waives the right to complain of the increased sentence on appeal. (People v. Murray, 32 Cal. App. 4th 1539, 1546, 39 Cal. Rptr. 2d 7 (5th Dist. 1995), reh'g denied, (Mar. 23, 1995): “we conclude appellant waived his right to complain about deviations from the plea bargain when he failed to move to withdraw his plea at the sentencing hearing.”)

If the defendant is to be released from custody, a signed promise to appear back in court is necessary for the future application of the “crime-bail-crime” allegation under section 12022.1 if the defendant subsequently commits a new felony. (People v. Hernandez, 177 Cal. App. 4th 1182, 99 Cal. Rptr. 3d 548 (5th Dist. 2009).)

In In re Duval, 44 Cal. App. 5th 401, 257 Cal. Rptr. 3d 557 (4th Dist. 2020), the court found the defendant was entitled to habeas corpus relief challenging the finding of a willful failure to appear at sentencing after a Cruz waiver; willfulness is a requisite finding to set aside the plea agreement under a Cruz waiver.

Upper term imposed because of a violation of a Cruz waiver. An upper term imposed after a violation of a waver entered under People v. Cruz, 44 Cal. 3d 1247, 246 Cal. Rptr. 1, 752 P.2d 439 (1988), does not require a decision by a jury, provided the upper term was included in the plea agreement and the defendant agreed the court could impose the term after a violation of the waiver. (People v. Vargas, 148 Cal. App. 4th 644, 55 Cal. Rptr. 3d 837 (4th Dist. 2007).)

A "Cruz waiver" in a plea bargain1 gives a trial court the power to withdraw its approval of the defendant's plea and impose a sentence in excess of the bargained-for term, if the defendant violates the terms of the bargain or willfully fails to appear for sentencing People v. Puente, 165 Cal. App. 4th 1143, 81 Cal. Rptr. 3d 380 (4th Dist. 2008).

The defendant's sentence to 16 months in county jail following a no contest plea for possession of a controlled substance was not illegal, despite the contention that the sentence violated the terms of the defendant's plea bargain, where the waiver of rights and plea form clearly stated that the maximum punishment for the offense was three years, but under the plea agreement, that the defendant would be referred to drug court, the defendant was referred to drug court in compliance with the agreement, and once the defendant repudiated the agreement by refusing to cooperate, all that remained was to impose sentence on his plea in accordance with the statutory punishment. People v. Alexander, 233 Cal. App. 4th 313, 182 Cal. Rptr. 3d 557 (2d Dist. 2015).

Likewise, the trial court properly denied bargained-for custody credits to the defendant, under a plea bargain provision stating that if the defendant appeared for sentencing on a certain date he would receive the credits, where the defendant was incarcerated in another county on the sentencing date. People v. Puente, 165 Cal. App. 4th 1143, 81 Cal. Rptr. 3d 380 (4th Dist. 2008).

By agreeing to a Cruz waiver, a defendant waives the right to a jury trial; the imposition of the upper term, rather than a lesser sentence agreed upon in the plea bargain, upon the defendant's violation of the waiver does not implicate that right. People v. Vargas, 148 Cal. App. 4th 644, 55 Cal. Rptr. 3d 837 (4th Dist. 2007).

A Vargas waiver permits the trial court to impose one of two specified sentences subject to a defendant's compliance with various conditions of release.6 A Cruz waiver provision permits the trial court to impose a sentence stayed pursuant to a Vargas waiver, rather than a lesser sentence agreed upon in a plea bargain, even if the trial court does not specify why the defendant was found in violation of the Cruz and Vargas waivers, and even though the stayed sentence was expressly stated in the plea agreement.

In sentencing a defendant pursuant to a plea bargain including a Vargas waiver, the trial court has no discretion to impose a sentence based on aggravating or mitigating factors. People v. Rabanales, 168 Cal. App. 4th 494, 85 Cal. Rptr. 3d 607 (4th Dist. 2008).

Cruz waiver

2026-04-23T03:16:16Z

Sysop:

Cruz waiver

2026-04-23T03:14:24Z

Sysop:

Threats

2026-04-20T02:21:42Z

Sysop: /* (3) Unconditional, Specific, and Immediate Threat */

==Criminal Threats==

Section 422 criminalizes threats made to another that are likely to result in death or great bodily injury. Section 422 encompasses conduct directed at one specifically identified person. Moreover, it requires an actual intent to commit a specific type of harm. This statute does not address the situation of cyberbullying in which one person might post disparaging comments about another on the Internet but does not explicitly threaten to harm that person.

===Punishment===

16-2-3 state prison

Serious felony, PC1192.7(c)(38)

===Elements===

(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,”

(2) that the defendant made the threat “with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,”

(3) that the threat—which may be “made verbally, in writing, or by means of an electronic communication device”—was “on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,”

(4) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family's safety,” and

(5) that the threatened person's fear was “reasonabl[e]” under the circumstances.

(People v. Toledo (2001) 26 Cal.4th 221, 227–228.)

In re George T. (2004) 33 Cal.4th 620, 630

People v. Melhado (1998) 60 Cal.App.4th 1529, 1536

====(1) Great Bodily Injury to a person====

PC12022.7

Crime that Will Result in Great Bodily Injury Judged on Objective Standard

People v. Maciel (2003) 113 Cal.App.4th 679, 685.

A police officer is a person within the meaning of PC422. (''People v. Schnathorst'' (2004) 120 Cal.App.4th 1310, 1316.)

“no specific crime must be identified for the jury” to find a victim's fear reasonable. (People v. Butler (2000) 85 Cal.App.4th 745, 755.

====(2)Threat====

“ ‘[T]he determination whether a defendant intended his words to be taken as a threat ... can be based on all the surrounding circumstances and not just on the words alone. The parties’ history can also be considered as one of the relevant circumstances.’ ” (People v. Butler (2000) 85 Cal.App.4th 745, 754.)

[S]ection 422 does not punish such things as ‘mere angry utterances or ranting soliloquies, however violent.’ [Citation.] Accordingly, where the accused did not personally communicate a threat to the victim, it must be shown that he specifically intended that the threat be conveyed to the victim.” (Ryan D., supra, 100 Cal.App.4th at p. 861.)

"[T]he words, “I'm going to get you,” “I'll get back to you,” “I'll get you,” may not, standing alone, convey a threat to commit a crime which will result in death or great bodily injury." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1218.)

‘[T]he nature of the threat cannot be determined only at face value.Section 422 demands that the purported threat be examined “on its face and under the circumstances in which it was made.” The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat,’ and such threats must be ‘judged in their context.’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542.)

Thus, “[a] communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning.” (In re George T., supra, 33 Cal.4th at p. 635, 16 Cal.Rptr.3d 61, 93 P.3d 1007.)

A threat too outlandish reasonably to cause the victims to suffer sustained fear would be legally insufficient to support conviction of an attempted criminal threat. People v. Jackson (App. 6 Dist. 2009) 100 Cal.Rptr.3d 539, 178 Cal.App.4th 590.

A terroristic threat is sufficiently specific where it threatens death or great bodily injury; a threat is not insufficient simply because it does not communicate a time or precise manner of execution. People v. Gaut (App. 2 Dist. 2002) 115 Cal.Rptr.2d 924, 95 Cal.App.4th 1425.

Criminal-threats statute is not violated by mere angry utterances or ranting soliloquies, however violent. People v. Felix (App. 2 Dist. 2001) 112 Cal.Rptr.2d 311, 92 Cal.App.4th 905,

In prosecution for making terroristic threats, evidence was sufficient to find element that defendant's verbal statement was unequivocal, where testimony established that defendant, while victims were talking to police officer, said “shush” as he made a throat-slashing gesture and placed his finger to his lips. People v. Franz (App. 3 Dist. 2001) 106 Cal.Rptr.2d 773, 88 Cal.App.4th 1426,

People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [69 Cal.Rptr.2d 728]; People v.
Butler (2000) 85 Cal.App.4th 745, 752–753 [102 Cal.Rptr.2d 269]; People v.
Martinez (1997) 53 Cal.App.4th 1212, 1218–1221 [62 Cal.Rptr.2d 303]; In re
Ricky T. (2001) 87 Cal.App.4th 1132, 1137–1138 [105 Cal.Rptr.2d 165]; People
v. Solis (2001) 90 Cal.App.4th 1002, 1013–1014 [109 Cal.Rptr.2d 464]; see
People v. Garrett (1994) 30 Cal.App.4th 962, 966–967 [36 Cal.Rptr.2d 33].

A “threatening statement[ ] that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, ‘a serious expression of an intent to commit an act of unlawful violence’, rather than an expression of jest or frustration”, is not protected speech. (People v. Lowery (2011) 52 Cal.4th 419, 427.) People v. Paigly (Cal. Ct. App., Oct. 8, 2025, No. H050724) 2025 WL 2847115, at *3, review denied (Dec. 30, 2025)

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

Threatening Hand Gestures Not Verbal Threats Under Penal Code Section 422

People v. Gonzalez (2017) 2 Cal.5th 1138, 1147 [218 Cal.Rptr.3d 150,
394 P.3d 1074].

A gesture without a statement is not a threat, but a "shush" or "sh" is sufficient to be a statement. (People v. Franz (2001) 88 Cal.App.4th 1426, 1441–1442.)

====(3) Unconditional, Specific, and Immediate Threat====

As to the third element, “ ‘the determination [of] whether a defendant intended [for their] words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate[,] and specific [that] they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat[,] can be based on all the surrounding circumstances and not just on the words alone.’ ” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431.) “ ‘The parties’ history can also be considered as one of the relevant circumstances.’ ” (Ibid.)

We conclude the evidence was sufficient for this purpose. Although the recording does not reveal exactly what condition defendant placed on his threat, from the context and surrounding circumstances the jury reasonably could have determined that defendant essentially threatened to kill S. if she did not cooperate and answer his questions about the slip of paper he had found. Indeed, virtually everything defendant said immediately before and after his threat supports such a determination. Before his threat, he demanded that she “just start answering these fucking questions” and that she “better fucking come clean.” Immediately after the threat, he told her she was “not *1434 escaping this one” and told her to “give [him] information,” “just start talking,” and “[g]et going.” Under these circumstances, the jury did not need to know the exact words of the condition defendant placed on the threat to conclude that the threat was so unconditional as to convey a gravity of purpose and an immediate prospect of execution. Accordingly, defendant's sufficiency of the evidence challenge to his conviction of making a criminal threats fails. People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433–1434 [89 Cal.Rptr.3d 402, 420], as modified on denial of reh'g (Mar. 9, 2009)

But not required to be unconditional

People v. Bolin (1998) 18 Cal.4th 297, 339–340 [75 Cal.Rptr.2d 412, 956 P.2d 374], disapproving People v. Brown (1993) 20 Cal.App.4th 1251, 1256 [25 Cal.Rptr.2d 76];

People v. Stanfield (1995) 32 Cal.App.4th 1152, 1162 [38 Cal.Rptr.2d 328].

Defendant's statement that he would kill victim if she testified against his fellow gang members was a “threat” within meaning of statute prohibiting threatening to commit crime which would result in great bodily injury, although statement was conditional. People v. Brooks (App. 4 Dist. 1994) 31 Cal.Rptr.2d 283, 26 Cal.App.4th 142,

There is no requirement that the threat be unconditional, nor can we judge a threat “solely on the words spoken. It is clear by case law that threats are judged in their context.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137, 105 Cal.Rptr.2d 165, fn. omitted.)

Conditional Threat May Be True Threat, Depending on Context

People v. Melhado (1998) 60 Cal.App.4th 1529, 1540 [70 Cal.Rptr.2d 878].

"The statute specifically requires one to look at the threat on its face and under the circumstances in which it is made." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1220.)

But circumstances can also show no threat. "If surrounding circumstances within the meaning of section 422 can show whether a terrorist threat was made, absence of circumstances can also show that a terrorist threat was not made within the meaning of section 422. Here, there was no evidence of any circumstances occurring after appellant's “threats” which would further a finding of a terrorist threat." (''In re Ricky T.'' (2001) 87 Cal.App.4th 1132, 1139.)

The immediacy of the threat can still be found if the threatener is arrested (''People v. Franz'' (2001) 88 Cal.App.4th 1426) or even if in jail (''People v. Gaut'' (2002) 95 Cal.App.4th 1425.) The immediacy of threat can be found even if the threatened person is in a different state. (''People v. Smith'' (2009) 178 Cal.App.4th 475.)

Prisoners. (''People v. Mosley'' (2007) 155 Cal.App.4th 313.)

A threat need only convey “ ‘ “a gravity of purpose and an immediate prospect of execution of the threat.” ’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542, italics added.) “[I]t ‘does not require an immediate ability to carry out the threat.’ ” (Ibid.)

Threat by prisoner that when he is released on parole in 10 months is sufficient for PC422. (''People v. Wilson'' (2010) 186 Cal.App.4th 789.)

Pharmacy manager's fear of defendant was reasonable under the circumstances, as required for the offense of making a criminal threat, after a telephone call in which defendant told the manager he was “dead,” since it was reasonable for the manager to believe that defendant could carry and fire a gun despite a disability that required defendant to use a motorized wheelchair, and defendant previously told the manager to “expect something when you least expect it.” People v. Orloff (App. 2 Dist. 2016) 206 Cal.Rptr.3d 755

Immediate Ability to Carry Out Threat Not Required
People v. Lopez (1999) 74 Cal.App.4th 675, 679 [88 Cal.Rptr.2d 252].

Crime of criminal threat does not require an immediate ability or even an actual intention to carry out the threat. People v. Holmes, McClain and Newborn (2022) 289 Cal.Rptr.3d 582, 503 P.3d 668

Defendant's commands to stepson “Don't lie to me,” and “Don't call me that” were sufficiently unequivocal, unconditional, immediate and specific they conveyed to stepson an immediacy of purpose and immediate prospect of execution of the threat, as required for the offense of criminal threat, where defendant made the commands while pointing a gun at stepson's head. People v. Culbert (App. 2 Dist. 2013) 159 Cal.Rptr.3d 853, 218 Cal.App.4th 184.

Finding that threats made against a victim in California by her former cohabitant, an unemployed drug-user in Texas, were “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,” in convicting the former cohabitant of criminal threats, was supported by substantial evidence, including victim's testimony that cohabitant threatened to kill her, that he threatened to come to California and hurt her, and that victim felt cohabitant had nothing left to lose, as well as evidence of the long and escalating history of cohabitant's violence, and evidence that cohabitant had made a prior trip to California and assaulted the victim. People v. Smith (App. 2 Dist. 2009) 100 Cal.Rptr.3d 471, 178 Cal.App.4th 475,

Threat can be shown by prior bad acts. (''People v. Stern'' (2003) 111 Cal.App.4th 283

====(4) Sustained Fear====

Sustained fear must occur over “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7.) Courts have held, for instance, 15 minutes satisfies the sustained fear requirement. (Ibid.) In addition, sustained fear must be objectively and subjectively reasonable. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140, 105 Cal.Rptr.2d 165 [“A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances”].)

''People v. Fierro'' (2010) 180 Cal.App.4th 1342 [15 minutes afterwards is still sustained fear]

In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139–1140 [105
Cal.Rptr.2d 165]; People v. Solis (2001) 90 Cal.App.4th 1002, 1024 [109
Cal.Rptr.2d 464]; People v. Allen (1995) 33 Cal.App.4th 1149, 1155–1156 [40
Cal.Rptr.2d 7].

Defendant's violent history can be relevant for sustained fear element. (''People v. Garrett'' (1994) 30 Cal.App.4th 962, 967.)

A person's fear is “sustained” if it “extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) “The victim's knowledge of defendant's prior conduct is relevant in establishing that [they were] in a state of sustained fear.” (Ibid.)

So are the circumstances surrounding the defendant's threats and their subsequent actions. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1221.)

===Attempted Criminal Threats===
People v. Chandler (2014) 60 Cal.4th 508, 525 [176 Cal.Rptr.3d 548, 332 P.3d 538].

===Only One Conviction and One Punishment Per Victim, Per Threatening Encounter===

“[S]ection 422 authorizes only one conviction and one punishment per victim, per threatening encounter during which the victim suffers a single period of sustained fear.” (People v. Wilson (2015) 234 Cal.App.4th 193, 202.)

People v. Roles (2020) 44 Cal.App.5th 935, 942

===Through Third Party Intermediaries===
;''In re Ryan D.'' (2002) 100 Cal.App.4th 854
:Painting a picture of a shot school officer which was for a school project and not intended to be shown to the officer was not a criminal threat

;''People v. Felix'' (2001) 92 Cal.App.4th 905, 911–915
:Statements made during a therapy session are not meant to be conveyed.

;''In re David L.'' (1991) 234 Cal.App.3d 1655
:"The kind of threat contemplated by section 422 may as readily be conveyed by the threatener through a third party as personally to the intended victim. Where the threat is conveyed through a third party intermediary, the specific intent element of the statute is implicated. Thus, if the threatener intended the threat to be taken seriously by the victim, he must necessarily have intended it to be conveyed. Here, the climate of hostility between the minor and the victim in which the threat was made and the manner in which it was made readily support the inference the minor intended the victim to feel threatened. The communication of the threat to a friend of the victim who was also witness to certain of the antecedent hostilities supports the inference the minor intended the friend act as intermediary to convey the threat to the victim." (In re David L., at p. 1659.)

;''People v. Roles'' (2020) 44 Cal.App.4th 935

A defendant may be convicted of a criminal threat made to a third party so long as “he specifically intended that the threat be conveyed to the victim.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 861, 123 Cal.Rptr.2d 193; see People v. Felix (2001) 92 Cal.App.4th 905, 913, 112 Cal.Rptr.2d 311 (Felix); In re David L. (1991) 234 Cal.App.3d 1655, 1659, 286 Cal.Rptr. 398 (David L.).) In David L., for example, sufficient evidence showed a minor intended a criminal threat to be conveyed to the victim when he made the threat to the victim's friend and it “followed a series of hostile *763 encounters between the minor and the victim culminating in a fight at school,” which the friend had witnessed. (David L., supra, at p. 1660, 286 Cal.Rptr. 398.)

===Internet and phone apps===

In this case, the juvenile court found defendant A.G., a minor high school student, made criminal threats when he posted a photo of a realistic looking replica gun on his Snapchat account, which was visible to about 60 people he identified as friends. The photo bore the caption, “Everybody go to school tomorrow. I'm taking gum.”

The record contains sufficient evidence A.G. intended his Snapchat post to be understood as a threat and that he willfully threatened to kill or cause great bodily injury In re A.G. (2020) 58 Cal.App.5th 647, 655 [272 Cal.Rptr.3d 602, 609], as modified (Dec. 23, 2020)

===Jury Instruction===

====CALCRIM 1300 Criminal Threat====
The defendant is charged [in Count ] with having made a criminal threat [in violation of Penal Code section 422].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to <insert name
of complaining witness or member[s] of complaining witness’s immediate family>;

2. The defendant made the threat (orally/in writing/by electronic communication device);

3. The defendant intended that (his/her) statement be understood as a threat [and intended that it be communicated to
<insert name of complaining witness>];

4. The threat was so clear, immediate, unconditional, and specific that it communicated to <insert name of complaining
witness> a serious intention and the immediate prospect that the threat would be carried out;

5. The threat actually caused <insert name of complaining witness> to be in sustained fear for (his/her) own safety [or for the safety of (his/her) immediate family];

AND

6._____________’s <insert name of complaining witness> fear was reasonable under the circumstances.

Someone commits an act ''willfully'' when he or she does it willingly or on purpose.

In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the
surrounding circumstances.

Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act [or intend to
have someone else do so].

''Great bodily injury'' means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

''Sustained fear'' means fear for a period of time that is more than momentary, fleeting, or transitory.

<nowiki>[An immediate ability to carry out the threat is not required.]</nowiki>

<nowiki>[An electronic communication device includes, but is not limited to: a telephone, cellular telephone, pager, computer, video recorder, or fax machine.]</nowiki>

<nowiki>[Immediate family means (a) any spouse, parents, and children; (b) any grandchildren, grandparents, brothers and sisters related by blood or marriage; or (c) any person who regularly lives in the other person’s household [or who regularly lived there within the prior six months].]</nowiki>

====CALJIC 9.94====

<nowiki>[Defendant is accused [in Count[s] ] of having violated section 422 of the Penal Code, a crime.]</nowiki>

Every person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which threat, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, is guilty of a violation of Penal Code section 422, a crime.

