Author Archives: Gary McCurdy

Duty of the court, Evidence, Sentencing

Case 000933

Posted on by Gary McCurdy

Error and/or relief

At the hearing under section 1172.75, it was error to deny the defendant’s motion for discovery of Brady materials that he sought to prepare his case for the recall hearing.

We remand the case for the trial court to review the sought Brady materials to determine whether anything exists that must be provided to the defendant. If so, then it should conduct a new resentencing hearing. If it determines that there is nothing of Brady material nature to be disclosed, it may deny the request, state its reasons, and reinstate the judgment.

Also, the trial court erroneously concluded that a Pitchess motion cannot be made in section 1172.75 proceedings, and denied the motion.

First Holding:

In the course of the proceedings, the district attorney’s office notified the defendant’s attorney that it had requested Brady information from the law enforcement agency involved in the original investigation of the crimes leading to the defendant’s conviction. The officer’s personnel file may contain information that is potentially exculpatory or may be used for impeachment. The defendant then filed a Pitchess motion to obtain the Brady material. The trial court erroneously concluded that a Pitchess motion cannot be made in section 1172.75 proceedings, and denied the motion.

Under Brady and its progeny, the prosecution has a constitutional duty to disclose to the defense material exculpatory evidence, including potential impeaching evidence. Although Brady is essentially a trial right, courts have acknowledged that the People’s obligations under Brady are ongoing, even postjudgment.

Authority:

Brady v. Maryland (1963) 373 U.S. 83

In re Jenkins (2023) 14 Cal.5th 493, 504

People v. Nuno (2024) 105 Cal.App.5th 1030, 1058–1059

In re Lawley (2008) 42 Cal.4th 1231, 1246 [Even after a conviction, the prosecutor is bound by the ethics of his office to inform the appropriate authority of information that casts doubt upon the correctness of the conviction]

Canion v. Cole (2005) 210 Ariz. 598, 599 [the state has a continuing Brady duty to disclose evidence that comes to its attention after sentencing] cited with approval in Jenkins, at p. 505

Pitchess v. Superior Court (1974) 11 Cal.3d 531

Second Holding:

In Pitchess, the California Supreme Court recognized that a criminal defendant may, in some circumstances, compel the discovery of evidence in the arresting law enforcement officer’s personnel file that is relevant to the defendant’s ability to defend against a criminal charge. In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as ‘Pitchess motions’ through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.

Authority:

PEN 832.7

PEN 832.8

EVID 1043-1045

Pitchess v. Superior Court (1974) 11 Cal.3d 531

People v. Nuno (2024) 105 Cal.App.5th 1030, 1052

Third Holding:

A Pitchess motion may be used to obtain Brady material contained in a peace officer’s confidential personnel file.

However, because the Pitchess process operates in parallel with Brady and does not prohibit the disclosure of Brady information, all information that the trial court finds to be exculpatory and material under Brady must be disclosed, notwithstanding the limitations of the Pitchess process.

Authority:

People v. Nuno (2024) 105 Cal.App.5th 1030, 1055

People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 720

Fourth Holding:

Although the proceeding below was a resentencing hearing, Brady material may have some relevance. Where, as here, section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors. This entails applying 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)(2)

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3

Fifth Holding:

Under the resentencing procedures set forth in section 1172.1(a)(5), the trial court must consider evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice, which may include evidence that the defendant’s constitutional rights were violated in the proceedings related to the conviction or sentence at issue, and any other evidence that undermines the integrity of the underlying conviction or sentence.

Authority:

PEN 1172.1(a)(5)

Sixth Holding:

Further, at a resentencing hearing under section 1172.75, the trial court may exercise its power under section 1385 and Romero to dismiss a prior strike conviction in furtherance of justice. When exercising this power, the court may consider, among other things, the nature and circumstances of a defendant’s conviction.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 361–364

People v. Shaw (2020) 56 Cal.App.5th 582, 586

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

Abstracts and Minutes

Case 000932

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment against the defendant contains a clerical error that must be corrected. It states the trial court imposed a restitution fine of $2,800 under Penal Code section 1202.4(b). The reporter’s transcript of the sentencing court’s oral pronouncement, however, states the fine was $280.

