Author Archives: Gary McCurdy

Amelioration, Appellate Principles, Elements of crime, Sentencing, Standard of review

Case 000681

Posted on by Gary McCurdy

Error and/or relief

The defendant was not foreclosed from filing a new petition for recall of his sentence under section 1172.6. The matter is remanded with directions to the court to issue an order to show cause and conduct an evidentiary hearing pursuant to section 1172.6(d).

First Holding:

Effective January 1, 2019, SB 1437 altered the substantive law of murder in two areas.

First, the bill narrowed the scope of the felony-murder rule so that a participant in the perpetration or attempted perpetration of a specified felony in which a death occurs can be liable for murder only if (1) the person was the actual killer, or (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, or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Second, the bill eliminated liability for murder as an aider and abettor under the natural and probable consequences doctrine by requiring that, except in cases of felony murder, a principal in a crime shall act with malice aforethought to be convicted of murder. Now, malice shall not be imputed to a person based solely on his or her participation in a crime.

Additionally, SB 1437 added section what is now 1172.6, to provide a procedure for those convicted of a qualifying offense to seek relief where the two substantive changes described above affect a defendant’s conviction. Under section 1172.6, an offender seeking resentencing must first file a petition in the sentencing court, and the sentencing court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. If the sentencing court determines the petitioner has made a prima facie showing, the court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction.

Authority:

SB 1437

PEN 188(a)

PEN 189(e)

PEN 1172.6

People v. Curiel (2023) 15 Cal.5th 433, 448-449

People v. Arellano (2024) 16 Cal.5th 457, 467–468

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

Second Holding:

In general, whether a prior finding will be given conclusive effect in a later proceeding is governed by the doctrine of issue preclusion, also known as collateral estoppel. This doctrine bars relitigation of issues earlier decided only if several threshold requirements are fulfilled.

First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding.

Second, this issue must have been actually litigated in the former proceeding.

Third, it must have been necessarily decided in the former proceeding.

Fourth, the decision in the former proceeding must be final and on the merits.

Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. The party asserting collateral estoppel bears the burden of establishing these requirements.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 715

People v. Curiel (2023) 15 Cal.5th 433, 452

Third Holding:

Even if the threshold requirements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles of promoting efficiency while ensuring fairness to the parties. One well-settled equitable exception to the general rule of issue preclusion holds that preclusion does not apply when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue.

This exception ensures basic fairness by allowing for relitigation where the change in the law is such that preclusion would result in a manifestly inequitable administration of the laws. It also reflects a recognition that in the face of this sort of legal change, the equitable policies that underlie the doctrine of issue preclusion–preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation—are at an ebb.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 716

People v. Curiel (2023) 15 Cal.5th 433, 454

Fourth Holding:

We independently review a trial court’s issue preclusion ruling.

Authority:

People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238–1239

Fifth Holding:

In 2022, after the rulings on the defendant’s initial petitions, the law changed. As relevant here, section 1172.6 was amended, effective January 1, 2022, so as to provide that, at the hearing to determine whether the defendant is entitled to relief, the court may consider the procedural history of the case recited in any prior appellate opinion. Subsequently, multiple Courts of Appeal interpreted this provision to prohibit a trial court from considering the factual summary in a prior appellate opinion, even at the prima facie stage. This is a significant and relevant change in the law.

Authority:

People v. Bratton (2023) 95 Cal.App.5th 1100, 1113

People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238

People v. Lee (2023) 95 Cal.App.5th 1164, 1183

Sixth Holding:

The record of conviction will necessarily inform the trial court’s prima facie inquiry, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. However, the prima facie inquiry is limited. At this stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to section 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense.

A court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

People v. Curiel (2023) 15 Cal.5th 433, 463

Seventh Holding:

We independently review a trial court’s decision to deny a section 1172.6 petition for resentencing at the prima facie stage.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 121

Eighth Holding:

The defendant has prima facie established that he is eligible for relief because of the changes made to sections 188 and 189, and the record of conviction shows that both he and another individual were charged with murdering the victim. This alone is ordinarily enough to establish a prima facie case. Here, there is nothing in the record of conviction that demonstrates the defendant is ineligible for relief.