<nowiki>[“Great bodily injury” means significant or substantial bodily injury or damage. It does not refer to trivial, insignificant, or moderate injury or harm.]</nowiki>

<nowiki>[“Immediate family” means any spouse, whether by marriage or not, parent, child, (relative), or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.]</nowiki>

<nowiki>[“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers.]</nowiki>

The term “sustained fear” means a period of time that extends beyond what is momentary, fleeting, or transitory.

There are different degrees of unconditionality. A threat which may appear conditional on its face can be unconditional under the circumstances. Conditional threats are true threats if their context reasonably conveys to the victim that they are intended.

The word “immediate” means that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met.

<nowiki>[Evidence of an out-of-court statement of a defendant, including any purported threat, ought to be viewed with caution.]</nowiki>

In order to prove this crime, each of the following elements must be proved:

1. A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person;

2. The person who made the threat did so with the specific intent that the statement be taken as a threat;

3. The threat was contained in a statement that was made verbally, in writing, or by means of an electronic communication device;

4. The threatening statement on its face, and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat; and

<nowiki>5. The threatening statement caused the person threatened reasonably to be in sustained fear [for [his] [or] [her] own safety] [or] [for [his] [or] [her] immediate family's safety].</nowiki>

It is immaterial whether the person who made the threat actually intended to carry it out.

===Lesser Included Offense===

====Attempted 422====
People v. Toledo (2001) 26 Cal.4th 221, 230–231 [109 Cal.Rptr.2d 315, 26 P.3d 1051].

===Constitutionality===

True threats are not protected speech. (''Counterman v. Colorado'' (2023) 600 U.S. 66.)

People v. Maciel (2003) 113 Cal. App. 4th 679 (Penal Code § 422 is not unconstitutionally vague in its language of "willfully threatens to commit a crime which will result in death or great bodily injury")

People v. Lopez (1999) 74 Cal. App. 4th 675, 88 Cal. Rptr. 2d 252 (upholding constitutionality of Penal Code § 422, because it includes immediacy element and prohibits speech not protected by First Amendment).

People v. Fisher (1993) 12 Cal.App.4th 1556 (upholding upholding constitutionality of Penal Code § 422, even though it does not require declarant intended to carry out threat).

It is settled that Penal Code section 422 is not unconstitutionally overbroad because it is narrowly tailored to true threats, which are not protected by the First Amendment. (People v. Toledo (2001) 26 Cal.4th 221, 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051; In re Ryan D. (2002) 100 Cal.App.4th 854, 861–862, 123 Cal.Rptr.2d 193; People v. Fisher (1993) 12 Cal.App.4th 1556, 1558–1560, 15 Cal.Rptr.2d 889.) “[T]he type of threat satisfying the criminal threat provisions of section 422—that is, a threat ‘to commit a crime which will result in death or great bodily injury to another person ... which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat’—constitutes speech that falls outside the protection of the First Amendment.” (Toledo, at p. 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051.) (People v. Morera-Munoz (2016) 5 Cal.App.5th 838, 851, fn. 7.)

===Secondary Sources===
*19 Cal. Jur. 3d Criminal Law: Miscellaneous Offenses § 181 Overview of criminal threat statutes

A cautionary instruction is applicable when evidence of a defendant’s out-of-court statements is received, including when the statements form the basis of a prosecution for making criminal threats. However the instruction is not required to be given sua sponte. People v. Diaz (2015) 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.2d 62.
The court must instruct on the elements of the threatened crime. It is the fact that a crime is threatened which along with the other elements, makes the utterance criminal.
“Willfully” is defined in CALJIC 1.20
Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily included offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539.
COMMENT
Penal Code § 422; 2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Public Peace and Welfare §§ 24 to 29.
This crime is committed, even though the threat is communicated through a third person to the victim. (In re David L., 234 Cal.App.3d 1655, 286 Cal.Rptr. 398 (3d Dist.1991).)
Penal Code § 422 is a crime of moral turpitude. (People v. Thornton, 3 Cal.App.4th 419, 4 Cal.Rptr.2d 519 (4th Dist.1992).)
The court, in People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283, 287 (4th Dist.1994), opined that an apparently conditional threat is a true threat, for purposes of this crime, if the context of the threat reasonably conveys to the victim that the threat is intended (cases cited). (Accord: People v. Stanfield, 32 Cal.App.4th 1152, 38 Cal.Rptr.2d 328 (2d Dist.1995).)
A violation of Penal Code § 422 does not require an unconditional threat of death or great bodily injury. (People v. Bolin, 18 Cal.4th 297, 338, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998).)
In People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7, 11 (2d Dist.1995), the court opined that “sustained fear” means a period of time that extends beyond what is momentary, fleeting or transitory, and that 15 minutes of fear, under the circumstances, was sufficient.
“Sustained fear” is taken from People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7 (2d Dist.1995). “Conditional threats” is derived from People v. Stanfield, 32 Cal.App.4th 1152, 1158, 38 Cal.Rptr.2d 328 (2d Dist.1995); People v. Bolin, 18 Cal.4th 297, 340, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998); and People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283 (4th Dist.1994). “Immediate” is derived from People v. Melhado, 60 Cal.App.4th 1529, 1538, 70 Cal.Rptr.2d 878 (1st Dist.1998).
Section 422 requires a verbal statement. Conduct alone is not sufficient (when there is no writing or electronic communication). People v. Franz, 88 Cal.App.4th 1426, 106 Cal.Rptr.2d 773 (3d Dist.2001).
In People v. Gonzalez (2017) 2 Cal.5th 1138, 218 Cal.Rptr.3d 150, 394 P.3d 1074, the court approved the holding in People v. Franz (2001) supra, and held that a hand gesture in a threatening manner was not a verbal threat which is required for a violation of Penal Code § 422.
A police officer is a person who can be a victim of this crime. (People v. Schnathorst, 120 Cal.App.4th 1310, 16 Cal.Rptr.3d 312 (3d Dist.2004).)
Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541.

Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541.
A cautionary instruction is applicable when evidence is received of a defendant’s out-of-court statements, including when statements form the basis of a prosecution for making criminal threats. However the instruction is not required to be given sua sponte. People v. Diaz (2015) 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.2d 62.
The court in People v. Chandler (2014) 60 Cal.4th 508, 176 Cal.Rptr.3d 548, 332 P.3d 538, held that the lesser and necessarily “offense of attempted criminal threat requires not only proof of a subjective intent to threaten but also proof that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear.”
Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily include offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539.

===Statute===

====Current version from 06/30/11 to present (AB117, Stats. 2011, ch. 39, § 16.)====
(a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

(b) For purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

(c) “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

====From 04/04/11 to 06/30/11 (AB109, Stats. 2011, ch. 15, § 351.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment '''pursuant to subdivision (h) of Section 1170.'''

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

====From 01/01/1998 to 04/04/11 (SB1796, Stats. 1998, ch. 825, § 3.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement<<+, made verbally, in writing, or by means of an electronic communication device,+>> is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

'''“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.'''

=====Legislative Counsel's Digest=====
(2) Existing law prohibits the willful issuance of a threat to commit a crime which will result in the death or great bodily injury of another, with the specific intent that the statement be taken as a threat even if there is no actual intent of carrying out the crime, where the threat is so unequivocal, immediate, and specific so as to cause the recipient to reasonably be in sustained fear for his or her own safety or the safety of his or her immediate family.

This bill would clarify that this provision applies to threatening statements made verbally, in writing, or by means of an electronic communication device, and would incorporate the definition of “electronic communication” used in a specified provision of federal law. By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

====From 01/01/1990 to 12/31/1998 (AB1667, Stats. 1989, ch. 1135, § 1.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made''',''' is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened''',''' a gravity of purpose and an immediate prospect of execution '''OF THE THREAT, AND THEREBY CAUSES THAT PERSON REASONABLY TO BE IN SUSTAINED FEAR FOR HIS OR HER OWN SAFETY OR FOR HIS OR HER IMMEDIATE FAMILY'S SAFETY''', shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison <del>if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety</del>.
For the purposes of this section, <del>the term</del> “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

=====Legislative Counsel's Digest=====
Under existing law, it is a public offense, punishable as specified, for any person to willfully threaten to commit a crime which will result in death or great bodily injury to another person, if under the circumstances the threat causes the threatened person reasonably to be in sustained fear for his or her own safety or his or her immediate family's safety, as specified.

This bill would make technical, nonsubstantive changes to those provisions.

====From 09/23/1988 to 12/31/1999 (SB1555, Stats 1988 ch. 1256, § 4.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety. For the purposes of this section, the term “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

=====Legislative Counsel's Digest=====
This bill would prohibit any person from willfully threatening to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent to actually carry it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution. This bill would make this offense either a misdemeanor or a felony punishable either by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison, thereby imposing a state-mandated local program.

==PC71==
Threatening a public officer of an educational institution in violation of Penal Code section 71 may be a lesser included offense of a section 422 criminal threat under the accusatory pleadings test. (In re Marcus T. (2001) 89 Cal.App.4th 468, 472–473 [107 Cal.Rptr.2d 451].) But see People v. Chaney (2005) 131 Cal.App.4th 253, 257–258 [31 Cal.Rptr.3d 714], finding that a violation of section 71 is not a lesser included offense of section 422 under the accusatory pleading test when the pleading does not specifically allege the intent to cause (or attempt to cause) a public officer to do (or refrain from doing) an act in the performance of official duty.

we noted that the prosecution's proof of an asserted violation of section 71 was deficient, in that the defendant was locked in his cell at the time he made the alleged threat and *920 thus was not then “in a position to carry out the threat.” (38 Cal.3d at p. 777, 215 Cal.Rptr. 1, 700 P.2d 782.) In People v. Tuilaepa (1992) 4 Cal.4th 569, 15 Cal.Rptr.2d 382, 842 P.2d 1142, we cited the fact that the defendant was locked in his cell for the night when he threatened **535 to burn a pair of pants and an adviser's face, along with the absence of a “substantial showing that [the] defendant harbored the requisite intent—interfering with the performance of official duties”—in rejecting the Attorney General's contention the threats in that case violated section 71. (4 Cal.4th at p. 590, 15 Cal.Rptr.2d 382, 842 P.2d 1142.) In neither case, however, did we consider that section 71, unlike section 422 (prohibiting criminal threats) and section 404.6 (prohibiting inciting to riot) contains no requirement of immediacy.

People v. Dunkle, 36 Cal. 4th 861, 919–20, 116 P.3d 494, 534–35 (2005), disapproved of by People v. Doolin, 45 Cal. 4th 390, 198 P.3d 11 (2009)

==PC76==

Threatening certain public officials, appointees, judges, staff, or their immediate families; intent and apparent ability to carry out threat; punishment

(a) Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, or the staff, immediate family, or immediate family of the staff of any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense, punishable as follows:
(1) Upon a first conviction, the offense is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both that fine and imprisonment.

(2) If the person has been convicted previously of violating this section, the previous conviction shall be charged in the accusatory pleading, and if the previous conviction is found to be true by the jury upon a jury trial, or by the court upon a court trial, or is admitted by the defendant, the offense is punishable by imprisonment pursuant to subdivision (h) of Section 1170.

(b) Any law enforcement agency that has knowledge of a violation of this section involving a constitutional officer of the state, a Member of the Legislature, or a member of the judiciary shall immediately report that information to the Department of the California Highway Patrol.

(c) For purposes of this section, the following definitions shall apply:

(1) “Apparent ability to carry out that threat” includes the ability to fulfill the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date.

(2) “Serious bodily harm” includes serious physical injury or serious traumatic condition.

(3) “Immediate family” means a spouse, parent, or child, or anyone who has regularly resided in the household for the past six months.

(4) “Staff of a judge” means court officers and employees, including commissioners, referees, and retired judges sitting on assignment.

(5) “Threat” means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.

(d) As for threats against staff or immediate family of staff, the threat must relate directly to the official duties of the staff of the elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(e) A threat must relate directly to the official duties of a Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(Added by Stats.1982, c. 1405, p. 5360, § 1. Amended by Stats.1984, c. 627, § 1; Stats.1992, c. 887 (A.B.3816), § 8; Stats.1993, c. 134 (S.B.1042), § 1; Stats.1994, c. 820 (S.B.1463), § 1; Gov.Reorg.Plan No. 1 of 1995, § 42, eff. July 12, 1995; Stats.1995, c. 354 (A.B.1866), § 1; Stats.1996, c. 305 (A.B.3103), § 43; Stats.1998, c. 606 (S.B.1880), § 6; Stats.2000, c. 233 (S.B.1859), § 1; Stats.2004, c. 512 (A.B.1433), § 1; Stats.2011, c. 15 (A.B.109), § 239, eff. April 4, 2011, operative Oct. 1, 2011.)

==Annoying phone calls==

===Penal Code 653m(a)===
(a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.

A single use of obscene language or threats.

===Penal Code 653m(b)===
(b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

PC653m(b) required repeated telephone conduct.

==Stalking==

Section 646.9 requires a willful, malicious, and repeated following or harassment of another, coupled with a credible threat with an intent to place that person or their family in reasonable fear for their safety. This statute requires that an actual threat of harm be made; malicious teasing or bullying will not suffice.

==Doxxing==

People v. Shivers (2015) 235 Cal.App.4th Supp. 8
The tweets posted on July 4, 2012, and July 8, 2012, which were the basis for the Penal Code section 653.2 charge, stated, respectively, “HAPPY FOURTH OF JULY EVERYONE. SEE YOU ON MY USUAL HANGOUT, CAHUENGA!! (If you see my stalker Pauley Perrette follow me there call LAPD!!!)” and “Speakin of # Cahuenga i'll be there 2nite as usual. If you see my stalker # NCIS Pauley Perrette follow me there report her to LAPD immediately!” (Original capitalization.)

The plain meaning of the words used reveals no requirement that actual incitement or actual production of the enumerated unlawful effects be caused by a person's electronic distribution of a message. The only requirement is that a defendant's message is likely to incite or produce third party actions. People v. Shivers (2015) 235 Cal.App.4th Supp. 8, 13.

“One, the defendant by means of an electronic communication device and acted [sic ] without the consent of [Perrette] electronically distributed or published an electronic message of a harassing nature; and [¶] Two, the defendant electronically distributed or published the electronic **358 message about [Perrette] for the purpose of imminently causing [Perrette] unwanted physical contact or injury or harassment by a third party; and [¶] Three, the defendant distributed the electronic message and a reasonable person would consider that electronic message likely to incite or produce unwanted physical contact, injury or harassment by a third party; and [¶] Four, the defendant at the time of the electronic distribution of the electronic message acted with the intent to place [Perrette] in reasonable fear for her safety or safety of her immediate family.”

Section 653.2 makes it a misdemeanor for any person who--with intent to place another person or their immediate family in reasonable fear for their safety by means of an electronic communication device and for the purpose of imminently causing unwanted harassment--electronically distributes, publishes, emails, hyperlinks, or makes available for downloading personal identifying information, including, but not limited to, a digital image of another person, or a harassing message about another person, which would likely incite or produce unlawful action. Section 653.2 is too narrow to cover all cyberbullying-type conduct because it requires the dissemination of personal identifying information and is really just a modification of the existing California criminal stalking statute to prohibit “the type of harassment that has become all to[o] commonplace in this digital age, harassment committed using e-mail, cell phone, or some other electronic communication device.” The purpose of section 653.2 is to “simply [[close] an electronic loophole in the stalking statute and [give] law enforcement the ability to hold accountable those who would prey on victims using electronic means.”

==Online impersonation==
Penal Code 528.5

Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).

Threats

2026-04-20T02:18:10Z

Sysop: /* (3) Unconditional, Specific, and Immediate Threat */

==Criminal Threats==

Section 422 criminalizes threats made to another that are likely to result in death or great bodily injury. Section 422 encompasses conduct directed at one specifically identified person. Moreover, it requires an actual intent to commit a specific type of harm. This statute does not address the situation of cyberbullying in which one person might post disparaging comments about another on the Internet but does not explicitly threaten to harm that person.

===Punishment===

16-2-3 state prison

Serious felony, PC1192.7(c)(38)

===Elements===

(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,”

(2) that the defendant made the threat “with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,”

(3) that the threat—which may be “made verbally, in writing, or by means of an electronic communication device”—was “on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,”

(4) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family's safety,” and

(5) that the threatened person's fear was “reasonabl[e]” under the circumstances.

(People v. Toledo (2001) 26 Cal.4th 221, 227–228.)

In re George T. (2004) 33 Cal.4th 620, 630

People v. Melhado (1998) 60 Cal.App.4th 1529, 1536

====(1) Great Bodily Injury to a person====

PC12022.7

Crime that Will Result in Great Bodily Injury Judged on Objective Standard

People v. Maciel (2003) 113 Cal.App.4th 679, 685.

A police officer is a person within the meaning of PC422. (''People v. Schnathorst'' (2004) 120 Cal.App.4th 1310, 1316.)

“no specific crime must be identified for the jury” to find a victim's fear reasonable. (People v. Butler (2000) 85 Cal.App.4th 745, 755.

====(2)Threat====

“ ‘[T]he determination whether a defendant intended his words to be taken as a threat ... can be based on all the surrounding circumstances and not just on the words alone. The parties’ history can also be considered as one of the relevant circumstances.’ ” (People v. Butler (2000) 85 Cal.App.4th 745, 754.)

[S]ection 422 does not punish such things as ‘mere angry utterances or ranting soliloquies, however violent.’ [Citation.] Accordingly, where the accused did not personally communicate a threat to the victim, it must be shown that he specifically intended that the threat be conveyed to the victim.” (Ryan D., supra, 100 Cal.App.4th at p. 861.)

"[T]he words, “I'm going to get you,” “I'll get back to you,” “I'll get you,” may not, standing alone, convey a threat to commit a crime which will result in death or great bodily injury." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1218.)

‘[T]he nature of the threat cannot be determined only at face value.Section 422 demands that the purported threat be examined “on its face and under the circumstances in which it was made.” The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat,’ and such threats must be ‘judged in their context.’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542.)

Thus, “[a] communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning.” (In re George T., supra, 33 Cal.4th at p. 635, 16 Cal.Rptr.3d 61, 93 P.3d 1007.)

A threat too outlandish reasonably to cause the victims to suffer sustained fear would be legally insufficient to support conviction of an attempted criminal threat. People v. Jackson (App. 6 Dist. 2009) 100 Cal.Rptr.3d 539, 178 Cal.App.4th 590.

A terroristic threat is sufficiently specific where it threatens death or great bodily injury; a threat is not insufficient simply because it does not communicate a time or precise manner of execution. People v. Gaut (App. 2 Dist. 2002) 115 Cal.Rptr.2d 924, 95 Cal.App.4th 1425.

Criminal-threats statute is not violated by mere angry utterances or ranting soliloquies, however violent. People v. Felix (App. 2 Dist. 2001) 112 Cal.Rptr.2d 311, 92 Cal.App.4th 905,

In prosecution for making terroristic threats, evidence was sufficient to find element that defendant's verbal statement was unequivocal, where testimony established that defendant, while victims were talking to police officer, said “shush” as he made a throat-slashing gesture and placed his finger to his lips. People v. Franz (App. 3 Dist. 2001) 106 Cal.Rptr.2d 773, 88 Cal.App.4th 1426,

People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [69 Cal.Rptr.2d 728]; People v.
Butler (2000) 85 Cal.App.4th 745, 752–753 [102 Cal.Rptr.2d 269]; People v.
Martinez (1997) 53 Cal.App.4th 1212, 1218–1221 [62 Cal.Rptr.2d 303]; In re
Ricky T. (2001) 87 Cal.App.4th 1132, 1137–1138 [105 Cal.Rptr.2d 165]; People
v. Solis (2001) 90 Cal.App.4th 1002, 1013–1014 [109 Cal.Rptr.2d 464]; see
People v. Garrett (1994) 30 Cal.App.4th 962, 966–967 [36 Cal.Rptr.2d 33].

A “threatening statement[ ] that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, ‘a serious expression of an intent to commit an act of unlawful violence’, rather than an expression of jest or frustration”, is not protected speech. (People v. Lowery (2011) 52 Cal.4th 419, 427.) People v. Paigly (Cal. Ct. App., Oct. 8, 2025, No. H050724) 2025 WL 2847115, at *3, review denied (Dec. 30, 2025)

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

Threatening Hand Gestures Not Verbal Threats Under Penal Code Section 422

People v. Gonzalez (2017) 2 Cal.5th 1138, 1147 [218 Cal.Rptr.3d 150,
394 P.3d 1074].

