Author Archives: Gary McCurdy

Duty of the court, Sentencing

Case 000777

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the court should have recalculated his credit for time served.

Holding:

Upon resentencing that 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 subsequent sentence. It is the duty of the court imposing the sentence to determine the date or dates of any admission to, and release from, custody prior to sentencing and the total number of days to be credited pursuant to this section. The total number of days to be credited shall be contained in the abstract of judgment.

Authority:

PEN 2900.1

PEN 2900.5(d)

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

Amelioration, Duty of the court, Sentencing

Case 000776

Posted on by Gary McCurdy

Error and/or relief

On resentencing the defendant under section 1172.75, the trial court failed to pronounce sentence on two of the counts. This was error. Also, the court must recalculate the defendant’s credit for time served.

First Holding:

Section 1172.75(a) provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense is legally invalid.

Once the Department of Corrections and Rehabilitation identifies those persons currently serving a term for a judgment that includes an enhancement described in subdivision (a) to the sentencing court, the court shall recall the sentence and resentence the defendant.

By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. A recall effectively vacates the defendant’s original sentence and commitment.

Authority:

PEN 1172.75

People v. Monroe (2022) 85 Cal.App.5th 393, 399, 402

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

People v. Rogers (2025) 108 Cal.App.5th 340, 360

Second Holding:

The resentencing under section 1172.75 shall result in a lesser sentence than the one originally imposed unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. In resentencing, the court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing

Authority:

PEN 1172.75(d)(1)

Third Holding:

In a criminal case, judgment is rendered when the trial court orally pronounces sentence. If a sentence of imprisonment is to be imposed the sentencing judge must pronounce the court’s judgment and sentence, stating the terms thereof and giving reasons for those matters for which reasons are required by law.

At a sentencing hearing, the court must orally pronounce the sentence on the record. Since the court recalled defendant’s sentence under section 1172.75, it effectively vacated his original sentence and thus should have orally pronounced all components of the sentence on the record at the resentencing hearing.

Authority:

Rules of Court, rule 4.433(c)(5)

People v. Karaman (1992) 4 Cal.4th 335, 344, fn 9

People v. Mesa (1975) 14 Cal.3d 466, 471 [Rendition of judgment is an oral pronouncement]

Fourth Holding:

There was also an error in the sentencing, in that the sentence on one count was a life term, but the count was not a serious felony and should have been sentenced as a determinate term.

It is well established that when the trial court pronounces a sentence that is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed whenever the mistake is appropriately brought to the attention of the trial court or the reviewing court. When the mistake is discovered while the defendant’s appeal is pending, the appellate court should remand the case for a proper sentence.

Authority:

People v. Benton (1979) 100 Cal.App.3d 92, 102

Fifth Holding:

The trial court should recalculate defendant’s custody credits on remand.

Authority:

PEN 2900.5(d)

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [the trial court, having modified defendant’s sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody.]

Abstracts and Minutes

Case 000775

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains errors in conflict with the oral pronouncement of judgment, and it must be corrected.

Holding:

We direct the trial court to correct the errors in the abstract of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Jurisdiction, Juveniles

Case 000774

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred by holding the minor jointly and severally liable for victim restitution.

First Holding:

Restitution orders are subject to review on appeal for an abuse of discretion. The ‘court abuses its discretion when it acts contrary to law.

Authority:

In re Travis J. (2013) 222 Cal.App.4th 187, 202

Second Holding:

Welfare and Institutions Code section 730.6 governs restitution in cases where a minor is adjudicated a ward of the court pursuant to section 602. Under this statute, a victim of conduct for which a minor is found to be a person described in section 602 who incurs an economic loss as a result of the minor’s conduct shall receive restitution directly from that minor.

For the purposes of victim restitution, each minor shall be held severally liable, and shall not be held jointly and severally liable as co-offenders. The court shall apportion liability based on each minor’s percentage of responsibility or fault for all economic losses included in the order of restitution. The aggregate amount of apportioned liability for all minors involved shall not exceed 100 percent in total.