Authority:

People v. Mares (2024) 99 Cal.App.5th 1158, 1173 [If a defendant who faced a murder charge before SB 1437 pled guilty and the record contains any indication he had an accomplice who may have been the killer, a prima facie case ordinarily would be readily established, even by conclusory assertions in a form petition]

People v. Muhammad (2024) 107 Cal.App.5th 268, 280 [same]

Ninth Holding:

The charging document did not specify any particular theory of first degree murder, nor did it need to. Only a single statutory offense of murder exists. It has long been the law in this state that an accusatory pleading charging murder need not specify the manner in which the murder was committed. Nor does an accusatory pleading need to specify the theory of murder on which the prosecution relies at trial. Specifically, neither felony murder nor murder under the natural and probable consequences doctrine need be separately pleaded. Accordingly, the complaint allowed the prosecutor to proceed under now-invalid theories.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 338

People v. Muhammad (2024) 107 Cal.App.5th 268, 277

TENTH Holding:

The People refer to the probation report to establish that the defendant is not eligible. But it is not clear that the probation report can even be considered at this stage of the proceeding. The People have not cited a single case, nor are we aware of one, holding that a probation report is part of the record of conviction that can be considered at the prima facie stage. In fact, while in a different context, courts have held otherwise.

Authority:

People v. Burnes (2015) 242 Cal.App.4th 1452, 1458 [A probation report ordinarily is not part of the record of conviction]

Appellate Principles, Elements of crime, Jury trial, Pleading, Sentencing, Sixth Amendment

Case 000680

Posted on by Gary McCurdy

Error and/or relief

The court committed three errors requiring reversal. It improperly imposed the upper term on the felony offense by considering an aggravating factor that the jury did not find. It improperly refused to award the defendant certain sentencing credits without giving him notice that it might do so. The defendant’s conduct can support only one conviction for drawing and exhibiting a firearm in an angry or threatening manner, not three convictions.

First Holding:

After the jury found the defendant guilty on all counts, the prosecution presented evidence and argument to the jury on the aggravating factors that his unlawful possession of a firearm (1) was of increasing seriousness in relation to his earlier misdemeanor conviction and (2) occurred while he was on probation.

The jury found only the latter aggravating factor true. In selecting the upper term, the court relied on factors including that the defendant was armed and engaged in violent conduct, which indicates a danger to society, as well as the jury’s finding that he was on probation at the time of the offenses.

The trial court clearly erred by relying on an aggravating circumstance that the jury did not find—i.e., that the defendant engaged in violent conduct, which indicates a danger to society.

Authority:

Cal. Rules of Court, rule 4.421(b)(1)

People v. Wiley (2025) 17 Cal.5th 1069, 1076 [criminal defendants are entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose them to imposition of a sentence more serious than the statutorily provided midterm]

Second Holding:

We do not have enough confidence to conclude beyond a reasonable doubt that a jury would have found that circumstance in aggravation true beyond a reasonable doubt. Therefore, we remand for resentencing.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087 [this kind of sentencing error requires reversal and remand unless the reviewing court concludes beyond a reasonable doubt that a jury would have found true all aggravating facts relied on to justify the upper term; the error is not harmless if the record contains evidence that could rationally support a contrary finding regarding the aggravating fact at issue]

Third Holding:

A circumstance that is an element of the substantive offense cannot be used as a factor in aggravation. This prohibition applies only if the crime as defined by statute cannot be accomplished without performance of the acts which constitute such factor.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1261-1262

Fourth Holding:

The People contend that the defendant forfeited his claims of improper sentencing by not raising them in the trial court. We exercise our discretion to consider them in the interests of justice.

Authority:

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1143 [in the interests of justice we have decided to overlook forfeiture, and remand the matter for resentencing]

Fifth Holding:

A single act of brandishing a firearm in the presence of multiple people can support only a single conviction for brandishing. Brandishing a deadly weapon in the presence of another person is not a crime of violence upon that person, but is committed in someone’s presence, a single act of brandishing can only support a conviction of a single count no matter how many people witness the act. Two of the three brandishing counts are reversed.

Authority:

In re Peter F. (2005) 132 Cal.App.4th 877, 881

Sixth Holding:

The general rule is that on remand for resentencing the trial court may reconsider all sentencing choices.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976

Seventh Holding:

The trial court erred in denying section 4019 conduct credits to the defendant at sentencing without giving him notice that it might do so.

