Monthly Archives: August 2026

Case 000555

Error and/or relief

Because we are unable to conclude beyond a reasonable doubt that the omission of an instruction on the organizational nexus element of the gang allegations did not contribute to the verdict obtained, we reverse all gang enhancements under section 186.22(b), the gang-related firearm enhancement on count 1 under section 12022.53,(d) and (e)(1), and the gang-related indeterminate sentence imposed on count 13 under section 186.22(b)(C)(4). We remand for resentencing and for further proceedings consistent with this opinion.

First Holding:

All gang-related enhancements must be reversed because the jury was not instructed on the organizational nexus element of the gang enhancement under amended Penal Code section 186.22(b).

Authority:

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

AB 333 substantially narrowed the definition of a criminal street gang and made numerous amendments to the statutory language. The specific amendment relevant here concerns the definition of criminal gang activity. Under the amended language, the prosecution must now present evidence that the members of the gang collectively engaged in a pattern of criminal activity, as opposed to the former language under which individual criminal action by members was sufficient.

While the evidence necessary to establish an organizational nexus might often overlap with the evidence used to demonstrate how a predicate offense commonly benefitted the gang, the inquiries are nonetheless conceptually distinct. The phrase collective engagement calls for an inquiry not just into how the predicate offenses benefited the gang, but also how the gang works together as a gang. It calls for a showing of a connection, or nexus, between an offense committed by one or more gang members and the organization as a whole.

Authority:

PEN 186.22

People v. Clark (2024) 15 Cal.5th 743, 752, 762

People v. Cooper (2023) 14 Cal.5th 735, 738

Third Holding:

Section 186.22 now requires evidence demonstrating a nexus between the individual predicate offenses and the gang as an organized, collective enterprise. This organizational nexus requirement is satisfied by showing a connection between the predicate offenses and the organizational structure, primary activities, or common goals and principles of the gang. Defendant’s trial took place several months before the Supreme Court issued its decision in Clark and before CALCRIM No. 1401 was amended. The jury was therefore not instructed on the organizational nexus element as interpreted in Clark. The pre-Clark instruction given below was adequate.

Authority:

People v. Clark (2024) 15 Cal.5th 743, 749

Fourth Holding:

When a jury instruction omits an element of an offense or special allegation, it impermissibly lessens the prosecution’s burden of proof and implicates the defendant’s federal due process rights. When such an instructional error occurs, we assess prejudice under the federal harmless error standard of Chapman In this context, our review under Chapman requires an examination of the record in its totality. If, at the end of that examination, we cannot conclude beyond a reasonable doubt the jury verdict would have been the same absent the error, the instructional error was not harmless. Put another way, the error was prejudicial if we determine the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742 [concluding Chapman applied in assessing prejudice where instructions omitted new element of gang enhancement that common benefit to gang must be more than reputational]

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

People v. Mil (2012) 53 Cal.4th 400, 417

Fifth Holding:

Defendant had the right to cross-examine a witness about whether he had been offered inducements to testify, expected benefits from giving his testimony, or otherwise had a motive to lie. Exposing a witness’s potential for bias and fabrication has long been recognized as one of the most important functions of cross-examination.

Authority:

EVID 780(f)

People v. Pearson (2013) 56 Cal.4th 393, 455

Delaware v. Van Arsdall (1986) 475 U.S. 673, 678–679

Sixth Holding:

The trial court is vested with broad discretion to impose reasonable limitations on defendant’s cross-examination without offending the constitution. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. The Sixth Amendment guarantees a defendant an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.

Authority:

People v. Contreras (2013) 58 Cal.4th 123, 152

Delaware v. Van Arsdall (1986) 475 U.S. 673, 679

People v. Harris (2008) 43 Cal.4th 1269, 1292

Seventh Holding:

We review the trial court’s evidentiary rulings in this context under the deferential abuse of discretion standard. Moreover, as a general rule, the application of the ordinary rules of evidence do not impermissibly infringe on a defendant’s right to present a defense.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 9–10 [discretion abused only where exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice]

People v. Gurule (2002) 28 Cal.4th 557, 620

Eighth Holding:

In order to establish a prejudicial abuse of discretion that violated the Sixth Amendment right to confrontation, a defendant is required to affirmatively show the trial court’s order limiting or precluding cross-examination left the jury with a significantly different impression of the witness’ credibility. Otherwise, the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.