A gesture without a statement is not a threat, but a "shush" or "sh" is sufficient to be a statement. (People v. Franz (2001) 88 Cal.App.4th 1426, 1441–1442.)

====(3) Unconditional, Specific, and Immediate Threat====

As to the third element, “ ‘the determination [of] whether a defendant intended [for their] words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate[,] and specific [that] they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat[,] can be based on all the surrounding circumstances and not just on the words alone.’ ” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431.) “ ‘The parties’ history can also be considered as one of the relevant circumstances.’ ” (Ibid.)

We conclude the evidence was sufficient for this purpose. Although the recording does not reveal exactly what condition defendant placed on his threat, from the context and surrounding circumstances the jury reasonably could have determined that defendant essentially threatened to kill S. if she did not cooperate and answer his questions about the slip of paper he had found. Indeed, virtually everything defendant said immediately before and after his threat supports such a determination. Before his threat, he demanded that she “just start answering these fucking questions” and that she “better fucking come clean.” Immediately after the threat, he told her she was “not *1434 escaping this one” and told her to “give [him] information,” “just start talking,” and “[g]et going.” Under these circumstances, the jury did not need to know the exact words of the condition defendant placed on the threat to conclude that the threat was so unconditional as to convey a gravity of purpose and an immediate prospect of execution. Accordingly, defendant's sufficiency of the evidence challenge to his conviction of making a criminal threats fails. People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433–1434 [89 Cal.Rptr.3d 402, 420], as modified on denial of reh'g (Mar. 9, 2009)

But not required to be unconditional

People v. Bolin (1998) 18 Cal.4th 297, 339–340 [75 Cal.Rptr.2d 412, 956 P.2d 374], disapproving People v. Brown (1993) 20 Cal.App.4th 1251, 1256 [25 Cal.Rptr.2d 76];

People v. Stanfield (1995) 32 Cal.App.4th 1152, 1162 [38 Cal.Rptr.2d 328].

Defendant's statement that he would kill victim if she testified against his fellow gang members was a “threat” within meaning of statute prohibiting threatening to commit crime which would result in great bodily injury, although statement was conditional. People v. Brooks (App. 4 Dist. 1994) 31 Cal.Rptr.2d 283, 26 Cal.App.4th 142,

There is no requirement that the threat be unconditional, nor can we judge a threat “solely on the words spoken. It is clear by case law that threats are judged in their context.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137, 105 Cal.Rptr.2d 165, fn. omitted.)

Conditional Threat May Be True Threat, Depending on Context

People v. Melhado (1998) 60 Cal.App.4th 1529, 1540 [70 Cal.Rptr.2d 878].

"The statute specifically requires one to look at the threat on its face and under the circumstances in which it is made." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1220.)

But circumstances can also show no threat. "If surrounding circumstances within the meaning of section 422 can show whether a terrorist threat was made, absence of circumstances can also show that a terrorist threat was not made within the meaning of section 422. Here, there was no evidence of any circumstances occurring after appellant's “threats” which would further a finding of a terrorist threat." (''In re Ricky T.'' (2001) 87 Cal.App.4th 1132, 1139.)

The immediacy of the threat can still be found if the threatener is arrested (''People v. Franz'' (2001) 88 Cal.App.4th 1426) or even if in jail (''People v. Gaut'' (2002) 95 Cal.App.4th 1425.) The immediacy of threat can be found even if the threatened person is in a different state. (''People v. Smith'' (2009) 178 Cal.App.4th 475.)

Prisoners. (''People v. Mosley'' (2007) 155 Cal.App.4th 313.)

A threat need only convey “ ‘ “a gravity of purpose and an immediate prospect of execution of the threat.” ’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542, italics added.) “[I]t ‘does not require an immediate ability to carry out the threat.’ ” (Ibid.)

Threat by prisoner that when he is released on parole in 10 months is sufficient for PC422. (''People v. Wilson'' (2010) 186 Cal.App.4th 789.)

Pharmacy manager's fear of defendant was reasonable under the circumstances, as required for the offense of making a criminal threat, after a telephone call in which defendant told the manager he was “dead,” since it was reasonable for the manager to believe that defendant could carry and fire a gun despite a disability that required defendant to use a motorized wheelchair, and defendant previously told the manager to “expect something when you least expect it.” People v. Orloff (App. 2 Dist. 2016) 206 Cal.Rptr.3d 755

Immediate Ability to Carry Out Threat Not Required
People v. Lopez (1999) 74 Cal.App.4th 675, 679 [88 Cal.Rptr.2d 252].

Crime of criminal threat does not require an immediate ability or even an actual intention to carry out the threat. People v. Holmes, McClain and Newborn (2022) 289 Cal.Rptr.3d 582, 503 P.3d 668

Defendant's commands to stepson “Don't lie to me,” and “Don't call me that” were sufficiently unequivocal, unconditional, immediate and specific they conveyed to stepson an immediacy of purpose and immediate prospect of execution of the threat, as required for the offense of criminal threat, where defendant made the commands while pointing a gun at stepson's head. People v. Culbert (App. 2 Dist. 2013) 159 Cal.Rptr.3d 853, 218 Cal.App.4th 184.

Threat can be shown by prior bad acts. (''People v. Stern'' (2003) 111 Cal.App.4th 283

====(4) Sustained Fear====

Sustained fear must occur over “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7.) Courts have held, for instance, 15 minutes satisfies the sustained fear requirement. (Ibid.) In addition, sustained fear must be objectively and subjectively reasonable. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140, 105 Cal.Rptr.2d 165 [“A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances”].)

''People v. Fierro'' (2010) 180 Cal.App.4th 1342 [15 minutes afterwards is still sustained fear]

In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139–1140 [105
Cal.Rptr.2d 165]; People v. Solis (2001) 90 Cal.App.4th 1002, 1024 [109
Cal.Rptr.2d 464]; People v. Allen (1995) 33 Cal.App.4th 1149, 1155–1156 [40
Cal.Rptr.2d 7].

Defendant's violent history can be relevant for sustained fear element. (''People v. Garrett'' (1994) 30 Cal.App.4th 962, 967.)

A person's fear is “sustained” if it “extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) “The victim's knowledge of defendant's prior conduct is relevant in establishing that [they were] in a state of sustained fear.” (Ibid.)

So are the circumstances surrounding the defendant's threats and their subsequent actions. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1221.)

===Attempted Criminal Threats===
People v. Chandler (2014) 60 Cal.4th 508, 525 [176 Cal.Rptr.3d 548, 332 P.3d 538].

===Only One Conviction and One Punishment Per Victim, Per Threatening Encounter===

“[S]ection 422 authorizes only one conviction and one punishment per victim, per threatening encounter during which the victim suffers a single period of sustained fear.” (People v. Wilson (2015) 234 Cal.App.4th 193, 202.)

People v. Roles (2020) 44 Cal.App.5th 935, 942

===Through Third Party Intermediaries===
;''In re Ryan D.'' (2002) 100 Cal.App.4th 854
:Painting a picture of a shot school officer which was for a school project and not intended to be shown to the officer was not a criminal threat

;''People v. Felix'' (2001) 92 Cal.App.4th 905, 911–915
:Statements made during a therapy session are not meant to be conveyed.

;''In re David L.'' (1991) 234 Cal.App.3d 1655
:"The kind of threat contemplated by section 422 may as readily be conveyed by the threatener through a third party as personally to the intended victim. Where the threat is conveyed through a third party intermediary, the specific intent element of the statute is implicated. Thus, if the threatener intended the threat to be taken seriously by the victim, he must necessarily have intended it to be conveyed. Here, the climate of hostility between the minor and the victim in which the threat was made and the manner in which it was made readily support the inference the minor intended the victim to feel threatened. The communication of the threat to a friend of the victim who was also witness to certain of the antecedent hostilities supports the inference the minor intended the friend act as intermediary to convey the threat to the victim." (In re David L., at p. 1659.)

;''People v. Roles'' (2020) 44 Cal.App.4th 935

A defendant may be convicted of a criminal threat made to a third party so long as “he specifically intended that the threat be conveyed to the victim.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 861, 123 Cal.Rptr.2d 193; see People v. Felix (2001) 92 Cal.App.4th 905, 913, 112 Cal.Rptr.2d 311 (Felix); In re David L. (1991) 234 Cal.App.3d 1655, 1659, 286 Cal.Rptr. 398 (David L.).) In David L., for example, sufficient evidence showed a minor intended a criminal threat to be conveyed to the victim when he made the threat to the victim's friend and it “followed a series of hostile *763 encounters between the minor and the victim culminating in a fight at school,” which the friend had witnessed. (David L., supra, at p. 1660, 286 Cal.Rptr. 398.)

===Internet and phone apps===

In this case, the juvenile court found defendant A.G., a minor high school student, made criminal threats when he posted a photo of a realistic looking replica gun on his Snapchat account, which was visible to about 60 people he identified as friends. The photo bore the caption, “Everybody go to school tomorrow. I'm taking gum.”

The record contains sufficient evidence A.G. intended his Snapchat post to be understood as a threat and that he willfully threatened to kill or cause great bodily injury In re A.G. (2020) 58 Cal.App.5th 647, 655 [272 Cal.Rptr.3d 602, 609], as modified (Dec. 23, 2020)

===Jury Instruction===

====CALCRIM 1300 Criminal Threat====
The defendant is charged [in Count ] with having made a criminal threat [in violation of Penal Code section 422].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to <insert name
of complaining witness or member[s] of complaining witness’s immediate family>;

2. The defendant made the threat (orally/in writing/by electronic communication device);

3. The defendant intended that (his/her) statement be understood as a threat [and intended that it be communicated to
<insert name of complaining witness>];

4. The threat was so clear, immediate, unconditional, and specific that it communicated to <insert name of complaining
witness> a serious intention and the immediate prospect that the threat would be carried out;

5. The threat actually caused <insert name of complaining witness> to be in sustained fear for (his/her) own safety [or for the safety of (his/her) immediate family];

AND

6._____________’s <insert name of complaining witness> fear was reasonable under the circumstances.

Someone commits an act ''willfully'' when he or she does it willingly or on purpose.

In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the
surrounding circumstances.

Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act [or intend to
have someone else do so].

''Great bodily injury'' means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

''Sustained fear'' means fear for a period of time that is more than momentary, fleeting, or transitory.

<nowiki>[An immediate ability to carry out the threat is not required.]</nowiki>

<nowiki>[An electronic communication device includes, but is not limited to: a telephone, cellular telephone, pager, computer, video recorder, or fax machine.]</nowiki>

<nowiki>[Immediate family means (a) any spouse, parents, and children; (b) any grandchildren, grandparents, brothers and sisters related by blood or marriage; or (c) any person who regularly lives in the other person’s household [or who regularly lived there within the prior six months].]</nowiki>

====CALJIC 9.94====

<nowiki>[Defendant is accused [in Count[s] ] of having violated section 422 of the Penal Code, a crime.]</nowiki>

Every person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which threat, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, is guilty of a violation of Penal Code section 422, a crime.

<nowiki>[“Great bodily injury” means significant or substantial bodily injury or damage. It does not refer to trivial, insignificant, or moderate injury or harm.]</nowiki>

<nowiki>[“Immediate family” means any spouse, whether by marriage or not, parent, child, (relative), or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.]</nowiki>

<nowiki>[“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers.]</nowiki>

The term “sustained fear” means a period of time that extends beyond what is momentary, fleeting, or transitory.

There are different degrees of unconditionality. A threat which may appear conditional on its face can be unconditional under the circumstances. Conditional threats are true threats if their context reasonably conveys to the victim that they are intended.

The word “immediate” means that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met.

<nowiki>[Evidence of an out-of-court statement of a defendant, including any purported threat, ought to be viewed with caution.]</nowiki>

In order to prove this crime, each of the following elements must be proved:

1. A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person;

2. The person who made the threat did so with the specific intent that the statement be taken as a threat;

3. The threat was contained in a statement that was made verbally, in writing, or by means of an electronic communication device;

4. The threatening statement on its face, and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat; and

<nowiki>5. The threatening statement caused the person threatened reasonably to be in sustained fear [for [his] [or] [her] own safety] [or] [for [his] [or] [her] immediate family's safety].</nowiki>

It is immaterial whether the person who made the threat actually intended to carry it out.

===Lesser Included Offense===

====Attempted 422====
People v. Toledo (2001) 26 Cal.4th 221, 230–231 [109 Cal.Rptr.2d 315, 26 P.3d 1051].

===Constitutionality===

True threats are not protected speech. (''Counterman v. Colorado'' (2023) 600 U.S. 66.)

People v. Maciel (2003) 113 Cal. App. 4th 679 (Penal Code § 422 is not unconstitutionally vague in its language of "willfully threatens to commit a crime which will result in death or great bodily injury")

People v. Lopez (1999) 74 Cal. App. 4th 675, 88 Cal. Rptr. 2d 252 (upholding constitutionality of Penal Code § 422, because it includes immediacy element and prohibits speech not protected by First Amendment).

People v. Fisher (1993) 12 Cal.App.4th 1556 (upholding upholding constitutionality of Penal Code § 422, even though it does not require declarant intended to carry out threat).

It is settled that Penal Code section 422 is not unconstitutionally overbroad because it is narrowly tailored to true threats, which are not protected by the First Amendment. (People v. Toledo (2001) 26 Cal.4th 221, 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051; In re Ryan D. (2002) 100 Cal.App.4th 854, 861–862, 123 Cal.Rptr.2d 193; People v. Fisher (1993) 12 Cal.App.4th 1556, 1558–1560, 15 Cal.Rptr.2d 889.) “[T]he type of threat satisfying the criminal threat provisions of section 422—that is, a threat ‘to commit a crime which will result in death or great bodily injury to another person ... which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat’—constitutes speech that falls outside the protection of the First Amendment.” (Toledo, at p. 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051.) (People v. Morera-Munoz (2016) 5 Cal.App.5th 838, 851, fn. 7.)

===Secondary Sources===
*19 Cal. Jur. 3d Criminal Law: Miscellaneous Offenses § 181 Overview of criminal threat statutes

A cautionary instruction is applicable when evidence of a defendant’s out-of-court statements is received, including when the statements form the basis of a prosecution for making criminal threats. However the instruction is not required to be given sua sponte. People v. Diaz (2015) 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.2d 62.
The court must instruct on the elements of the threatened crime. It is the fact that a crime is threatened which along with the other elements, makes the utterance criminal.
“Willfully” is defined in CALJIC 1.20
Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily included offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539.
COMMENT
Penal Code § 422; 2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Public Peace and Welfare §§ 24 to 29.
This crime is committed, even though the threat is communicated through a third person to the victim. (In re David L., 234 Cal.App.3d 1655, 286 Cal.Rptr. 398 (3d Dist.1991).)
Penal Code § 422 is a crime of moral turpitude. (People v. Thornton, 3 Cal.App.4th 419, 4 Cal.Rptr.2d 519 (4th Dist.1992).)
The court, in People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283, 287 (4th Dist.1994), opined that an apparently conditional threat is a true threat, for purposes of this crime, if the context of the threat reasonably conveys to the victim that the threat is intended (cases cited). (Accord: People v. Stanfield, 32 Cal.App.4th 1152, 38 Cal.Rptr.2d 328 (2d Dist.1995).)
A violation of Penal Code § 422 does not require an unconditional threat of death or great bodily injury. (People v. Bolin, 18 Cal.4th 297, 338, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998).)
In People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7, 11 (2d Dist.1995), the court opined that “sustained fear” means a period of time that extends beyond what is momentary, fleeting or transitory, and that 15 minutes of fear, under the circumstances, was sufficient.
“Sustained fear” is taken from People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7 (2d Dist.1995). “Conditional threats” is derived from People v. Stanfield, 32 Cal.App.4th 1152, 1158, 38 Cal.Rptr.2d 328 (2d Dist.1995); People v. Bolin, 18 Cal.4th 297, 340, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998); and People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283 (4th Dist.1994). “Immediate” is derived from People v. Melhado, 60 Cal.App.4th 1529, 1538, 70 Cal.Rptr.2d 878 (1st Dist.1998).
Section 422 requires a verbal statement. Conduct alone is not sufficient (when there is no writing or electronic communication). People v. Franz, 88 Cal.App.4th 1426, 106 Cal.Rptr.2d 773 (3d Dist.2001).
In People v. Gonzalez (2017) 2 Cal.5th 1138, 218 Cal.Rptr.3d 150, 394 P.3d 1074, the court approved the holding in People v. Franz (2001) supra, and held that a hand gesture in a threatening manner was not a verbal threat which is required for a violation of Penal Code § 422.
A police officer is a person who can be a victim of this crime. (People v. Schnathorst, 120 Cal.App.4th 1310, 16 Cal.Rptr.3d 312 (3d Dist.2004).)
Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541.

Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541.
A cautionary instruction is applicable when evidence is received of a defendant’s out-of-court statements, including when statements form the basis of a prosecution for making criminal threats. However the instruction is not required to be given sua sponte. People v. Diaz (2015) 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.2d 62.
The court in People v. Chandler (2014) 60 Cal.4th 508, 176 Cal.Rptr.3d 548, 332 P.3d 538, held that the lesser and necessarily “offense of attempted criminal threat requires not only proof of a subjective intent to threaten but also proof that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear.”
Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily include offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539.

===Statute===

====Current version from 06/30/11 to present (AB117, Stats. 2011, ch. 39, § 16.)====
(a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

(b) For purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

(c) “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

====From 04/04/11 to 06/30/11 (AB109, Stats. 2011, ch. 15, § 351.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment '''pursuant to subdivision (h) of Section 1170.'''

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

====From 01/01/1998 to 04/04/11 (SB1796, Stats. 1998, ch. 825, § 3.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement<<+, made verbally, in writing, or by means of an electronic communication device,+>> is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

'''“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.'''

=====Legislative Counsel's Digest=====
(2) Existing law prohibits the willful issuance of a threat to commit a crime which will result in the death or great bodily injury of another, with the specific intent that the statement be taken as a threat even if there is no actual intent of carrying out the crime, where the threat is so unequivocal, immediate, and specific so as to cause the recipient to reasonably be in sustained fear for his or her own safety or the safety of his or her immediate family.

This bill would clarify that this provision applies to threatening statements made verbally, in writing, or by means of an electronic communication device, and would incorporate the definition of “electronic communication” used in a specified provision of federal law. By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

====From 01/01/1990 to 12/31/1998 (AB1667, Stats. 1989, ch. 1135, § 1.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made''',''' is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened''',''' a gravity of purpose and an immediate prospect of execution '''OF THE THREAT, AND THEREBY CAUSES THAT PERSON REASONABLY TO BE IN SUSTAINED FEAR FOR HIS OR HER OWN SAFETY OR FOR HIS OR HER IMMEDIATE FAMILY'S SAFETY''', shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison <del>if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety</del>.
For the purposes of this section, <del>the term</del> “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

=====Legislative Counsel's Digest=====
Under existing law, it is a public offense, punishable as specified, for any person to willfully threaten to commit a crime which will result in death or great bodily injury to another person, if under the circumstances the threat causes the threatened person reasonably to be in sustained fear for his or her own safety or his or her immediate family's safety, as specified.

This bill would make technical, nonsubstantive changes to those provisions.

====From 09/23/1988 to 12/31/1999 (SB1555, Stats 1988 ch. 1256, § 4.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety. For the purposes of this section, the term “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

=====Legislative Counsel's Digest=====
This bill would prohibit any person from willfully threatening to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent to actually carry it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution. This bill would make this offense either a misdemeanor or a felony punishable either by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison, thereby imposing a state-mandated local program.