Authority:

People v. Lara (2012) 54 Cal.4th 896, 906 [defendant is entitled to notice of the facts that restrict his ability to earn credits and, if he does not admit them, a reasonable opportunity to prepare and present a defense]

Appellate Principles, Elements of crime, Plea bargains

Case 000679

Posted on by Gary McCurdy

Error and/or relief

Count ten as pled created a legal impossibility requiring reversal of the trial court’s acceptance of defendant’s plea agreement.

First Holding:

A claim not presented in the opening brief and was first raised in the appellant’s reply brief is deemed waived.

Authority:

People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9

Second Holding:

Generally, a guilty or no contest plea precludes appellate consideration of issues related to guilt or innocence, including the sufficiency of the evidence to support the conviction. Nonetheless, a defendant may still assert that his, her, or their admission included a legal impossibility.

Authority:

People v. Palmer (2013) 58 Cal.4th 110, 114

People v. Voit (2011) 200 Cal.App.4th 1353, 1365

Third Holding:

The term ‘legal impossibility,’ as applied to a choate [sic] crime, is merely a catch phrase for saying that, as a matter of law, the statute under which the defendant is charged does not prohibit his, her, or their conduct. Put another way, legal impossibility exists when the facts as admitted cannot constitute the crime pled to, such as where the victim’s characteristics fall outside of the statutory definition.

Authority:

People v. Jerome (1984) 160 Cal.App.3d 1087, 1094, 1099 [setting aside plea to oral copulation of a minor under 14 where the victim was 15]

People v. Richardson (2021) 65 Cal.App.5th 360, 371-375 [setting aside no contest plea to human trafficking of a minor where victim was not a minor]

People v. Soriano (1992) 4 Cal.App.4th 781 [a death certificate is not an instrument within the meaning of section 115, so it was legally impossible for the defendant to be guilty of section 115 for attempting to forge a death certificate]

Fourth Holding:

We conclude that because section 134 [essentially, falsifying a document for a fraudulent or deceitful purpose] is not one of the specifically enumerated offenses in section 653f(a) [solicitation of another to commit specified crimes] and given that the elements of a section 134 offense do not necessarily establish one of the specifically enumerated offenses, defendant’s plea to violating section 653f(a) by committing a violation of section 134 has resulted in a legal impossibility requiring reversal.

Authority:

People v. Soriano (1992) 4 Cal.App.4th 781, 784, 786

Appellate Principles, Fines and fees, Sentencing

Case 000678

Posted on by Gary McCurdy

Error and/or relief

The defendant was sentenced to life without the possibility of parole (LWOP). It was therefore improper to impose a parole revocation fine, which applies only to non-LWOP sentences.

First Holding:

The trial court erred in imposing and staying a parole revocation fine under section 1202.45(a), because the defendant’s sentence did not include a period of parole.

Authority:

People v. Battle (2011) 198 Cal.App.4th 50, 63 [parole revocation fine improperly imposed upon defendant sentenced to indeterminate term on one count and LWOP on another]

Second Holding:

The defendant also contends for the first time on appeal that the court violated his constitutional rights, by ordering him to pay a $10,000 restitution fine under Penal Code section 1202.4(b), a court operations surcharge under Government Code section 69926(a), and court facilities and court operations assessments under Government Code section 70373 and Penal Code 1465.8(a)(1)), without first determining his ability to pay. Because these contentions were not raised below, they are forfeited.

Authority:

People v. Trujillo (2015) 60 Cal.4th 850, 856–859

People v. McCullough (2013) 56 Cal.4th 589, 597–598

People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1155

People v. Dueñas (2019) 30 Cal.App.5th 1157, overruled in part by People v. Kopp (2025) 19 Cal.5th 1, 23

Evidence

Case 000677

Posted on by Gary McCurdy

Error and/or relief

We agree with the defendant the exhibit was implied hearsay offered to prove the truth of what it implicitly asserted—that the defendant was a member of the social group. Because the exhibit was the only evidence directly tying the defendant to the social group that carried out the crimes, there is a reasonable probability he would have obtained a more favorable result had the exhibit been excluded. We reverse and remand.

