Daily Archives: September 4, 2026

Appellate Principles, Elements of crime, Juveniles, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000875

Posted on by Gary McCurdy

Error and/or relief

We reverse four of the five counts of evading the police under Vehicle Code section 2800.3 and remand for a new disposition order.

The minor’s constitutional challenges to the dispositional order are forfeited on appeal, and we will not consider them.

First Holding:

Dispositional orders in juvenile matters are entrusted to the discretion of the juvenile court. Failure to object to a discretionary dispositional choice forfeits the claim on appeal.

But the forfeiture rule does not apply if the disposition is unauthorized; that is, if it could not lawfully be imposed under any circumstance in the particular case. In those situations, the unauthorized disposition presents a pure question of law.

The unauthorized sentence concept is a narrow exception to the general requirement that only preserved claims are reviewable on appeal. And while reviewing courts have the discretion to consider forfeited claims on appeal, they should do so rarely, keeping in mind that the forfeiture rule exists to encourage prompt detection and correction of error and to promote the state’s interest in finality of judgments.

Authority:

In re Greg F. (2012) 55 Cal.4th 393, 411

In re G.C. (2020) 8 Cal.5th 1119, 1130-1131

People v. Scott (1994) 9 Cal.4th 331, 351, 354

In re Sheena K. (2007) 40 Cal.4th 875, 885

People v. Fisher (2021) 71 Cal.App.5th 745, 751-752

In re H.D. (2024) 99 Cal.App.5th 814, 817-818

People v. Anderson (2020) 9 Cal.5th 946, 962 [the unauthorized sentence exception is designed to provide relief from forfeiture for obvious legal errors at sentencing such as a sentence in excess of the statutory maximum]

Second Holding:

Further, we disagree with the minor’s contention that his constitutional challenges to the disposition present pure legal questions. His challenges ask us to consider his self-evident lesser culpability relative to an older juvenile. But culpability determinations are for the trier of fact, not an appellate court.

Authority:

People v. Vang (2010) 184 Cal.App.4th 912, 915-916

Third Holding:

Finally, the minor contends we should consider his forfeited claims because his trial counsel provided ineffective assistance by failing to raise them. But trial counsel is not ineffective for failing to raise novel claims like the ones here.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [to forestall a claim of ineffective assistance of counsel, reviewing courts can exercise their discretion to reach the merits of the claim].

In re Grinder (2025) 114 Cal.App.5th 845, 871-872

People v. Foster (2003) 111 Cal.App.4th 379, 385.

Fourth Holding:

We decline to exercise any discretion we might have to consider these forfeited claims because doing so (1) would be unfair to the People and the juvenile court, which had no opportunity to address the claims below, and (2) would undermine both the state’s interest in finality of judgments and litigants’ incentive to seek correction of error in the first instance.

Further, we should not reach constitutional questions unless absolutely required to do so to dispose of the matter before us. Accordingly, the minor’s constitutional challenges to the dispositional order are forfeited on appeal, and we will not consider them.

Authority:

In re M.H. (2016) 1 Cal.App.5th 699, 713-714

In re G.C. (2020) 8 Cal.5th 1119, 1130-1131

People v. Scott (1994) 9 Cal.4th 331, 351,

Facebook, Inc. v. Superior Court (Hunter) (2018) 4 Cal.5th 1245, 1275, fn. 31

Fifth Holding:

Penal Code section 26 provides, in relevant part, that all persons are capable of committing crimes except those belonging to the following classes: One—Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness. ….

Authority:

PEN 26

Sixth Holding:

Clear proof means clear and convincing evidence. The test on appeal is whether substantial evidence supports the conclusion of the trier of fact.

We review the entire record in the light most favorable to the judgment and affirm the juvenile court’s findings that the minor understood the wrongfulness of his conduct if they are supported by substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. In determining capacity the juvenile court must consider the child’s age, experience, and understanding.

A minor’s knowledge of his act’s wrongfulness may be inferred from the circumstances, such as the method of its commission or its concealment.

Authority:

In re Joseph H. (2015) 237 Cal.App.4th 517, 538-539

Seventh Holding:

While the language of the statute refers to knowledge of wrongfulness, the question is whether a minor appreciates the wrongfulness of their conduct. As minors approach the age of 14, they are increasingly likely to appreciate the wrongfulness of their acts.

Authority:

In re Manuel L. (1994) 7 Cal.4th 229, 232

People v. Cottone (2013) 57 Cal.4th 269, 281

In re J.E. (2020) 54 Cal.App.5th 309, 314

Eighth Holding:

Cases are not authority for propositions not considered.

Authority:

B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11

Ninth Holding:

Four of the five Vehicle Code section 2800.3 true findings must be stricken. A charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act only where the act prohibited by the statute is centrally an act of violence against the person.

Authority:

Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349

People v. Garcia (2003) 107 Cal.App.4th 1159

Tenth Holding:

Vehicle Code section 2800.3 provides that whenever willful flight or attempt to elude a pursuing peace officer in violation of section 2800.1 proximately causes serious bodily injury or death, the person driving the pursued vehicle shall be punished. Felony evading, as defined by the Legislature, in Vehicle Code section 2800.3, is not a crime of violence.