==PC71==
Threatening a public officer of an educational institution in violation of Penal Code section 71 may be a lesser included offense of a section 422 criminal threat under the accusatory pleadings test. (In re Marcus T. (2001) 89 Cal.App.4th 468, 472–473 [107 Cal.Rptr.2d 451].) But see People v. Chaney (2005) 131 Cal.App.4th 253, 257–258 [31 Cal.Rptr.3d 714], finding that a violation of section 71 is not a lesser included offense of section 422 under the accusatory pleading test when the pleading does not specifically allege the intent to cause (or attempt to cause) a public officer to do (or refrain from doing) an act in the performance of official duty.

we noted that the prosecution's proof of an asserted violation of section 71 was deficient, in that the defendant was locked in his cell at the time he made the alleged threat and *920 thus was not then “in a position to carry out the threat.” (38 Cal.3d at p. 777, 215 Cal.Rptr. 1, 700 P.2d 782.) In People v. Tuilaepa (1992) 4 Cal.4th 569, 15 Cal.Rptr.2d 382, 842 P.2d 1142, we cited the fact that the defendant was locked in his cell for the night when he threatened **535 to burn a pair of pants and an adviser's face, along with the absence of a “substantial showing that [the] defendant harbored the requisite intent—interfering with the performance of official duties”—in rejecting the Attorney General's contention the threats in that case violated section 71. (4 Cal.4th at p. 590, 15 Cal.Rptr.2d 382, 842 P.2d 1142.) In neither case, however, did we consider that section 71, unlike section 422 (prohibiting criminal threats) and section 404.6 (prohibiting inciting to riot) contains no requirement of immediacy.

People v. Dunkle, 36 Cal. 4th 861, 919–20, 116 P.3d 494, 534–35 (2005), disapproved of by People v. Doolin, 45 Cal. 4th 390, 198 P.3d 11 (2009)

==PC76==

Threatening certain public officials, appointees, judges, staff, or their immediate families; intent and apparent ability to carry out threat; punishment

(a) Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, or the staff, immediate family, or immediate family of the staff of any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense, punishable as follows:
(1) Upon a first conviction, the offense is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both that fine and imprisonment.

(2) If the person has been convicted previously of violating this section, the previous conviction shall be charged in the accusatory pleading, and if the previous conviction is found to be true by the jury upon a jury trial, or by the court upon a court trial, or is admitted by the defendant, the offense is punishable by imprisonment pursuant to subdivision (h) of Section 1170.

(b) Any law enforcement agency that has knowledge of a violation of this section involving a constitutional officer of the state, a Member of the Legislature, or a member of the judiciary shall immediately report that information to the Department of the California Highway Patrol.

(c) For purposes of this section, the following definitions shall apply:

(1) “Apparent ability to carry out that threat” includes the ability to fulfill the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date.

(2) “Serious bodily harm” includes serious physical injury or serious traumatic condition.

(3) “Immediate family” means a spouse, parent, or child, or anyone who has regularly resided in the household for the past six months.

(4) “Staff of a judge” means court officers and employees, including commissioners, referees, and retired judges sitting on assignment.

(5) “Threat” means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.

(d) As for threats against staff or immediate family of staff, the threat must relate directly to the official duties of the staff of the elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(e) A threat must relate directly to the official duties of a Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(Added by Stats.1982, c. 1405, p. 5360, § 1. Amended by Stats.1984, c. 627, § 1; Stats.1992, c. 887 (A.B.3816), § 8; Stats.1993, c. 134 (S.B.1042), § 1; Stats.1994, c. 820 (S.B.1463), § 1; Gov.Reorg.Plan No. 1 of 1995, § 42, eff. July 12, 1995; Stats.1995, c. 354 (A.B.1866), § 1; Stats.1996, c. 305 (A.B.3103), § 43; Stats.1998, c. 606 (S.B.1880), § 6; Stats.2000, c. 233 (S.B.1859), § 1; Stats.2004, c. 512 (A.B.1433), § 1; Stats.2011, c. 15 (A.B.109), § 239, eff. April 4, 2011, operative Oct. 1, 2011.)

==Annoying phone calls==

===Penal Code 653m(a)===
(a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.

A single use of obscene language or threats.

===Penal Code 653m(b)===
(b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

PC653m(b) required repeated telephone conduct.

==Stalking==

Section 646.9 requires a willful, malicious, and repeated following or harassment of another, coupled with a credible threat with an intent to place that person or their family in reasonable fear for their safety. This statute requires that an actual threat of harm be made; malicious teasing or bullying will not suffice.

==Doxxing==

People v. Shivers (2015) 235 Cal.App.4th Supp. 8
The tweets posted on July 4, 2012, and July 8, 2012, which were the basis for the Penal Code section 653.2 charge, stated, respectively, “HAPPY FOURTH OF JULY EVERYONE. SEE YOU ON MY USUAL HANGOUT, CAHUENGA!! (If you see my stalker Pauley Perrette follow me there call LAPD!!!)” and “Speakin of # Cahuenga i'll be there 2nite as usual. If you see my stalker # NCIS Pauley Perrette follow me there report her to LAPD immediately!” (Original capitalization.)

The plain meaning of the words used reveals no requirement that actual incitement or actual production of the enumerated unlawful effects be caused by a person's electronic distribution of a message. The only requirement is that a defendant's message is likely to incite or produce third party actions. People v. Shivers (2015) 235 Cal.App.4th Supp. 8, 13.

“One, the defendant by means of an electronic communication device and acted [sic ] without the consent of [Perrette] electronically distributed or published an electronic message of a harassing nature; and [¶] Two, the defendant electronically distributed or published the electronic **358 message about [Perrette] for the purpose of imminently causing [Perrette] unwanted physical contact or injury or harassment by a third party; and [¶] Three, the defendant distributed the electronic message and a reasonable person would consider that electronic message likely to incite or produce unwanted physical contact, injury or harassment by a third party; and [¶] Four, the defendant at the time of the electronic distribution of the electronic message acted with the intent to place [Perrette] in reasonable fear for her safety or safety of her immediate family.”

Section 653.2 makes it a misdemeanor for any person who--with intent to place another person or their immediate family in reasonable fear for their safety by means of an electronic communication device and for the purpose of imminently causing unwanted harassment--electronically distributes, publishes, emails, hyperlinks, or makes available for downloading personal identifying information, including, but not limited to, a digital image of another person, or a harassing message about another person, which would likely incite or produce unlawful action. Section 653.2 is too narrow to cover all cyberbullying-type conduct because it requires the dissemination of personal identifying information and is really just a modification of the existing California criminal stalking statute to prohibit “the type of harassment that has become all to[o] commonplace in this digital age, harassment committed using e-mail, cell phone, or some other electronic communication device.” The purpose of section 653.2 is to “simply [[close] an electronic loophole in the stalking statute and [give] law enforcement the ability to hold accountable those who would prey on victims using electronic means.”

==Online impersonation==
Penal Code 528.5

Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).

Threats

2026-04-20T02:14:55Z

Sysop: /* (3) Unconditional, Specific, and Immediate Threat */

==Criminal Threats==

Section 422 criminalizes threats made to another that are likely to result in death or great bodily injury. Section 422 encompasses conduct directed at one specifically identified person. Moreover, it requires an actual intent to commit a specific type of harm. This statute does not address the situation of cyberbullying in which one person might post disparaging comments about another on the Internet but does not explicitly threaten to harm that person.

===Punishment===

16-2-3 state prison

Serious felony, PC1192.7(c)(38)

===Elements===

(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,”

(2) that the defendant made the threat “with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,”

(3) that the threat—which may be “made verbally, in writing, or by means of an electronic communication device”—was “on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,”

(4) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family's safety,” and

(5) that the threatened person's fear was “reasonabl[e]” under the circumstances.

(People v. Toledo (2001) 26 Cal.4th 221, 227–228.)

In re George T. (2004) 33 Cal.4th 620, 630

People v. Melhado (1998) 60 Cal.App.4th 1529, 1536

====(1) Great Bodily Injury to a person====

PC12022.7

Crime that Will Result in Great Bodily Injury Judged on Objective Standard

People v. Maciel (2003) 113 Cal.App.4th 679, 685.

A police officer is a person within the meaning of PC422. (''People v. Schnathorst'' (2004) 120 Cal.App.4th 1310, 1316.)

“no specific crime must be identified for the jury” to find a victim's fear reasonable. (People v. Butler (2000) 85 Cal.App.4th 745, 755.

====(2)Threat====

“ ‘[T]he determination whether a defendant intended his words to be taken as a threat ... can be based on all the surrounding circumstances and not just on the words alone. The parties’ history can also be considered as one of the relevant circumstances.’ ” (People v. Butler (2000) 85 Cal.App.4th 745, 754.)

[S]ection 422 does not punish such things as ‘mere angry utterances or ranting soliloquies, however violent.’ [Citation.] Accordingly, where the accused did not personally communicate a threat to the victim, it must be shown that he specifically intended that the threat be conveyed to the victim.” (Ryan D., supra, 100 Cal.App.4th at p. 861.)

"[T]he words, “I'm going to get you,” “I'll get back to you,” “I'll get you,” may not, standing alone, convey a threat to commit a crime which will result in death or great bodily injury." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1218.)

‘[T]he nature of the threat cannot be determined only at face value.Section 422 demands that the purported threat be examined “on its face and under the circumstances in which it was made.” The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat,’ and such threats must be ‘judged in their context.’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542.)

Thus, “[a] communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning.” (In re George T., supra, 33 Cal.4th at p. 635, 16 Cal.Rptr.3d 61, 93 P.3d 1007.)

A threat too outlandish reasonably to cause the victims to suffer sustained fear would be legally insufficient to support conviction of an attempted criminal threat. People v. Jackson (App. 6 Dist. 2009) 100 Cal.Rptr.3d 539, 178 Cal.App.4th 590.

A terroristic threat is sufficiently specific where it threatens death or great bodily injury; a threat is not insufficient simply because it does not communicate a time or precise manner of execution. People v. Gaut (App. 2 Dist. 2002) 115 Cal.Rptr.2d 924, 95 Cal.App.4th 1425.

Criminal-threats statute is not violated by mere angry utterances or ranting soliloquies, however violent. People v. Felix (App. 2 Dist. 2001) 112 Cal.Rptr.2d 311, 92 Cal.App.4th 905,

In prosecution for making terroristic threats, evidence was sufficient to find element that defendant's verbal statement was unequivocal, where testimony established that defendant, while victims were talking to police officer, said “shush” as he made a throat-slashing gesture and placed his finger to his lips. People v. Franz (App. 3 Dist. 2001) 106 Cal.Rptr.2d 773, 88 Cal.App.4th 1426,

People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [69 Cal.Rptr.2d 728]; People v.
Butler (2000) 85 Cal.App.4th 745, 752–753 [102 Cal.Rptr.2d 269]; People v.
Martinez (1997) 53 Cal.App.4th 1212, 1218–1221 [62 Cal.Rptr.2d 303]; In re
Ricky T. (2001) 87 Cal.App.4th 1132, 1137–1138 [105 Cal.Rptr.2d 165]; People
v. Solis (2001) 90 Cal.App.4th 1002, 1013–1014 [109 Cal.Rptr.2d 464]; see
People v. Garrett (1994) 30 Cal.App.4th 962, 966–967 [36 Cal.Rptr.2d 33].

A “threatening statement[ ] that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, ‘a serious expression of an intent to commit an act of unlawful violence’, rather than an expression of jest or frustration”, is not protected speech. (People v. Lowery (2011) 52 Cal.4th 419, 427.) People v. Paigly (Cal. Ct. App., Oct. 8, 2025, No. H050724) 2025 WL 2847115, at *3, review denied (Dec. 30, 2025)

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

Threatening Hand Gestures Not Verbal Threats Under Penal Code Section 422

People v. Gonzalez (2017) 2 Cal.5th 1138, 1147 [218 Cal.Rptr.3d 150,
394 P.3d 1074].

A gesture without a statement is not a threat, but a "shush" or "sh" is sufficient to be a statement. (People v. Franz (2001) 88 Cal.App.4th 1426, 1441–1442.)

====(3) Unconditional, Specific, and Immediate Threat====

As to the third element, “ ‘the determination [of] whether a defendant intended [for their] words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate[,] and specific [that] they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat[,] can be based on all the surrounding circumstances and not just on the words alone.’ ” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431.) “ ‘The parties’ history can also be considered as one of the relevant circumstances.’ ” (Ibid.)

We conclude the evidence was sufficient for this purpose. Although the recording does not reveal exactly what condition defendant placed on his threat, from the context and surrounding circumstances the jury reasonably could have determined that defendant essentially threatened to kill S. if she did not cooperate and answer his questions about the slip of paper he had found. Indeed, virtually everything defendant said immediately before and after his threat supports such a determination. Before his threat, he demanded that she “just start answering these fucking questions” and that she “better fucking come clean.” Immediately after the threat, he told her she was “not *1434 escaping this one” and told her to “give [him] information,” “just start talking,” and “[g]et going.” Under these circumstances, the jury did not need to know the exact words of the condition defendant placed on the threat to conclude that the threat was so unconditional as to convey a gravity of purpose and an immediate prospect of execution. Accordingly, defendant's sufficiency of the evidence challenge to his conviction of making a criminal threats fails. People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433–1434 [89 Cal.Rptr.3d 402, 420], as modified on denial of reh'g (Mar. 9, 2009)

But not required to be unconditional

People v. Bolin (1998) 18 Cal.4th 297, 339–340 [75 Cal.Rptr.2d 412, 956 P.2d 374], disapproving People v. Brown (1993) 20 Cal.App.4th 1251, 1256 [25 Cal.Rptr.2d 76];

People v. Stanfield (1995) 32 Cal.App.4th 1152, 1162 [38 Cal.Rptr.2d 328].

Defendant's statement that he would kill victim if she testified against his fellow gang members was a “threat” within meaning of statute prohibiting threatening to commit crime which would result in great bodily injury, although statement was conditional. People v. Brooks (App. 4 Dist. 1994) 31 Cal.Rptr.2d 283, 26 Cal.App.4th 142,

There is no requirement that the threat be unconditional, nor can we judge a threat “solely on the words spoken. It is clear by case law that threats are judged in their context.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137, 105 Cal.Rptr.2d 165, fn. omitted.)

Conditional Threat May Be True Threat, Depending on Context

People v. Melhado (1998) 60 Cal.App.4th 1529, 1540 [70 Cal.Rptr.2d 878].

"The statute specifically requires one to look at the threat on its face and under the circumstances in which it is made." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1220.)

But circumstances can also show no threat. "If surrounding circumstances within the meaning of section 422 can show whether a terrorist threat was made, absence of circumstances can also show that a terrorist threat was not made within the meaning of section 422. Here, there was no evidence of any circumstances occurring after appellant's “threats” which would further a finding of a terrorist threat." (''In re Ricky T.'' (2001) 87 Cal.App.4th 1132, 1139.)

The immediacy of the threat can still be found if the threatener is arrested (''People v. Franz'' (2001) 88 Cal.App.4th 1426) or even if in jail (''People v. Gaut'' (2002) 95 Cal.App.4th 1425.) The immediacy of threat can be found even if the threatened person is in a different state. (''People v. Smith'' (2009) 178 Cal.App.4th 475.)

Prisoners. (''People v. Mosley'' (2007) 155 Cal.App.4th 313.)

A threat need only convey “ ‘ “a gravity of purpose and an immediate prospect of execution of the threat.” ’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542, italics added.) “[I]t ‘does not require an immediate ability to carry out the threat.’ ” (Ibid.)

Threat by prisoner that when he is released on parole in 10 months is sufficient for PC422. (''People v. Wilson'' (2010) 186 Cal.App.4th 789.)

Immediate Ability to Carry Out Threat Not Required
People v. Lopez (1999) 74 Cal.App.4th 675, 679 [88 Cal.Rptr.2d 252].

Crime of criminal threat does not require an immediate ability or even an actual intention to carry out the threat. People v. Holmes, McClain and Newborn (2022) 289 Cal.Rptr.3d 582, 503 P.3d 668

Defendant's commands to stepson “Don't lie to me,” and “Don't call me that” were sufficiently unequivocal, unconditional, immediate and specific they conveyed to stepson an immediacy of purpose and immediate prospect of execution of the threat, as required for the offense of criminal threat, where defendant made the commands while pointing a gun at stepson's head. People v. Culbert (App. 2 Dist. 2013) 159 Cal.Rptr.3d 853, 218 Cal.App.4th 184.

Threat can be shown by prior bad acts. (''People v. Stern'' (2003) 111 Cal.App.4th 283

====(4) Sustained Fear====

Sustained fear must occur over “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7.) Courts have held, for instance, 15 minutes satisfies the sustained fear requirement. (Ibid.) In addition, sustained fear must be objectively and subjectively reasonable. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140, 105 Cal.Rptr.2d 165 [“A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances”].)

''People v. Fierro'' (2010) 180 Cal.App.4th 1342 [15 minutes afterwards is still sustained fear]

In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139–1140 [105
Cal.Rptr.2d 165]; People v. Solis (2001) 90 Cal.App.4th 1002, 1024 [109
Cal.Rptr.2d 464]; People v. Allen (1995) 33 Cal.App.4th 1149, 1155–1156 [40
Cal.Rptr.2d 7].

Defendant's violent history can be relevant for sustained fear element. (''People v. Garrett'' (1994) 30 Cal.App.4th 962, 967.)

A person's fear is “sustained” if it “extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) “The victim's knowledge of defendant's prior conduct is relevant in establishing that [they were] in a state of sustained fear.” (Ibid.)

So are the circumstances surrounding the defendant's threats and their subsequent actions. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1221.)

===Attempted Criminal Threats===
People v. Chandler (2014) 60 Cal.4th 508, 525 [176 Cal.Rptr.3d 548, 332 P.3d 538].

===Only One Conviction and One Punishment Per Victim, Per Threatening Encounter===

“[S]ection 422 authorizes only one conviction and one punishment per victim, per threatening encounter during which the victim suffers a single period of sustained fear.” (People v. Wilson (2015) 234 Cal.App.4th 193, 202.)

People v. Roles (2020) 44 Cal.App.5th 935, 942

===Through Third Party Intermediaries===
;''In re Ryan D.'' (2002) 100 Cal.App.4th 854
:Painting a picture of a shot school officer which was for a school project and not intended to be shown to the officer was not a criminal threat

;''People v. Felix'' (2001) 92 Cal.App.4th 905, 911–915
:Statements made during a therapy session are not meant to be conveyed.

;''In re David L.'' (1991) 234 Cal.App.3d 1655
:"The kind of threat contemplated by section 422 may as readily be conveyed by the threatener through a third party as personally to the intended victim. Where the threat is conveyed through a third party intermediary, the specific intent element of the statute is implicated. Thus, if the threatener intended the threat to be taken seriously by the victim, he must necessarily have intended it to be conveyed. Here, the climate of hostility between the minor and the victim in which the threat was made and the manner in which it was made readily support the inference the minor intended the victim to feel threatened. The communication of the threat to a friend of the victim who was also witness to certain of the antecedent hostilities supports the inference the minor intended the friend act as intermediary to convey the threat to the victim." (In re David L., at p. 1659.)

;''People v. Roles'' (2020) 44 Cal.App.4th 935

A defendant may be convicted of a criminal threat made to a third party so long as “he specifically intended that the threat be conveyed to the victim.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 861, 123 Cal.Rptr.2d 193; see People v. Felix (2001) 92 Cal.App.4th 905, 913, 112 Cal.Rptr.2d 311 (Felix); In re David L. (1991) 234 Cal.App.3d 1655, 1659, 286 Cal.Rptr. 398 (David L.).) In David L., for example, sufficient evidence showed a minor intended a criminal threat to be conveyed to the victim when he made the threat to the victim's friend and it “followed a series of hostile *763 encounters between the minor and the victim culminating in a fight at school,” which the friend had witnessed. (David L., supra, at p. 1660, 286 Cal.Rptr. 398.)

===Internet and phone apps===

In this case, the juvenile court found defendant A.G., a minor high school student, made criminal threats when he posted a photo of a realistic looking replica gun on his Snapchat account, which was visible to about 60 people he identified as friends. The photo bore the caption, “Everybody go to school tomorrow. I'm taking gum.”

The record contains sufficient evidence A.G. intended his Snapchat post to be understood as a threat and that he willfully threatened to kill or cause great bodily injury In re A.G. (2020) 58 Cal.App.5th 647, 655 [272 Cal.Rptr.3d 602, 609], as modified (Dec. 23, 2020)

===Jury Instruction===

====CALCRIM 1300 Criminal Threat====
The defendant is charged [in Count ] with having made a criminal threat [in violation of Penal Code section 422].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to <insert name
of complaining witness or member[s] of complaining witness’s immediate family>;

2. The defendant made the threat (orally/in writing/by electronic communication device);

3. The defendant intended that (his/her) statement be understood as a threat [and intended that it be communicated to
<insert name of complaining witness>];

4. The threat was so clear, immediate, unconditional, and specific that it communicated to <insert name of complaining
witness> a serious intention and the immediate prospect that the threat would be carried out;

5. The threat actually caused <insert name of complaining witness> to be in sustained fear for (his/her) own safety [or for the safety of (his/her) immediate family];

AND

6._____________’s <insert name of complaining witness> fear was reasonable under the circumstances.