Authority:

WIC 730.6

WIC 602

In re M.W. (2008) 169 Cal.App.4th 1, 4

Third Holding:

The error has not been waived, as the failure to object to a restitution order that exceeds the court’s statutory authority does not waive the claim of error.

Authority:

In re Paul R. (1996) 42 Cal.App.4th 1582, 1590

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

Case 000773

Posted on by Gary McCurdy

Error and/or relief

We reverse the juvenile court’s finding that the minor committed murder as an aider and abettor with implied malice.

First Holding:

An aider and abettor of murder must actually aid and abet the lethal act in order to be convicted of murder.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 678

Second Holding:

The trial court announced its finding that, to be liable for an implied malice murder, a direct aider and abettor must, by words or conduct, aid the commission of the life endangering act, not the result of that act. The court treated the robbery as the life-endangering act that resulted in the victim’s death.

The court went on to state that the People have proved beyond a reasonable doubt that the minor was an aider and abettor to the robbery with knowledge that his compatriots intended to commit the robbery; did, in fact, intend to aid the perpetrators in the commission of the robbery or attempted robbery, and had knowledge that the act was dangerous to human life.

The opinion in Morris was issued long after the juvenile court sustained the petition, and under Morris, the court’s reasoning was in error.

Authority:

People v. Morris (2026) 19 Cal.5th 671

Third Holding:

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains 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.

We determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In so doing, a reviewing court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.

The same standard of review governs our review of the sufficiency of evidence in juvenile delinquency cases.

Authority:

People v. Edwards (2013) 57 Cal.4th 658, 715

In re Roderick P. (1972) 7 Cal.3d 801, 809

In re A.G. (2020) 58 Cal.App.5th 647, 653

In re Matthew A. (2008) 165 Cal.App.4th 537, 540

Fourth Holding:

Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. An unlawful killing during the commission of a felony is also murder. Second degree implied malice murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder. Malice may be express or implied.

Authority:

PEN 187(a)

PEN 189(a),(e)

People v. Knoller (2007) 41 Cal.4th 139, 151

Fifth Holding:

Malice is implied when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. In short, implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less. This definition is referred to as “simple implied malice murder.”

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 143

People v. Reyes (2023) 14 Cal.5th 981, 988

Sixth Holding:

To suffice for implied malice murder, the defendant’s act must not merely be dangerous to life in some vague or speculative sense; it must involve a high degree of probability that it will result in death. Implied malice requires a defendant’s awareness of the risk of death to another.

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 152

People v. Reyes (2023) 14 Cal.5th 981, 989

Seventh Holding:

To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. The question of implied malice is to be decided in light of all the circumstances.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988

People v. Moore (2010) 187 Cal.App.4th 937, 942

Eighth Holding:

Under Penal Code section 187, the mens rea required for murder is malice aforethought. Regarding aiders and abettors, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.

In the context of implied malice murder, the aider and abettor must know the perpetrator intends to commit a life-endangering act, intend to aid the perpetrator in the commission of that act, know the act is dangerous to human life, and act in conscious disregard for human life.

Authority:

PEN 187

PEN 188(a)(3)

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

People v. Harris (2024) 105 Cal.App.5th 623, 631

People v. Curiel (2023) 15 Cal.5th 433, 468

People v. Reyes (2023) 14 Cal.5th 981, 991

Ninth Holding:

Murder also requires an actus reus. In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act.

Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act.

Authority:

People v. Concha (2009) 47 Cal.4th 653, 660

People v. Reyes (2023) 14 Cal.5th 981, 991

Tenth Holding:

As relevant to this aider or abettor theory of liability in a felony-murder, the amended felony-murder rule now states that when a person was not the actual killer, that person must have, 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. Section 189(e)(2) requires a nonkiller to aid the actual killer in the lethal act.

While the language of Penal Code section 188(a)(3), differs from section 189(e), pursuant to section 188(a)(3), a direct aider and abettor must act with malice aforethought, and act with intent to aid the life-endangering act of the direct perpetrator that proximately causes the death.