Under Wilkoff and Garcia there can be only one Vehicle Code section 2800.3 true finding here. Thus, four of the five Vehicle Code section 2800.3 true findings must be stricken.

Authority:

VEH 2800.3

Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349

People v. Garcia (2003) 107 Cal.App.4th 1159, 1163

People v. Sanchez (2001) 86 Cal.App.4th 970, 973-974 [Because dispositive elements of Vehicle Code section 2800.3 can be satisfied by conduct that does not necessarily pose a high probability of death, it is not a felony inherently dangerous to human life.]

Eleventh Holding:

It is improper to raise new contentions in a reply brief. Further, appellate arguments may be deemed forfeited when they do not contain meaningful analysis and citation to supporting authority.

Authority:

People v. Taylor (2004) 119 Cal.App.4th 628, 642-643

People v. Stanley (1995) 10 Cal.4th 764, 793

Twelfth Holding:

In criminal court, when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. The same principle applies in juvenile court. Since we strike four of the juvenile court’s Vehicle Code section 2800.3 true findings, a new disposition is required.

Authority:

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

In re Shaun R. (2010) 188 Cal.App.4th 1129, 1140 [every time a ward appears for disposition, the court may consider the minor’s entire history and the order must be all encompassing]

Duty of the court, Jury trial, Standard of review

Case 000874

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s objection under Code of Civil Procedure section 231.7 to the prosecutor’s exercise of a peremptory challenge during voir dire.

First Holding:

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 specifies the process that must be followed if a party or the trial court objects to the use of a peremptory challenge. Two different subdivisions of the statute provide lists of presumptively invalid reasons for exercising a peremptory challenge and specify the processes that must be followed if such reasons are asserted in a section 231.7 scenario.

Relevant here, subdivision (g) lists three categories of presumptively invalid reasons that have historically been associated with improper discrimination in jury selection. Those 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 those of counsel for the objecting party.

Authority:

CCP 231.7

Second Holding:

On appeal, we review the overruling of a section 231.7 objection de novo, with the trial court’s express factual findings reviewed for substantial evidence. We may only consider those reasons given by the party exercising the peremptory challenge and those factual findings expressly made by the trial court. If we conclude the trial court erred by overruling an objection, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Third Holding:

An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method.

But that rule is not automatic. Further, courts have recognized there are circumstances in which it should not apply. Among those circumstances are when its application would be incompatible with the fundamental purposes of a statutory scheme.

Authority:

People v. Saunders (1993) 5 Cal.4th 580, 589–590

In re L.C. (2023) 90 Cal.App.5th 728, 738,

In re S.B. (2004) 32 Cal.4th 1287, 1293

In re Sheena K. (2007) 40 Cal.4th 875, 889 [pure question of law]

In re Frank R. (2011) 192 Cal.App.4th 532, 539 [conflict with due process]

Fourth Holding:

As explained in Espiritu, the Legislature enacted section 231.7 in response to shortcomings of the inquiry under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258, overruled in part in Johnson v. California (2005) 545 U.S. 162.

Whereas Batson/Wheeler targets purposeful discrimination only, section 231.7 aims to eliminate purposeful and unconscious bias. And, whereas Batson/Wheeler employs a largely deferential burden shifting evaluation which places the ultimate burden of persuasion on the objecting party, section 231.7 sets forth a comprehensive process that expressly imposes virtually all burdens on the party exercising the peremptory challenge or the trial court.

Authority:

CCP 231.7

People v. Espiritu (2026) 119 Cal.App.5th 1128, 1139

People v. Lenix (2008) 44 Cal.4th 602

People v. Lomax (2010) 49 Cal.4th 530, 569

Fifth Holding:

Although not expressly stated in the statute, it logically flows from the legislative purpose and established scheme that the first required step in such an evaluation is to consider whether any of the reasons fall into a presumptively invalid category listed in subdivision (e) or subdivision (g).

Stated differently, the presumptively invalid categories embody circumstances in which the Legislature has declared the court must presume an objectively reasonable person would view membership or perceived membership in a listed group as a factor in the use of the peremptory challenge, unless the party exercising the challenge overcomes the presumption in the statutorily specified manner.

Authority:

People v. Caparrotta (2024) 103 Cal.App.5th 874, 893 [after party objects under sec. 237.1, it is trial court’s responsibility to apply correct procedure to decide whether to sustain objection]

Sixth Holding:

(Gary note: The opinion then sets forth the specifics of the questions and answers and exercise of the peremptory challenge. Those details are unnecessary in this type of summary that focuses on the principles relied on rather than specific application, so I have chosen to omit them. Having found error in overruling the defense objection to the exercise, the court reversed and remanded for a new trial. Erroneously overruled objections under section 231.7 are not subject to harmless error analysis.)