Someone commits an act ''willfully'' when he or she does it willingly or on purpose.

In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the
surrounding circumstances.

Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act [or intend to
have someone else do so].

''Great bodily injury'' means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

''Sustained fear'' means fear for a period of time that is more than momentary, fleeting, or transitory.

<nowiki>[An immediate ability to carry out the threat is not required.]</nowiki>

<nowiki>[An electronic communication device includes, but is not limited to: a telephone, cellular telephone, pager, computer, video recorder, or fax machine.]</nowiki>

<nowiki>[Immediate family means (a) any spouse, parents, and children; (b) any grandchildren, grandparents, brothers and sisters related by blood or marriage; or (c) any person who regularly lives in the other person’s household [or who regularly lived there within the prior six months].]</nowiki>

====CALJIC 9.94====

<nowiki>[Defendant is accused [in Count[s] ] of having violated section 422 of the Penal Code, a crime.]</nowiki>

Every person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which threat, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, is guilty of a violation of Penal Code section 422, a crime.

<nowiki>[“Great bodily injury” means significant or substantial bodily injury or damage. It does not refer to trivial, insignificant, or moderate injury or harm.]</nowiki>

<nowiki>[“Immediate family” means any spouse, whether by marriage or not, parent, child, (relative), or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.]</nowiki>

<nowiki>[“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers.]</nowiki>

The term “sustained fear” means a period of time that extends beyond what is momentary, fleeting, or transitory.

There are different degrees of unconditionality. A threat which may appear conditional on its face can be unconditional under the circumstances. Conditional threats are true threats if their context reasonably conveys to the victim that they are intended.

The word “immediate” means that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met.

<nowiki>[Evidence of an out-of-court statement of a defendant, including any purported threat, ought to be viewed with caution.]</nowiki>

In order to prove this crime, each of the following elements must be proved:

1. A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person;

2. The person who made the threat did so with the specific intent that the statement be taken as a threat;

3. The threat was contained in a statement that was made verbally, in writing, or by means of an electronic communication device;

4. The threatening statement on its face, and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat; and

<nowiki>5. The threatening statement caused the person threatened reasonably to be in sustained fear [for [his] [or] [her] own safety] [or] [for [his] [or] [her] immediate family's safety].</nowiki>

It is immaterial whether the person who made the threat actually intended to carry it out.

===Lesser Included Offense===

====Attempted 422====
People v. Toledo (2001) 26 Cal.4th 221, 230–231 [109 Cal.Rptr.2d 315, 26 P.3d 1051].

===Constitutionality===

True threats are not protected speech. (''Counterman v. Colorado'' (2023) 600 U.S. 66.)

People v. Maciel (2003) 113 Cal. App. 4th 679 (Penal Code § 422 is not unconstitutionally vague in its language of "willfully threatens to commit a crime which will result in death or great bodily injury")

People v. Lopez (1999) 74 Cal. App. 4th 675, 88 Cal. Rptr. 2d 252 (upholding constitutionality of Penal Code § 422, because it includes immediacy element and prohibits speech not protected by First Amendment).

People v. Fisher (1993) 12 Cal.App.4th 1556 (upholding upholding constitutionality of Penal Code § 422, even though it does not require declarant intended to carry out threat).

It is settled that Penal Code section 422 is not unconstitutionally overbroad because it is narrowly tailored to true threats, which are not protected by the First Amendment. (People v. Toledo (2001) 26 Cal.4th 221, 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051; In re Ryan D. (2002) 100 Cal.App.4th 854, 861–862, 123 Cal.Rptr.2d 193; People v. Fisher (1993) 12 Cal.App.4th 1556, 1558–1560, 15 Cal.Rptr.2d 889.) “[T]he type of threat satisfying the criminal threat provisions of section 422—that is, a threat ‘to commit a crime which will result in death or great bodily injury to another person ... which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat’—constitutes speech that falls outside the protection of the First Amendment.” (Toledo, at p. 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051.) (People v. Morera-Munoz (2016) 5 Cal.App.5th 838, 851, fn. 7.)

===Secondary Sources===
*19 Cal. Jur. 3d Criminal Law: Miscellaneous Offenses § 181 Overview of criminal threat statutes

A cautionary instruction is applicable when evidence of a defendant’s out-of-court statements is received, including when the statements form the basis of a prosecution for making criminal threats. However the instruction is not required to be given sua sponte. People v. Diaz (2015) 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.2d 62.
The court must instruct on the elements of the threatened crime. It is the fact that a crime is threatened which along with the other elements, makes the utterance criminal.
“Willfully” is defined in CALJIC 1.20
Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily included offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539.
COMMENT
Penal Code § 422; 2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Public Peace and Welfare §§ 24 to 29.
This crime is committed, even though the threat is communicated through a third person to the victim. (In re David L., 234 Cal.App.3d 1655, 286 Cal.Rptr. 398 (3d Dist.1991).)
Penal Code § 422 is a crime of moral turpitude. (People v. Thornton, 3 Cal.App.4th 419, 4 Cal.Rptr.2d 519 (4th Dist.1992).)
The court, in People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283, 287 (4th Dist.1994), opined that an apparently conditional threat is a true threat, for purposes of this crime, if the context of the threat reasonably conveys to the victim that the threat is intended (cases cited). (Accord: People v. Stanfield, 32 Cal.App.4th 1152, 38 Cal.Rptr.2d 328 (2d Dist.1995).)
A violation of Penal Code § 422 does not require an unconditional threat of death or great bodily injury. (People v. Bolin, 18 Cal.4th 297, 338, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998).)
In People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7, 11 (2d Dist.1995), the court opined that “sustained fear” means a period of time that extends beyond what is momentary, fleeting or transitory, and that 15 minutes of fear, under the circumstances, was sufficient.
“Sustained fear” is taken from People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7 (2d Dist.1995). “Conditional threats” is derived from People v. Stanfield, 32 Cal.App.4th 1152, 1158, 38 Cal.Rptr.2d 328 (2d Dist.1995); People v. Bolin, 18 Cal.4th 297, 340, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998); and People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283 (4th Dist.1994). “Immediate” is derived from People v. Melhado, 60 Cal.App.4th 1529, 1538, 70 Cal.Rptr.2d 878 (1st Dist.1998).
Section 422 requires a verbal statement. Conduct alone is not sufficient (when there is no writing or electronic communication). People v. Franz, 88 Cal.App.4th 1426, 106 Cal.Rptr.2d 773 (3d Dist.2001).
In People v. Gonzalez (2017) 2 Cal.5th 1138, 218 Cal.Rptr.3d 150, 394 P.3d 1074, the court approved the holding in People v. Franz (2001) supra, and held that a hand gesture in a threatening manner was not a verbal threat which is required for a violation of Penal Code § 422.
A police officer is a person who can be a victim of this crime. (People v. Schnathorst, 120 Cal.App.4th 1310, 16 Cal.Rptr.3d 312 (3d Dist.2004).)
Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541.

Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541.
A cautionary instruction is applicable when evidence is received of a defendant’s out-of-court statements, including when statements form the basis of a prosecution for making criminal threats. However the instruction is not required to be given sua sponte. People v. Diaz (2015) 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.2d 62.
The court in People v. Chandler (2014) 60 Cal.4th 508, 176 Cal.Rptr.3d 548, 332 P.3d 538, held that the lesser and necessarily “offense of attempted criminal threat requires not only proof of a subjective intent to threaten but also proof that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear.”
Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily include offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539.

===Statute===

====Current version from 06/30/11 to present (AB117, Stats. 2011, ch. 39, § 16.)====
(a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

(b) For purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

(c) “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

====From 04/04/11 to 06/30/11 (AB109, Stats. 2011, ch. 15, § 351.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment '''pursuant to subdivision (h) of Section 1170.'''

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

====From 01/01/1998 to 04/04/11 (SB1796, Stats. 1998, ch. 825, § 3.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement<<+, made verbally, in writing, or by means of an electronic communication device,+>> is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

'''“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.'''

=====Legislative Counsel's Digest=====
(2) Existing law prohibits the willful issuance of a threat to commit a crime which will result in the death or great bodily injury of another, with the specific intent that the statement be taken as a threat even if there is no actual intent of carrying out the crime, where the threat is so unequivocal, immediate, and specific so as to cause the recipient to reasonably be in sustained fear for his or her own safety or the safety of his or her immediate family.

This bill would clarify that this provision applies to threatening statements made verbally, in writing, or by means of an electronic communication device, and would incorporate the definition of “electronic communication” used in a specified provision of federal law. By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

====From 01/01/1990 to 12/31/1998 (AB1667, Stats. 1989, ch. 1135, § 1.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made''',''' is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened''',''' a gravity of purpose and an immediate prospect of execution '''OF THE THREAT, AND THEREBY CAUSES THAT PERSON REASONABLY TO BE IN SUSTAINED FEAR FOR HIS OR HER OWN SAFETY OR FOR HIS OR HER IMMEDIATE FAMILY'S SAFETY''', shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison <del>if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety</del>.
For the purposes of this section, <del>the term</del> “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

=====Legislative Counsel's Digest=====
Under existing law, it is a public offense, punishable as specified, for any person to willfully threaten to commit a crime which will result in death or great bodily injury to another person, if under the circumstances the threat causes the threatened person reasonably to be in sustained fear for his or her own safety or his or her immediate family's safety, as specified.

This bill would make technical, nonsubstantive changes to those provisions.

====From 09/23/1988 to 12/31/1999 (SB1555, Stats 1988 ch. 1256, § 4.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety. For the purposes of this section, the term “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

=====Legislative Counsel's Digest=====
This bill would prohibit any person from willfully threatening to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent to actually carry it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution. This bill would make this offense either a misdemeanor or a felony punishable either by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison, thereby imposing a state-mandated local program.

==PC71==
Threatening a public officer of an educational institution in violation of Penal Code section 71 may be a lesser included offense of a section 422 criminal threat under the accusatory pleadings test. (In re Marcus T. (2001) 89 Cal.App.4th 468, 472–473 [107 Cal.Rptr.2d 451].) But see People v. Chaney (2005) 131 Cal.App.4th 253, 257–258 [31 Cal.Rptr.3d 714], finding that a violation of section 71 is not a lesser included offense of section 422 under the accusatory pleading test when the pleading does not specifically allege the intent to cause (or attempt to cause) a public officer to do (or refrain from doing) an act in the performance of official duty.

we noted that the prosecution's proof of an asserted violation of section 71 was deficient, in that the defendant was locked in his cell at the time he made the alleged threat and *920 thus was not then “in a position to carry out the threat.” (38 Cal.3d at p. 777, 215 Cal.Rptr. 1, 700 P.2d 782.) In People v. Tuilaepa (1992) 4 Cal.4th 569, 15 Cal.Rptr.2d 382, 842 P.2d 1142, we cited the fact that the defendant was locked in his cell for the night when he threatened **535 to burn a pair of pants and an adviser's face, along with the absence of a “substantial showing that [the] defendant harbored the requisite intent—interfering with the performance of official duties”—in rejecting the Attorney General's contention the threats in that case violated section 71. (4 Cal.4th at p. 590, 15 Cal.Rptr.2d 382, 842 P.2d 1142.) In neither case, however, did we consider that section 71, unlike section 422 (prohibiting criminal threats) and section 404.6 (prohibiting inciting to riot) contains no requirement of immediacy.

People v. Dunkle, 36 Cal. 4th 861, 919–20, 116 P.3d 494, 534–35 (2005), disapproved of by People v. Doolin, 45 Cal. 4th 390, 198 P.3d 11 (2009)

==PC76==

Threatening certain public officials, appointees, judges, staff, or their immediate families; intent and apparent ability to carry out threat; punishment

(a) Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, or the staff, immediate family, or immediate family of the staff of any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense, punishable as follows:
(1) Upon a first conviction, the offense is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both that fine and imprisonment.

(2) If the person has been convicted previously of violating this section, the previous conviction shall be charged in the accusatory pleading, and if the previous conviction is found to be true by the jury upon a jury trial, or by the court upon a court trial, or is admitted by the defendant, the offense is punishable by imprisonment pursuant to subdivision (h) of Section 1170.

(b) Any law enforcement agency that has knowledge of a violation of this section involving a constitutional officer of the state, a Member of the Legislature, or a member of the judiciary shall immediately report that information to the Department of the California Highway Patrol.

(c) For purposes of this section, the following definitions shall apply:

(1) “Apparent ability to carry out that threat” includes the ability to fulfill the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date.

(2) “Serious bodily harm” includes serious physical injury or serious traumatic condition.

(3) “Immediate family” means a spouse, parent, or child, or anyone who has regularly resided in the household for the past six months.

(4) “Staff of a judge” means court officers and employees, including commissioners, referees, and retired judges sitting on assignment.

(5) “Threat” means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.

(d) As for threats against staff or immediate family of staff, the threat must relate directly to the official duties of the staff of the elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(e) A threat must relate directly to the official duties of a Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(Added by Stats.1982, c. 1405, p. 5360, § 1. Amended by Stats.1984, c. 627, § 1; Stats.1992, c. 887 (A.B.3816), § 8; Stats.1993, c. 134 (S.B.1042), § 1; Stats.1994, c. 820 (S.B.1463), § 1; Gov.Reorg.Plan No. 1 of 1995, § 42, eff. July 12, 1995; Stats.1995, c. 354 (A.B.1866), § 1; Stats.1996, c. 305 (A.B.3103), § 43; Stats.1998, c. 606 (S.B.1880), § 6; Stats.2000, c. 233 (S.B.1859), § 1; Stats.2004, c. 512 (A.B.1433), § 1; Stats.2011, c. 15 (A.B.109), § 239, eff. April 4, 2011, operative Oct. 1, 2011.)

==Annoying phone calls==

===Penal Code 653m(a)===
(a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.

A single use of obscene language or threats.

===Penal Code 653m(b)===
(b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

PC653m(b) required repeated telephone conduct.

==Stalking==

Section 646.9 requires a willful, malicious, and repeated following or harassment of another, coupled with a credible threat with an intent to place that person or their family in reasonable fear for their safety. This statute requires that an actual threat of harm be made; malicious teasing or bullying will not suffice.

==Doxxing==

People v. Shivers (2015) 235 Cal.App.4th Supp. 8
The tweets posted on July 4, 2012, and July 8, 2012, which were the basis for the Penal Code section 653.2 charge, stated, respectively, “HAPPY FOURTH OF JULY EVERYONE. SEE YOU ON MY USUAL HANGOUT, CAHUENGA!! (If you see my stalker Pauley Perrette follow me there call LAPD!!!)” and “Speakin of # Cahuenga i'll be there 2nite as usual. If you see my stalker # NCIS Pauley Perrette follow me there report her to LAPD immediately!” (Original capitalization.)

The plain meaning of the words used reveals no requirement that actual incitement or actual production of the enumerated unlawful effects be caused by a person's electronic distribution of a message. The only requirement is that a defendant's message is likely to incite or produce third party actions. People v. Shivers (2015) 235 Cal.App.4th Supp. 8, 13.

“One, the defendant by means of an electronic communication device and acted [sic ] without the consent of [Perrette] electronically distributed or published an electronic message of a harassing nature; and [¶] Two, the defendant electronically distributed or published the electronic **358 message about [Perrette] for the purpose of imminently causing [Perrette] unwanted physical contact or injury or harassment by a third party; and [¶] Three, the defendant distributed the electronic message and a reasonable person would consider that electronic message likely to incite or produce unwanted physical contact, injury or harassment by a third party; and [¶] Four, the defendant at the time of the electronic distribution of the electronic message acted with the intent to place [Perrette] in reasonable fear for her safety or safety of her immediate family.”

Section 653.2 makes it a misdemeanor for any person who--with intent to place another person or their immediate family in reasonable fear for their safety by means of an electronic communication device and for the purpose of imminently causing unwanted harassment--electronically distributes, publishes, emails, hyperlinks, or makes available for downloading personal identifying information, including, but not limited to, a digital image of another person, or a harassing message about another person, which would likely incite or produce unlawful action. Section 653.2 is too narrow to cover all cyberbullying-type conduct because it requires the dissemination of personal identifying information and is really just a modification of the existing California criminal stalking statute to prohibit “the type of harassment that has become all to[o] commonplace in this digital age, harassment committed using e-mail, cell phone, or some other electronic communication device.” The purpose of section 653.2 is to “simply [[close] an electronic loophole in the stalking statute and [give] law enforcement the ability to hold accountable those who would prey on victims using electronic means.”

==Online impersonation==
Penal Code 528.5

Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).

Threats

2026-04-20T02:13:30Z

Sysop: /* (3) Unconditional, Specific, and Immediate Threat */

==Criminal Threats==

Section 422 criminalizes threats made to another that are likely to result in death or great bodily injury. Section 422 encompasses conduct directed at one specifically identified person. Moreover, it requires an actual intent to commit a specific type of harm. This statute does not address the situation of cyberbullying in which one person might post disparaging comments about another on the Internet but does not explicitly threaten to harm that person.

===Punishment===

16-2-3 state prison

Serious felony, PC1192.7(c)(38)

===Elements===

(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,”

(2) that the defendant made the threat “with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,”

(3) that the threat—which may be “made verbally, in writing, or by means of an electronic communication device”—was “on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,”

(4) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family's safety,” and

(5) that the threatened person's fear was “reasonabl[e]” under the circumstances.

(People v. Toledo (2001) 26 Cal.4th 221, 227–228.)

In re George T. (2004) 33 Cal.4th 620, 630

People v. Melhado (1998) 60 Cal.App.4th 1529, 1536

====(1) Great Bodily Injury to a person====

PC12022.7

Crime that Will Result in Great Bodily Injury Judged on Objective Standard

People v. Maciel (2003) 113 Cal.App.4th 679, 685.

A police officer is a person within the meaning of PC422. (''People v. Schnathorst'' (2004) 120 Cal.App.4th 1310, 1316.)

“no specific crime must be identified for the jury” to find a victim's fear reasonable. (People v. Butler (2000) 85 Cal.App.4th 745, 755.

====(2)Threat====

“ ‘[T]he determination whether a defendant intended his words to be taken as a threat ... can be based on all the surrounding circumstances and not just on the words alone. The parties’ history can also be considered as one of the relevant circumstances.’ ” (People v. Butler (2000) 85 Cal.App.4th 745, 754.)

[S]ection 422 does not punish such things as ‘mere angry utterances or ranting soliloquies, however violent.’ [Citation.] Accordingly, where the accused did not personally communicate a threat to the victim, it must be shown that he specifically intended that the threat be conveyed to the victim.” (Ryan D., supra, 100 Cal.App.4th at p. 861.)

"[T]he words, “I'm going to get you,” “I'll get back to you,” “I'll get you,” may not, standing alone, convey a threat to commit a crime which will result in death or great bodily injury." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1218.)

‘[T]he nature of the threat cannot be determined only at face value.Section 422 demands that the purported threat be examined “on its face and under the circumstances in which it was made.” The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat,’ and such threats must be ‘judged in their context.’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542.)

Thus, “[a] communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning.” (In re George T., supra, 33 Cal.4th at p. 635, 16 Cal.Rptr.3d 61, 93 P.3d 1007.)

A threat too outlandish reasonably to cause the victims to suffer sustained fear would be legally insufficient to support conviction of an attempted criminal threat. People v. Jackson (App. 6 Dist. 2009) 100 Cal.Rptr.3d 539, 178 Cal.App.4th 590.

A terroristic threat is sufficiently specific where it threatens death or great bodily injury; a threat is not insufficient simply because it does not communicate a time or precise manner of execution. People v. Gaut (App. 2 Dist. 2002) 115 Cal.Rptr.2d 924, 95 Cal.App.4th 1425.