Authority:

People v. Pearson (2013) 56 Cal.4th 393, 455-456

Delaware v. Van Arsdall (1986) 475 U.S. 673, 680

People v. Gonzalez (2021) 12 Cal.5th 367, 406

Ninth Holding:

The record reflects the trial court failed to impose sentence on counts 14 and 15, two of the extortion counts on which the jury found defendant guilty. As defendant concedes in his reply brief, the appropriate course of action in such circumstances is a remand for the purpose of pronouncement of a judgment in accordance with the verdict. In light of the reversal of all gang enhancements, the gang-related firearm enhancement on count 1 and the gang-related indeterminate term on count 13, the superior court, on remand, shall conduct a full resentencing at which it may consider all of its sentencing choices anew.

Authority:

People v. Taylor (1971) 15 Cal.App.3d 349, 353

Case 000554

Error and/or relief

The record contains an abstract of judgment for the indeterminate term, but not an abstract for the determinate terms. Further, there is an error in the abstract of judgment for the indeterminate term that must be corrected.

The trial court sentenced the defendant to life imprisonment for attempted murder. However, the abstract of judgment indicates a sentence of life without the possibility of parole.

We direct the trial court to prepare an amended abstract of judgment that reflects the correct indeterminate term imposed and to ensure there is a separate abstract of judgment for the determinate terms

Holding:

[GARY Note: The court cited no authority for its order directing the trial court to amend the abstract of judgment. Aside from it seeming to be an obvious need, there is much authority for correction of abstracts of judgments and minute orders. Here are a few.]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Case 000553

Error and/or relief

Following resentencing under section 1172.75, the court determined the credit for time served to be the original number of days as of the original sentencing plus additional days by the resentencing date. The abstract of judgment recorded only the the days as of the original sentencing hearing. There were three other errors in the abstract of judgment related the identity of the appropriate code sections for the notations and failure to check the appropriate boxes. We remand so the abstract can be corrected accordingly.

Holding:

The oral imposition of sentence constitutes the judgment in an action, and the court clerk cannot modify the terms of that oral pronouncement when preparing the minutes or the abstract of judgment.

Authority:

People v. El (2021) 65 Cal.App.5th 963, 967

Case 000552

Error and/or relief

The trial court erred in concluding that a sentence of 45 years to life is not the functional equivalent of a sentence to life imprisonment without the possibility of parole (LWOP), within the context of section 1170(d) for those who committed an offense as a juvenile and were convicted as an adult.

First Holding:

Section 1170(d)(1)(A) provides that when a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing. Where the length of a sentence is the functional equivalent of LWOP, it is a denial of equal protection to exclude the defendant from consideration under section 1170(d).

Authority:

PEN 1170

People v. Heard (2022) 83 Cal.App.5th 608

People v. Contreras (2018) 4 Cal.5th 349 [50 years to life is the functional equivalent of LWOP for a nonhomicide juvenile offender in the Eighth Amendment context]

Second Holding:

The People contend that defendant’s current eligibility for early youth offender parole under section 3051 and future eligibility at age 50 for elderly parole under section 3055 render him ineligible for relief under section 1170(d). However, that question is being considered by the Supreme Court in Munoz. Pending that decision, we agree with the reasoning in Heard that section 3051 eligibility does not defeat defendant’s section 1170(d) petition.

Authority:

People v. Munoz (2025) 110 Cal.App.5th 499, review granted June 25, 2025, S290828

People v. Sorto (2024) 104 Cal.App.5th 435

People v. Bagsby (2024) 106 Cal.App.5th 1040

Case 000551

Error and/or relief

The trial court erred by overruling his Code of Civil Procedure section 231.7 objection to the prosecutor’s use of a peremptory challenge against a prospective juror who disclosed a negative experience with law enforcement.

