Author Archives: Gary McCurdy

Amelioration, Elements of crime, Sentencing

Case 000885

Posted on by Gary McCurdy

Error and/or relief

As a result of a successful petition for writ of habeas corpus brought in 2024 challenging an illegal sentence imposed in his 2006 judgment, the defendant was resentenced. The court erred in declining to determine whether the counts and enhancements related to gang activity met the new elements of the crime as amended by AB 333.

First Holding:

In 2021, AB 333 made the following changes to the law on gang enhancements: First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, it narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.

Authority:

AB 333

PEN 186.22

People v. Tran (2022) 13 Cal.5th 1169, 1206

Second Holding:

Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. In the absence of a contrary indication of legislative intent, legislation that ameliorates punishment applies to all cases that are not yet final as of the legislation’s effective date.

Authority:

People v. Burgos (2024) 16 Cal.5th 1, 7–8

In re Estrada (1965) 63 Cal.2d 740, 745

Third Holding:

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 resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to a recall, and the court may consider any pertinent circumstances which have arisen since the prior sentence was imposed.

Authority:

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

Fourth Holding:

When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant’s right to a jury trial under the Sixth Amendment, and reversal is required unless it appears beyond a reasonable doubt that the jury verdict would have been the same in the absence of the error.

Here, AB 333 essentially adds new elements to the substantive offense and enhancements in section 186.22—for example, by requiring proof that gang members collectively engage in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang.

These changes have the effect of increasing the threshold for conviction of the section 186.22 offense and the imposition of the enhancement. When appellant was resentenced, his sentence became nonfinal and he was entitled to a full resentencing on all counts, with the sentencing court taking into consideration all pertinent circumstances that had arisen since appellant was originally sentenced.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1207

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

Fifth Holding:

Striking an enhancement’s punishment is not the same as striking the enhancement itself, and does not operate to defeat the factual finding of the truth of the allegation, instead, such act merely serves to prohibit a certain purpose for which the [allegation] may be used.

Authority:

In re Pacheco (2007) 155 Cal.App.4th 1439, 1445

Sixth Holding:

In certain cases, retrial is barred where a defendant successfully overturns a judgement of conviction based on insufficiency of the evidence. A finding of insufficient evidence is the functional equivalent of a judgment of acquittal, upon which retrial is prohibited.

The incentive of double jeopardy to protect a defendant against harassment and unnecessary, repeated trials serves no purpose when, as here, the prosecution did make such a case under the law as it then stood; having done so, the prosecution had little or no reason to produce other evidence of guilt. In other words, where the prosecution’s original burden of proof at trial is later altered, it is unrealistic to assume that the prosecution, with a perfect case for proof of the invalid theory, necessarily presented all available evidence relating to the valid theory.

Because we do not resolve this case on insufficiency of the evidence grounds but rather find instructional error due to the amendments to section 186.22 enacted by AB 333, double jeopardy does not bar the People from retrying the section 186.22(b)(1)(C) and section 12022.53(d) and (e)(1) enhancements.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 454–455, 459

Amelioration, Sentencing, Standard of review, Vicarious liability

Case 000884

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s petition for resentencing under Penal Code section 1172.6 at the prima facie stage on the ground that the record of conviction showed the defendant is ineligible for resentencing. The trial court exceeded the limited scope of review permitted at the prima facie stage under section 1172.6 and engaged in fact finding that should have been reserved for the evidentiary stage.

First Holding:

Under section 1172.6 the prima facie inquiry is limited. While a court may consider whether the record of conviction refutes eligibility allegations at this stage, a trial court should not engage in fact finding involving the weighing of evidence or the exercise of discretion. Indeed, at the prima facie stage, the strength of the evidence in the record is not material.

Instead, at the prima facie stage the question in applying section 1172.6 is not whether it is likely that the defendant was convicted of murder on a now-invalid grounds but whether the court’s jury instructions or other aspect of the record of conviction foreclose that possibility that possibility as a matter of law.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 562, 564, 567 fn. 10

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

People v. Curiel (2023) 15 Cal.5th 433, 470

Second Holding:

Although the verdict and jury instructions on the special circumstance found true by the jury showed that two of the three requirements for direct aiding and abetting liability were satisfied, the record of conviction did not show that the final requirement was satisfied and, thus, did not establish direct aiding and abetting liability as a matter of law.

In addition, while the special circumstance finding suggests that the jury found the defendant guilty of murder based on direct aiding and abetting, which remains a valid theory, it is possible that the jury found him guilty based on conspiracy and a natural and probable consequences theory, which is now invalid.

Under the strict test that the Supreme Court has interpreted section 1172.6 to impose, the record of conviction does not conclusively refute the defendant’s allegations that he was convicted of a now-invalid theory of murder, and the trial court should have proceeded beyond the prima facie stage to an evidentiary hearing to determine whether in fact he was convicted based on a now-invalid theory.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 470

Third Holding:

We review trial court orders at the prima facie stage de novo.

Authority:

People v. Bodely (2023) 95 Cal.App.5th 1193, 1200

Fourth Holding:

in determining whether a prima facie case has been shown, trial courts may examine jury instructions, the verdict, and other parts of the record of conviction to determine whether that record refutes the petition’s allegations. But at the prima facia stage, hearing transcripts may not be used to prove disputed facts. If the record of conviction contains facts refuting the allegations in the petition, then the court is justified in making a credibility determination adverse to the petitioner. However, the record of conviction must establish conclusively such facts.