Authority:

PEN 189(e)(2)

People v. Morris (2026) 19 Cal.5th 671, 678

People v. Pittman (2023) 96 Cal.App.5th 400, 415

People v. Reyes (2023) 14 Cal.5th 981, 991-992

Eleventh Holding:

Implied malice murder requires attention to the aider and abettor’s mental state concerning the life endangering act committed by the direct perpetrator, such as shooting at the victim, or, as in this case, stabbing him. In other words, the aider and abettor must know the perpetrator intends to commit a life-endangering act, intend to aid the perpetrator in the commission of that act, know the act is dangerous to human life, and act in conscious disregard for human life. Even if the act results in a death that is accidental, the circumstances surrounding the act may evince implied malice.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 992

People v. Curiel (2023) 15 Cal.5th 433, 468

People v. Nieto Benitez (1992) 4 Cal.4th 91, 110

Twelfth Holding:

SB 1437 abolished the natural and probable consequences doctrine in cases of murder, amending section 188 to require that, when the felony-murder rule does not apply, a principal in the crime of murder shall act with malice aforethought, and that malice shall not be imputed to a person based solely on his or her participation in a crime. As a result, the natural and probable consequences doctrine can no longer support a murder conviction.

Authority:

PEN 188

In re R.G. (2019) 35 Cal.App.5th 141, 144

People v. Gentile (2020) 10 Cal.5th 830, 847-848

Thirteenth Holding:

Instead, with the exception of section 189(e), a conviction for murder requires that a person act with malice aforethought and that a person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

We conclude the legislative language of Penal Code section 188(a)(3) requires a finding that the accused actually aided the perpetrator in the commission of the life-endangering act, and that the accused’s participation in a dangerous felony as an aider and abettor cannot form the basis for finding implied malice.

Only in this way will a finding that the accused aided and abetted in the commission of implied malice murder reflect a determination of the person’s guilt based on his own actions and subjective intent.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 660-661

Abstracts and Minutes, Sentencing

Case 000772

Posted on by Gary McCurdy

Error and/or relief

In light of  Kopp, which was decided while this appeal was pending, we will remand for reconsideration of the restitution and parole revocation fines.

First Holding:

We note that the abstract of judgment indicates that the restitution and parole revocation fines were $300 each, yet the trial court in its oral pronouncement imposed restitution and parole revocation fines of $1,800 each. Ordinarily, the oral pronouncement of judgment controls.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Second Holding:

Here, however, the trial court imposed a restitution fine (and corresponding parole revocation fine) exceeding the statutory minimum before the recent guidance issued by the Supreme Court in Kopp. Because the record is silent as to whether the trial court considered the defendant’s ability to pay or any other excessive fine factor, we will vacate those fines and remand for further proceedings in light of Kopp.

Authority:

People v. Kopp (2025) 19 Cal.5th 1

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

Case 000771

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it failed to instruct the jury regarding specific intent for count 2, and the trial court abused its discretion when it imposed the registration requirement, We reverse count 2 and strike the registration requirement, and in all other respects affirm.

First Holding:

Trial courts have a sua sponte duty to instruct on every element of charged offenses. Instructions completely removing the issue of intent from the jury’s consideration may constitute a denial of federal due process principles. We review independently the legal adequacy of a jury instruction.

Authority:

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

People v. Lee (1987) 43 Cal.3d 666, 673,

People v. Cole (2004) 33 Cal.4th 1158, 1211

Second Holding:

The court instructed the jury that count 2 required “general criminal intent,” which is established when the defendant intentionally does a prohibited act.

This instruction was erroneous. The crime in count 2 is a specific intent crime because it requires the act to be done with the intent to accomplish a separate objective.

In addition, the instruction given on the crime was incomplete, because it included the statutory language for the prohibited conduct, but it omitted the requirement that the physical act be performed for a separate reason.

Specific intent is not presumed from the doing of the unlawful act.

Authority:

EVID 668

People v. ZarateCastillo (2016) 244 Cal.App.4th 1161, 1167 [construing equivalent language of a similar section]

Third Holding:

We assess the prejudicial effect of the failure to instruct regarding the required element of mental state pursuant to Chapman. We must reverse unless it appears beyond a reasonable doubt that the error did not contribute to the jury’s verdict.