We direct the trial court to amend the abstract of judgment to reflect the correct amount.

Holding:

Conflicts between the oral pronouncement of judgment found in the reporter’s transcript and the abstract of judgment found in the clerk’s transcript are generally presumed to be clerical in nature and are resolved in favor of the reporter’s transcript unless the particular circumstances dictate otherwise. An abstract of judgment must reflect a restitution fine a sentencing court has orally imposed under section 1202.4(b). Courts may correct clerical errors at any time.

Authority:

In re P.A. (2012) 211 Cal.App.4th 23, 30, fn. 4

People v. Gonzalez (2012) 210 Cal.App.4th 724, 744

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

People v. Hong (1998) 64 Cal.App.4th 1071, 1080

Abstracts and Minutes, Fines and fees, Sentencing

Case 000931

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment fails to list the imposition of the restitution fine that was ordered for the misdemeanor conviction. It must be corrected.

(Gary note: Yep, not a win, but another example of errant abstracts.)

First Holding:

Where a defendant has been convicted of both a misdemeanor and a felony, it is proper for the court to impose separate restitution fines. The parole revocation restitution fine under section 1202.45 should match the portion of the restitution fine associated with the felony conviction to which a period of parole applied.

Authority:

People v. Holmes (2007) 153 Cal.App.4th 539, 546-548

Second Holding:

The abstract of judgment is missing the $150 restitution fine imposed on the misdemeanor count. We will direct the trial court to prepare an amended abstract of judgment including this additional restitution fine. Because the trial court’s minute order following sentencing already includes this amount, no amendment to that document is required.

(Gary note: The court did not cite authority for its order to correct the abstract of judgment, so I have listed some cases that the court could have drawn from.)

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Sentencing

Case 000930

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to one additional day of credit for time served.

Holding:

The court awarded 42 days of actual custody credit spent between the date of his conviction and the date of sentencing, but apparently did not recognize that he spent one more day in custody before posting bail the day he was arrested. Presentence actual custody credits include the day of arrest, and any day spent even partially in custody counts for a full day of credit.

The defendant is entitled to a day of actual custody credit for the time that he spent in jail on the day of his arrest. Accordingly, we will order the judgment modified to reflect that the defendant is entitled to 43 days of actual custody credits and six days of conduct credits. (Conduct credit is limited to 15% because he was convicted of a violent felony, and section 2933.1 therefore applies.)

Authority:

PEN 2933.1

People v. Rajnayagam (2012) 211 Cal.App.4th 42, 48

People v. Valdes (2020) 53 Cal.App.5th 953, 955

Sentencing

Case 000929

Posted on by Gary McCurdy

Error and/or relief

The defendant’s presence at his resentencing hearing was not waived. We therefore reverse and remand to the trial court for resentencing in accordance with the defendant’s constitutional right to be present.

First Holding:

A criminal defendant’s right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment. It is also required by section 15 of article I of the California Constitution and by [Penal Code] sections 977 and 1043. This right extends to all critical stages of the criminal prosecution and includes sentencing and resentencing.

Authority:

Cal. Const. art. I, sec. 15

PEN 977

PEN 1043

People v. Concepcion (2008) 45 Cal.4th 77, 81

People v. Cutting (2019) 42 Cal.App.5th 344, 347–348

Second Holding:

The right to be present may be waived. However, pursuant to section 977(b)(1) and (2), in all cases in which a felony is charged, the defendant is required to be personally present at the time of the imposition of sentence unless he or she executed a written waiver of his or her right to be present or the waiver was properly entered orally on the record.

Section 977 lays out specific requirements for the waiver to be held valid. The right to be present at the imposition of sentence includes the right to be present at a resentencing hearing because the trial court has discretion to reconsider the entire sentence on remand for resentencing.

