Monthly Archives: August 2026

Discretion, Probation Parole PRCS, Sentencing, Standard of review

Case: 000298

Posted on by Gary McCurdy

Error and/or relief

Although a trial court has broad discretion in imposing terms and conditions when sentencing a criminal defendant to probation instead of imprisonment, any conditions imposed must have some relationship to the crime and be designed to prevent future criminality. In this case, one of the probation conditions imposed required defendant to participate in mental health and substance abuse testing and treatment. Not only was this unconnected to the underlying crime, any suggestion in the probation and sentencing report that defendant suffered from mental health or substance abuse issues was wholly unsupported. Therefore, that probation condition must be stricken.

Holding:

A sentencing court has broad discretion to impose probation conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1. But such discretion is not unlimited: A condition of probation must serve a purpose specified in the statute and conditions regulating noncriminal conduct must be reasonably related to the crime of which the defendant was convicted or to future criminality. A probation condition will be upheld unless all of the following are true: it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. We review a challenge to the conditions of probation for abuse of discretion.

Authority:

PEN 1203.1

People v. Moran (2016) 1 Cal.5th 398, 403

People v. Lent (1975) 15 Cal.3d 481, 486

Amelioration, Sentencing

Case: 000297

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to a full resentencing because Penal Code section 1172.75 applies to enhancements imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. We reverse and remand for the trial court to conduct a full resentencing. the trial court erred when it failed to recalculate his presentence custody credit

First Holding:

Effective January 1, 2020, the Legislature eliminated these one-year prior-prison-term enhancements except in cases involving prior terms for sexually violent offenses. Two years later, the Legislature made the change retroactive. In Penal Code section 1172.75, the Legislature declared that, aside from enhancements imposed for sexually violent offenses, any sentence enhancement that was imposed prior to January 1, 2020, pursuant to Penal Code section 667.5(b) is legally invalid. In the same provision, the Legislature established a mechanism for resentencing individuals currently serving a term for a judgment that includes’ such an enhancement.

Authority:

PEN 1172.75

PEN 667.5

Second Holding:

Penal Code section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050

Third Holding:

Defendant’s actual presentence custody credits must be recalculated at this resentencing.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 673

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37

Amelioration, Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case: 000296

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to support the defendant’s conviction on count 2 for attempted voluntary manslaughter, and that conviction must be reversed. We also conclude the court’s use of the pre-AB 333 pattern jury instruction was prejudicial. This requires reversal of the gang enhancements, the substantive gang offense (count 7), and the related section 12022.53(d) and (e)(1) gang related firearm use enhancements.

First Holding:

Attempted voluntary manslaughter requires proof that the defendant specifically intended to kill the named victim, although the intent is mitigated by heat of passion or imperfect self-defense.

Authority:

People v. Manriquez (2005) 37 Cal.4th 547, 583

Second Holding:

The jury must agree unanimously the defendant is guilty of a specific crime. When the evidence suggests more than one discrete crime under a single count, either the prosecution must elect the act relied upon or the court must instruct the jury to agree on the same criminal act. The unanimity instruction exists to prevent jurors from convicting a defendant based on different instances of conduct, thereby ensuring all 12 jurors are convinced beyond a reasonable doubt that the same act constituted the offense. A unanimity instruction is required when the record shows evidence of more than one crime that could support conviction under a single count. But if the evidence shows only a single discrete crime, no instruction is necessary.

Authority:

People v. McDaniel (2021) 12 Cal.5th 97, 142

People v. Russo (2001) 25 Cal.4th 1124, 1132

People v. Covarrubias (2016) 1 Cal.5th 838, 877

People v. Hernandez (2013) 217 Cal.App.4th 559, 569

People v. Grimes (2016) 1 Cal.5th 698, 727

People v. Diedrich (1982) 31 Cal.3d 263, 281

Third Holding:

Determining whether a particular instruction was required presents a predominantly legal mixed question of law and fact. We therefore review claims of instructional error de novo.

Authority:

People v. Hernandez (2013) 217 Cal.App.4th 559, 568

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Guiuan (1998) 18 Cal.4th 558, 569

Fourth Holding:

In a criminal case, the trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues raised by the evidence and necessary to the jury’s understanding of the case. The correctness of jury instructions is determined by considering the charge as a whole, not by viewing individual instructions in isolation.

