Daily Archives: June 28, 2026

Case: 000109

Error and/or relief

The defendant was charged with first degree murder under two theories–deliberation and premeditation, and lying in wait. The jury was not required to agree unanimously on the theory. He was convicted of first degree murder, along with a count of attempted murder with premeditation and deliberation. We conclude that insufficient evidence supports the finding of lying in wait. One of the elements of lying in wait, namely, “a substantial period of watching and waiting for an opportune time to act,” is not supported by substantial evidence. That conclusion requires us to reverse the finding on the lying-in-wait special circumstance, but it does not require a reversal of the first degree murder convictions, as they are supported by the alternative theory of premeditation and deliberation.

First Holding:

The lying-in-wait special circumstance requires an intentional murder, committed under circumstances that include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) a surprise attack on an unsuspecting victim from a position of advantage It includes the elements of first degree lying-in-wait murder but requires the additional element that the killing was intentional, not merely committed with implied malice.

Authority:

PEN 190.2(a)(15)

People v. Flinner (2020) 10 Cal.5th 686, 74

Second Holding:

To support a finding of concealment of purpose, it is not required that a defendant be literally concealed from view before he attacks the victim. Rather, it is sufficient that a defendant’s true intent and purpose were concealed by his actions or conduct. The concealment, in that sense, is that which puts the defendant in a position of advantage, from which the factfinder can infer that lying-in-wait was part of the defendant’s plan to take the victim by surprise. Concealment of purpose inhibits detection, defeats self-defense, and may betray at least some level of trust, making it more blameworthy than premeditated murder that does not involve surprise.

The lying-in-wait special circumstance requires no fixed, quantitative minimum time, but the lying in wait must continue for long enough to premeditate and deliberate, conceal one’s purpose, and wait and watch for an opportune moment to attack. To distinguish the circumstance from ordinary premeditation and deliberation, a distinct period of watchful waiting is required. “Watchful” does not require actual watching; it can include being alert and vigilant in anticipation of the victim’s arrival to take him or her by surprise.

Authority:

People v. Barrett (2025) 17 Cal.5th 897, 966–967

People v. Duong (2020) 10 Cal.5th 36, 67

People v. Stevens (2007) 41 Cal.4th 182, 204

People v. Clark (2016) 63 Cal.4th 522, 629

People v. Nelson (2016) 1 Cal.5th 513, 551

People v. Streeter (2012) 54 Cal.4th 205, 247

Third Holding:

In assessing a challenge to the sufficiency of the evidence, we must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The same standard applies when examining the sufficiency of the evidence supporting a special circumstance finding. “Substantial evidence” includes circumstantial evidence and any reasonable inferences drawn from that evidence.

Authority:

People v. Brooks (2017) 3 Cal.5th 1, 57

Fourth Holding:

A first degree murder verdict will be upheld if there is sufficient evidence as to at least one of the theories on which the jury is instructed, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. The appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory. In making that determination, we examine the entire record, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.

The defendant does not challenge the sufficiency of the evidence to support a finding of premeditation and deliberation. Thus, our inquiry is whether there is a reasonable probability that the jury returned a verdict of first degree murder based solely on lying in wait, rather than also on premeditation and deliberation. The jury’s express findings in connection with the attempted murder in count 2 preclude any reasonable probability the jury relied solely on lying in wait as the theory for first degree murder.

Authority:

People v. Nelson (2016) 1 Cal.5th 513, 552 [affirming first degree murder based on sufficient evidence of premeditation and deliberation despite insufficient evidence to support lying in wait]

People v. Guiton (1993) 4 Cal.4th 1116, 1130

Fifth Holding:

The court committed harmless error under Chapman in declining the defendant’s request to instruct the jury on the theory of imperfect self-defense. Under the doctrine of imperfect self-defense. if a person kills in the unreasonable but good faith belief in having to act in self-defense, the belief negates what would otherwise be malice, and that person is guilty of voluntary manslaughter, not murder.

Authority:

People v. Duff (2014) 58 Cal.4th 527, 561

People v. Rios (2000) 23 Cal.4th 450, 461

People v. Schuller (2023) 15 Cal.5th 237, 243

Chapman v. California (1967) 386 U.S. 18, 24

Sixth Holding:

The trial court was required to instruct on imperfect self-defense if there was substantial evidence to support the theory. “Substantial evidence” is evidence from which a jury could conclude beyond a reasonable doubt that the lesser offense of voluntary manslaughter was committed, but does not include evidence that is speculative, minimal, or insubstantial.