Authority:

People v. Concepcion (2008) 45 Cal.4th 77, 82

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Third Holding:

When errors involving a defendant’s federal constitutional rights are implicated, the standard set forth in Champman applies and the error is prejudicial and requires reversal unless we can conclude beyond a reasonable doubt that it did not affect the outcome of the proceeding.

Authority:

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

People v. Velasco, 97 Cal.App.5th 663, 674

Fourth Holding:

On the facts before us, we are unable to conclude that the error in conducting a resentencing hearing in the defendant’s absence without a valid waiver of his presence was harmless beyond a reasonable doubt. As in Velasco and Cutting, because the defendant was not physically present at resentencing, he was unable to present any of these types of argument. Nor could he directly address the court or aid his attorney, perhaps by providing new and updated information or circumstances justifying a more lenient sentence.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [resentencing court may consider any pertinent circumstances which have arisen since the prior sentence was imposed]

Abstracts and Minutes

Case 000928

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment indicates that the defendant was convicted by plea. It is incorrect. The defendant was convicted by jury. The abstract of judgment must be corrected.

Holding:

(Gary note: The court cited no authority for its order to correct the abstract, but it could have drawn from any of many cases. I have set forth a few for your convenience.)

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

Abstracts and Minutes

Case 000927

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment contains several errors that must be corrected to reflect the correct case number, the proper number of days of credit for time served, and the imposition of a minimum restitution fine.

Holding:

We will direct the trial court to correct these errors and omissions in the abstract of judgment.

Authority:

People v. Delgado (2008) 43 Cal.4th 1059, 1070, superseded by statute on other grounds as stated in People v. Frahs (2018) 27 Cal.App.5th 784

Discretion, Juveniles, Standard of review, Sufficiency of and substantial evidence

Case 000926

Posted on by Gary McCurdy

Error and/or relief

We conclude that the juvenile court erred when it found all five statutory criteria weigh in favor of transferring the minor to criminal court under Welfare and Institutions Code section 707(a)(3)(A)–(E)), and when it found him not amenable to rehabilitation.

(Gary note: After setting out the holdings I have listed below, the opinion goes into great detail analyzing the evidence in the case under the criteria required to be considered by the juvenile court in deciding whether to retain the minor in juvenile court or to transfer the minor to adult court. The analysis is quite extensive and completely fact-heavy. Since an unpublished opinion cannot be cited as authority, the court’s analysis could not be used in any briefing to compare and contrast with any other defendant’s scenario. So I have not included that portion of the opinion.)

First Holding:

With respect to whether the minor can be rehabilitated within the two-year period the juvenile court may exercise jurisdiction over him given his age and the success of previous attempts by the juvenile court to rehabilitate the minor, the prosecution failed to meet its burden of proving these criteria favor transfer to criminal court and, therefore, there is insufficient evidence to support the juvenile court’s findings in the prosecution’s favor on these issues.

Although the weight to be given each of the five criteria is within the juvenile court’s discretion, and the court has the discretion to conclude that one or more of the five criteria predominate so as to determine the result, even though some or all of the other criteria might point to a different result, the juvenile court’s ultimate finding that the minor is not amenable to rehabilitation is unsupported by substantial evidence.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 159

In re E.P. (2023) 89 Cal.App.5th 409, 417

Second Holding:

Where, as here, the juvenile court has abused its discretion in evaluating the evidence and applying the operative legal standards, it is appropriate to remand the matter so the court may reconsider the evidence and its ultimate determination through the lens of amenability to rehabilitation.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 162

In re S.S. (2023) 89 Cal.App.5th 1277, 1288

J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 714–715 [exercises of discretion must be guided by applicable legal principles]

Third Holding:

When a minor age 16 or older is alleged to have committed a felony, the prosecution may move to transfer the minor to criminal court. Upon the motion, the juvenile court must order the probation officer to submit a report on the minor’s behavioral patterns and social history. The parties may submit other relevant evidence’ in connection with the transfer motion. In determining whether to transfer a minor to criminal court, the juvenile court shall consider the criteria specified in subparagraphs (A) to (E) of section 707, subdivision (a)(3).