First Holding:

Evidence of an express statement of a declarant is hearsay evidence if such evidence is offered to prove—not the truth of the matter that is stated in such statement expressly—but the truth of a matter that is stated in such statement by implication.

An implied statement may be inferred from an express statement whenever it is reasonable to conclude: (1) that declarant in fact intended to make such implied statement, or (2) that a recipient of declarant’s express statement would reasonably believe that declarant intended by his express statement to make the implied statement.

Authority:

People v. Garcia (2008) 168 Cal.App.4th 261, 289

Second Holding:

The exhibit was not offered as circumstantial evidence as the Attorney General contends. It is not capable of serving its nonhearsay purpose regardless of whether the jury believes the matters asserted to be true. It is not akin to a receipt or fishing license that, by its mere presence in a particular location, tends to show someone’s association with that location. The exhibit was found in the cell of others who had no demonstrated tie to the defendant other than through the truth asserted by the exhibit itself.

Authority:

Hart v. Keenan Properties, Inc. (2020) 9 Cal.5th 442, 447

Third Holding:

Because the exhibit was inadmissible hearsay, the expert committed Sanchez error when he recounted its contents to the jury. The undisputed circumstances show that the exhibit was not made with a primary purpose of creating an out-of-court substitute for trial testimony.

Authority:

People v. Sanchez (2016) 63 Cal.4th 665, 686, 688

Fourth Holding:

The state law prejudice standard applies because the exhibit was not testimonial.

Authority:

People v. Valencia (2021) 11 Cal.5th 818, 840

People v. Watson (1956) 46 Cal.2d 818, 836–837

Abstracts and Minutes

Case 000676

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains errors that must be corrected.

Holding:

The abstract of judgment does not reflect the additional custody credits [more than 2600 days or the fines ($300 restitution and parole revocation restitution) ordered by the court. Instead, the abstract of judgment incorrectly reflects a $5,000 restitution fine and a $5,000 parole revocation restitution fine. It also incorrectly reflects defendant’s total credits as [less than 750] days.

[Gary note: The court did not list any authorities in support of its order for the correction of the abstract of judgment, but there is plenty available had it seen the need. I set forth some below:]

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

Fines and fees, Sentencing

Case 000675

Posted on by Gary McCurdy

Error and/or relief

When resentencing defendant, the court reimposed the $400 restitution fine and a $400 suspended parole revocation fine originally imposed in 1999. The restitution fine must be vacated.

Holding:

Restitution fines more than 10 years old are not collectible and must be vacated. Resentencing does not restart the clock.

Authority:

PEN 1465.9

People v. Salstrom (2025) 117 Cal.App.5th 596, 600-601 [resentencing does not restart 10-year clock], review granted Mar. 11, 2026, S295038 on a different issue

Appellate Principles, Sentencing

Case 000674

Posted on by Gary McCurdy

Error and/or relief

The court should have stayed the sentence on count 3 under section 654.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. The statute is intended to ensure that the defendant is punished commensurate with his culpability. It expressly prohibits separate punishment for two crimes based on the same act, but has been interpreted to also preclude multiple punishment for two or more crimes occurring within the same course of conduct pursuant to a single intent.

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

However, the temporal proximity of the two offenses is insufficient by itself to establish that they were incident to a single objective. If the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. Furthermore, multiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Vargas (2014) 59 Cal.4th 635, 642

People v. Capistrano (2014) 59 Cal.4th 830, 885

People v. Rodriguez (2009) 47 Cal.4th 501, 507, overruled in part on another ground in People v. Hardy (2018) 5 Cal.5th 56 at pp. 103–104
People v. Jackson (2016) 1 Cal.5th 269, 354

People v. Porter (1987) 194 Cal.App.3d 34, 38

People v. Beamon (1973) 8 Cal.3d 625, 639

People v. Tom (2018) 22 Cal.App.5th 250, 260

People v. Lopez (2011) 198 Cal.App.4th 698, 717

People v. Felix (2001) 92 Cal.App.4th 905, 915

Second Holding:

Under the facts of this case, the court should have stayed the sentence on count 3. We may modify the judgment on review to reflect the sentence is stayed. In the absence of any other errors requiring remand, we exercise our discretion to do so.

