Daily Archives: September 4, 2026

Abstracts and Minutes

Case 000880

Posted on by Gary McCurdy

Error and/or relief

There are errors in the abstract of judgment that must be corrected, as it does not reflect the changes ordered on remand from the defendant’s earlier appeal.

First Holding:

The trial court’s minute order after remand is insufficient to comply with our directions to amend the abstract. Thus, remand again is warranted for the trial court to issue an amended abstract of judgment in keeping with our earlier order.

Authority:

PEN 1213(b) [If a copy of the minute order is used as the commitment document, the first page or pages shall be identical in form and content to that prescribed by the Judicial Council for an abstract of judgment.]

Second Holding:

(Gary note: The court cited no authority for its directive, but because the trial court was previously ordered to correct the abstract, and it did not, case authority is hardly called for. But there are many cases where the abstract contains errors discovered on the first appeal, and the appellate court has the authority to order correction. I have set out some cases on which courts could rely as authority to order correction of the abstract of judgment and the minute orders.)

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

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000879

Posted on by Gary McCurdy

Error and/or relief

We reverse the jury’s true finding on the enhancement alleged under section 12022.7(b). We vacate the sentence and remand the matter for resentencing.

First Holding:

In assessing a claim of insufficiency of the evidence, we review the whole record in the light most favorable to the judgment below to determine whether it discloses 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. Reversal on insufficiency of the evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Authority:

People v. Snow (2003) 30 Cal.4th 43, 66

People v. Redmond (1969) 71 Cal.2d 745, 755

Second Holding:

Section 12022.7(b) provides that any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature shall be punished by an additional and consecutive term of imprisonment in the state prison for five years.

Authority:

PEN 12022.7(b)

Third Holding:

A victim is comatose, for purposes of the enhancement, if he is in a state resembling a coma characterized by profound unconsciousness. Here, the evidence established that the victim was rendered unresponsive as a result of the attack and died from injuries to his brain. Respondent concedes that the evidence fails to prove that the victim was ever comatose.

Authority:

People v. Cunningham (2016) 244 Cal.App.4th 1049, 1054

Fourth Holding:

The parties agree that appellant is entitled to resentencing, at which the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

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

Case 000878

Posted on by Gary McCurdy

Error and/or relief

The court’s use of the kill zone instruction was factually unsupported and should not have been given and the court’s instruction identified a primary target not supported by the evidence.

First Holding:

To prove the crime of attempted murder, the prosecution must establish ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant’s mental state must be examined as to each alleged attempted murder victim.

Authority:

People v. Canizales (2019) 7 Cal.5th 591, 602

People v. Bland (2002) 28 Cal.4th 313, 328

Second Holding:

To be guilty of attempted murder under an aiding and abetting theory, the defendant must share the specific intent of the direct perpetrator, that is to say, the person must know the full extent of the direct perpetrator’s criminal purpose and must give aid or encouragement with the intent or purpose of facilitating the direct perpetrator’s commission of the crime. In short, to be guilty of attempted murder as an aider and abettor, the defendant must intend to kill.

Authority:

People v. Lee (2003) 31 Cal.4th 613, 624, superseded by statute on other grounds as stated in People v. Rodriguez (2022) 75 Cal.App.5th 816, 823–824

People v. McCoy (2001) 25 Cal.4th 1111, 1118

Third Holding:

The Supreme Court has expressly embraced the concept of a concurrent intent to kill as a permissible theory for establishing the specific intent requirement of attempted murder. This concurrent intent theory is referred to as the “kill zone.” Under the kill zone theory, a defendant may be convicted of the attempted murder of an individual who was not the defendant’s primary target.

The kill zone theory permits a jury to infer a defendant’s intent to kill an alleged attempted murder victim from circumstantial evidence (the circumstances of the defendant’s attack on a primary target).

Authority:

People v. Canizales (2019) 7 Cal.5th 591, 596-597, 602

People v. Mumin (2023) 15 Cal.5th 176, 193

Fourth Holding:

The kill zone theory may properly be applied only when a jury concludes:

(1) the circumstances of the defendant’s attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target’s death—around the primary target, and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm.

Relevant factors in determining whether defendant intended to create a kill zone are (1) number of shots fired, (2) nature of the zoned area, (3) distance between primary target and others, (4) distance between defendant and others, (5) type of weapon used, and (6) whether anyone was hit.

Authority:

People v. Canizales (2019) 7 Cal.5th 591, 607

Fifth Holding:

Our inquiry on appeal is whether substantial evidence was presented to support a reasonable inference by the jury that defendant intended to create a zone of fatal harm around a primary target.

Justification for instructing on the kill zone theory requires substantial evidence that: (1) the defendant intended to kill a primary target; (2) he concurrently intended to achieve that goal by killing all others in the fatal zone he creates; and (3) the alleged attempted murder victim was in that zone.

These requirements must be strictly adhered to in order to protect against an improper attempted murder conviction based only on a conscious disregard for life because the kill zone theory does not apply where the defendant merely subjected persons near the primary target to lethal risk.

Because use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction, trial courts must exercise caution when determining whether to permit the jury to rely upon the kill zone theory.