These criteria are: (1) the degree of criminal sophistication by the minor; (2) whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction; (3)the minor’s previous delinquent history; (4) the success of previous attempts by the juvenile court to rehabilitate the minor; and (5) the circumstances and gravity of the offense alleged in the petition to have been committed by the minor.

Section 707 also sets forth a nonexhaustive list of factors relevant to each of the five criteria. And consideration of these factors is now mandatory rather than discretionary.

Authority:

WIC 707

In re O.F. (2026) 119 Cal.App.5th 133, 158-159, 160

In re Miguel R. (2024) 100 Cal.App.5th 152, 164-165

Fourth Holding:

As amended by AB 2361, section 707 now provides that in order to find that the minor should be transferred to a court of criminal jurisdiction, the court shall find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

This changed the finding a juvenile court must make before ordering a transfer in two ways: (1) raising the standard of proof; and (2) requiring a new specific finding regarding amenability to rehabilitation.

It also amended section 707 to require the court to recite the basis for its decision in an order that includes the reasons supporting the court’s finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

Authority:

In re S.S. (2023) 89 Cal.App.5th 1277, 1284

Fifth Holding:

The weight to be given to each of these criteria is within the court’s discretion. However, to transfer a minor to criminal court, the juvenile court must ultimately find, by clear and convincing evidence, that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

The prosecution bears the burden of proof. Nothing in section 707 indicates that the court is required to give equal weight to each of the five criteria or that it would necessarily be an abuse of discretion to find that one criterion outweighed the other criteria.

This standard requires a finding of high probability The evidence must be so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable mind.

Authority:

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 186

D.W. v. Superior Court (2019) 43 Cal.App.5th 109, 116

In re O.F. (2026) 119 Cal.App.5th 133, 159, 161

C.S. v. Superior Court (2018) 29 Cal.App.5th 1009, 1035

In re Miguel R. (2024) 100 Cal.App.5th 152, 167

In re E.P. (2023) 89 Cal.App.5th 409, 417

Conservatorship of O.B. (2020) 9 Cal.5th 989, 998, fn. 2

In re S.S. (2023) 89 Cal.App.5th 1277, 1286

Sixth Holding:

We review the juvenile court’s ruling on a transfer motion for abuse of discretion. The court’s factual findings are reviewed for substantial evidence, and its legal conclusions are reviewed de novo.

A decision based on insufficient evidence or the court’s erroneous understanding of applicable law is subject to reversal. But we do not reweigh the evidence and we do not substitute our discretion for the discretion exercised by the trial court.

We draw all reasonable inferences in support of the court’s findings, not against them. We are concerned only with whether the circumstances reasonably justify the trier of fact’s findings. When evidence reasonably justifies the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.

Authority:

In re Miguel R. (2024) 100 Cal.App.5th 152, 165, 169

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 187

In re J.S. (2024) 105 Cal.App.5th 205, 211

Duty of the court, Jury trial

Case 000925

Posted on by Gary McCurdy

Error and/or relief

We agree that the trial court erred in denying the defendant’s objection under Code of Civil Procedure section 231.7 to the prosecution’s use of peremptory challenges.

First Holding:

The Legislature enacted section 231.7, effective in criminal trials beginning January 1, 2022, to establish ‘a new process for identifying unlawful bias in the use of peremptory challenges during jury selection’ because studies showed that the existing Batson/Wheeler analysis was inadequate to prevent racial discrimination.

Discrimination in violation of section 231.7 need not be purposeful, but may involve unconscious bias, which includes implicit and institutional biases. Section 231.7 prohibits the use of a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s perceived or actual race and] gender, as well as five other protected characteristics.

Once an objection to a peremptory challenge is made, the party challenging the prospective juror must state the reasons the peremptory challenge has been exercised.

