Author Archives: Gary McCurdy

Elements of crime, Jury instructions, Standard of review, Vicarious liability

Case: 000331

Posted on by Gary McCurdy

Error and/or relief

The trial court failed to appropriately instruct the jury that, in order to find them guilty of implied malice murder as aiders and abettors, the jury must find that they personally acted with malice.

First Holding:

In order to find the defendants guilty of implied malice murder as aiders and abettors, the jury must find that they personally acted with malice.

Authority:

People v. Langi (2022) 73 Cal.App.5th 972, 982 [the previous standard jury instructions on aider and abettor liability create an ambiguity under which the jury may find the defendant guilty of aiding and abetting second degree murder without finding that he personally acted with malice]

Second Holding:

We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. When we review a purportedly erroneous instruction, we consider whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. We consider the instructions as a whole and assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.

Authority:

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

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

Third Holding:

If a trial court incorrectly instructs on an element of a charged offense such that the error impermissibly shifted or lowered the burden of proof for that element, the applicable standard of prejudice is the Chapman standard. Under the Chapman standard, a federal constitutional error requires reversal unless the People show the error was harmless beyond a reasonable doubt.

Authority:

Rose v. Clark (1986) 478 U.S. 570, 570–581

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

Fourth Holding:

For the error to be harmless, the state must show it would be impossible, based on the evidence, for a jury to make the findings reflected in its verdict without also making the findings that would support a valid theory of liability. While overwhelming evidence may demonstrate harmlessness, a court’s analysis of whether the evidence is overwhelming in this context is not as subjective or free-ranging as that term might imply. Instead, the analysis requires a court to rigorously review the evidence to determine whether any rational juror who found the defendant guilty based on an invalid theory, and made the factual findings reflected in the jury’s verdict, would necessarily have found the defendant guilty based on a valid theory as well. The question here is not the sufficiency of the evidence to support a valid theory, but its opposite.

Authority:

In re Lopez (2023) 14 Cal.5th 562, 568, 591

Fifth Holding:

In determining whether instructional error that leaves out an element of the offense is harmless, we do not focus exclusively on the evidence favorable to the verdict, and we do not presume the existence of any facts the jury might reasonably infer in favor of the prosecution. We do not view the evidence in the light most favorable to the prosecution. We review the evidence in the light most favorable to the defendant, and in doing so, we do not reweigh the evidence or resolve evidentiary conflicts. The testimony of a single witness may be sufficient—even if there is significant countervailing evidence, and the testimony is subject to justifiable suspicion. If a thorough review of the record shows there is any evidence that a rational juror could find as a basis for reasonable doubt as to any erroneously omitted element, then the error requires reversal, even when there is ample evidence to support a finding of guilt.

Authority:

People v. Madrigal (2023) 93 Cal.App.5th 219, 243

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

People v. Valenti (2016) 243 Cal.App.4th 1140, 1166, 1167

People v. Barnwell (2007) 41 Cal.4th 1038, 1052

Sixth Holding:

Second degree 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 either express, i.e., when a defendant manifests an intention to kill, or implied. 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. Thus, implied malice includes an objective component—an act that is dangerous to life—and a subjective component—the defendant’s awareness of and disregard for the danger. Intent to kill may be inferred from the defendant’s acts and the circumstances of the crime. A person can be convicted of aiding and abetting second degree murder based on implied malice.

Authority:

People v. Clements (2022) 75 Cal. App. 5th 276, 299

People v. Smith (2005) 37 Cal.4th 733, 741

People v. Reyes (2023) 14 Cal.5th 981, 990

People v. Gentile (2020) 10 Cal.5th 830, 850 [Notwithstanding SB 1437’s elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life]

Seventh Holding:

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. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

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

Amelioration, Elements of crime, Sentencing, Vicarious liability

Case: 000330

Posted on by Gary McCurdy

Error and/or relief

On this appeal from denial of the defendant’s petition under section 1172.6 at the prima facie stage, where the petition consisted of a check-box form, we remand with instructions for the trial court to consider any amended allegations filed by the defendant within 30 days of remand.

First Holding:

In 2019, the Legislature enacted SB 1437, which altered the rules of murder liability to ensure culpability more closely matched punishment. As part of this reform, the Legislature amended section 188 to prohibit imputing malice based solely on a defendant’s participation in a crime. In effect, a defendant can no longer be convicted of murder under an aiding and abetting theory merely because a killing was a natural and probable consequence of another intended offense.