Authority:

PEN 1260

People v. Alford (2010) 180 Cal.App.4th 1463, 1473

People v. Flores (2022) 77 Cal.App.5th 420, 453 [we need not remand a matter when it would be an idle act wasteful of judicial resources]

Effective assistance of counsel, Sixth Amendment, Standard of review

Case 000673

Posted on by Gary McCurdy

Error and/or relief

The defense attorney provided ineffective assistance of counsel by failing to object to this inadmissible opinion testimony. On this unusual record, the defendant has established both deficient performance and prejudice under the Strickland standard for ineffective assistance. Accordingly, we reverse the judgment and remand for a new trial.

[Gary note: It is highly unusual for a court on direct appeal to find that counsel prejudicially provided ineffective assistance. Normally such challenges are denied on appeal, with the court perhaps mentioning that the defendant could pursue the claim through habeas corpus. I have chosen to include extensive passages, because even though any case is fact-specific, the principles announced along with the facts may be of value, should you at some point need to consider raising an IAC claim on direct appeal.]

First Holding:

The defendant’s evidentiary objections are forfeited because defense counsel did not object to any of the testimony that Seevers now challenges on appeal. A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.

Accordingly, it is generally the case that a defendant forfeits an argument on appeal where he fails to object at all to the evidence in the trial court.

Authority:

EVID 353

People v. Flinner (2020) 10 Cal.5th 686, 726

Second Holding:

We must therefore decide the defendant’s alternative claim of ineffective assistance of counsel. To prevail on his ineffective assistance claim under the Sixth Amendment, the defendant must establish that (1) his counsel’s performance was deficient, and (2) he was prejudiced as a result.

Deficient performance is established by showing that the attorney’s representation fell below an objective standard of reasonableness under prevailing professional norms.

Under Strickland’s prejudice prong, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694

Third Holding:

In assessing whether an attorney’s performance was deficient, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance.

Further, competent counsel may often choose to forgo even a valid objection. In the heat of a trial, defense counsel is best able to determine proper tactics in the light of the jury’s apparent reaction to the proceedings.  Thus, a mere failure to object to evidence or argument seldom establishes counsel’s incompetence.

Nonetheless, deference to counsel’s performance is not the same as abdication. It must never be used to insulate counsel’s performance from meaningful scrutiny and thereby automatically validate challenged acts or omissions. We may conclude, on direct appeal, that counsel’s performance was deficient if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation.

Authority:

People v. Mai (2013) 57 Cal.4th 986, 1009

People v. Riel (2000) 22 Cal.4th 1153, 1197

People v. Centeno (2014) 60 Cal.4th 659, 675

People v. Jasso (2025) 17 Cal.5th 646, 676

Fourth Holding:

A lay witness may offer opinion testimony if it is rationally based on the witness’ perception and helpful to a clear understanding of the witness’s testimony.However, lay opinion about the veracity of particular statements by another is inadmissible on that issue.

Authority:

EVID 800

People v. Jones (2017) 3 Cal.5th 583, 602

People v. Melton (1988) 44 Cal.3d 713, 744

Fifth Holding:

A lay opinion about the veracity of particular statements does not constitute properly founded character or reputation evidence, nor does it bear on any of the other matters listed by statute as most commonly affecting credibility. Thus, such an opinion has no tendency in reason to disprove or prove the veracity of the statements. A lay witness may not express an opinion about the veracity of another person’s statement because the statement’s veracity is for the jury to decide.

Authority:

People v. Houston (2012) 54 Cal.4th 1186, 1221

Sixth Holding:

A consistent line of authority in California as well as other jurisdictions holds a witness cannot express an opinion concerning the guilt or innocence of the defendant. The reason for employing this rule is not because guilt is the “ultimate issue of fact” to be decided by the jury. Opinion testimony often goes to the ultimate issue in the case.

Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.

Authority:

People v. Duong (2020) 10 Cal.5th 36, 60

People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77

Seventh Holding:

The same rationale that prohibits the witness from expressing an opinion on the meaning of statutory terms or the guilt of the defendant also prohibits the witness from expressing an opinion as to whether a crime has been committed.

Authority:

People v. Torres (1995) 33 Cal.App.4th 37, 47 [witness improperly expressed the opinion the crimes committed were robberies]

Eighth Holding:

Our inquiry is whether a witness has offered testimony that is tantamount to expressing an opinion as to defendant’s guilt.

