Monthly Archives: September 2026

Discretion, Jurisdiction, Juveniles, Standard of review

Case 000881

Posted on by Gary McCurdy

Error and/or relief

The juvenile court abused its discretion because its decision to transfer the minor to adult criminal court was not supported by substantial evidence. We vacate the transfer order and remand.

First Holding:

In California, a juvenile court is a superior court that exercises limited jurisdiction arising under juvenile law. The initial jurisdiction of a juvenile court is based on the age of the person when he violates a criminal law or ordinance, it is not based on the age when he is actually apprehended.

After a juvenile court has initial jurisdiction over a minor, the juvenile court generally retains jurisdiction until he turns 21 years old. However, if a person is alleged to have committed one of 30 serious offenses under section 707(b), then the juvenile court may continue to exercise jurisdiction over that person for a limited period after he turns 21.

Relevant to this case, a juvenile court may retain jurisdiction over a person who is 25 years of age or older for a period not to exceed two years from the date of disposition if the person is found to be a person described in section 602 by reason of the commission of an offense listed in section 707(b). The court shall exercise jurisdiction in conformance with the objectives of the juvenile court.

Authority:

WIC 607(a), (d)

WIC 707(b)

In re Chantal S. (1996) 13 Cal.4th 196, 200

M.E. v. Superior Court (2023) 88 Cal.App.5th 1199, 1205 [explaining initial jurisdiction and noting that it is theoretically possible for a person to commit a crime at the age of 17, be arrested 50 years later, and be subject to the initial jurisdiction of the juvenile court at age 67]

In re Keith C. (2015) 236 Cal.App.4th 151, 155

Second Holding:

If a minor was 16 years or older when he committed a felony or one of 30 serious offenses under section 707(b), the district attorney may file a motion to transfer the minor from juvenile court to a court of criminal jurisdiction. In order to transfer a minor to a criminal court, the prosecutor must show by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

To resolve a transfer motion, section 707 requires the juvenile court to consider five factors: (1) the degree of criminal sophistication exhibited; (2) whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction; (3) prior delinquent history; (4) the success of prior attempts by a juvenile court at rehabilitation; and (5) the circumstances and gravity of the offense alleged.

While the juvenile court must consider these five factors, the weight each factor receives is within the juvenile court’s discretion.

Thus, the juvenile court has the discretion to conclude that one or more of the five factors predominate so as to determine the result, even though some or all of the other factors might point to a different result. If a juvenile court grants a transfer motion, section 707(a)(3) requires the juvenile court to recite the basis for its decision in an order entered upon the minutes, which shall include the reasons supporting the court’s finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court. Section 707 also provides additional nonexhaustive considerations for assessing each of the five factors.

As relevant to this case, with respect to the second factor, section 707 directs the juvenile court to give weight to any relevant factor, including, but not limited to, the minor’s potential to grow and mature. The second factor is not the same as the ultimate determination of whether the minor is amenable to rehabilitation while under the jurisdiction of the juvenile court. Rather, the focus of the second factor is whether there is enough time to rehabilitate the minor while he is still eligible to remain under the juvenile court’s jurisdiction.

Therefore, the prosecution should produce evidence that the juvenile court will have insufficient time to rehabilitate the minor.

Authority:

WIC 707

In re O.F. (2026) 119 Cal.App.5th 133, 158-160

In re Miguel R. (2024) 100 Cal.App.5th 152, 164, 166-167

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 186

In re E.P. (2023) 89 Cal.App.5th 409, 417

Third Holding:

A juvenile court’s decision to transfer a minor to the jurisdiction of a criminal court is reviewed under the abuse of discretion standard. A court abuses its discretion by issuing an order that exceeds the bounds of reason. A court may also abuse its discretion if its understanding of the applicable law is incorrect, it is unaware of the full scope of its discretion, or it relies on impermissible criteria.

The juvenile court’s findings on the five section 707(a)(3) factors, as well as its ultimate finding that the minor is not amenable to rehabilitation while under its jurisdiction, are reviewed for substantial evidence. Because the clear and convincing evidence standard applies to a motion to transfer, we determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by that standard.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 160

People v. K.D. (2025) 110 Cal.App.5th 1, 18

People v. Knoller (2007) 41 Cal.4th 139, 156

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 187

In re Miguel R. (2024) 100 Cal.App.5th 152, 165

Fourth Holding:

It is clear from the record that the court was not aware that it had jurisdiction for at least two years from the date the disposition was ordered, regardless of the person’s age (which, in this case was the mid 30s). Because the juvenile court found that it had lost jurisdiction based on the minor’s age alone, its finding is contrary to section 607(d) and thus, rests on an incorrect understanding of the law. Therefore, the court abused its discretion in its assessment of the second factor of section 707(a)(3).

Authority:

Williams v. Superior Court (2017) 3 Cal.5th 531, 540 [An order that implicitly or explicitly rests on an erroneous reading of the law necessarily is an abuse of discretion.]

People v. Knoller (2007) 41 Cal.4th 139, 156

People v. K.D. (2025) 110 Cal.App.5th 1, 18-19

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 187

Fifth Holding:

All defendants are entitled to decisions made in the exercise of the trial court’s informed discretion. A court does not exercise informed discretion when its decision is based on a misunderstanding of applicable law.

Because there has been a misunderstanding of applicable law by the juvenile court, we must determine whether the record clearly indicates that the juvenile court still would have ordered the minor transferred to the criminal court if it had correctly understood the applicability of section 607(d).

Given the apparent importance of the second factor, and that the record does not clearly indicate how the juvenile court would have assessed the second factor under the applicable law, we must remand this matter for the court to make further findings.

Authority:

People v. Murphy (2025) 116 Cal.App.5th 249, 256

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