Authority:

People v. Martinez (2010) 47 Cal.4th 911, 953

People v. Carrington (2009) 47 Cal.4th 145, 192

Fifth Holding:

To determine whether the trial court properly instructed on the kill zone theory, we apply the substantial evidence standard of review. Under this standard, the question is whether the record contains evidence from which a reasonable jury could infer that the defendant intended to kill everyone within the zone of harm as a means of killing the primary target.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 193, 203 [Without substantial evidence showing the defendant acted with intent to kill a primary target, the essential basis for a concurrent intent analysis is not satisfied]

Sixth Holding:

The standard for assessing a sufficiency of the evidence claim is highly deferential. We examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence; that is, evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In conducting our review, we must presume in support of the judgment the existence of every fact the trial court could reasonably deduce from the evidence. We also accept all logical inferences the trial court could have drawn from circumstantial evidence. The question is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence supports the trier of fact’s finding. The judgment must be upheld unless it appears that, under no hypothesis whatsoever, is there sufficient substantial evidence to support it.

Authority:

People v. Cravens (2012) 53 Cal.4th 500, 507-508

People v. Kurey (2001) 88 Cal.App.4th 840, 848–849 [we resolve all inferences and intendments in favor of the judgment, and all conflicting evidence will be resolved in favor of the decision]

People v. Medina (2009) 46 Cal.4th 913, 919, superseded by statute on other grounds

People v. Flores (2020) 9 Cal.5th 371, 411

People v. Crittenden (1994) 9 Cal.4th 83, 139

People v. Sanchez (2003) 113 Cal.App.4th 325, 329

Seventh Holding:

The jury was instructed on the gang participation law as it existed at the time of trial. Because subsequent amendments under AB 333 changed the elements considerably and the defendant’s judgment is not final, the gang-related convictions must be retried under the new law.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206–1207

People v. Lopez (2025) 17 Cal.5th 388, 394

People v. Hallock (1989) 208 Cal.App.3d 595, 610

Amelioration, Appellate Principles, Elements of crime, Retroactivity, Standard of review, Vicarious liability

Case: 000295

Posted on by Gary McCurdy

Error and/or relief

There are two defendants, both convicted of murder and other matters. We reverse all counts of the conviction of Defendant A because of instructional error. It is therefore not necessary for us to consider the other errors urged by Defendant A. As to Defendant B, we reverse the conviction on the firearm offenses because of instructional error, and agree that the jury’s true findings on gang enhancements and related gang-related firearm enhancements must be vacatedand remanded because of changes in the law of gang criminal activity.

[GARY NOTE: The opinion is 70 pages long and goes into extensive discussion of the elements of murder. The reversals were based on the absence of proper jury instructions. I have chosen to summarize only a few of the pronouncements in the opinion rather than present a treatise on the elements of murder. I will, however, send the opinion to attorneys on request.]

First Holding:

Due to the trial court’s failure to instruct the jury on the meanings of “willfully,” “deliberately,” and “with premeditation,” or with the instructions describing aider and abettor liability for murder, Defendant A’s conviction for first degree murder requires reversal.

To be guilty of first degree murder as an aider and abettor, the jury must be instructed that a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.

Authority:

People v. Beeman (1984) 35 Cal.3d 547, 561

Second Holding:

We evaluate the failure to instruct the jury on an element of an offense for prejudice under Chapman. Under this standard, we must reverse the conviction unless after examining the entire cause, including the evidence, and considering all relevant circumstances, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.

Authority:

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

People v. Beck and Cruz (2019) 8 Cal.5th 548, 642

People v. Swain (1996) 12 Cal.4th 593, 607

Third Holding:

We review a claim of instructional error de novo. Review of the adequacy of instructions is based on whether the trial court fully and fairly instructed on the applicable law. Generally, the trial court is required to instruct the jury on the general principles of law that are closely and openly connected with the evidence and that are necessary to the jury’s understanding of the case. It also has a duty to refrain from giving incorrect instructions or instructions on principles of law that are irrelevant and that would have the effect of confusing the jury or relieving it from making findings on the relevant issues. The trial court’s duty in this regard extends to lesser included offenses that find substantial support in the evidence. In determining the correctness of jury instructions, we consider the entire charge of the court, in light of the trial record.

