Daily Archives: September 10, 2026

Amelioration, Elements of crime, Jury instructions, Sentencing, Standard of review

Case 000989

Posted on by Gary McCurdy

Error and/or relief

On retrial of the gang allegations in light of the changes made by AB 333 since the original conviction, the court misinstructed the jury on the relationship between the gang’s predicate offenses and its organizational structure, its primary activities, or its common goals and principles. We reverse and remand for a new trial on the gang enhancements.

First Holding:

We review instructional error claims under an independent or de novo standard of review.

Authority:

People v. Posey (2004) 32 Cal.4th 193, 218

Second Holding:

A trial court has a sua sponte duty to instruct on the essential elements of a special circumstance allegation or a sentence enhancement. Failure to properly instruct on an essential element is constitutional error, warranting reversal unless the error was harmless beyond a reasonable doubt.

Under the Chapman harmless error standard, the burden is on the People, not the defendant, to demonstrate that the violation of the defendant’s federal constitutional right was harmless beyond a reasonable doubt.

The beyond-a-reasonable-doubt standard requires the beneficiary of a federal constitutional error–the People–to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. To say that an error did not contribute to the ensuing verdict is to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 409-410

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

People v. Atkins (2019) 31 Cal.App.5th 963, 981 [the presumption is that we must reverse, unless we find the error harmless beyond a reasonable doubt]

People v. Cutting (2019) 42 Cal.App.5th 344, 349

People v. Pearson (2013) 56 Cal.4th 393, 463

Third Holding:

The California Supreme Court issued its decision in Clark in February 2024. The jury reached its verdicts in the instant case several months later. The CALCRIM instructions defining the gang enhancement allegations and special circumstances were amended a month later to add two sentences, as required by Clark:

“As used here, members collectively engage in or have engaged in a pattern of criminal gang activity when the crimes that make up the pattern of criminal gang activity can be connected to the gang as a whole. Collective engagement requires a connection between the crimes and the gang’s organizational structure or manner of governance, its primary activities, or its common goals and principles.”

The trial court used the older versions of CALCRIM No. 1401 (the gang enhancement), and CALCRIM No. 736 (the gang-murder special circumstance), and therefore did not instruct the jury on the required organizational nexus between the predicate crimes and the gang as interpreted and stated in Clark. This was plainly an instructional error committed by the trial court.

Authority:

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

Fourth Holding:

Although we have found that there was sufficient evidence to establish the nexus between the gang as an organization and the predicate offenses—a very low threshold—that is not the same as finding that failure to instruct on this element was harmless beyond a reasonable doubt.

In order to find the trial court’s instructional error harmless beyond a reasonable doubt, we must conclude that there is no reasonable possibility that the jury could have rendered different verdicts on the gang allegation and the gang-murder special circumstance absent the error. Because of the narrow focus of the trial, and because of the recent changes to the law, the importance of the People establishing the validity of the gang’s predicate offenses played an outsized role in these proceedings. We are not certain what 12 jurors might have done had they been properly instructed.

Because of the anomalies in this case, we must reverse the jury’s true findings on the gang enhancements because we cannot find that the instructional error was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.

Authority:

People v. Pearson (2013) 56 Cal.4th 393, 463

People v. Atkins (2019) 31 Cal.App.5th 963, 981 [the presumption is that we must reverse, unless we find the error harmless beyond a reasonable doubt]

Duty of the court, Sentencing

Case 000988

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment produced upon resentencing failed to include several years of custody credit earned between his original sentencing in 2019 and resentencing in 2025. The abstract must be corrected.

Holding:

The abstract of judgment produced upon resentencing failed to include several years of custody credit earned between his original sentencing in 2019 and resentencing in 2025. When resentencing results in a modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the new sentence. We will therefore direct the trial court to amend the abstract of judgment to reflect the defendant’s current custody and conduct credit.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23

Gary Note:

(Gary note: It is not clear from the wording of the opinion whether absence of credit was because the trial court did not update the credits on resentence, or the clerk simply did not update the abstract of judgment to reflect the court ordered. Though the appellate court cited Buckhalter on the duty to recalculate, it cited no authority for correcting an erroneous abstract of judgment. For your convenience, I have listed below several cases the court could have drawn from as authority for an appellate court to order correction of an abstract of judgment.)

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

Juveniles, Sentencing, Standard of review

Case 000987

Posted on by Gary McCurdy

Error and/or relief

We affirm the juvenile court’s restitution order as modified to reduce the amount of restitution by $110.

First Holding:

In calculating restitution a court need not ascertain the exact amount of loss, and a restitution award based upon estimates and averages. A court retains broad discretion to estimate costs incurred by a party seeking restitution.

Authority:

Luis M. v. Superior Court (2014) 59 Cal.4th 300, 309-310

Second Holding:

A restitution order is reviewed under the abuse of discretion standard. The court’s factual findings supporting restitution are reviewed for substantial evidence and a restitution order that is based upon an error in law constitutes an abuse of discretion. A victim’s restitution right to restitution is to be construed broadly and liberally.