Authority:

People v. Aguilar (2026) 118 Cal.App.5th 1, 10

Amelioration, Elements of crime, Sentencing

Case 000873

Posted on by Gary McCurdy

Error and/or relief

The evidence was insufficient to sustain the section 190.2 gang special circumstance.

First Holding:

Section 190.2(a)(22) provides that the penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if the defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in section 186.22(f), and the murder was carried out to further the activities of the criminal street gang.

Proof of the existence of a criminal street gang as defined in section 186.22(f) is a prerequisite to proving the gang-murder special circumstance.

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 565

People v. Rodriguez (2022) 75 Cal.App.5th 816, 823

Second Holding:

Prior to the defendant’s trial, the Legislature enacted AB 333, which made multiple changes to section 186.22. The changes, as incorporated into the gang-murder special circumstance, retroactively apply to cases that are not yet final.

Following AB 333, section 186.22(f) defines a criminal street gang as an ongoing, organized association or group of three or more persons having as one of its primary activities the commission of one or more of the criminal acts enumerated in subdivision (e), having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.

Section 186.22(e) defines pattern of criminal gang activity as committing offenses that benefit a gang in a way that is more than reputational.

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 566-567

In re A.M. (2024) 102 Cal.App.5th 557, 569

Third Holding:

The prosecution’s gang expert did not testify the murders the defendant committed benefited his gang in any way that was more than reputational. The evidence was thus insufficient under the law as amended after trial by AB 333 to sustain the special circumstance finding under section 190.2. Accordingly, we reverse the gang special circumstance findings and remand for retrial of the allegations at the option of the prosecution.

(Gary note: It is unclear to me whether the trial was held before AB 333 or after. In what I have shown as Second Holding, the court states, “Prior to [defendant’s] trial, the Legislature enacted Assembly Bill 333 ….” And in a portion that I did not set out in this summary, the opinion says, “At sentencing, the trial court dismissed the section 186.22 gang enhancement because the People did not prove the gang allegation under the new statutory requirements of AB 333, in which they have to show that the benefit to the gang is more than reputational.   The court declined the defense’s request to dismiss the section 190.2 gang special circumstance.” So clearly the superior court was aware of AB 333 as of the time of sentencing, though that doesn’t say anything about when the trial was.

(And in what I have set out as the Third Holding, the court states, “The evidence was thus insufficient under the law as amended after trial by Assembly Bill 333 to sustain the special circumstance finding under section 190.2.” If the trial was held before AB 333 was enacted, then the appellate decision makes sense in relying on Hin to permit retrial. The notice of appeal was filed in the middle of 2023. AB 333 went into effect 1/2/2022, nearly a year and a half before the notice of appeal was filed. So I am a little puzzled on whether AB 333 was in place at the time of trial. If so, then I wonder whether Hin is the best authority, as it seems to find significant that the change in the law came after the trial in Hin. Life’s little mysteries, eh? Maybe (likely, in fact) I’m missing something in the opinion that would clarify the timing for me.)

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 580

In re A.M. (2024) 102 Cal.App.5th 557, 570

People v. Hin (2025) 17 Cal.5th 401, 464 [retrial is permitted where the appellate court finds only that the evidence was insufficient under the law as amended posttrial by Assembly Bill 333]

Abstracts and Minutes

Case 000872

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected.

Holding:

The abstract of judgment incorrectly identifies the count numbers of the counts of conviction. It must be corrected.

[Gary note: the court did not cite any authority for its direction to correct the abstract, but I have listed below several cases the court could have relied on.]

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

Case 000871

Posted on by Gary McCurdy

Error and/or relief

The court was not statutorily authorized to impose a section 12022.53(c) enhancement for a section 26100 offense (discharging a firearm from a motor vehicle). We remand the case to the trial court for resentencing.

First Holding:

We review the trial court’s sentencing decisions for abuse of discretion. In deciding whether the trial court has abused its discretion, we note that when a trial court’s decision rests on an error of law, that decision is an abuse of discretion.

Authority:

People v. Sandoval (2007) 41 Cal.4th 825, 847

People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 746

Second Holding:

Section 12022.53, in relevant part, sets forth escalating additional and consecutive penalties, beyond that imposed for a substantive crime, for the use of a firearm in the commission of specified felonies. Section 12022.53(c) mandates the imposition of a 20-year term for the personal and intentional discharge of a firearm in the commission of one of the section 12022.53(a) felonies, which does not include section 26100.

Imposition of that enhancement was an abuse of discretion, which resulted in an unauthorized sentence.

Authority:

PEN 12022.53

Third Holding:

The People suggest this court can modify the sentence and impose a lesser included section 12022.5(a) enhancement of 10 years. But section 12022.5(a) provides that the enhancement does not apply if firearm use is an element of the underlying offense, which precludes its application to the crime of discharging a firearm at an occupied vehicle. Thus, we remand the case to the trial court for resentencing.

Authority:

People v. Kramer (2002) 29 Cal.4th 720, 723, fn. 2

People v. Tirado (2022) 12 Cal.5th 688, 700, fn. 12