Authority:

People v. Schuller (2023) 15 Cal.5th 237, 253

People v. Simon (2016) 1 Cal.5th 98, 132

Seventh Holding:

We review de novo a trial court’s decision not to give an imperfect self-defense instruction. When the record contains substantial evidence of imperfect self-defense, the trial court’s failure to instruct on that theory amounts to constitutional error and is thus subject to review under the federal Chapman standard. Under the Chapman standard, reversal is required unless it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Though there was insufficient evidence of the watchful waiting to support a finding of lying in wait, the jury returned a finding that the murder was committed by lying in wait.

There was sufficient evidence of the aspects of lying in wait other than watchful waiting. Because of its true finding on lying in wait, the jury could not have found an imperfect self-defense in which the defendant used deadly force against the victim because he unreasonably believed that doing so was necessary to defend himself.

Authority:

People v. Simon (2016) 1 Cal.5th 98, 133

People v. Schuller (2023) 15 Cal.5th 237, 243

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

People v. Cruz (2008) 44 Cal.4th 636, 665 [a jury’s true finding on a lying-in-wait special circumstance negated any possibility that defendant was prejudiced from the failure to instruct on unreasonable self-defense theories of manslaughter]

Case: 000108

Error and/or relief

The court revoked the defendant’s probation and sentenced him to six years in prison. Because we conclude no substantial evidence supports a finding that the defendant willfully failed to appear at the January 1998 hearing and because the September 1998 offense occurred after his probation had ended, we reverse.

First Holding:

When a court summarily revokes a defendant’s probation, the revocation, summary or otherwise, shall serve to toll the running of the period of supervision. However, the tolling provision preserves the trial court’s authority to adjudicate, in a subsequent formal probation violation hearing, whether the probationer violated probation during, but not after, the court-imposed probationary period. In other words, because the defendant’s three-year probation term ended in July 1998, the court could adjudicate after July 1998 whether acts he committed between July 1995 and July 1998 violated his probation, but could not adjudicate whether acts committed after July 1998 violated his probation.

Authority:

PEN 1203.2(a)

People v. Leiva (2013) 56 Cal.4th 498, 502

Second Holding:

Revocation of probation rests in the sound discretion of the court. Although that discretion is very broad, the court may not act arbitrarily or capriciously; its determination must be based upon the facts before it.

Authority:

People v. Zaring (1992) 8 Cal.App.4th 362, 378

Third Holding:

A court abuses its discretion in finding a defendant violated a condition of probation unless the evidence supports the conclusion that the conduct constituted a willful violation of that condition.

Authority:

People v. Leiva (2013) 56 Cal.4th 498, 379

People v. Galvan (2007) 155 Cal.App.4th 978, 982

Fourth Holding:

The facts supporting revocation of probation may be proven by a preponderance of the evidence. However, the evidence must support a conclusion the probationer’s conduct constituted a willful violation of the terms and conditions of probation.

Authority:

People v. Rodriguez (1990) 51 Cal.3d 437, 439

People v. Sem (2014) 229 Cal.App.4th 1176, 1188 [a willful violation is a prerequisite to revoking probation]

Case: 000107

Error and/or relief

The defendant appeals his conviction of violating Penal Code section 422. We reverse the judgment because there was no substantial evidence that the victim of the crime experienced sustained fear.

First Holding:

Elements of section 422 include: 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 that the threatened person’s fear was reasonable under the circumstances.

Authority:

PEN 422(a)

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

Second Holding:

Sustained fear must occur over a period of time that extends beyond what is momentary, fleeting, or transitory. Ordinarily, sustained fear lasts beyond the moments of the encounter.

Authority:

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

In re Ricky T. (2001) 87 Cal.App.4th 1132, 1140

Third Holding:

Courts have held that 15 minutes satisfies the sustained fear requirement.

Authority:

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

People v. Wilson (2015) 234 Cal.App.4th 193, 201

People v. Allen (1995) 33 Cal.App.4th 1149, 1156

Fourth Holding:

Under circumstances not applicable here a shorter duration of fear, or fear confined to the length of the encounter, may be sufficient. A victim may experience sustained fear even though the fear exists only during the incident itself. In Brugman, the incident was a drawn-out ordeal. Similarly, if the circumstances are extreme enough—such as when a person believes they will be killed imminently—even one minute can be enough time for fear to be sustained.