Authority:

People v. Ward (2005) 36 Cal.4th 186, 210

People v. Vang (2011) 52 Cal.4th 1038, 1048

People v. Duong (2020) 10 Cal.5th 36, 61

Ninth Holding:

The investigator improperly expressed an opinion on the defendant’s guilt throughout his testimony. By asking the investigator whether any evidence exonerated the defendant, the prosecutor improperly elicited testimony that commented on the strength of the case against the defendant and the issue of whether he was guilty of the victim’s murder. By responding that he found no exonerating evidence, the investigator improperly expressed his personal opinion on evidence a factfinder could have viewed as exonerating.

Authority:

People v. Spence (2012) 212 Cal.App.4th 478

Tenth Holding:

Having determined that portions of the investigator’s testimony were objectionable because they either opined on witness credibility or opined on the defendant’s guilt, we conclude that there simply could be no satisfactory explanation for the failure of defense counsel to object.

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 676

Eleventh Holding:

The investigator’s testimony opining on the defendant’s guilt and on the witnesses credibility was so central to the issues at trial and so damaging to the defense that any competent counsel would have objected.

We can conceive of no satisfactory explanation for defense counsel’s failure to object. The defendant has therefore satisfied the deficient performance prong of the Strickland standard.

Authority:

People v. Yates (2018) 25 Cal.App.5th 474, 488 [finding on direct appeal no conceivable satisfactory explanation for defense counsel’s failure to object to every instance in which prosecution experts related as true case-specific facts contained in hearsay statements]

Twelfth Holding:

Given the investigator’s lead role and extensive participation in the investigation and presence in court during the trial, his opinions on witness credibility, the absence of any exonerating evidence, and the conclusions to be drawn from the defendant’s statement were likely to hold special weight for the jury and created a risk that the jury would abdicate its role as the arbiter of credibility and guilt.

Authority:

People v. Rouston (2024) 99 Cal.App.5th 997, 1012

Thirteenth Holding:

The case against the defendant was weak because it rested primarily on the inconsistent testimony of witnesses with motives to be untruthful, no physical evidence corroborated any of their stories or otherwise implicated the defendant, no body was ever found, and no crime scene was ever identified.

Although, in certain circumstances, an investigating officer’s opinion on the defendant’s guilt may not have influenced the verdict in light of the overwhelming evidence against defendant, that situation is not present here. Because the case against the defendant was based on such a precarious foundation, jurors could well have been influenced by the investigator’s personal opinions as an experienced law enforcement officer who had spent countless hours on the investigation.

It is therefore reasonably probable that the defendant would have obtained a more favorable result at trial if defense counsel had objected to the investigator’s improper testimony opining on the veracity of the two witnesses’ statements, identifying the defendant as the person who committed the homicide, assuring the jurors he knew he had the right person, and concluding that no evidence exonerated the defendant.

Authority:

In re Edward S. (2009) 173 Cal.App.4th 387, 418 [the case must be considered a close one because there was no eyewitness or physical evidence and the matter turned almost entirely on credibility]

People v. Riggs (2008) 44 Cal.4th 248, 301

Discretion, Standard of review

Case 000672

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion in denying his motion for mental health diversion because substantial evidence does not support the trial court’s finding that he posed an unreasonable risk of danger to public safety, as defined under section 1001.36.

First Holding:

In 2018, the Legislature enacted sections 1001.35 and 1001.36 to create a pretrial diversion program for defendants with certain mental health disorders. Pretrial diversion allows for the suspension of criminal proceedings and potential dismissal of charges upon successful completion of mental health treatment. The statute expressly promotes increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 133

Second Holding:

As presently enacted, section 1001.36(b) provides that a defendant is eligible for pretrial diversion if two criteria are met.

First, the defendant has been diagnosed with a specified mental disorder within the last five years by a qualified mental health expert.

Second, the defendant’s mental disorder was a significant factor in the commission of the charged offense. If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Authority:

People v. Graham (2024) 102 Cal.App.5th 787, 795

Third Holding:

If a defendant meets these eligibility requirements, the court also must find that the defendant is suitable for pretrial diversion based on satisfaction of the following criteria: (1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment. (2) The defendant consents to diversion and waives the defendant’s right to a speedy trial. The defendant agrees to comply with treatment as a condition of diversion. And (4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community.