Authority:

CCP 231.7

Batson v. Kentucky (1986) 476 U.S. 79

People v. Wheeler (1978) 22 Cal.3d 258

People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540

Second Holding:

We review de novo a trial court’s determination that a peremptory challenge was valid, and the trial court’s express factual findings for substantial evidence. We do not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. If the ruling on an objection was erroneous, the statute precludes a finding of harmless error. Instead, the sole remedy is reversal.

Authority:

CCP 231.7(j) [error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial]

People v. Ortiz (2023) 96 Cal.App.5th 768, 795

Third Holding:

(Gary note: The opinion then discussed the specific reasons the juror was excused by the prosecution and the failure of the court to follow the required procedure where the reason given is one that is expressly presumed in section 231.7 to be an invalid reason. I have omitted that discussion, since it cannot provide any value as an unpublished opinion.)

Neither the showing required of the prosecution under section 231.7(e) nor the determination by the trial court required under subdivision (f) was made in this case. To the extent that the record is silent, we may not speculate about or consider other possible reasons for the challenge by the prosecution, as we are permitted to consider only the reasons given.

Moreover, we may not impute to the trial court any findings that the trial court did not expressly state on the record. Simply put, the statute does not permit a reviewing court to find compliance when no compliance is apparent in the record.

In any event, even without the statutory prohibition, there would be no reason to impute findings to the trial court in this case because the trial court expressly found, on the record, that there were no presumptively invalid reasons for exclusion of the prospective juror.

Authority:

CCP 231.7(j)

People v. Garcia (2025) 114 Cal.App.5th 1154, 1164

People v. Alston (2026) 118 Cal.App.5th 575, 587

Fourth Holding:

If another party or the trial court objects to the use of a peremptory challenge, then the party that exercised the peremptory challenge must state the reasons for the challenge; there is no requirement that the objecting party first establish a prima facie case of discrimination.

Instead, it is then up to the trial court to correctly apply the procedure set forth in section 231.7 when deciding whether to sustain the objection, and this includes determining whether the proffered reason is presumptively invalid.

Authority:

People v. SanMiguel (Jul. 30, 2026, S287786) __ Cal.5th __

People v. Aguilar (2026) 118 Cal.App.5th 1, 11

People v. Espiritu (2026) 119 Cal.App.5th 1128, 1141 [objecting party’s initial objection preserves the right to challenge the court’s failure to consider the presumptively invalid categories]

Fifth Holding:

(Gary note: This is not really a holding in the opinion. The court discusses the specific reasons relied on by the prosecution and found them in presumptive violation of Code of Civil Procedure section 231.7(e). I thought it might be useful and enlightened to include all of the section 231.7(e) statutorily presumptively invalid reasons here.)

Authority:

CCP 231.7(e):

A peremptory challenge for any of the following reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case:

(1) Expressing a distrust of or having a negative experience with law enforcement or the criminal legal system.

(2) Expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.

(3) Having a close relationship with people who have been stopped, arrested, or convicted of a crime.

(4) A prospective juror’s neighborhood.

(5) Having a child outside of marriage.

(6) Receiving state benefits.

(7) Not being a native English speaker.

(8) The ability to speak another language.

(9) Dress, attire, or personal appearance.

(10) Employment in a field that is disproportionately occupied by members listed in subdivision (a) or that serves a population disproportionately comprised of members of a group or groups listed in subdivision (a).

(11) Lack of employment or underemployment of the prospective juror or prospective juror’s family member.

(12) A prospective juror’s apparent friendliness with another prospective juror of the same group as listed in subdivision (a).

(13) Any justification that is similarly applicable to a questioned prospective juror or jurors, who are not members of the same cognizable group as the challenged prospective juror, but were not the subject of a peremptory challenge by that party. The unchallenged prospective juror or jurors need not share any other characteristics with the challenged prospective juror for peremptory challenge relying on this justification to be considered presumptively invalid.

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

Case 000924

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect that, in orally pronouncing sentence, the trial court stayed execution of the sentence imposed on count three pursuant to section 654. Further, the court orally pronounced that count four is the principal determinate term, whereas the abstract lists count three.