Authority:

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

People v. Patton (2025) 17 Cal.5th 549, 568

People v. Strong (2022) 13 Cal.5th 698, 708

Fifth Holding:

To establish liability for murder under the theory of direct aiding and abetting, the prosecution must show that the defendant [1] aided or encouraged the commission of the murder [2] with knowledge of the unlawful purpose of the perpetrator and [3] with the intent or purpose of committing, encouraging, or facilitating its commission. The trial court’s special circumstance finding established only two of these requirements.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 466

Abstracts and Minutes, Equal protection, Fines and fees, Sentencing

Case 000883

Posted on by Gary McCurdy

Error and/or relief

We remand for the limited purpose of allowing the trial court to conduct a hearing on whether to impose the ancillary costs in light of Kopp. The minute order and abstracts of judgment do not reflect the order of the court and must be corrected following that hearing.

First Holding:

At the sentencing hearing, the court did not mention, much less impose, fees under either section 1465.8 or Government Code section 70373. As for restitution fines, defense counsel requested the court consider staying any fines, and the court stated that it was striking the restitution fine and the parole revocation restitution fine, indicating that if that was found to be error on appeal, the court’s intent would be to impose the minimum $300 for both fines.

The minute order, however, reflects that the court ordered the fines in thh amount of $10,000. It then stated that the amounts were suspended. The minute order also included a court operations fee of $80 and a criminal conviction fee of $60. The abstract of judgment did not reflect the restitution fines, but did reflect the other two fees.

The judgment is controlled by the court’s oral pronouncements.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.]

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388 [The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.]

Second Holding:

Section 1465.8(a)(1) provides, in part: “To assist in funding court operations, an assessment of forty dollars ($40) shall be imposed on every conviction for a criminal offense.” Government Code section 70373(a)(1) provides, in part: “To ensure and maintain adequate funding for court facilities, an assessment shall be imposed on every conviction for a criminal offense. The assessment shall be imposed in the amount of thirty dollars ($30) for each misdemeanor or felony.”

The trial court was required to impose these ancillary costs unless it granted defendant fee waivers. The court took neither action at the sentencing hearing. This was error.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 25-26, 29-30

Third Holding:

Although the omission of mandatory assessments may be corrected for the first time on appeal, if we were to do that, the fees would be imposed without defendant having had the opportunity to request they be waived.

Instead, we will remand the matter for the trial court to correct the minutes from the sentencing hearing and to determine whether to impose the court operations fee and the criminal conviction fee consistent with Kopp.

Authority:

People v. Castellanos (2009) 175 Cal.App.4th 1524, 1530

Fourth Holding:

The People did not object when the trial court struck the restitution fine and the parole revocation restitution fine.

When a party fails to object, at the time of sentencing, to a trial court’s decision regarding the imposition of restitution fines, the waiver doctrine precludes appellate relief.

The court struck the restitution fine at the sentencing hearing. Thus, to the extent the court’s minutes reflect otherwise, the minutes should be modified to strike the restitution fines.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 302–303

People v. Frederickson (2020) 8 Cal.5th 963, 1027

Due process, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000882

Posted on by Gary McCurdy

Error and/or relief

Though the defendant was convicted of section 243.4(a), the correct code section for the pleaded and proved crime was section 243.4(d), and we modify the judgment accordingly. In all other respects, we affirm the judgment.

(Gary note: I stretch to count this as a win, because it did not really provide any relief. But it contains some important principles on what happens when the allegation describes conduct but lists the incorrect code section for it. So I decided to include it. Yep. My bar for inclusion is very low.)

First Holding:

Adequate notice to the defendant of the offense with which he is charged is not determined solely by the charging statute. A reference to an incorrect penal statute can be overcome by factual allegations adequate to inform the defendant of the crime charged.

The defendant was amply acquainted with the basis for count 3 and argues no prejudice from being charged under the wrong subdivision of section 243.4. The victim testified to the conduct underlying count 3 at the preliminary hearing and then again at trial. There is no dispute the evidence supports a conviction under subdivision (d).

Authority:

People v. Haskin (1992) 4 Cal.App.4th 1434, 1439

People v. Thomas (1987) 43 Cal.3d 818, 826–827, 832

People v. Maury (2003) 30 Cal.4th 342, 427–428

(Gary note: the court did not cite it, but section 1260 provides that the appellate court may modify a judgment, among several other actions. While it does not specifically say that the court can modify the judgment by having it reflect a different code section than was alleged, the above cases make it clear that specification of a code section does not necessarily control whether the defendant has been placed on adequate notice of the conduct he is accused of.)

Second Holding:

We review de novo whether the trial court’s instructions on the law were correct. When instructions are claimed to be erroneous, conflicting, or ambiguous, we ask whether jurors were reasonably likely to have construed them in a manner that violates the defendant’s rights. We look to the instructions as a whole and the entire record of trial, including the arguments of counsel.

We assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions given. Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.

Authority:

People v. Ramos (2008) 163 Cal.App.4th 1082, 1088

People v. Richardson (2008) 43 Cal.4th 959, 1028

People v. Rogers (2006) 39 Cal.4th 826, 873

People v. Franco (2009) 180 Cal.App.4th 713, 720

Third Holding:

The defendant argues the trial evidence does not support the conclusion that the victim was particularly vulnerable. We review an aggravating factor finding for substantial evidence. The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the aggravating factor beyond a reasonable doubt. We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.

Authority:

People v. Mendez-Torres (2025) 113 Cal.App.5th 1007, 1020

People v. Wilson (2008) 44 Cal.4th 758, 806

People v. Alvarado (2001) 87 Cal.App.4th 178, 195 [inability to speak English can be a factor suggesting particular vulnerability]

People v. Carpenter (1997) 15 Cal.4th 312, 413 [noting vulnerability from victim being alone]

People v. Clark (1990) 50 Cal.3d 583, 638 [noting vulnerability from victim being told a false story to get the victim into a private space]

People v. Stevens (2007) 41 Cal.4th 182, 203 [noting a vulnerable position arises from exploiting a false sense of security]

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

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

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