Instructional error is harmless where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, but not where the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

In our view, the instructional error is not harmless because the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

Authority:

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

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

Neder v. United States (1999) 527 U.S. 1, 19

Fourth Holding:

Substantial evidence did not support the trial court’s order that the defendant register as a sex offender. Section 290.006 requires a defendant to register as a sex offender if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. Section 290.006 does not include sexual abuse as a basis for registration.

Authority:

PEN 290.006

Fifth Holding:

We review imposition of a registration requirement pursuant to section 290.006 for abuse of discretion. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

A trial court abuses its discretion when its factual findings are not supported by the evidence. Here, there was no evidence that the murder (count 1) was committed for sexual gratification. The registration requirement must be stricken.

If the defendant is retried on the reversed count by a properly instructed jury, the court may reconsider the registration requirement based on the evidence presented at that trial.

Authority:

People v. Picklesimer (2010) 48 Cal.4th 330, 335

People v. Thai (2023) 90 Cal.App.5th 427, 433

Sixth Holding:

Because sufficient evidence was presented that could support a guilty verdict if the jury were properly instructed, the People may retry the defendant for count 2 on remand.

Authority:

People v. Hatch (2000) 22 Cal.4th 260, 271–272

Appellate Principles, Racial Justice Act, Standard of review

Case 000770

Posted on by Gary McCurdy

Error and/or relief

In 2023, the defendant filed a motion in the trial court for postjudgment discovery pursuant to Penal Code section 1054.9, in advance of filing a petition for writ of habeas corpus. The defendant alleged he was arrested, charged, and convicted as a result of racial bias by the police department and the district attorney, and that his defense counsel was prejudicially ineffective. He appealed from the court’s denial of a portion of his motion. It was not an appealable order. We treat this as a petition for writ of mandate.

(Gary note: The court denied the petition, but I have included the “gold”–its principles–for educational reasons. Which is really the point of this entire blog, of course.)

First Holding:

A party must seek review of the trial court’s denial of a section 1054.9 motion for postconviction discovery by filing a petition for writ of mandate rather than an appeal.

Authority:

In re Steele (2004) 32 Cal.4th 682, 688

People v. Serrano (2024) 106 Cal.App.5th 276, 292

Second Holding:

Given the procedural background of this case, rather than dismiss the appeal, we exercise our discretion to treat it as a petition for writ of mandate in the interests of judicial economy.

Authority:

People v. Payne (1988) 202 Cal.App.3d 933, 937

People v. Picklesimer (2010) 48 Cal.4th 330, 335

Third Holding:

A motion for postjudgment discovery filed pursuant to section 1054.9 may be made in anticipation of filing a petition for writ of habeas corpus but before the petition is actually filed. However, the statute provides only limited discovery. It does not allow free-floating discovery asking for virtually anything the prosecution possesses.

Authority:

In re Steele (2004) 32 Cal.4th 682, 691

Barnett v. Superior Court (2010) 50 Cal.4th 890, 894

Fourth Holding:

The trial court’s ruling on a motion under section 1054.9 is reviewed for an abuse of discretion.

Authority:

Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366

Gary Note:

(Gary note: I wrote a Gary Musings on the code section at issue here, focusing on the statutory duty it imposes on counsel to retain a copy of [insert appropriate adjective, depending on how YOU read the subdivision, but for lack of a better term at the moment, “certain” will do] clients’ files in a digital format in color. It went up on the blog on June 21, 2026, under the category “Gary Musings.” The article’s title is “To Save, Or Not To Save (the client’s file).”)

Abstracts and Minutes, Sentencing

Case 000769

Posted on by Gary McCurdy

Error and/or relief

The final abstract of judgment does not accurately reflect the defendant’s custody credits. We remand the matter with instructions to modify the final abstract of judgment.

