Author Archives: Gary McCurdy

Duty of the court, Jury instructions

Case 000026

Posted on by Gary McCurdy

Error and/or relief

Because of error in instructing the jury with CALCRIM 361, we reverse the convictions and remand for further proceedings. The trial court erred by instructing the jurors with CALCRIM No. 361 because the defendant’s testimony did not represent a complete failure to explain or deny incriminating evidence, nor did he claim a lack of knowledge about something incriminating that he could reasonably be expected to have known.

First Holding:

It is error to instruct on failure to explain or deny where defendant did not fail to explain or deny.

Authority:

People v. Cortez (2016) 63 Cal.4th 101

Second Holding:

We review a claim of instructional error de novo.

Authority:

People v. Parker (2022) 13 Cal.5th 1, 66

People v. Cole (2004) 33 Cal.4th 1158, 1217

Third Holding:

That there was a prior hung jury may be persuasive on the question of the prejudice from the error.

Authority:

People v. Soojian (2010) 190 Cal.App.4th 491, 520

Duty of the court

Case 000025

Posted on by Gary McCurdy

Error and/or relief

The California Department of Corrections and Rehabilitation notified the court that the defendant was entitled to resentencing under Penal Code section 1172.75. He contends the court did not comply with the requirements of section 1385(c), as amended. We agree. Accordingly, we vacate the sentence and remand the matter for further proceedings. There was no discussion at the resentencing hearing in this case of whether dismissal of one or more of the firearm enhancements would endanger public safety.

First Holding:

Penal Code section 1385, subdivision (c) requires the court to give great weight to listed factors.

Authority:

PEN 1385

Second Holding:

“Endanger public safety” means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

Authority:

PEN 1385(c)(2)

Appellate Principles, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000024

Posted on by Gary McCurdy

Error and/or relief

GARY note: The winning issue was relatively simple, but in affirming the overall conviction, the court shared several principles I thought worthy of reporting, even though many did not bear on the dual use of enhancements.

For the attempted murder of the victim in count 3, the trial court should have stayed the three-year enhancement for great bodily injury under section 12022.7 because it also imposed a term of 25 years to life under section 12022.53, subdivision (d), for personally and proximately causing great bodily injury with a firearm. We will modify the judgment so that it accords with the law.

First Holding:

Where multiple prison terms are improperly imposed as in this case, the reviewing court may modify the sentence to stay imposition of the sentence

Authority:

People v. Hunter (1986) 184 Cal.App.3d 1531, 1537

Second Holding:

It is improper to impose the enhancement under Penal Code section 12022.7 in addition to enhancement under section 12022.53(d), and it must be stayed.

Authority:

People v. Garcia (2017) 7 Cal.App.5th 941, 949

People v. Hunter (1986) 184 Cal.App.3d 1531, 1537

Third Holding:

If an error violates a defendant’s federal constitutional rights, reversal is required unless the error was harmless beyond a reasonable doubt.

Authority:

People v. Hernandez (2011) 51 Cal.4th 733, 745

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

People v. Canizales (2019) 7 Cal.5th 591, 615

People v. Concha (2010) 182 Cal.App.4th 1072, 1087

Fourth Holding:

A harmless error analysis may include consideration of implausible defense testimony and closing argument to the jury.

Authority:

People v. Fayed (2020) 9 Cal.5th 147, 195

People v. Zambrano (2004) 124 Cal.App.4th 228, 243

People v. Flores (2016) 2 Cal.App.5th 855, 881

Fifth Holding:

With respect to errors alleged regarding the conviction of the murder, the error can be found to be harmless beyond a reasonable doubt even under the Chapman standard, as the court concludes in this instance.

Authority:

People v. Salas (2006) 37 Cal.4th 967, 983-984

People v. Garcia (2001) 25 Cal.4th 744, 755

Wright v. West (1992) 505 U.S. 277, 296

Hanrahan v. Thieret (7th Cir. 1991) 933 F.2d 1328, 1340

Phelps v. Duckworth (7th Cir. 1985) 772 F.2d 1410, 1413-1414

Sixth Holding:

The standard of review on sufficiency of evidence is whether any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt, viewing evidence in light most favorable to prosecution.