First Holding:

Prior to January 1, 2022, trial courts examined peremptory challenges under the three-step inquiry established by Batson and Wheeler. Recognizing the limitations of the Batson/Wheeler inquiry, the Legislature enacted AB 3070 (2019–2020 Reg. Sess.) to add Code of Civil Procedure section 231.7, which creates new procedures for identifying unlawful discrimination in the use of peremptory challenges. Section 231.7(a) prohibits the use of a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.

The statute is designed to address both purposeful discrimination and implicit unconscious bias in the jury selection process, and the Legislature has instructed that it is to be broadly construed to eliminate both forms of discrimination and the use of group stereotypes and discrimination, whether based on conscious or unconscious bias in the exercise of peremptory challenges.

Authority:

CCP 231.7

Batson v. Kentucky (1986) 476 U.S. 79,

People v. Wheeler (1978) 22 Cal.3d 258,

People v. Jaime (2023) 91 Cal.App.5th 941, 943,

People v. Ortiz (2023) 96 Cal.App.5th 768, 791-792

Second Holding:

A party or the trial court on its own motion may object that a party’s use of a peremptory challenge violates section 231.7(a). The statute does not require any threshold showing by the objecting party. The party seeking to challenge the prospective juror must then state the reasons the peremptory challenge has been exercised. It is then up to the trial court to correctly apply the procedure set forth in section 231.7 when deciding whether to sustain the objection.

The trial court must evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances, considering only the reasons actually given and not any other possible justifications. If the court finds a substantial likelihood that an objectively reasonable person would view race, ethnicity, or another prohibited characteristic as a factor in the use of the peremptory challenge, then the objection shall be sustained. A substantial likelihood means more than a mere possibility but less than a standard of more likely than not. The court must explain the reasons for its ruling on the record.

Authority:

CCP 231.7

People v. Ortiz (2023) 96 Cal.App.5th 768, 792

People v. Aguilar (2026) 118 Cal.App.5th 1, 8–9

Third Holding:

Section 231.7(e) lists 13 reasons that are presumed to be invalid when offered as justifications for a peremptory challenge, including expressing a distrust of or having a negative experience with law enforcement or the criminal legal system. A party that relies on one of those presumptively invalid reasons must show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race or other prohibited factor, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case.

For purposes of overcoming this presumption of invalidity, clear and convincing evidence exists when the court determines it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on the juror’s ability to be fair and impartial in the case.

Authority:

CCP 231.7

People v. Gonzalez (2024) 104 Cal.App.5th 1, 14

Fourth Holding:

Section 231.7(g) lists an additional set of three presumptively invalid reasons for exercising a peremptory challenge, all of which relate to a prospective juror’s demeanor, behavior, or manner. These reasons are: The prospective juror was inattentive, or staring or failing to make eye contact; the prospective juror exhibited either a lack of rapport or problematic attitude, body language, or demeanor; and the prospective juror provided unintelligent or confused answers.

These three reasons are presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court’s own observations or the observations of counsel for the objecting party. Even with that confirmation, the counsel offering the reason shall explain why the asserted demeanor, behavior, or manner in which the prospective juror answered questions matters to the case to be tried.

Authority:

CCP 231.7

Fifth Holding:

We review the trial court’s denial of an objection under section 231.7 de novo, with the trial court’s express factual findings reviewed for substantial evidence. The reviewing court shall not impute any findings to the trial court that the court did not expressly state on the record. The appellate court is to consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain the party’s use of the peremptory challenge. Section 231.7 precludes a finding of harmless error. If the appellate court concludes that the trial court erred by overruling an objection under the statute, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7

People v. Ortiz (2023) 96 Cal.App.5th 768, 795

Sixth Holding:

Section 231.7(e) prescribes how the court must analyze this issue and requires clear and convincing evidence.

Authority:

CCP 231.7

People v. Alston (2026) 118 Cal.App.5th 575, 587