First Holding:

When a defendant is resentenced following an appellate sentence remand, the sentencing court must determine all actual time the defendant has already served and recalculate the defendant’s actual custody credits.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 29

Second Holding:

The court determined that the defendant was in custody for [period A, more than 240 days] from arrest to original sentencing, and [period B, more than 1,000 more days] between the sentencing and resentencing hearings. The two numbers should have been added together to arrive at the total credit for time served. The abstract, however, treated the two numbers separately, listing the larger number [period B] as actual days in custody and the smaller number [period A] as conduct credits instead of actual days in custody, resulting in a failure to reflect an additional [more than 35 days] of conduct credit on [period A]. We direct the court to prepare an amended abstract of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 188 [appellate court may order modification of inaccuracies in abstract of judgment]

People v. Moore (1991) 226 Cal.App.3d 783, 788 [modifying judgment to correct conduct credits]

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

Case 000768

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the allegation that the minor received stolen property in violation of section 496d(a) (pertaining to the vehicle in which he was a passenger).

First Holding:

The same standard governs review of the sufficiency of the evidence in adult criminal cases and juvenile cases. We examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

While substantial evidence includes circumstantial evidence and reasonable inferences drawn therefrom, such inferences may not be based on suspicion alone, or on imagination, or speculation.

Authority:

In re Amanda A. (2015) 242 Cal.App.4th 537, 545-546

In re Matthew A. (2008) 165 Cal.App.4th 537, 540

People v. Grant (2020) 57 Cal.App.5th 323, 330

Second Holding:

To sustain the petition on the receiving a stolen vehicle count, the People had to prove: (1) the motor vehicle was stolen; (2) the minor knew it was stolen; and (3) the minor received, concealed, or withheld the stolen vehicle from its owner.

Authority:

People v. Land (1994) 30 Cal.App.4th 220, 223-224

In re Anthony J. (2004) 117 Cal.App.4th 718, 728

Third Holding:

Receipt, or possession of stolen property, may be actual or constructive and need not be exclusive. Physical possession is also not a requirement. It is sufficient if the defendant acquires a measure of control or dominion over the stolen property.

Constructive possession occurs when the defendant maintains control or a right to control the property; possession may be imputed when the property is found in a place that is immediately and exclusively accessible to the defendant and subject to his or her dominion and control, or to the joint dominion and control of the defendant and another.

Authority:

People v. Land (1994) 30 Cal.App.4th 220, 223-224 [construing similar language in context of sec. 496, general receiving stolen property statute]

People v. Rushing (1989) 209 Cal.App.3d 618, 621-622

Fourth Holding:

Possession may be established through circumstantial evidence and resulting reasonable inferences. However, mere presence near the stolen property, or access to the location where the stolen property is found is not sufficient evidence of possession, standing alone, to sustain a conviction for receiving stolen property. Something more must be shown to support inferring of dominion and control. The necessary additional circumstances may, in some fact contexts, be rather slight.

Authority:

People v. Land (1994) 30 Cal.App.4th 220, 224

People v. Myles (1975) 50 Cal.App.3d 423, 429 [evidence the defendant was passenger in car and found standing close to car trunk containing stolen goods insufficient to infer possession for conviction of receiving stolen property]

People v. Zyduck (1969) 270 Cal.App.2d 334, 336 [evidence defendant was passenger in car with stolen chain saw in rear seat insufficient evidence to infer his possession of stolen item]

Fifth Holding:

The car was stolen and the minor knew the car was stolen, but there is no substantial evidence that the minor possessed or aided in withholding the car from its owner.

While it is true that conscious possession of recently stolen property itself raises a strong inference that the possessor knew the property was stolen, the issue here is whether, as a mere passenger, he actually or constructively possessed the stolen car as a section 496d conviction requires.

Aiding and abetting the commission of a crime requires some affirmative action. Mere presence at the scene of a crime which does not itself assist its commission or mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.

There was no evidence to show the minor directed the driver to speed away from the pursuing officers or otherwise directed any movement of the Infiniti as a passenger. There was no evidence that the minor had an opportunity to get out of the car before the traffic stop, or once the driver sped away from the officers.

The record is also devoid of any evidence regarding the minor’s relationship to any of the other occupants of the car, and the gang expert conceded the minor had no documented gang-related contacts apart from this one incident.

Absent evidence showing the nature and extent of the relationship between the minor and the other occupants, or the circumstances of the minor’s affirmative actions beyond simply running from the Infiniti, we conclude the evidence established nothing more than that the minor was a passenger in the stolen car, but not that he aided and abetted in the vehicle theft or in withholding the stolen vehicle from its rightful owner.