First Holding:

In orally pronouncing judgment, the trial court ordered execution of the sentence imposed on count three stayed under section 654. The abstract of judgment, however, does not reflect this pronouncement. The oral pronouncement of judgment controls over any discrepancy with the minutes or the abstract of judgment.

Authority:

People v. Sharret (2011) 191 Cal.App.4th 859, 864

Second Holding:

Section 654 provides, in pertinent part 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. There is a multiple victim exception to section 654 which allows separate punishment for each crime of violence against a different victim, even though all crimes are part of an indivisible course of conduct with a single principal objective.

Authority:

PEN 654

People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631

Third Holding:

The People did not raise in the trial court their argument that the court could not stay execution of the sentence on count three based on the multiple victim exception. In any event, whether section 654 applies is a factual question, and we review the trial court’s decision for substantial evidence.

In analyzing whether section 654 bars the imposition of multiple sentences, we consider the evidence in the light most favorable to the judgment and affirm the trial court’s sentencing decision—whether express or implied—if it is supported by substantial evidence.

Under this standard, this court must view the evidence in the light most favorable to the trial court’s finding and presume the existence of every fact the trial court could reasonably deduce from the record.

Because the trial court stayed execution of the sentence imposed on count three, we presume that the court implicitly found the multiple victim exception to section 654 inapplicable. The court’s implicit finding (that two others present at the shooting were not victims of the shooting) is supported by substantial evidence.

Authority:

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

People v. Vasquez (2020) 44 Cal.App.5th 732, 737

People v. Ramirez (2021) 10 Cal.5th 983, 1042 [Absent evidence to the contrary, we presume that the trial court knew the law and followed it]

Fourth Holding:

The abstract of judgment must be corrected to reflect the oral judgment.

(Gary note: The court did not cite authority for this order, but there is plenty to be had. I have listed some that the court could have cited.)

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

Error and/or relief

The abstract of judgment must be corrected to reflect that, in orally pronouncing sentence, the trial court stayed execution of the sentence imposed on count three pursuant to section 654. Further, the court orally pronounced that count four is the principal determinate term, whereas the abstract lists count three.

First Holding:

In orally pronouncing judgment, the trial court ordered execution of the sentence imposed on count three stayed under section 654. The abstract of judgment, however, does not reflect this pronouncement. The oral pronouncement of judgment controls over any discrepancy with the minutes or the abstract of judgment.

Authority:

People v. Sharret (2011) 191 Cal.App.4th 859, 864

Second Holding:

Section 654 provides, in pertinent part 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. There is a multiple victim exception to … section 654 which allows separate punishment for each crime of violence against a different victim, even though all crimes are part of an indivisible course of conduct with a single principal objective.

Authority:

PEN 654

People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631

Third Holding:

The People did not raise in the trial court their argument that the court could not stay execution of the sentence on count three based on the multiple victim exception. In any event, whether section 654 applies is a factual question, and we review the trial court’s decision for substantial evidence.

In analyzing whether section 654 bars the imposition of multiple sentences, we consider the evidence in the light most favorable to the judgment and affirm the trial court’s sentencing decision—whether express or implied—if it is supported by substantial evidence.

Under this standard, this court must view the evidence in the light most favorable to the trial court’s finding and presume the existence of every fact the trial court could reasonably deduce from the record.

Because the trial court stayed execution of the sentence imposed on count three, we presume that the court implicitly found the multiple victim exception to section 654 inapplicable. The court’s implicit finding (that two others present at the shooting were not victims of the shooting) is supported by substantial evidence.

Authority:

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

People v. Vasquez (2020) 44 Cal.App.5th 732, 737

People v. Ramirez (2021) 10 Cal.5th 983, 1042 [Absent evidence to the contrary, we presume that the trial court knew the law and followed it]

Fourth Holding:

The abstract of judgment must be corrected to reflect the oral judgment.

(Gary note: The court did not cite authority for this order, but there is plenty to be had. I have listed some that the court could have cited.)