Criminal-threats statute is not violated by mere angry utterances or ranting soliloquies, however violent. People v. Felix (App. 2 Dist. 2001) 112 Cal.Rptr.2d 311, 92 Cal.App.4th 905,

In prosecution for making terroristic threats, evidence was sufficient to find element that defendant's verbal statement was unequivocal, where testimony established that defendant, while victims were talking to police officer, said “shush” as he made a throat-slashing gesture and placed his finger to his lips. People v. Franz (App. 3 Dist. 2001) 106 Cal.Rptr.2d 773, 88 Cal.App.4th 1426,

People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [69 Cal.Rptr.2d 728]; People v.
Butler (2000) 85 Cal.App.4th 745, 752–753 [102 Cal.Rptr.2d 269]; People v.
Martinez (1997) 53 Cal.App.4th 1212, 1218–1221 [62 Cal.Rptr.2d 303]; In re
Ricky T. (2001) 87 Cal.App.4th 1132, 1137–1138 [105 Cal.Rptr.2d 165]; People
v. Solis (2001) 90 Cal.App.4th 1002, 1013–1014 [109 Cal.Rptr.2d 464]; see
People v. Garrett (1994) 30 Cal.App.4th 962, 966–967 [36 Cal.Rptr.2d 33].

A “threatening statement[ ] that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, ‘a serious expression of an intent to commit an act of unlawful violence’, rather than an expression of jest or frustration”, is not protected speech. (People v. Lowery (2011) 52 Cal.4th 419, 427.) People v. Paigly (Cal. Ct. App., Oct. 8, 2025, No. H050724) 2025 WL 2847115, at *3, review denied (Dec. 30, 2025)

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

Threatening Hand Gestures Not Verbal Threats Under Penal Code Section 422

People v. Gonzalez (2017) 2 Cal.5th 1138, 1147 [218 Cal.Rptr.3d 150,
394 P.3d 1074].

A gesture without a statement is not a threat, but a "shush" or "sh" is sufficient to be a statement. (People v. Franz (2001) 88 Cal.App.4th 1426, 1441–1442.)

====(3) Unconditional, Specific, and Immediate Threat====

As to the third element, “ ‘the determination [of] whether a defendant intended [for their] words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate[,] and specific [that] they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat[,] can be based on all the surrounding circumstances and not just on the words alone.’ ” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431.) “ ‘The parties’ history can also be considered as one of the relevant circumstances.’ ” (Ibid.)

We conclude the evidence was sufficient for this purpose. Although the recording does not reveal exactly what condition defendant placed on his threat, from the context and surrounding circumstances the jury reasonably could have determined that defendant essentially threatened to kill S. if she did not cooperate and answer his questions about the slip of paper he had found. Indeed, virtually everything defendant said immediately before and after his threat supports such a determination. Before his threat, he demanded that she “just start answering these fucking questions” and that she “better fucking come clean.” Immediately after the threat, he told her she was “not *1434 escaping this one” and told her to “give [him] information,” “just start talking,” and “[g]et going.” Under these circumstances, the jury did not need to know the exact words of the condition defendant placed on the threat to conclude that the threat was so unconditional as to convey a gravity of purpose and an immediate prospect of execution. Accordingly, defendant's sufficiency of the evidence challenge to his conviction of making a criminal threats fails. People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433–1434 [89 Cal.Rptr.3d 402, 420], as modified on denial of reh'g (Mar. 9, 2009)

But not required to be unconditional

People v. Bolin (1998) 18 Cal.4th 297, 339–340 [75 Cal.Rptr.2d 412, 956 P.2d 374], disapproving People v. Brown (1993) 20 Cal.App.4th 1251, 1256 [25 Cal.Rptr.2d 76];

People v. Stanfield (1995) 32 Cal.App.4th 1152, 1162 [38 Cal.Rptr.2d 328].

Defendant's statement that he would kill victim if she testified against his fellow gang members was a “threat” within meaning of statute prohibiting threatening to commit crime which would result in great bodily injury, although statement was conditional. People v. Brooks (App. 4 Dist. 1994) 31 Cal.Rptr.2d 283, 26 Cal.App.4th 142,

There is no requirement that the threat be unconditional, nor can we judge a threat “solely on the words spoken. It is clear by case law that threats are judged in their context.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137, 105 Cal.Rptr.2d 165, fn. omitted.)

Conditional Threat May Be True Threat, Depending on Context

People v. Melhado (1998) 60 Cal.App.4th 1529, 1540 [70 Cal.Rptr.2d 878].

"The statute specifically requires one to look at the threat on its face and under the circumstances in which it is made." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1220.)

But circumstances can also show no threat. "If surrounding circumstances within the meaning of section 422 can show whether a terrorist threat was made, absence of circumstances can also show that a terrorist threat was not made within the meaning of section 422. Here, there was no evidence of any circumstances occurring after appellant's “threats” which would further a finding of a terrorist threat." (''In re Ricky T.'' (2001) 87 Cal.App.4th 1132, 1139.)

The immediacy of the threat can still be found if the threatener is arrested (''People v. Franz'' (2001) 88 Cal.App.4th 1426) or even if in jail (''People v. Gaut'' (2002) 95 Cal.App.4th 1425.) The immediacy of threat can be found even if the threatened person is in a different state. (''People v. Smith'' (2009) 178 Cal.App.4th 475.)

Prisoners. (''People v. Mosley'' (2007) 155 Cal.App.4th 313.)

A threat need only convey “ ‘ “a gravity of purpose and an immediate prospect of execution of the threat.” ’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542, italics added.) “[I]t ‘does not require an immediate ability to carry out the threat.’ ” (Ibid.)

Threat by prisoner that when he is released on parole in 10 months is sufficient for PC422. (''People v. Wilson'' (2010) 186 Cal.App.4th 789.)

Immediate Ability to Carry Out Threat Not Required
People v. Lopez (1999) 74 Cal.App.4th 675, 679 [88 Cal.Rptr.2d 252].

Crime of criminal threat does not require an immediate ability or even an actual intention to carry out the threat. People v. Holmes, McClain and Newborn (2022) 289 Cal.Rptr.3d 582, 503 P.3d 668

Threat can be shown by prior bad acts. (''People v. Stern'' (2003) 111 Cal.App.4th 283

====(4) Sustained Fear====

Sustained fear must occur over “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7.) Courts have held, for instance, 15 minutes satisfies the sustained fear requirement. (Ibid.) In addition, sustained fear must be objectively and subjectively reasonable. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140, 105 Cal.Rptr.2d 165 [“A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances”].)

''People v. Fierro'' (2010) 180 Cal.App.4th 1342 [15 minutes afterwards is still sustained fear]

In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139–1140 [105
Cal.Rptr.2d 165]; People v. Solis (2001) 90 Cal.App.4th 1002, 1024 [109
Cal.Rptr.2d 464]; People v. Allen (1995) 33 Cal.App.4th 1149, 1155–1156 [40
Cal.Rptr.2d 7].

Defendant's violent history can be relevant for sustained fear element. (''People v. Garrett'' (1994) 30 Cal.App.4th 962, 967.)

A person's fear is “sustained” if it “extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) “The victim's knowledge of defendant's prior conduct is relevant in establishing that [they were] in a state of sustained fear.” (Ibid.)

So are the circumstances surrounding the defendant's threats and their subsequent actions. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1221.)

===Attempted Criminal Threats===
People v. Chandler (2014) 60 Cal.4th 508, 525 [176 Cal.Rptr.3d 548, 332 P.3d 538].

===Only One Conviction and One Punishment Per Victim, Per Threatening Encounter===

“[S]ection 422 authorizes only one conviction and one punishment per victim, per threatening encounter during which the victim suffers a single period of sustained fear.” (People v. Wilson (2015) 234 Cal.App.4th 193, 202.)

People v. Roles (2020) 44 Cal.App.5th 935, 942

===Through Third Party Intermediaries===
;''In re Ryan D.'' (2002) 100 Cal.App.4th 854
:Painting a picture of a shot school officer which was for a school project and not intended to be shown to the officer was not a criminal threat

;''People v. Felix'' (2001) 92 Cal.App.4th 905, 911–915
:Statements made during a therapy session are not meant to be conveyed.

;''In re David L.'' (1991) 234 Cal.App.3d 1655
:"The kind of threat contemplated by section 422 may as readily be conveyed by the threatener through a third party as personally to the intended victim. Where the threat is conveyed through a third party intermediary, the specific intent element of the statute is implicated. Thus, if the threatener intended the threat to be taken seriously by the victim, he must necessarily have intended it to be conveyed. Here, the climate of hostility between the minor and the victim in which the threat was made and the manner in which it was made readily support the inference the minor intended the victim to feel threatened. The communication of the threat to a friend of the victim who was also witness to certain of the antecedent hostilities supports the inference the minor intended the friend act as intermediary to convey the threat to the victim." (In re David L., at p. 1659.)

;''People v. Roles'' (2020) 44 Cal.App.4th 935

A defendant may be convicted of a criminal threat made to a third party so long as “he specifically intended that the threat be conveyed to the victim.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 861, 123 Cal.Rptr.2d 193; see People v. Felix (2001) 92 Cal.App.4th 905, 913, 112 Cal.Rptr.2d 311 (Felix); In re David L. (1991) 234 Cal.App.3d 1655, 1659, 286 Cal.Rptr. 398 (David L.).) In David L., for example, sufficient evidence showed a minor intended a criminal threat to be conveyed to the victim when he made the threat to the victim's friend and it “followed a series of hostile *763 encounters between the minor and the victim culminating in a fight at school,” which the friend had witnessed. (David L., supra, at p. 1660, 286 Cal.Rptr. 398.)

===Internet and phone apps===

In this case, the juvenile court found defendant A.G., a minor high school student, made criminal threats when he posted a photo of a realistic looking replica gun on his Snapchat account, which was visible to about 60 people he identified as friends. The photo bore the caption, “Everybody go to school tomorrow. I'm taking gum.”

The record contains sufficient evidence A.G. intended his Snapchat post to be understood as a threat and that he willfully threatened to kill or cause great bodily injury In re A.G. (2020) 58 Cal.App.5th 647, 655 [272 Cal.Rptr.3d 602, 609], as modified (Dec. 23, 2020)

===Jury Instruction===

====CALCRIM 1300 Criminal Threat====
The defendant is charged [in Count ] with having made a criminal threat [in violation of Penal Code section 422].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to <insert name
of complaining witness or member[s] of complaining witness’s immediate family>;

2. The defendant made the threat (orally/in writing/by electronic communication device);

3. The defendant intended that (his/her) statement be understood as a threat [and intended that it be communicated to
<insert name of complaining witness>];

4. The threat was so clear, immediate, unconditional, and specific that it communicated to <insert name of complaining
witness> a serious intention and the immediate prospect that the threat would be carried out;

5. The threat actually caused <insert name of complaining witness> to be in sustained fear for (his/her) own safety [or for the safety of (his/her) immediate family];

AND

6._____________’s <insert name of complaining witness> fear was reasonable under the circumstances.

Someone commits an act ''willfully'' when he or she does it willingly or on purpose.

In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the
surrounding circumstances.

Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act [or intend to
have someone else do so].

''Great bodily injury'' means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

''Sustained fear'' means fear for a period of time that is more than momentary, fleeting, or transitory.

<nowiki>[An immediate ability to carry out the threat is not required.]</nowiki>

<nowiki>[An electronic communication device includes, but is not limited to: a telephone, cellular telephone, pager, computer, video recorder, or fax machine.]</nowiki>

<nowiki>[Immediate family means (a) any spouse, parents, and children; (b) any grandchildren, grandparents, brothers and sisters related by blood or marriage; or (c) any person who regularly lives in the other person’s household [or who regularly lived there within the prior six months].]</nowiki>

====CALJIC 9.94====

<nowiki>[Defendant is accused [in Count[s] ] of having violated section 422 of the Penal Code, a crime.]</nowiki>

Every person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which threat, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, is guilty of a violation of Penal Code section 422, a crime.

<nowiki>[“Great bodily injury” means significant or substantial bodily injury or damage. It does not refer to trivial, insignificant, or moderate injury or harm.]</nowiki>

<nowiki>[“Immediate family” means any spouse, whether by marriage or not, parent, child, (relative), or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.]</nowiki>

<nowiki>[“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers.]</nowiki>

The term “sustained fear” means a period of time that extends beyond what is momentary, fleeting, or transitory.

There are different degrees of unconditionality. A threat which may appear conditional on its face can be unconditional under the circumstances. Conditional threats are true threats if their context reasonably conveys to the victim that they are intended.

The word “immediate” means that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met.

<nowiki>[Evidence of an out-of-court statement of a defendant, including any purported threat, ought to be viewed with caution.]</nowiki>

In order to prove this crime, each of the following elements must be proved:

1. A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person;

2. The person who made the threat did so with the specific intent that the statement be taken as a threat;

3. The threat was contained in a statement that was made verbally, in writing, or by means of an electronic communication device;

4. The threatening statement on its face, and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat; and

<nowiki>5. The threatening statement caused the person threatened reasonably to be in sustained fear [for [his] [or] [her] own safety] [or] [for [his] [or] [her] immediate family's safety].</nowiki>

It is immaterial whether the person who made the threat actually intended to carry it out.

===Lesser Included Offense===

====Attempted 422====
People v. Toledo (2001) 26 Cal.4th 221, 230–231 [109 Cal.Rptr.2d 315, 26 P.3d 1051].

===Constitutionality===

True threats are not protected speech. (''Counterman v. Colorado'' (2023) 600 U.S. 66.)

People v. Maciel (2003) 113 Cal. App. 4th 679 (Penal Code § 422 is not unconstitutionally vague in its language of "willfully threatens to commit a crime which will result in death or great bodily injury")

People v. Lopez (1999) 74 Cal. App. 4th 675, 88 Cal. Rptr. 2d 252 (upholding constitutionality of Penal Code § 422, because it includes immediacy element and prohibits speech not protected by First Amendment).

People v. Fisher (1993) 12 Cal.App.4th 1556 (upholding upholding constitutionality of Penal Code § 422, even though it does not require declarant intended to carry out threat).

It is settled that Penal Code section 422 is not unconstitutionally overbroad because it is narrowly tailored to true threats, which are not protected by the First Amendment. (People v. Toledo (2001) 26 Cal.4th 221, 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051; In re Ryan D. (2002) 100 Cal.App.4th 854, 861–862, 123 Cal.Rptr.2d 193; People v. Fisher (1993) 12 Cal.App.4th 1556, 1558–1560, 15 Cal.Rptr.2d 889.) “[T]he type of threat satisfying the criminal threat provisions of section 422—that is, a threat ‘to commit a crime which will result in death or great bodily injury to another person ... which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat’—constitutes speech that falls outside the protection of the First Amendment.” (Toledo, at p. 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051.) (People v. Morera-Munoz (2016) 5 Cal.App.5th 838, 851, fn. 7.)

===Secondary Sources===
*19 Cal. Jur. 3d Criminal Law: Miscellaneous Offenses § 181 Overview of criminal threat statutes

A cautionary instruction is applicable when evidence of a defendant’s out-of-court statements is received, including when the statements form the basis of a prosecution for making criminal threats. However the instruction is not required to be given sua sponte. People v. Diaz (2015) 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.2d 62.
The court must instruct on the elements of the threatened crime. It is the fact that a crime is threatened which along with the other elements, makes the utterance criminal.
“Willfully” is defined in CALJIC 1.20
Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily included offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539.
COMMENT
Penal Code § 422; 2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Public Peace and Welfare §§ 24 to 29.
This crime is committed, even though the threat is communicated through a third person to the victim. (In re David L., 234 Cal.App.3d 1655, 286 Cal.Rptr. 398 (3d Dist.1991).)
Penal Code § 422 is a crime of moral turpitude. (People v. Thornton, 3 Cal.App.4th 419, 4 Cal.Rptr.2d 519 (4th Dist.1992).)
The court, in People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283, 287 (4th Dist.1994), opined that an apparently conditional threat is a true threat, for purposes of this crime, if the context of the threat reasonably conveys to the victim that the threat is intended (cases cited). (Accord: People v. Stanfield, 32 Cal.App.4th 1152, 38 Cal.Rptr.2d 328 (2d Dist.1995).)
A violation of Penal Code § 422 does not require an unconditional threat of death or great bodily injury. (People v. Bolin, 18 Cal.4th 297, 338, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998).)
In People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7, 11 (2d Dist.1995), the court opined that “sustained fear” means a period of time that extends beyond what is momentary, fleeting or transitory, and that 15 minutes of fear, under the circumstances, was sufficient.
“Sustained fear” is taken from People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7 (2d Dist.1995). “Conditional threats” is derived from People v. Stanfield, 32 Cal.App.4th 1152, 1158, 38 Cal.Rptr.2d 328 (2d Dist.1995); People v. Bolin, 18 Cal.4th 297, 340, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998); and People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283 (4th Dist.1994). “Immediate” is derived from People v. Melhado, 60 Cal.App.4th 1529, 1538, 70 Cal.Rptr.2d 878 (1st Dist.1998).
Section 422 requires a verbal statement. Conduct alone is not sufficient (when there is no writing or electronic communication). People v. Franz, 88 Cal.App.4th 1426, 106 Cal.Rptr.2d 773 (3d Dist.2001).
In People v. Gonzalez (2017) 2 Cal.5th 1138, 218 Cal.Rptr.3d 150, 394 P.3d 1074, the court approved the holding in People v. Franz (2001) supra, and held that a hand gesture in a threatening manner was not a verbal threat which is required for a violation of Penal Code § 422.
A police officer is a person who can be a victim of this crime. (People v. Schnathorst, 120 Cal.App.4th 1310, 16 Cal.Rptr.3d 312 (3d Dist.2004).)
Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541.

Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541.
A cautionary instruction is applicable when evidence is received of a defendant’s out-of-court statements, including when statements form the basis of a prosecution for making criminal threats. However the instruction is not required to be given sua sponte. People v. Diaz (2015) 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.2d 62.
The court in People v. Chandler (2014) 60 Cal.4th 508, 176 Cal.Rptr.3d 548, 332 P.3d 538, held that the lesser and necessarily “offense of attempted criminal threat requires not only proof of a subjective intent to threaten but also proof that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear.”
Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily include offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539.

===Statute===

====Current version from 06/30/11 to present (AB117, Stats. 2011, ch. 39, § 16.)====
(a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

(b) For purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

(c) “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

====From 04/04/11 to 06/30/11 (AB109, Stats. 2011, ch. 15, § 351.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment '''pursuant to subdivision (h) of Section 1170.'''

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

====From 01/01/1998 to 04/04/11 (SB1796, Stats. 1998, ch. 825, § 3.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement<<+, made verbally, in writing, or by means of an electronic communication device,+>> is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

'''“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.'''

=====Legislative Counsel's Digest=====
(2) Existing law prohibits the willful issuance of a threat to commit a crime which will result in the death or great bodily injury of another, with the specific intent that the statement be taken as a threat even if there is no actual intent of carrying out the crime, where the threat is so unequivocal, immediate, and specific so as to cause the recipient to reasonably be in sustained fear for his or her own safety or the safety of his or her immediate family.

This bill would clarify that this provision applies to threatening statements made verbally, in writing, or by means of an electronic communication device, and would incorporate the definition of “electronic communication” used in a specified provision of federal law. By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

====From 01/01/1990 to 12/31/1998 (AB1667, Stats. 1989, ch. 1135, § 1.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made''',''' is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened''',''' a gravity of purpose and an immediate prospect of execution '''OF THE THREAT, AND THEREBY CAUSES THAT PERSON REASONABLY TO BE IN SUSTAINED FEAR FOR HIS OR HER OWN SAFETY OR FOR HIS OR HER IMMEDIATE FAMILY'S SAFETY''', shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison <del>if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety</del>.
For the purposes of this section, <del>the term</del> “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

=====Legislative Counsel's Digest=====
Under existing law, it is a public offense, punishable as specified, for any person to willfully threaten to commit a crime which will result in death or great bodily injury to another person, if under the circumstances the threat causes the threatened person reasonably to be in sustained fear for his or her own safety or his or her immediate family's safety, as specified.

This bill would make technical, nonsubstantive changes to those provisions.

====From 09/23/1988 to 12/31/1999 (SB1555, Stats 1988 ch. 1256, § 4.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety. For the purposes of this section, the term “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

=====Legislative Counsel's Digest=====
This bill would prohibit any person from willfully threatening to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent to actually carry it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution. This bill would make this offense either a misdemeanor or a felony punishable either by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison, thereby imposing a state-mandated local program.