Authority:

PEN 1001.36(b)

People v. Graham (2024) 102 Cal.App.5th 787, 795

Fourth Holding:

Section 1170.18 defines “unreasonable risk of danger to public safety” as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). That provision of section 667 sets forth eight categories of offenses that are commonly referred to as “super strikes,” including any homicide offense, and including any attempted homicide offense, defined in sections 187 to 191.5, inclusive.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449 [noting that the “super strikes” include murder and attempted murder]

Fifth Holding:

Ultimately, however, diversion under section 1001.36 is discretionary, not mandatory, even if all the statutory requirements are met.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 887

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

Sixth Holding:

We review a trial court’s ruling on a petition for pretrial mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.

In addition, we review a trial court’s factual findings in support of its ruling for substantial evidence.

On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.

Authority:

People v. Graham (2024) 102 Cal.App.5th 787, 795

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

Seventh Holding:

Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals. Further, in the guise of exercising its residual discretion, a court is not permitted to redefine public safety in a manner inconsistent with the Legislature’s expressed intent.

Authority:

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

Appellate Principles, Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000671

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to support the conviction for sexual penetration by force upon a child.

First Holding:

To evaluate the defendant’s challenge to the sufficiency of the evidence, we must review the entire record in the light most favorable to the judgment, and then determine whether it contains evidence that is reasonable, credible, and of solid value such that a reasonable jury could have found the defendant guilty beyond a reasonable doubt.  

We must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

But we cannot, however, venture beyond the evidence presented at trial, and may consider only those inferences that are reasonably supported by the record. A reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. It must logically flow from other facts established in the action, and it cannot be based entirely on the suspicions of the officers involved in the case and the conjecture of the prosecution.

Authority:

People v. Ware (2022) 14 Cal.5th 151, 167–168

Second Holding:

In reviewing the sufficiency of the evidence to determine whether retrial is permissible for purposes of double jeopardy, we must consider all of the evidence presented at trial, including evidence that should not have been admitted. Because the record contains no evidence that could support a reasonable inference that the defendant sexually penetrated the victim with a foreign object, insufficient evidence supports a verdict of guilt on that count. Double jeopardy bars retrial on that count.

Authority:

People v. Story (2009) 45 Cal.4th 1282, 1296

Lockhart v. Nelson (1988) 488 U.S. 33, 39

Third Holding:

When a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence.

Authority:

PEN 1181(6)

PEN 1260

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225

People v. Navarro (2007) 40 Cal.4th 668, 677

Abstracts and Minutes, Sentencing

Case 000670

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of one count of felony vandalism and one count of misdemeanor vandalism. The court purported to sentence the defendant to a total of three years, with appellant ordered to serve 270 days in county jail and the balance of the three years time on mandatory supervision (a “split sentence”). This was error, because the concept of split sentence applies to felonies only, and the misdemeanor was not subject to mandatory supervision.

First Holding:

Under the Realignment Act, qualifying low-level felony offenders no longer serve their sentences in state prison. Instead, such offenders serve their sentences either entirely in county jail or partly in county jail and partly under the mandatory supervision of the county probation officer. Pursuant to section 1170(h)(5)(B), the court has discretion to impose a hybrid sentence consisting of county jail followed by a period of mandatory supervision. This option is only available for felony convictions.

Authority:

PEN 1170(h)

People v. Scott (2014) 58 Cal.4th 1415, 1418-1419

People v. Catalan (2014) 228 Cal.App.4th 173, 178

Second Holding:

As reflected in the court’s oral pronouncement and the corresponding minute order, the court “split” the total three-year sentence for both counts, imposing 270 days of jail time and the balance as mandatory supervision.

While respondent points to the subsequent nunc pro tunc order purporting to place appellant on two years of formal probation, a nunc pro tunc order is generally limited to correcting clerical errors and cannot declare that something was done that was not done.

The record indicates that at least some portion of the court’s order imposing mandatory supervision applied to the misdemeanor conviction. As mandatory supervision under section 1170(h)(5)(B) is only applicable to felony convictions, we must remand for resentencing.

Authority:

PEN 1170(h)

People v. Borja (2002) 95 Cal.App.4th 481, 485

Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 256