Authority:

People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574

People v. Anderson (1989) 210 Cal.App.3d 414, 420-421

People v. Partee (2020) 8 Cal.5th 860, 868

People v. Pettie (2017) 16 Cal.App.5th 23, 57

People v. Sedillo (2015) 235 Cal.App.4th 1037, 1039 [presence at crime scene, by itself, is insufficient to establish aiding and abetting; relevant factors for determining aider and abettor liability may include presence, companionship, and conduct before and after offense]

Abstracts and Minutes, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000767

Posted on by Gary McCurdy

Error and/or relief

We find that the evidence was sufficient to support the conviction for discharging a firearm for the benefit of a criminal street gang.

However, the defendant cannot be convicted of both discharging a firearm at a motor vehicle and grossly negligent discharge of a firearm at a motor vehicle, and the abstract of judgment must be corrected to list the enhancements found true.

First Holding:

In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether it discloses substantial credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on isolated bits of evidence. Resolving conflicts and inconsistencies in the testimony is the jury’s exclusive province.

We do not redetermine the weight of the evidence or the credibility of witnesses. Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.

Authority:

People v. Brooks (2017) 3 Cal.5th 1, 57

People v. Cuevas (1995) 12 Cal.4th 252, 261

People v. Young (2005) 34 Cal.4th 1149, 1181

People v. Albillar (2010) 51 Cal.4th 47, 60

Second Holding:

We must accept logical inferences that the trier of fact might have drawn from the evidence even if we would have concluded otherwise. If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

The reviewing court need not address assertions of conflicts in the evidence or alternative theories regarding the inferences that should have been drawn from the evidence. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. This is true for both direct and circumstantial evidence.

In this case, a reasonable jury could have found that the actions of the defendant were gang related and for the benefit of a gang.

Authority:

People v. Streeter (2012) 54 Cal.4th 205, 241, overruled on other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834

People v. Albillar (2010) 51 Cal.4th 47, 60

People v. Letner and Tobin (2010) 50 Cal.4th 99, 162

People v. Zamudio (2008) 43 Cal.4th 327, 357

People v. Manibusan (2013) 58 Cal.4th 40, 87

People v. Thompson (2010) 49 Cal.4th 79, 113

Third Holding:

The crime of grossly negligent discharge of a firearm which could result in injury or death (sec. 246.3(a)) is a lesser included offense of discharging a firearm at a motor vehicle (sec. 246).

Although section 954 provides that a single act or course of conduct can lead to convictions of any number of the offenses charged, the courts have created an exception to this rule where multiple convictions are based on necessarily included offenses.

In Ramirez, our Supreme Court reviewed the elements of both offenses and concluded that the only difference between the two crimes, and the basis for the more serious treatment of a section 246 offense, is that the greater offense requires that an inhabited dwelling or other specified object be within the defendant’s firing range.

All the elements of section 246.3(a) are necessarily included in the more stringent requirements of section 246. Therefore, we shall reverse defendant’s conviction on the count alleging grossly negligent discharge of a firearm.

Authority:

PEN 954

People v. Ramirez (2009) 45 Cal.4th 980, 984–985

Fourth Holding:

The abstract of judgment fails to accurately reflect the sentence orally pronounced by the trial court. Courts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

AppellateAdvisor Updates

Case 000766

Posted on by Gary McCurdy

Error and/or relief

The court miscalculated the credit for time served. The matter is remanded for recaculation. The court also failed to specify whether it was imposing consecutive or concurrent sentences for the three conviction offenses. On remand, it must specify that the terms are to be served concurrently.

First Holding:

The trial court’s oral pronouncement of judgment did not specify whether the sentences for the three counts were to run concurrently or consecutively with respect to one another. This means that by default they all run concurrently.

Authority:

PEN 669(b)

People v. Downey (2000) 82 Cal.App.4th 899, 915

Second Holding:

The court erred in its calculation of credit for time served, and it must recalculate the credits on remand.

(Gary note: the court cited no authority, likely because the error and solution are obvious. I have listed the code section for your convenience.)

Authority:

PEN 2900.5