==PC71==
Threatening a public officer of an educational institution in violation of Penal Code section 71 may be a lesser included offense of a section 422 criminal threat under the accusatory pleadings test. (In re Marcus T. (2001) 89 Cal.App.4th 468, 472–473 [107 Cal.Rptr.2d 451].) But see People v. Chaney (2005) 131 Cal.App.4th 253, 257–258 [31 Cal.Rptr.3d 714], finding that a violation of section 71 is not a lesser included offense of section 422 under the accusatory pleading test when the pleading does not specifically allege the intent to cause (or attempt to cause) a public officer to do (or refrain from doing) an act in the performance of official duty.

we noted that the prosecution's proof of an asserted violation of section 71 was deficient, in that the defendant was locked in his cell at the time he made the alleged threat and *920 thus was not then “in a position to carry out the threat.” (38 Cal.3d at p. 777, 215 Cal.Rptr. 1, 700 P.2d 782.) In People v. Tuilaepa (1992) 4 Cal.4th 569, 15 Cal.Rptr.2d 382, 842 P.2d 1142, we cited the fact that the defendant was locked in his cell for the night when he threatened **535 to burn a pair of pants and an adviser's face, along with the absence of a “substantial showing that [the] defendant harbored the requisite intent—interfering with the performance of official duties”—in rejecting the Attorney General's contention the threats in that case violated section 71. (4 Cal.4th at p. 590, 15 Cal.Rptr.2d 382, 842 P.2d 1142.) In neither case, however, did we consider that section 71, unlike section 422 (prohibiting criminal threats) and section 404.6 (prohibiting inciting to riot) contains no requirement of immediacy.

People v. Dunkle, 36 Cal. 4th 861, 919–20, 116 P.3d 494, 534–35 (2005), disapproved of by People v. Doolin, 45 Cal. 4th 390, 198 P.3d 11 (2009)

==PC76==

Threatening certain public officials, appointees, judges, staff, or their immediate families; intent and apparent ability to carry out threat; punishment

(a) Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, or the staff, immediate family, or immediate family of the staff of any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense, punishable as follows:
(1) Upon a first conviction, the offense is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both that fine and imprisonment.

(2) If the person has been convicted previously of violating this section, the previous conviction shall be charged in the accusatory pleading, and if the previous conviction is found to be true by the jury upon a jury trial, or by the court upon a court trial, or is admitted by the defendant, the offense is punishable by imprisonment pursuant to subdivision (h) of Section 1170.

(b) Any law enforcement agency that has knowledge of a violation of this section involving a constitutional officer of the state, a Member of the Legislature, or a member of the judiciary shall immediately report that information to the Department of the California Highway Patrol.

(c) For purposes of this section, the following definitions shall apply:

(1) “Apparent ability to carry out that threat” includes the ability to fulfill the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date.

(2) “Serious bodily harm” includes serious physical injury or serious traumatic condition.

(3) “Immediate family” means a spouse, parent, or child, or anyone who has regularly resided in the household for the past six months.

(4) “Staff of a judge” means court officers and employees, including commissioners, referees, and retired judges sitting on assignment.

(5) “Threat” means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.

(d) As for threats against staff or immediate family of staff, the threat must relate directly to the official duties of the staff of the elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(e) A threat must relate directly to the official duties of a Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(Added by Stats.1982, c. 1405, p. 5360, § 1. Amended by Stats.1984, c. 627, § 1; Stats.1992, c. 887 (A.B.3816), § 8; Stats.1993, c. 134 (S.B.1042), § 1; Stats.1994, c. 820 (S.B.1463), § 1; Gov.Reorg.Plan No. 1 of 1995, § 42, eff. July 12, 1995; Stats.1995, c. 354 (A.B.1866), § 1; Stats.1996, c. 305 (A.B.3103), § 43; Stats.1998, c. 606 (S.B.1880), § 6; Stats.2000, c. 233 (S.B.1859), § 1; Stats.2004, c. 512 (A.B.1433), § 1; Stats.2011, c. 15 (A.B.109), § 239, eff. April 4, 2011, operative Oct. 1, 2011.)

==Annoying phone calls==

===Penal Code 653m(a)===
(a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.

A single use of obscene language or threats.

===Penal Code 653m(b)===
(b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

PC653m(b) required repeated telephone conduct.

==Stalking==

Section 646.9 requires a willful, malicious, and repeated following or harassment of another, coupled with a credible threat with an intent to place that person or their family in reasonable fear for their safety. This statute requires that an actual threat of harm be made; malicious teasing or bullying will not suffice.

==Doxxing==

People v. Shivers (2015) 235 Cal.App.4th Supp. 8
The tweets posted on July 4, 2012, and July 8, 2012, which were the basis for the Penal Code section 653.2 charge, stated, respectively, “HAPPY FOURTH OF JULY EVERYONE. SEE YOU ON MY USUAL HANGOUT, CAHUENGA!! (If you see my stalker Pauley Perrette follow me there call LAPD!!!)” and “Speakin of # Cahuenga i'll be there 2nite as usual. If you see my stalker # NCIS Pauley Perrette follow me there report her to LAPD immediately!” (Original capitalization.)

The plain meaning of the words used reveals no requirement that actual incitement or actual production of the enumerated unlawful effects be caused by a person's electronic distribution of a message. The only requirement is that a defendant's message is likely to incite or produce third party actions. People v. Shivers (2015) 235 Cal.App.4th Supp. 8, 13.

“One, the defendant by means of an electronic communication device and acted [sic ] without the consent of [Perrette] electronically distributed or published an electronic message of a harassing nature; and [¶] Two, the defendant electronically distributed or published the electronic **358 message about [Perrette] for the purpose of imminently causing [Perrette] unwanted physical contact or injury or harassment by a third party; and [¶] Three, the defendant distributed the electronic message and a reasonable person would consider that electronic message likely to incite or produce unwanted physical contact, injury or harassment by a third party; and [¶] Four, the defendant at the time of the electronic distribution of the electronic message acted with the intent to place [Perrette] in reasonable fear for her safety or safety of her immediate family.”

Section 653.2 makes it a misdemeanor for any person who--with intent to place another person or their immediate family in reasonable fear for their safety by means of an electronic communication device and for the purpose of imminently causing unwanted harassment--electronically distributes, publishes, emails, hyperlinks, or makes available for downloading personal identifying information, including, but not limited to, a digital image of another person, or a harassing message about another person, which would likely incite or produce unlawful action. Section 653.2 is too narrow to cover all cyberbullying-type conduct because it requires the dissemination of personal identifying information and is really just a modification of the existing California criminal stalking statute to prohibit “the type of harassment that has become all to[o] commonplace in this digital age, harassment committed using e-mail, cell phone, or some other electronic communication device.” The purpose of section 653.2 is to “simply [[close] an electronic loophole in the stalking statute and [give] law enforcement the ability to hold accountable those who would prey on victims using electronic means.”

==Online impersonation==
Penal Code 528.5

Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).

Threats

2026-04-20T02:08:54Z

Sysop: /* (2)Threat */

==Criminal Threats==

Section 422 criminalizes threats made to another that are likely to result in death or great bodily injury. Section 422 encompasses conduct directed at one specifically identified person. Moreover, it requires an actual intent to commit a specific type of harm. This statute does not address the situation of cyberbullying in which one person might post disparaging comments about another on the Internet but does not explicitly threaten to harm that person.

===Punishment===

16-2-3 state prison

Serious felony, PC1192.7(c)(38)

===Elements===

(1) that the defendant “willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,”

(2) that the defendant made the threat “with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out,”

(3) that the threat—which may be “made verbally, in writing, or by means of an electronic communication device”—was “on its face and under the circumstances in which it [was] made, ... so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,”

(4) that the threat actually caused the person threatened “to be in sustained fear for his or her own safety or for his or her immediate family's safety,” and

(5) that the threatened person's fear was “reasonabl[e]” under the circumstances.

(People v. Toledo (2001) 26 Cal.4th 221, 227–228.)

In re George T. (2004) 33 Cal.4th 620, 630

People v. Melhado (1998) 60 Cal.App.4th 1529, 1536

====(1) Great Bodily Injury to a person====

PC12022.7

Crime that Will Result in Great Bodily Injury Judged on Objective Standard

People v. Maciel (2003) 113 Cal.App.4th 679, 685.

A police officer is a person within the meaning of PC422. (''People v. Schnathorst'' (2004) 120 Cal.App.4th 1310, 1316.)

“no specific crime must be identified for the jury” to find a victim's fear reasonable. (People v. Butler (2000) 85 Cal.App.4th 745, 755.

====(2)Threat====

“ ‘[T]he determination whether a defendant intended his words to be taken as a threat ... can be based on all the surrounding circumstances and not just on the words alone. The parties’ history can also be considered as one of the relevant circumstances.’ ” (People v. Butler (2000) 85 Cal.App.4th 745, 754.)

[S]ection 422 does not punish such things as ‘mere angry utterances or ranting soliloquies, however violent.’ [Citation.] Accordingly, where the accused did not personally communicate a threat to the victim, it must be shown that he specifically intended that the threat be conveyed to the victim.” (Ryan D., supra, 100 Cal.App.4th at p. 861.)

"[T]he words, “I'm going to get you,” “I'll get back to you,” “I'll get you,” may not, standing alone, convey a threat to commit a crime which will result in death or great bodily injury." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1218.)

‘[T]he nature of the threat cannot be determined only at face value.Section 422 demands that the purported threat be examined “on its face and under the circumstances in which it was made.” The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat,’ and such threats must be ‘judged in their context.’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542.)

Thus, “[a] communication that is ambiguous on its face may nonetheless be found to be a criminal threat if the surrounding circumstances clarify the communication's meaning.” (In re George T., supra, 33 Cal.4th at p. 635, 16 Cal.Rptr.3d 61, 93 P.3d 1007.)

A threat too outlandish reasonably to cause the victims to suffer sustained fear would be legally insufficient to support conviction of an attempted criminal threat. People v. Jackson (App. 6 Dist. 2009) 100 Cal.Rptr.3d 539, 178 Cal.App.4th 590.

A terroristic threat is sufficiently specific where it threatens death or great bodily injury; a threat is not insufficient simply because it does not communicate a time or precise manner of execution. People v. Gaut (App. 2 Dist. 2002) 115 Cal.Rptr.2d 924, 95 Cal.App.4th 1425.

Criminal-threats statute is not violated by mere angry utterances or ranting soliloquies, however violent. People v. Felix (App. 2 Dist. 2001) 112 Cal.Rptr.2d 311, 92 Cal.App.4th 905,

In prosecution for making terroristic threats, evidence was sufficient to find element that defendant's verbal statement was unequivocal, where testimony established that defendant, while victims were talking to police officer, said “shush” as he made a throat-slashing gesture and placed his finger to his lips. People v. Franz (App. 3 Dist. 2001) 106 Cal.Rptr.2d 773, 88 Cal.App.4th 1426,

People v. Mendoza (1997) 59 Cal.App.4th 1333, 1340 [69 Cal.Rptr.2d 728]; People v.
Butler (2000) 85 Cal.App.4th 745, 752–753 [102 Cal.Rptr.2d 269]; People v.
Martinez (1997) 53 Cal.App.4th 1212, 1218–1221 [62 Cal.Rptr.2d 303]; In re
Ricky T. (2001) 87 Cal.App.4th 1132, 1137–1138 [105 Cal.Rptr.2d 165]; People
v. Solis (2001) 90 Cal.App.4th 1002, 1013–1014 [109 Cal.Rptr.2d 464]; see
People v. Garrett (1994) 30 Cal.App.4th 962, 966–967 [36 Cal.Rptr.2d 33].

A “threatening statement[ ] that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, ‘a serious expression of an intent to commit an act of unlawful violence’, rather than an expression of jest or frustration”, is not protected speech. (People v. Lowery (2011) 52 Cal.4th 419, 427.) People v. Paigly (Cal. Ct. App., Oct. 8, 2025, No. H050724) 2025 WL 2847115, at *3, review denied (Dec. 30, 2025)

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

The appellate court rejected the defendant's argument his words were not an attempt to dissuade a witness by threat of force or violence. “The words ‘You punk mother fucker, we'll get you, you've got kids,’ have more than a plain meaning, as do all words. These words also carry with them an inherent baggage of connotation which plainly suggests to the auditor, ‘You are in trouble for testifying so do not let it happen again or things will only get worse.’ The jury could interpret defendant's remarks to [the witness] as a warning or threat not to testify in the future.” (145 Cal.App.3d at p. 989, 193 Cal.Rptr. 684; see also, People v. Thomas (1978) 83 Cal.App.3d 511, 513, fn. 3, 148 Cal.Rptr. 52 [the defendant's argument the witness could not be dissuaded from doing what she had already done was based upon **735 the false premise the witness was not a potential future witness].) People v. Mendoza (1997) 59 Cal.App.4th 1333, 1344 [69 Cal.Rptr.2d 728, 734–735]

Threatening Hand Gestures Not Verbal Threats Under Penal Code Section 422

People v. Gonzalez (2017) 2 Cal.5th 1138, 1147 [218 Cal.Rptr.3d 150,
394 P.3d 1074].

A gesture without a statement is not a threat, but a "shush" or "sh" is sufficient to be a statement. (People v. Franz (2001) 88 Cal.App.4th 1426, 1441–1442.)

====(3) Unconditional, Specific, and Immediate Threat====

As to the third element, “ ‘the determination [of] whether a defendant intended [for their] words to be taken as a threat, and whether the words were sufficiently unequivocal, unconditional, immediate[,] and specific [that] they conveyed to the victim an immediacy of purpose and immediate prospect of execution of the threat[,] can be based on all the surrounding circumstances and not just on the words alone.’ ” (People v. Gaut (2002) 95 Cal.App.4th 1425, 1431.) “ ‘The parties’ history can also be considered as one of the relevant circumstances.’ ” (Ibid.)

We conclude the evidence was sufficient for this purpose. Although the recording does not reveal exactly what condition defendant placed on his threat, from the context and surrounding circumstances the jury reasonably could have determined that defendant essentially threatened to kill S. if she did not cooperate and answer his questions about the slip of paper he had found. Indeed, virtually everything defendant said immediately before and after his threat supports such a determination. Before his threat, he demanded that she “just start answering these fucking questions” and that she “better fucking come clean.” Immediately after the threat, he told her she was “not *1434 escaping this one” and told her to “give [him] information,” “just start talking,” and “[g]et going.” Under these circumstances, the jury did not need to know the exact words of the condition defendant placed on the threat to conclude that the threat was so unconditional as to convey a gravity of purpose and an immediate prospect of execution. Accordingly, defendant's sufficiency of the evidence challenge to his conviction of making a criminal threats fails. People v. Hamlin (2009) 170 Cal.App.4th 1412, 1433–1434 [89 Cal.Rptr.3d 402, 420], as modified on denial of reh'g (Mar. 9, 2009)

But not required to be unconditional

People v. Bolin (1998) 18 Cal.4th 297, 339–340 [75 Cal.Rptr.2d 412, 956 P.2d 374], disapproving People v. Brown (1993) 20 Cal.App.4th 1251, 1256 [25 Cal.Rptr.2d 76];

People v. Stanfield (1995) 32 Cal.App.4th 1152, 1162 [38 Cal.Rptr.2d 328].

Defendant's statement that he would kill victim if she testified against his fellow gang members was a “threat” within meaning of statute prohibiting threatening to commit crime which would result in great bodily injury, although statement was conditional. People v. Brooks (App. 4 Dist. 1994) 31 Cal.Rptr.2d 283, 26 Cal.App.4th 142,

There is no requirement that the threat be unconditional, nor can we judge a threat “solely on the words spoken. It is clear by case law that threats are judged in their context.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137, 105 Cal.Rptr.2d 165, fn. omitted.)

Conditional Threat May Be True Threat, Depending on Context

People v. Melhado (1998) 60 Cal.App.4th 1529, 1540 [70 Cal.Rptr.2d 878].

"The statute specifically requires one to look at the threat on its face and under the circumstances in which it is made." (''People v. Martinez'' (1997) 53 Cal.App.4th 1212, 1220.)

But circumstances can also show no threat. "If surrounding circumstances within the meaning of section 422 can show whether a terrorist threat was made, absence of circumstances can also show that a terrorist threat was not made within the meaning of section 422. Here, there was no evidence of any circumstances occurring after appellant's “threats” which would further a finding of a terrorist threat." (''In re Ricky T.'' (2001) 87 Cal.App.4th 1132, 1139.)

The immediacy of the threat can still be found if the threatener is arrested (''People v. Franz'' (2001) 88 Cal.App.4th 1426) or even if in jail (''People v. Gaut'' (2002) 95 Cal.App.4th 1425.) The immediacy of threat can be found even if the threatened person is in a different state. (''People v. Smith'' (2009) 178 Cal.App.4th 475.)

Prisoners. (''People v. Mosley'' (2007) 155 Cal.App.4th 313.)

A threat need only convey “ ‘ “a gravity of purpose and an immediate prospect of execution of the threat.” ’ ” (Wilson, supra, 186 Cal.App.4th at p. 807, 112 Cal.Rptr.3d 542, italics added.) “[I]t ‘does not require an immediate ability to carry out the threat.’ ” (Ibid.)

Threat by prisoner that when he is released on parole in 10 months is sufficient for PC422. (''People v. Wilson'' (2010) 186 Cal.App.4th 789.)

Immediate Ability to Carry Out Threat Not Required
People v. Lopez (1999) 74 Cal.App.4th 675, 679 [88 Cal.Rptr.2d 252].

Threat can be shown by prior bad acts. (''People v. Stern'' (2003) 111 Cal.App.4th 283

====(4) Sustained Fear====

Sustained fear must occur over “a period of time that extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7.) Courts have held, for instance, 15 minutes satisfies the sustained fear requirement. (Ibid.) In addition, sustained fear must be objectively and subjectively reasonable. (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140, 105 Cal.Rptr.2d 165 [“A victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances”].)

''People v. Fierro'' (2010) 180 Cal.App.4th 1342 [15 minutes afterwards is still sustained fear]

In re Ricky T. (2001) 87 Cal.App.4th 1132, 1139–1140 [105
Cal.Rptr.2d 165]; People v. Solis (2001) 90 Cal.App.4th 1002, 1024 [109
Cal.Rptr.2d 464]; People v. Allen (1995) 33 Cal.App.4th 1149, 1155–1156 [40
Cal.Rptr.2d 7].

Defendant's violent history can be relevant for sustained fear element. (''People v. Garrett'' (1994) 30 Cal.App.4th 962, 967.)

A person's fear is “sustained” if it “extends beyond what is momentary, fleeting, or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) “The victim's knowledge of defendant's prior conduct is relevant in establishing that [they were] in a state of sustained fear.” (Ibid.)

So are the circumstances surrounding the defendant's threats and their subsequent actions. (People v. Martinez (1997) 53 Cal.App.4th 1212, 1221.)

===Attempted Criminal Threats===
People v. Chandler (2014) 60 Cal.4th 508, 525 [176 Cal.Rptr.3d 548, 332 P.3d 538].

===Only One Conviction and One Punishment Per Victim, Per Threatening Encounter===

“[S]ection 422 authorizes only one conviction and one punishment per victim, per threatening encounter during which the victim suffers a single period of sustained fear.” (People v. Wilson (2015) 234 Cal.App.4th 193, 202.)

People v. Roles (2020) 44 Cal.App.5th 935, 942

===Through Third Party Intermediaries===
;''In re Ryan D.'' (2002) 100 Cal.App.4th 854
:Painting a picture of a shot school officer which was for a school project and not intended to be shown to the officer was not a criminal threat

;''People v. Felix'' (2001) 92 Cal.App.4th 905, 911–915
:Statements made during a therapy session are not meant to be conveyed.

;''In re David L.'' (1991) 234 Cal.App.3d 1655
:"The kind of threat contemplated by section 422 may as readily be conveyed by the threatener through a third party as personally to the intended victim. Where the threat is conveyed through a third party intermediary, the specific intent element of the statute is implicated. Thus, if the threatener intended the threat to be taken seriously by the victim, he must necessarily have intended it to be conveyed. Here, the climate of hostility between the minor and the victim in which the threat was made and the manner in which it was made readily support the inference the minor intended the victim to feel threatened. The communication of the threat to a friend of the victim who was also witness to certain of the antecedent hostilities supports the inference the minor intended the friend act as intermediary to convey the threat to the victim." (In re David L., at p. 1659.)