Authority:

PEN 188

People v. Arellano (2024) 16 Cal.5th 457, 472

People v. Gentile (2020) 10 Cal.5th 830, 839

Second Holding:

To provide retroactive relief, SB 1437 also established a resentencing process, now codified in section 1172.6. This statute permits individuals convicted of murder, attempted murder, or manslaughter under a theory of imputed malice to petition the sentencing court to vacate the conviction and seek resentencing.

Authority:

PEN 1172.6(a)

Third Holding:

Once the court receives such a petition, the section 1172.6 process unfolds in three distinct stages. At the first stage, a petitioner need only submit a facially sufficient petition that alleges the statutory prerequisites for relief. If the petition is facially valid, the petitioner is entitled to the appointment of counsel, if requested, and the matter proceeds to the second stage. At the second stage, the trial court must determine whether the petitioner has made a prima facie showing of eligibility for relief. If the court finds the petitioners have met their burden of establishing a prima facie case, the court must then issue an order to show cause and proceed to the third stage: an evidentiary hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioners remain guilty under current law.

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 562

Fourth Holding:

Patton makes clear that at the second stage a trial court may consider uncontroverted facts from the record of conviction. This includes an evaluation of preliminary hearing evidence to determine whether a still-valid theory of liability supported the conviction. However, Patton also teaches that at the second stage petitioners have the opportunity to show why they are not ineligible, despite what might appear in preliminary hearing transcripts. To meet the burden of establishing a prima facie case for relief, the petitioner must provide nonconclusory allegations that alert the court and prosecution to the issues to be decided at the evidentiary hearing.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 567

Amelioration, Elements of crime, Jury instructions, Retroactivity, Vicarious liability

Case: 000329

Posted on by Gary McCurdy

Error and/or relief

Habeas petition granted, because the defendant was convicted of first degree murder as an aider and abettor under the natural and probable consequences doctrine found improper under Chiu, decided shortly after his conviction was final. The record does not establish beyond a reasonable doubt he was convicted of first degree murder under another, valid theory of liability. We grant the petition and remand to the trial court so the People may decide whether to retry petitioner on the first degree murder charge or accept a reduction of the conviction to second degree murder.

First Holding:

An aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Natural and probable consequences liability cannot extend to first degree premeditated murder because punishing someone for first degree premeditated murder when that person did not actually perpetrate or intend the killing is inconsistent with reasonable concepts of culpability.

Authority:

People v. Chiu (2014) 59 Cal.4th 155, 165

Second Holding:

This holding is retroactive to convictions already final at the time Chiu was decided.

Authority:

In re Martinez (2017) 3 Cal.5th 1216, 1222

Third Holding:

When a trial court instructs a jury on two theories of guilt, one of which was legally correct [e.g., direct aiding and abetting] and one legally incorrect [i.e., natural and probable consequences], reversal is required, unless the court concludes beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder.

Authority:

People v. Chiu (2014) 59 Cal.4th 155, 165, 167

In re Lopez (2023) 14 Cal.5th 562, 568 [a reviewing court may hold the error harmless where it would be impossible, based on the evidence, for a jury to make the findings reflected in its verdict without also making the findings that would support a valid theory of liability]

Abstracts and Minutes

Case: 000328

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be amended to correct a clerical error and to reflect that he was sentenced to concurrent, and not consecutive, terms for counts 1, 3, and 4.

First Holding:

A trial court has the inherent power to correct clerical errors at any time and a reviewing court may order correction of an abstract of judgment that does not accurately reflect the oral pronouncement of judgment.

Authority:

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

Abstracts and Minutes

Case: 000327

Posted on by Gary McCurdy

Error and/or relief

We agree with the parties that the nunc pro tunc minute order dated [Date B], incorrectly reflects that on [earlier Date A], the defendant was resentenced pursuant to sections 1172.7 and 1172.75, and must be corrected to reflect that the defendant was resentenced pursuant to section 1170. The matter is remanded for the trial court to correct the nunc pro tunc minute order dated [Date B], to reflect that on [earlier Date A], the defendant was resentenced pursuant to section 1170.

Holding:

The minute order must be corrected.

[GARY NOTE: No authority was cited, but there is certainly authority, such as those I have listed 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

Amelioration, Sentencing, Sixth Amendment

Case: 000325

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred when it sentenced the defendant to an upper term sentence without affording him a jury trial on aggravating factors. Remanded for retrial on the factors in aggravation.