Authority:

In re J.L. (2026) 121 Cal.App.5th 355, 361

In re K.F. (2009) 173 Cal.App.4th 655, 661

Third Holding:

A juvenile court does not abuse its discretion if there is a factual and rational basis for the amount of restitution ordered. The court may use any rational method of fixing the amount of restitution, provided it is reasonably calculated to make the victim whole, and provided it is consistent with the purpose of rehabilitation.

There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action. Nonetheless, a juvenile court must use a rational method of calculation and must rely on facts found by a preponderance of the evidence to make the victim whole.

Authority:

In re J.L. (2026) 121 Cal.App.5th 355, 361

In re Alexander A. (2011) 192 Cal.App.4th 847, 853, 855-856

In re S.O. (2018) 24 Cal.App.5th 1094, 1102

Fourth Holding:

Restitution hearings are intended to be informal, and Welfare and Institutions Code section 730.6 does not, by its terms, require any particular kind of proof. A prima facie showing of loss may be based on the victim’s testimony. Once the victim makes a prima facie showing of economic losses incurred as a result of the minor’s delinquent acts, the burden shifts to the minor to disprove the amount of the losses claimed by the victim.

Authority:

People v. Weatherton (2015) 238 Cal.App.4th 676, 684

In re J.L. (2026) 121 Cal.App.5th 355, 362

In re S.O. (2018) 24 Cal.App.5th 1094, 1102

People v. Millard (2009) 175 Cal.App.4th 7, 26

Fifth Holding:

Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. The minor argues that the victim’s testimony was sometimes internally inconsistent; however, inconsistencies and conflicts in the evidence go to credibility of witnesses and weight of the evidence, which are matters for the trial court.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 202

In re S.A. (2010) 182 Cal.App.4th 1128, 1149

Amelioration, Elements of crime, Sentencing

Case 000986

Posted on by Gary McCurdy

Error and/or relief

We reverse the denial of the defendant’s petition for recall under section 1172.6 at the prima facie stage, and remand for further proceedings because the record of conviction does not conclusively establish as a matter of law that defendant is ineligible for relief as required at the prima facie stage of section 1172.6.

First Holding:

Effective January 1, 2019, SB 1437 (2017-2018 Reg. Sess.) was enacted to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

SB 1437 amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that malice shall not be imputed to a person based solely on his or her participation in a crime. This language eliminated the use of the natural and probable consequences doctrine in second degree murder prosecutions.

SB 775 (2021-2022 Reg. Sess.) expanded the scope of those changes to encompass, among other things, murder convictions under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime.

Authority:

PEN 1172.6

People v. Harden (2022) 81 Cal.App.5th 45, 51

People v. Gentile (2020) 10 Cal.5th 830, 846

People v. Langi (2022) 73 Cal.App.5th 972, 978

Second Holding:

Section 1172.6 creates a petition process for an eligible defendant to seek to be resentenced. Section 1172.6(b) and (c) create the process for evaluating the petition. First, the trial court must determine whether the petition is facially sufficient under section 1172.6(b). If the petition is facially sufficient, the court must appoint counsel (if requested) and follow the briefing schedule set forth in the statute. Following the completion of this briefing, the trial court must hold a hearing to determine whether the petition has made a prima facie showing that the petitioner is entitled to relief.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960-962, 966

Third Holding:

While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1172.6 relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, the court takes 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. If so, the court must issue an order to show cause.

A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. However, 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.

Stated another way, a petition for resentencing may be denied at the prima facie stage where the record of conviction, including items such as the jury instructions and associated findings, establishes a defendant’s ineligibility for relief as a matter of law.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971

People v. Curiel (2023) 15 Cal.5th 433, 459-461

Fourth Holding:

Defendant’s jury in 2013 was given the murder instruction under CALCRIM No. 520 and aider and abettor instructions under CALCRIM Nos. 400 and 401. The jury ultimately found defendant guilty of second degree murder.

Under these instructions, the perpetrator’s purpose need not have been to kill the victim; the aider and abettor’s knowledge of that purpose similarly need not have been knowledge that the perpetrator aimed to kill. If the perpetrator need not have had murderous intent, certainly the aider and abettor need not have had such an intent.

Although the definition of second degree murder in CALCRIM No. 520 states that the perpetrator must have acted with conscious disregard for human life, the definition of an aider and abettor in CALCRIM No. 401 does not include the same requirement. Thus, under the instructions that were given, the jury was entitled to conclude that, to be guilty as an aider and abettor of second degree murder, the defendant need only have intended to encourage the perpetrator’s intentional act—in this case, assaulting the victim—whether or not the defendant intended to aid or encourage the victim’s killing, and whether or not he personally knew of and disregarded the risk of such a killing.

This possible application of defendant’s instructions establishes a prima facie case for a section 1172.6 petition.

Authority:

People v. Langi (2022) 73 Cal.App.5th 972, 984

Fifth Holding:

In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion. The prima facie bar was intentionally and correctly set very low.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 972

Sixth Holding:

The record of conviction therefore does not establish defendant is ineligible for relief under section 1172.6 as a matter of law. In order to conclude defendant is ineligible for relief as a matter of law, we would have to weigh the evidence and find defendant to have been the actual killer, which would be impermissible at this stage. The trial court consequently erred by denying defendant’s section 1172.6 petition at the prima facie stage.

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 20

People v. Maldonado (2023) 87 Cal.App.5th 1257, 1269