;''People v. Roles'' (2020) 44 Cal.App.4th 935

A defendant may be convicted of a criminal threat made to a third party so long as “he specifically intended that the threat be conveyed to the victim.” (In re Ryan D. (2002) 100 Cal.App.4th 854, 861, 123 Cal.Rptr.2d 193; see People v. Felix (2001) 92 Cal.App.4th 905, 913, 112 Cal.Rptr.2d 311 (Felix); In re David L. (1991) 234 Cal.App.3d 1655, 1659, 286 Cal.Rptr. 398 (David L.).) In David L., for example, sufficient evidence showed a minor intended a criminal threat to be conveyed to the victim when he made the threat to the victim's friend and it “followed a series of hostile *763 encounters between the minor and the victim culminating in a fight at school,” which the friend had witnessed. (David L., supra, at p. 1660, 286 Cal.Rptr. 398.)

===Internet and phone apps===

In this case, the juvenile court found defendant A.G., a minor high school student, made criminal threats when he posted a photo of a realistic looking replica gun on his Snapchat account, which was visible to about 60 people he identified as friends. The photo bore the caption, “Everybody go to school tomorrow. I'm taking gum.”

The record contains sufficient evidence A.G. intended his Snapchat post to be understood as a threat and that he willfully threatened to kill or cause great bodily injury In re A.G. (2020) 58 Cal.App.5th 647, 655 [272 Cal.Rptr.3d 602, 609], as modified (Dec. 23, 2020)

===Jury Instruction===

====CALCRIM 1300 Criminal Threat====
The defendant is charged [in Count ] with having made a criminal threat [in violation of Penal Code section 422].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury to <insert name
of complaining witness or member[s] of complaining witness’s immediate family>;

2. The defendant made the threat (orally/in writing/by electronic communication device);

3. The defendant intended that (his/her) statement be understood as a threat [and intended that it be communicated to
<insert name of complaining witness>];

4. The threat was so clear, immediate, unconditional, and specific that it communicated to <insert name of complaining
witness> a serious intention and the immediate prospect that the threat would be carried out;

5. The threat actually caused <insert name of complaining witness> to be in sustained fear for (his/her) own safety [or for the safety of (his/her) immediate family];

AND

6._____________’s <insert name of complaining witness> fear was reasonable under the circumstances.

Someone commits an act ''willfully'' when he or she does it willingly or on purpose.

In deciding whether a threat was sufficiently clear, immediate, unconditional, and specific, consider the words themselves, as well as the
surrounding circumstances.

Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act [or intend to
have someone else do so].

''Great bodily injury'' means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

''Sustained fear'' means fear for a period of time that is more than momentary, fleeting, or transitory.

<nowiki>[An immediate ability to carry out the threat is not required.]</nowiki>

<nowiki>[An electronic communication device includes, but is not limited to: a telephone, cellular telephone, pager, computer, video recorder, or fax machine.]</nowiki>

<nowiki>[Immediate family means (a) any spouse, parents, and children; (b) any grandchildren, grandparents, brothers and sisters related by blood or marriage; or (c) any person who regularly lives in the other person’s household [or who regularly lived there within the prior six months].]</nowiki>

====CALJIC 9.94====

<nowiki>[Defendant is accused [in Count[s] ] of having violated section 422 of the Penal Code, a crime.]</nowiki>

Every person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which threat, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, is guilty of a violation of Penal Code section 422, a crime.

<nowiki>[“Great bodily injury” means significant or substantial bodily injury or damage. It does not refer to trivial, insignificant, or moderate injury or harm.]</nowiki>

<nowiki>[“Immediate family” means any spouse, whether by marriage or not, parent, child, (relative), or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.]</nowiki>

<nowiki>[“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers.]</nowiki>

The term “sustained fear” means a period of time that extends beyond what is momentary, fleeting, or transitory.

There are different degrees of unconditionality. A threat which may appear conditional on its face can be unconditional under the circumstances. Conditional threats are true threats if their context reasonably conveys to the victim that they are intended.

The word “immediate” means that degree of seriousness and imminence which is understood by the victim to be attached to the future prospect of the threat being carried out, should the conditions not be met.

<nowiki>[Evidence of an out-of-court statement of a defendant, including any purported threat, ought to be viewed with caution.]</nowiki>

In order to prove this crime, each of the following elements must be proved:

1. A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person;

2. The person who made the threat did so with the specific intent that the statement be taken as a threat;

3. The threat was contained in a statement that was made verbally, in writing, or by means of an electronic communication device;

4. The threatening statement on its face, and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat; and

<nowiki>5. The threatening statement caused the person threatened reasonably to be in sustained fear [for [his] [or] [her] own safety] [or] [for [his] [or] [her] immediate family's safety].</nowiki>

It is immaterial whether the person who made the threat actually intended to carry it out.

===Lesser Included Offense===

====Attempted 422====
People v. Toledo (2001) 26 Cal.4th 221, 230–231 [109 Cal.Rptr.2d 315, 26 P.3d 1051].

===Constitutionality===

True threats are not protected speech. (''Counterman v. Colorado'' (2023) 600 U.S. 66.)

People v. Maciel (2003) 113 Cal. App. 4th 679 (Penal Code § 422 is not unconstitutionally vague in its language of "willfully threatens to commit a crime which will result in death or great bodily injury")

People v. Lopez (1999) 74 Cal. App. 4th 675, 88 Cal. Rptr. 2d 252 (upholding constitutionality of Penal Code § 422, because it includes immediacy element and prohibits speech not protected by First Amendment).

People v. Fisher (1993) 12 Cal.App.4th 1556 (upholding upholding constitutionality of Penal Code § 422, even though it does not require declarant intended to carry out threat).

It is settled that Penal Code section 422 is not unconstitutionally overbroad because it is narrowly tailored to true threats, which are not protected by the First Amendment. (People v. Toledo (2001) 26 Cal.4th 221, 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051; In re Ryan D. (2002) 100 Cal.App.4th 854, 861–862, 123 Cal.Rptr.2d 193; People v. Fisher (1993) 12 Cal.App.4th 1556, 1558–1560, 15 Cal.Rptr.2d 889.) “[T]he type of threat satisfying the criminal threat provisions of section 422—that is, a threat ‘to commit a crime which will result in death or great bodily injury to another person ... which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat’—constitutes speech that falls outside the protection of the First Amendment.” (Toledo, at p. 233, 109 Cal.Rptr.2d 315, 26 P.3d 1051.) (People v. Morera-Munoz (2016) 5 Cal.App.5th 838, 851, fn. 7.)

===Secondary Sources===
*19 Cal. Jur. 3d Criminal Law: Miscellaneous Offenses § 181 Overview of criminal threat statutes

A cautionary instruction is applicable when evidence of a defendant’s out-of-court statements is received, including when the statements form the basis of a prosecution for making criminal threats. However the instruction is not required to be given sua sponte. People v. Diaz (2015) 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.2d 62.
The court must instruct on the elements of the threatened crime. It is the fact that a crime is threatened which along with the other elements, makes the utterance criminal.
“Willfully” is defined in CALJIC 1.20
Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily included offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539.
COMMENT
Penal Code § 422; 2 Witkin and Epstein, Cal. Criminal Law (4th ed. 2012), Crimes Against Public Peace and Welfare §§ 24 to 29.
This crime is committed, even though the threat is communicated through a third person to the victim. (In re David L., 234 Cal.App.3d 1655, 286 Cal.Rptr. 398 (3d Dist.1991).)
Penal Code § 422 is a crime of moral turpitude. (People v. Thornton, 3 Cal.App.4th 419, 4 Cal.Rptr.2d 519 (4th Dist.1992).)
The court, in People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283, 287 (4th Dist.1994), opined that an apparently conditional threat is a true threat, for purposes of this crime, if the context of the threat reasonably conveys to the victim that the threat is intended (cases cited). (Accord: People v. Stanfield, 32 Cal.App.4th 1152, 38 Cal.Rptr.2d 328 (2d Dist.1995).)
A violation of Penal Code § 422 does not require an unconditional threat of death or great bodily injury. (People v. Bolin, 18 Cal.4th 297, 338, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998).)
In People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7, 11 (2d Dist.1995), the court opined that “sustained fear” means a period of time that extends beyond what is momentary, fleeting or transitory, and that 15 minutes of fear, under the circumstances, was sufficient.
“Sustained fear” is taken from People v. Allen, 33 Cal.App.4th 1149, 1156, 40 Cal.Rptr.2d 7 (2d Dist.1995). “Conditional threats” is derived from People v. Stanfield, 32 Cal.App.4th 1152, 1158, 38 Cal.Rptr.2d 328 (2d Dist.1995); People v. Bolin, 18 Cal.4th 297, 340, 75 Cal.Rptr.2d 412, 956 P.2d 374 (1998); and People v. Brooks, 26 Cal.App.4th 142, 149, 31 Cal.Rptr.2d 283 (4th Dist.1994). “Immediate” is derived from People v. Melhado, 60 Cal.App.4th 1529, 1538, 70 Cal.Rptr.2d 878 (1st Dist.1998).
Section 422 requires a verbal statement. Conduct alone is not sufficient (when there is no writing or electronic communication). People v. Franz, 88 Cal.App.4th 1426, 106 Cal.Rptr.2d 773 (3d Dist.2001).
In People v. Gonzalez (2017) 2 Cal.5th 1138, 218 Cal.Rptr.3d 150, 394 P.3d 1074, the court approved the holding in People v. Franz (2001) supra, and held that a hand gesture in a threatening manner was not a verbal threat which is required for a violation of Penal Code § 422.
A police officer is a person who can be a victim of this crime. (People v. Schnathorst, 120 Cal.App.4th 1310, 16 Cal.Rptr.3d 312 (3d Dist.2004).)
Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541.

Multiple threats made to a single victim during single encounter justifies only one conviction for making criminal threats. People v. Wilson (2015) 234 Cal.App.4th 193, 183 Cal.Rptr.3d 541.
A cautionary instruction is applicable when evidence is received of a defendant’s out-of-court statements, including when statements form the basis of a prosecution for making criminal threats. However the instruction is not required to be given sua sponte. People v. Diaz (2015) 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.2d 62.
The court in People v. Chandler (2014) 60 Cal.4th 508, 176 Cal.Rptr.3d 548, 332 P.3d 538, held that the lesser and necessarily “offense of attempted criminal threat requires not only proof of a subjective intent to threaten but also proof that the intended threat under the circumstances was sufficient to cause a reasonable person to be in sustained fear.”
Where the evidence requires that the jury be instructed on attempted criminal threat as a lesser and necessarily include offense or where the defendant is charged with that crime, the instructions must include as an element that the defendant specifically intended to make a threat that could reasonably cause the person to be in sustained fear for his or her own safety or for his or her family’s safety. People v. Jackson, (2009) 178 Cal.App.4th 590, 100 Cal.Rptr.3d 539.

===Statute===

====Current version from 06/30/11 to present (AB117, Stats. 2011, ch. 39, § 16.)====
(a) Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

(b) For purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

(c) “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

====From 04/04/11 to 06/30/11 (AB109, Stats. 2011, ch. 15, § 351.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment '''pursuant to subdivision (h) of Section 1170.'''

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

====From 01/01/1998 to 04/04/11 (SB1796, Stats. 1998, ch. 825, § 3.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement<<+, made verbally, in writing, or by means of an electronic communication device,+>> is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

'''“Electronic communication device” includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.'''

=====Legislative Counsel's Digest=====
(2) Existing law prohibits the willful issuance of a threat to commit a crime which will result in the death or great bodily injury of another, with the specific intent that the statement be taken as a threat even if there is no actual intent of carrying out the crime, where the threat is so unequivocal, immediate, and specific so as to cause the recipient to reasonably be in sustained fear for his or her own safety or the safety of his or her immediate family.

This bill would clarify that this provision applies to threatening statements made verbally, in writing, or by means of an electronic communication device, and would incorporate the definition of “electronic communication” used in a specified provision of federal law. By expanding the scope of an existing crime, this bill would impose a state-mandated local program.

====From 01/01/1990 to 12/31/1998 (AB1667, Stats. 1989, ch. 1135, § 1.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made''',''' is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened''',''' a gravity of purpose and an immediate prospect of execution '''OF THE THREAT, AND THEREBY CAUSES THAT PERSON REASONABLY TO BE IN SUSTAINED FEAR FOR HIS OR HER OWN SAFETY OR FOR HIS OR HER IMMEDIATE FAMILY'S SAFETY''', shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison <del>if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety</del>.
For the purposes of this section, <del>the term</del> “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

=====Legislative Counsel's Digest=====
Under existing law, it is a public offense, punishable as specified, for any person to willfully threaten to commit a crime which will result in death or great bodily injury to another person, if under the circumstances the threat causes the threatened person reasonably to be in sustained fear for his or her own safety or his or her immediate family's safety, as specified.

This bill would make technical, nonsubstantive changes to those provisions.

====From 09/23/1988 to 12/31/1999 (SB1555, Stats 1988 ch. 1256, § 4.)====
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison if he or she causes another person reasonably to be in sustained fear for his or her or their immediate family's safety. For the purposes of this section, the term “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

=====Legislative Counsel's Digest=====
This bill would prohibit any person from willfully threatening to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent to actually carry it out, which, on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution. This bill would make this offense either a misdemeanor or a felony punishable either by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison, thereby imposing a state-mandated local program.

==PC71==
Threatening a public officer of an educational institution in violation of Penal Code section 71 may be a lesser included offense of a section 422 criminal threat under the accusatory pleadings test. (In re Marcus T. (2001) 89 Cal.App.4th 468, 472–473 [107 Cal.Rptr.2d 451].) But see People v. Chaney (2005) 131 Cal.App.4th 253, 257–258 [31 Cal.Rptr.3d 714], finding that a violation of section 71 is not a lesser included offense of section 422 under the accusatory pleading test when the pleading does not specifically allege the intent to cause (or attempt to cause) a public officer to do (or refrain from doing) an act in the performance of official duty.

we noted that the prosecution's proof of an asserted violation of section 71 was deficient, in that the defendant was locked in his cell at the time he made the alleged threat and *920 thus was not then “in a position to carry out the threat.” (38 Cal.3d at p. 777, 215 Cal.Rptr. 1, 700 P.2d 782.) In People v. Tuilaepa (1992) 4 Cal.4th 569, 15 Cal.Rptr.2d 382, 842 P.2d 1142, we cited the fact that the defendant was locked in his cell for the night when he threatened **535 to burn a pair of pants and an adviser's face, along with the absence of a “substantial showing that [the] defendant harbored the requisite intent—interfering with the performance of official duties”—in rejecting the Attorney General's contention the threats in that case violated section 71. (4 Cal.4th at p. 590, 15 Cal.Rptr.2d 382, 842 P.2d 1142.) In neither case, however, did we consider that section 71, unlike section 422 (prohibiting criminal threats) and section 404.6 (prohibiting inciting to riot) contains no requirement of immediacy.

People v. Dunkle, 36 Cal. 4th 861, 919–20, 116 P.3d 494, 534–35 (2005), disapproved of by People v. Doolin, 45 Cal. 4th 390, 198 P.3d 11 (2009)

==PC76==

Threatening certain public officials, appointees, judges, staff, or their immediate families; intent and apparent ability to carry out threat; punishment

(a) Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, or the staff, immediate family, or immediate family of the staff of any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense, punishable as follows:
(1) Upon a first conviction, the offense is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both that fine and imprisonment.

(2) If the person has been convicted previously of violating this section, the previous conviction shall be charged in the accusatory pleading, and if the previous conviction is found to be true by the jury upon a jury trial, or by the court upon a court trial, or is admitted by the defendant, the offense is punishable by imprisonment pursuant to subdivision (h) of Section 1170.

(b) Any law enforcement agency that has knowledge of a violation of this section involving a constitutional officer of the state, a Member of the Legislature, or a member of the judiciary shall immediately report that information to the Department of the California Highway Patrol.

(c) For purposes of this section, the following definitions shall apply:

(1) “Apparent ability to carry out that threat” includes the ability to fulfill the threat at some future date when the person making the threat is an incarcerated prisoner with a stated release date.

(2) “Serious bodily harm” includes serious physical injury or serious traumatic condition.

(3) “Immediate family” means a spouse, parent, or child, or anyone who has regularly resided in the household for the past six months.

(4) “Staff of a judge” means court officers and employees, including commissioners, referees, and retired judges sitting on assignment.

(5) “Threat” means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.

(d) As for threats against staff or immediate family of staff, the threat must relate directly to the official duties of the staff of the elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(e) A threat must relate directly to the official duties of a Deputy Commissioner of the Board of Prison Terms in order to constitute a public offense under this section.

(Added by Stats.1982, c. 1405, p. 5360, § 1. Amended by Stats.1984, c. 627, § 1; Stats.1992, c. 887 (A.B.3816), § 8; Stats.1993, c. 134 (S.B.1042), § 1; Stats.1994, c. 820 (S.B.1463), § 1; Gov.Reorg.Plan No. 1 of 1995, § 42, eff. July 12, 1995; Stats.1995, c. 354 (A.B.1866), § 1; Stats.1996, c. 305 (A.B.3103), § 43; Stats.1998, c. 606 (S.B.1880), § 6; Stats.2000, c. 233 (S.B.1859), § 1; Stats.2004, c. 512 (A.B.1433), § 1; Stats.2011, c. 15 (A.B.109), § 239, eff. April 4, 2011, operative Oct. 1, 2011.)

==Annoying phone calls==

===Penal Code 653m(a)===
(a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.

A single use of obscene language or threats.

===Penal Code 653m(b)===
(b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

PC653m(b) required repeated telephone conduct.

==Stalking==

Section 646.9 requires a willful, malicious, and repeated following or harassment of another, coupled with a credible threat with an intent to place that person or their family in reasonable fear for their safety. This statute requires that an actual threat of harm be made; malicious teasing or bullying will not suffice.

==Doxxing==

People v. Shivers (2015) 235 Cal.App.4th Supp. 8
The tweets posted on July 4, 2012, and July 8, 2012, which were the basis for the Penal Code section 653.2 charge, stated, respectively, “HAPPY FOURTH OF JULY EVERYONE. SEE YOU ON MY USUAL HANGOUT, CAHUENGA!! (If you see my stalker Pauley Perrette follow me there call LAPD!!!)” and “Speakin of # Cahuenga i'll be there 2nite as usual. If you see my stalker # NCIS Pauley Perrette follow me there report her to LAPD immediately!” (Original capitalization.)

The plain meaning of the words used reveals no requirement that actual incitement or actual production of the enumerated unlawful effects be caused by a person's electronic distribution of a message. The only requirement is that a defendant's message is likely to incite or produce third party actions. People v. Shivers (2015) 235 Cal.App.4th Supp. 8, 13.

“One, the defendant by means of an electronic communication device and acted [sic ] without the consent of [Perrette] electronically distributed or published an electronic message of a harassing nature; and [¶] Two, the defendant electronically distributed or published the electronic **358 message about [Perrette] for the purpose of imminently causing [Perrette] unwanted physical contact or injury or harassment by a third party; and [¶] Three, the defendant distributed the electronic message and a reasonable person would consider that electronic message likely to incite or produce unwanted physical contact, injury or harassment by a third party; and [¶] Four, the defendant at the time of the electronic distribution of the electronic message acted with the intent to place [Perrette] in reasonable fear for her safety or safety of her immediate family.”

Section 653.2 makes it a misdemeanor for any person who--with intent to place another person or their immediate family in reasonable fear for their safety by means of an electronic communication device and for the purpose of imminently causing unwanted harassment--electronically distributes, publishes, emails, hyperlinks, or makes available for downloading personal identifying information, including, but not limited to, a digital image of another person, or a harassing message about another person, which would likely incite or produce unlawful action. Section 653.2 is too narrow to cover all cyberbullying-type conduct because it requires the dissemination of personal identifying information and is really just a modification of the existing California criminal stalking statute to prohibit “the type of harassment that has become all to[o] commonplace in this digital age, harassment committed using e-mail, cell phone, or some other electronic communication device.” The purpose of section 653.2 is to “simply [[close] an electronic loophole in the stalking statute and [give] law enforcement the ability to hold accountable those who would prey on victims using electronic means.”

==Online impersonation==
Penal Code 528.5

Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).