First Holding:

Section 1170(b)(2) provides that, in selecting a term of imprisonment, a trial court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Notwithstanding this rule, a court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170

Second Holding:

With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt. Under section 1170(b), a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 747

Cunningham v. California (2007) 549 U.S. 270, 281

Third Holding:

In Erlinger, the United States Supreme Court rejected the argument that the prior conviction exception to the Sixth Amendment permits a judge to find perhaps any fact related to a defendant’s past offenses. Rather, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 837

Fourth Holding:

The California Supreme Court applied Erlinger to California’s determinate sentencing scheme. In Wiley, it overruled its prior decisions Black and Towne that had found it constitutionally permissible for a trial court to determine whether a defendant’s crimes were of increasing seriousness or whether the defendant’s performance on probation was unsatisfactory. A trial court’s determination of those aggravating factors without the defendant’s consent violated section 1170(b)(2).

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1084-1086 [expressly overruling People v. Towne (2008) 44 Cal.4th 63 and People v. Black (2007) 41 Cal.4th 799]

Fifth Holding:

A trial court’s reliance on aggravating circumstances not found in accordance with the jury trial requirement is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. When assessing prejudice under Chapman, the proper inquiry is whether any rational fact finder could have come to the opposite conclusion.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768

People v. Wiley (2025) 17 Cal.5th 1069,1090

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

Sixth Holding:

Here, the trial court relied on its own files to find that the defendant had two prior felony convictions for which he served prison sentences, and found that his performance on supervision had been unsatisfactory. The California Supreme Court has cautioned against attempting to determine whether a jury would have found true aggravating circumstances that require an imprecise quantitative or comparative evaluation of the facts. The reviewing court cannot assume that the record reflects all of the evidence that would have been presented to the jury, or that the defendant had the same incentive and opportunity at a sentencing hearing to contest the aggravating circumstance. To the extent a potential aggravating circumstance rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 775-776

Seventh Holding:

On remand, the parties remain free to introduce at trial all relevant evidence to support or contest the factual support for the aggravating circumstances set out in the California Rules of Court. The court may rely on any properly proven aggravating facts, including prior convictions or facts necessarily found by the jury to support a verdict on underlying counts and enhancements. The court retains its discretion to impose an upper term sentence if it concludes that one or more properly proved circumstances justify such a sentence. If it cannot so conclude, it may impose no more than a middle term.

Authority:

PEN 1170

People v. Lynch (2024) 16 Cal.5th 730, 777-778

Abstracts and Minutes, Duty of the court, Sentencing

Case: 000324

Posted on by Gary McCurdy

Error and/or relief

The trial court should have stayed the sentence on one of the defendant’s convictions under section 654. Therefore, we modify his sentence to stay the sentence on that count. We also order the trial court to correct errors in the defendant’s abstract of judgment.

First Holding:

Section 654 provides that a defendant may be punished only once for an act or omission that is punishable in different ways by different provisions of law. The statute itself literally applies only where such punishment arises out of multiple statutory violations produced by the same act or omission. However, because the statute is intended to ensure that a defendant is punished commensurate with his culpability, its protection has been extended to cases in which there are several offenses committed during a course of conduct deemed to be indivisible in time. Where the defendant committed more than one offense during a course of conduct deemed to be indivisible in time, the court looks to the defendant’s intent and objective to determine whether any of the offenses are subject to section 654. Whether section 654 applies to a given case is a question of fact for the trial court. In this case, based on statements made by the court on more than one occasion, the only reasonable conclusion is that the court determined the assault with a semiautomatic firearm in count 12 involved the same act or criminal objective as the robbery against the same victim in count 10.

Authority:

PEN 654

People v. Mesa (2012) 54 Cal.4th 191, 193

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

People v. Jackson (2016) 1 Cal.5th 269, 354

Second Holding:

The abstract contains several errors. It stated that the court imposed, but stayed under section 654, several firearm and bodily injury enhancements on nine of the counts. In fact, however, the court dismissed those enhancements under section 1385. The abstract states that the sentences on three of the counts were full consecutive terms. In fact, the court imposed a consecutive term of one-third the midterm on each, as required under section 1170.1(a). And the abstract states that the total time on attached pages was four years and four months, whereas the actual total on the attached pages is fourteen years. On remand, the trial court shall ensure the amended abstract of judgment does not contain these errors.

[Gary note: The court did not cite authority for correction of the abstract of judgment, likely because it recognized there will be a new abstract of judgment issued to reflect the effect of section 654 on one of two counts. Had the Court of Appeal chosen to specifically order correction of the existing abstract, it would have found authority under one or more of the cases I have set forth 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

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000323

Posted on by Gary McCurdy

Error and/or relief

Remanded for retrial of the strike prior allegation. The amended version of section 186.22 must be applied in determining whether prior convictions with a gang enhancement qualify as serious felonies under the Three Strikes law.