Indeed, as stated in Canizales, we anticipate there will be relatively few cases in which the theory will be applicable and an instruction appropriate.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 203

People v. Canizales (2019) 7 Cal.5th 591, 607-608

Sixth Holding:

Fundamental to the kill zone theory is a particular relationship between the primary target, the means of the attack, and the secondary target. Specifically, the would-be secondary targets must be endangered not because they were specifically targeted by defendant but because the defendant has a primary target and reasons that he cannot miss that intended target if he kills everyone in the area in which the target is located.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 203

(Gary note: The opinion goes on to analyze the facts in the case against the above principles to determine whether it was proper to instruct on the kill zone doctrine and whether the court correctly identified the specific target. It also analyzed the impact of the prosecutor’s summation on the matter. Because this is an unpublished opinion, and the importance lies only in its legal principles and the published authority in support of those principles, I am omitting the balance of the court’s discussion applying those principles in support of its conclusions that it was improper to instruct on kill zone in this case.)

Amelioration, Sentencing, Standard of review

Case 000877

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition under section 1172.6 by construing the jury’s verdicts on two firearm enhancements as reflecting a finding that the defendant killed the victim by personally discharging a firearm.

First Holding:

In 2018, the Legislature enacted SB 1437 (2017-2018 Reg. Sess.) and altered the substantive law of murder in two areas.

First, with certain exceptions, it narrowed the application of the felony-murder rule by adding section 189(e) to the Penal Code. Under that provision, A participant in the perpetration or attempted perpetration of a specified felony in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer. (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Second, SB 1437 imposed a new requirement that, except in cases of felony murder, a principal in a crime shall act with malice aforethought to be convicted of murder. Malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

SB 1437

PEN 189

PEN 188

People v. Curiel (2023) 15 Cal.5th 433, 448

People v. Morris (2026) 19 Cal.5th 671, 682 [discussing narrowed scope of the felony-murder rule]

Second Holding:

SB 1437 also created a mechanism for defendants convicted under now-invalid theories of murder to seek resentencing. Upon receipt of a petition containing the required information, the trial court must appoint counsel for the defendant if requested, hold a hearing, and determine if the petition has made a prima facie case for relief.

If a petitioner demonstrates a prima facie entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioning defendant is guilty of murder under a still-valid theory.

In deciding whether a petitioner has demonstrated a prima facie case, the court takes the petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

At this stage, a court should not reject the petitioner’s factual allegations on credibility grounds

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 556, 558, 563

Third Holding:

If the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner.

Where facts from the record of conviction are undisputed, accepting them over contrary legal allegations that are merely conclusory is not factfinding involving the weighing of evidence or the exercise of discretion.

At this preliminary stage, denial of a section 1172.6 petition is proper only if the petition and record in the case establish conclusively that the defendant is ineligible for relief.

Whether the record of conviction shows the petitioner is ineligible for section 1172.6 relief as a matter of law is a legal question that we review de novo.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563, 565-566

People v. Lopez (2026) 19 Cal.5th 639, 658

People v. Lopez (2022) 78 Cal.App.5th 1, 14

Fourth Holding:

The People concede that the trial court erred in relying on the true findings on the firearm enhancements as a basis to deny relief at the prima facie stage.

We accept this concession because, contrary to the trial court’s reasoning, the verdicts on the firearm enhancements do not establish that the jury found the defendant guilty as the actual killer. The trial court instructed the jury that it could find the enhancements true if the defendant intentionally displayed a firearm in a menacing manner, intentionally fired it or intentionally struck or hit a human being with it.

Nothing in this instruction thus required the jury to find that the defendant himself shot and killed the victim.

The People contend that the trial court’s error was harmless in light of a record of conviction that shows the defendant was prosecuted and found guilty as the actual killer. They nevertheless concede that the defendant is entitled to an opportunity to amend his petition. We agree that remand is appropriate.

Patton held that a petitioner who offers only conclusory allegations of entitlement to relief under section 1172.6, in response to a record of conviction that demonstrates the petitioner’s conviction was under a still-valid theory, has not, thereby, made a prima facie showing. The Patton court remanded the matter to allow that defendant to plead additional facts in support of a prima facie case for relief.

We remand to give the defendant an opportunity to plead facts he believes will demonstrate a prima facie case for relief.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563, 569-570

Appellate Principles, Fines and fees, Probation Parole PRCS, Sentencing, Standard of review

Case 000876

Posted on by Gary McCurdy

Error and/or relief

We modify the order of probation to eliminate the provision that the defendant pay the costs of mental health treatment as a condition of probation and otherwise affirm the judgment.

First Holding:

We review such constitutional challenges to conditions of probation de novo.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902

Second Holding:

A court may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens. In imposing such conditions, a court may require a defendant to complete a residential treatment program. A probation officer, however, may only oversee and enforce the trial court’s orders. A probation officer may not create conditions not expressly authorized by the court.

Authority:

People v. Pirali (2013) 217 Cal.App.4th 1341, 1350

People v. Smith (2022) 79 Cal.App.5th 897, 903

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358

Third Holding:

The defendant raises an argument for the first time in the reply brief. The issue is forfeited for not raising it earlier.

Authority:

People v. Hart (2025) 113 Cal.App.5th 1099, 1106

Fourth Holding:

A trial court may order a defendant who is granted probation to pay the reasonable associated costs. To do so, the court must make an inquiry and determination regarding the defendant’s ability to pay, and issue a separate order for the payment of such costs.

But the payment of such costs cannot be made a condition of probation. The record before us does not show the court inquired into the defendant’s ability to pay before including the provision that she pay these costs, or that it issued a separate order for payment of these costs. Accordingly, condition 7 must be modified to eliminate the requirement that the defenrant pay the costs of treatment associated with this condition.

Authority:

People v. Hall (2002) 103 Cal.App.4th 889, 892

Brown v. Superior Court (2002) 101Cal.App.4th 313, 321-322

People v. Hart (1998) 65 Cal.App.4th 902, 907