Authority:

People v. Brugman (2021) 62 Cal.App.5th 608, 634

People v. Fierro (2010) 180 Cal.App.4th 1342, 1349

Fifth Holding:

In considering a sufficiency of the evidence claim, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In determining whether the record is sufficient the appellate court can give credit only to substantial evidence, i.e., evidence that reasonably inspires confidence and is of solid value. Reasonableness is the ultimate standard under the substantial evidence rule.

Authority:

People v. Collins (2025) 17 Cal.5th 293, 307

People v. Kunkin (1973) 9 Cal.3d 245, 250

Case: 000106

Error and/or relief

The trial court modified the defendant’s sentence only to the extent required under sections 1172.75 and 1170.18, but otherwise left the balance intact, finding that the defendant remained a danger to the public. The case is remanded for the trial court to calculate the days of actual custody and to correct the abstract of judgment.

First Holding:

Because the sentence was modified under PC 1172.75, the trial court erred in not calculating the actual days in custody.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Second Holding:

We review the trial court’s finding that imposing a lesser sentence would endanger public safety under the clear and convincing evidence standard.

Authority:

PEN 1172.75(d)(1)

Third Holding:

The clear and convincing evidence standard requires the party with the burden of proof to convince the trier of fact that it is highly probable the facts which he asserts are true.

Authority:

Conservatorship of O.B. (2020) 9 Cal.5th 989, 998

Fourth Holding:

The narrow definition of danger to public safety under PC 1170.18 does not apply to the undefined term of the Three Strikes Reform Act of 2012. [GARY NOTE: after the opinion in this case 000106 was filed, the Supreme Court ruled in Guevara that it was constitutionally necessary to apply the Three Strikes Reform Act’s understanding of the term “unreasonable risk to public safety” within the meaning of section 1170.126 (enacted by initiative) in order to reconcile the application of section 1172.75 (enacted by the Legislature) to those who would otherwise qualify but are serving a sentence under the Three Strikes Law (an initiative provision).]

Authority:

People v. Valencia (2017) 3 Cal.5th 374, 374-375

[People v. Superior Court (Guevara) (2025) 18 Cal.5th 838]

Fifth Holding:

The abstract of judgment incorrectly reflects a determinate term of 14 years instead of 10 years, and it must be corrected. [GARY NOTE: The court did not cite authority, most likely because the error and solution are obvious. There are many relevant cases supporting this holding, some of which I have set out below.]

Authority:

People v. Hamed (2013) 221 Cal.App.4th 928, 937–938

People v. Price (2004) 120 Cal.App.4th 224, 242

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Jones (2012) 54 Cal.4th 1, 89

Case: 000105

Error and/or relief

The section 12022.7(a) enhancement, which was stayed at sentencing, must instead be stricken under subdivision (g) of the statute because infliction of great bodily injury is an element of battery with serious bodily injury; and the trial court improperly limited the defendant’s presentence conduct credits to 15 percent of actual days served.

First Holding:

A sentence cannot be enhanced by section 12022.7 for infliction of bodily injury if that is an element of the underlying offense.

Authority:

PEN 12022.7(g)

Second Holding:

Great bodily injury is an element of battery with serious bodily injury.

Authority:

People v. Hawkins (1993) 15 Cal.App.4th 1373, 1375–1376

People v. Otterstein (1987) 189 Cal.App.3d 1548, 1550

People v. Johnson (2016) 244 Cal.App.4th 384, 391

People v. Arnett (2006) 139 Cal.App.4th 1609, 1616

People v. Hawkins (2003) 108 Cal.App.4th 527, 531

People v. Beltran (2000) 82 Cal.App.4th 693, 696–697

Third Holding:

Serious bodily injury is the essential equivalent of great bodily injury.

Authority:

People v. Burroughs (1984) 35 Cal.3d 824, 831

People v. Sloan (2007) 42 Cal.4th 110, 117 [noting that a true finding on a great bodily injury enhancement would effectively establish the elements of the charged battery with serious bodily injury]

Fourth Holding:

Section 246 is not a violent felony per se so section 2833.1 does not limit behavior credit to 15 percent.

Authority:

In re Cabrera (2023) 14 Cal.5th 476, 491E