First Holding:

In 2021, the Legislature passed AB 333, which amended section 186.22. This legislation narrowed the definition of a criminal street gang, the definition of a pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. Moreover, because these changes are ameliorative in nature, they apply to nonfinal judgments on appeal.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

Second Holding:

In Fletcher, relying in part on the present conditional phrasing of section 1192.7(c)(28)—which applies to any felony offense that would also constitute a felony violation of section 186.22–the Supreme Court held that current law (i.e., AB 333) applies to the determination of whether a prior conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28). The Supreme Court also concluded that there was insufficient evidence in that case that the defendants’ convictions were obtained under AB 333’s more stringent requirements because the only evidence presented were the abstracts of judgment, which merely showed the offenses and gang enhancements. Accordingly, the Supreme Court vacated the strike prior findings and directed the Court of Appeal to remand with instructions to retry the gang allegations under AB 333’s amendments to section 186.22.

Authority:

PEN 1192.7(c)(28)

People v. Fletcher (2025) 18 Cal.5th 576, 603-604

Abstracts and Minutes

Case: 000322

Posted on by Gary McCurdy

Error and/or relief

The sentencing court stayed all fines and fees based on the defendant’s inability to pay. The minute order from the sentencing hearing notes the various fines and fees the court imposed, but does not specifically reflect the fines and fees were stayed. The minute order is ordered corrected to reflect that all fines and fees were ordered stayed pending a determination of the defendant ability to pay.

First Holding:

This court has the inherent power to order correction of clerical errors in court records.

Authority:

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

Duty of the court, Sentencing, Standard of review

000321

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing sentence on the robberies which served as the predicate offenses for his murder conviction under the felony murder theory. We remand for full resentencing so the trial court may determine whether section 654 applies to all of the underlying robberies or to only one, and to correct other errors (if any) that the parties asserted in this appeal.

First Holding:

Section 654 provides that the same act or omission shall not be punished under more than one provision of law. Thus, where felony murder is the sole theory of murder under which the case was prosecuted, section 654 precludes imposition of separate terms for the predicate felonies for the theory of felony murder, for which defendant received his first degree murder sentence.

Authority:

PEN 654
People v. Montes (2014) 58 Cal.4th 809, 898

Second Holding:

An appellate court normally reviews the trial court’s factual determinations in applying section 654 for substantial evidence.

Authority:

People v. Brents (2012) 53 Cal.4th 599, 618

People v. Jacobo (2019) 37 Cal.App.5th 32, 53-54

Abstracts and Minutes, Duty of the court, Sentencing

Case: 000320

Posted on by Gary McCurdy

Error and/or relief

This is not exactly a win for the defendant, but it reinforces the proper application of section 654. In this instance, the trial court simply did not impose any sentence on a count that the court determined section 654 applied to. It resulted in reversal of the sentence, with a direction that the court impose a sentence on all counts, including the one to which section 654 applied, and stay execution as to that count. Interestingly, the abstract of judgment actually reflected that the court had imposed and stayed sentence under section 654. Reaffirming my supplication that we should always examine abstracts of judgment, as it truly is not uncommon for them to contain errors.

First Holding:

The abstract of judgment incorrectly states that the trial court imposed the upper term for count 2 and stayed the sentence under section 654. However, the court did not impose sentence for count 2 during the sentencing hearing. Where, as here, a discrepancy exists between the court’s oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The clerk cannot supplement the judgment the court actually pronounced by adding a provision to the minute order and the abstract of judgment.

Authority:

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 893

People v. El (2021) 65 Cal.App.5th 963, 967

Second Holding:

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. Stated differently, section 654 prohibits multiple punishment for the same act or omission. When section 654 is applicable, the accepted procedure is to sentence defendant for each count and stay execution of sentence on certain of the convictions to which section 654 is applicable.

Authority:

PEN 654

People v. Correa (2012) 54 Cal.4th 331, 337

People v. Jones (2012) 54 Cal.4th 350, 353

People v. Duff (2010) 50 Cal.4th 787, 796 [when a court determines that a conviction falls within the meaning of section 654, it is necessary to impose sentence but to stay the execution of the duplicative sentence]

People v. Mani (2022) 74 Cal.App.5th 343, 380 [when section 654 applies, it is improper to impose no sentence or to stay imposition of the sentence]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [when section 654 applies, the trial court imposes an unauthorized sentence by failing to sentence defendant on all counts]

Third Holding:

Because the sentence is unlawful, we remand the matter to the trial court for resentencing purposes. On remand a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 381

In re Mattison (2025) 115 Cal.App.5th 1062, 1067