Authority:

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

Seventh Holding:

Substantial evidence is evidence that is reasonable, credible, and of solid value.

Authority:

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

Eighth Holding:

A conviction for attempted murder requires proof that the defendant intended to kill the victim and proof of a direct but ineffectual act toward accomplishing that goal. But a finding of willfulness, deliberation, and premeditation requires more than a showing of an intent to kill.

Authority:

People v. Medina (2019) 33 Cal.App.5th 146, 153

People v. Gomez (2018) 6 Cal.5th 243, 282

Ninth Holding:

When reviewing a claim the trial court erred in denying a motion for a judgment of acquittal (sec. 1118.1) that was made at the close of the prosecution’s case-in-chief, the appellate court considers the evidence as it stood at that point,

Authority:

People v. Cole (2004) 33 Cal.4th 1158, 1212-1213

Tenth Holding:

It is the appellant’s burden to demonstrate error based on the appellate record and with meaningful legal analysis with adequate citation to the record.

Authority:

People v. Dauterman (2024) 104 Cal.App.5th 603, 609

Eleventh Holding:

Arguments not raised below are forfeited.

Authority:

People v. Richardson (2008) 43 Cal.4th 959, 1022-1023

Twelfth Holding:

The court conducts de novo review to detemine if jury miscontrued or misapplied the law.

Authority:

People v. Shaw (2002) 97 Cal.App.4th 833, 838

Thirteenth Holding:

Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 646

Fourteenth Holding:

Errors in the abstract of judgment may be corrected.

Authority:

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

 

Amelioration, Sentencing

Case 000023

Posted on by Gary McCurdy

Error and/or relief

Defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75.

Holding:

The Legislature declared legally invalid any prior-prison-term enhancements imposed before January 1, 2020, except those arising from convictions for sexually violent offenses, and provided for resentencing under Penal Code section 1172.75. Defendants whose enhanced prison prior term or terms were stayed at sentencing are eligible for resentencing under section 1172.75.

Authority:

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050

Discretion, Standard of review

Case 000022

Posted on by Gary McCurdy

Error and/or relief

The court imposed an improper burden on the defendant to demonstrate his mental disorder was a significant factor in the charged offense by reversing the statutory presumption in his favor on this issue. Because of this error, the court found defendant failed to prove he was eligible for mental health diversion as provided under Penal Code section 1001.36. Because the court did indeed use an erroneous standard, we will reverse and remand to allow the court to reevaluate the diversion request with a correct understanding of the law.

First Holding:

The prosecution bears burden of proof by clear and convincing evidence that mental health diagnosis was not a causal factor in the crime.

Authority:

PEN 1001.36

People v. Harlow (2025) 113 Cal.App.5th 485, 490

Second Holding:

The court reviews the trial court’s denial of a request for mental health diversion for abuse of discretion.

Authority:

Negron v. Superior Court (2021) 70 Cal.App.5th 1007, 1016

People v. Moine (2021) 62 Cal.App.5th 440, 448–449

Third Holding:

Diversion is discretionary, even if eligibility and suitability are present.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892–893

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 888

Fourth Holding:

If eligibility is established, the trial court must then consider whether a particular individual is suitable, by rendering a positive finding on each of four factors: (1) that in the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder would respond to mental health treatment; (2) that the defendant consent to diversion and waive speedy trial rights; (3) that the defendant will agree to comply with treatment as a condition of diversion; and (4) that the defendant will not pose an unreasonable risk of danger to public safety, which is defined as the likelihood the defendant would commit a new violent felony from a limited subset of particularly violent crimes, colloquially referred to as a “super strike.”

Authority:

PEN 1001.36(c)(4)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892–893