Authority:

People v. Manriquez (2005) 37 Cal.4th 547, 581, 584

People v. Barber (2020) 55 Cal.App.5th 787, 798-799

People v. Thomas (2023) 14 Cal.5th 327, 388–389

People v. Breverman (1998) 19 Cal.4th 142, 162

People v. Covarrubias (2016) 1 Cal.5th 838, 926

Fourth Holding:

An erroneous failure to instruct on a lesser included offense requires reversal of a conviction if, taking into account the entire record, it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. In a noncapital case, a failure to instruct sua sponte on a lesser necessarily included offense that is supported by the evidence is state law error that we review for prejudice under Watson. Under Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error. We also consider the instructions as a whole, the jury’s findings, and the closing arguments of counsel.

Authority:

People v. Breverman (1998) 19 Cal.4th 142, 169, 178

People v. Watson (1956) 46 Cal.2d 818, 836

People v. Ledesma (2006) 39 Cal.4th 641, 716

People v. Watson (1956) 46 Cal.2d 818

People v. Beltran (2013) 56 Cal.4th 935, 955

People v. Larsen (2012) 205 Cal.App.4th 810, 831

Fifth Holding:

We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. When we review a purportedly erroneous instruction, we consider whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.

Authority:

People v. Ramos (2008) 163 Cal.App.4th 1082, 1088

People v. Richardson (2008) 43 Cal.4th 959, 1028

Sixth Holding:

AB 333 amended section 186.22, by, among other things, modifying the definitions of “pattern of criminal activity” and “criminal street gang,” as well as clarifying what is required to establish that an offense benefits, promotes, furthers, or assists a criminal street gang. Section 186.22 now requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have commonly benefited a criminal street gang where the common benefit is more than reputational; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense.

To benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

Authority:

People v. Perez (2022) 78 Cal.App.5th 192, 206

People v. Lopez (2021) 73 Cal.App.5th 327, 345

Seventh Holding:

Because the changes to the criminal street gang statute in AB 333 are ameliorative,those changes apply retroactively to defendants whose convictions are not yet final.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206–1207

Discretion, Standard of review

Case: 000294

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion when it found the defendant unsuitable for mental health diversion despite acknowledging he did not pose an unreasonable risk of committing a “super strike.”

First Holding:

Section 1001.36 authorizes pretrial mental health diversion for defendants with qualifying mental health disorders.

Authority:

PEN 1001.36

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

Second Holding:

A trial court’s ruling on a request for mental health diversion is reviewed for abuse of discretion, and the court’s factual findings are reviewed for substantial evidence.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 448-449

Third Holding:

A court abuses its discretion 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. A trial court further abuses its discretion if its decision is so irrational or arbitrary that no reasonable person could agree with it.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 377

Fourth Holding:

A defendant is suitable for mental health diversion based on satisfaction of the following criteria: (1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment; (2) The defendant consents to diversion and waives the defendant’s right to a speedy trial; (3) The defendant agrees to comply with treatment as a condition of diversion; and (4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.

Authority:

PEN 1001.36(c)(1)-(4)

People v. Graham (2024) 102 Cal.App.5th 787, 795

Fifth Holding:

Under section 1170.18, an unreasonable risk of danger to public safety is an unreasonable risk that the petitioner will commit a “super strike,” which includes any homicide or attempted homicide offense, any serious or violent felony punishable by life imprisonment or death, and sexually violent offenses.

Authority:

PEN 1170.18(c)

PEN 667(e)(2)(C)(iv)

Sixth Holding:

A trial court may not deny diversion to an otherwise eligible defendant unless it finds the defendant is likely to commit one of these offenses. In making this determination, the trial 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.

Authority:

PEN 1001.36(c)(4)

People v. Moine (2021) 62 Cal.App.5th 440, 450

Seventh Holding:

The trial court found defendant unsuitable for mental health diversion despite acknowledging that he was not likely to commit a super strike offense. That acknowledgment was reasonable, given that defendant had never previously been convicted of a super strike offense and was not charged with a super strike in the underlying cases. Under the circumstances, there is no substantial evidence to support a conclusion defendant was likely to commit a super strike.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 897

Eighth Holding:

To the extent the trial court was relying on defendant’s history of noncompliance with medication, self-medicating with methamphetamine, his unwillingness to obey court orders, and probation violations, this was also an error. None of these past personal flaws is a reason that the Legislature has identified as valid for denying mental health diversion. Further, none of these reasons is consistent with the underlying purpose of the mental health diversion statute, namely to provide treatment to break the cycle of criminal recidivism for those with diagnosed disorders. Given that the court’s rationale failed to justify its decision to deny defendant mental health diversion, we must vacate the trial court’s orders.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 897 [expanding the reasons to deny diversion is inconsistent with the underlying purpose of the mental health diversion statute]E