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

Fifth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Sixth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Appellate Principles, Elements of crime, Sentencing, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 000923

Posted on by Gary McCurdy

Error and/or relief

The instructional errors were prejudicial regarding the multiple-murder and lying-in-wait special circumstance findings attached to counts 1, 2 and 3.

We reverse those findings, but the prosecution may retry these special circumstance allegations.

The firearm enhancements found true as to counts 1, 2 and 3 must be reversed due to prejudicial error, including pleading deficiencies and insufficiency of the evidence. Retrial of the firearm enhancements is barred by principles of double jeopardy.

The trial court also erred by denying the defendant’s renewed motion for a transfer hearing in juvenile court under Welfare and Institutions Code section 707 as amended by AB 2361 (2021–2022 Reg. Sess.).

Accordingly, we conditionally reverse the judgment and remand the matter with directions to refer the case to the juvenile court for a transfer hearing under current law.

First Holding:

In setting forth the relevant pertinent facts in an appellate opinion, we view the record in the light most favorable to the judgment.

Authority:

In re Jesus O. (2007) 40 Cal.4th 859, 861

People v. Johnson (1980) 26 Cal.3d 557, 578

Second Holding:

In counts 1 through 3, the jury convicted appellant of first degree murder. The jury found true four special circumstance allegations: (1) lying in wait; (2) multiple murders; (3) murder in the commission of robbery; and (4) murder in the commission of burglary. Because of the special circumstance findings, appellant was sentenced to three consecutive LWOP terms.

There were several instructional errors, but many we find to have been harmless error. The instructional errors were prejudicial regarding the multiple-murder and lying-in-wait special circumstance findings attached to counts 1, 2 and 3.

We reverse those findings, but the prosecution may retry these special circumstance allegations. Even if the People do not elect to do so, however, a full resentencing is required.

(Gary note: The opinion concluded that some of the instructions permitted finding guilt on the natural and probable consequences doctrine, which has been abolished. Cutting to the chase in this summary, the court stated in its analysis whether the instructional error was harmless, the court stated, that the evidence overwhelmingly demonstrated that appellant acted as a major participant in these crimes and with his own reckless indifference to human life. It was satisfied beyond a reasonable doubt that any rational juror who convicted appellant of first degree murder would have necessarily found the facts required under section 189(e)(3).

(Also, the jury was erroneously told at times that, if appellant was not an actual killer, the lying-in-wait and the multiple-murder special-circumstance allegations could be found true merely if he was a major participant who acted with reckless indifference to human life. This was legally incorrect. If appellant was not the actual killer, then the prosecution was required to prove that he acted with an intent to kill for each murder in order to establish these special circumstance allegations. The court did not find the error harmless on those instructions, and reversed those special circumstances, allowing the prosecution to retry them.)

Authority:

PEN 188(a)(3) [Malice shall not be imputed to a person based solely on his or her participation in a crime]

PEN 190.2(c) and (d)

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

People v. Hallock (1989) 208 Cal.App.3d 595, 607 [conviction reversed for instructional error may be retried if supported by sufficient evidence]

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, a full resentencing is required so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Third Holding:

We reject the prosecution’s contention that the defendant has forfeited claims of instructional error by failing to object. Trial courts have a sua sponte duty to correctly instruct on the elements of the charged offenses and on special circumstance allegations.

No objection is required to preserve a claim for appellate review when the jury instructions omit an essential element of a charge.

Moreover, a court may review any question of law involved in an instruction which affects the substantial rights of the defendant. As alleged, the instructional errors in this matter altered the mens rea and actus reus elements that the jury was required to find.

Accordingly, we decline to find forfeiture, and we will review this claim on its merits.

Authority:

PEN 1259

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

People v. Hardy (2018) 5 Cal.5th 56, 91 [declining to rely on forfeiture doctrine where alleged instructional errors would have impacted defendant’s substantial rights].

Fourth Holding:

The instructional errors impacted appellant’s constitutional rights because they permitted the jury to convict him on an invalid legal theory. Accordingly, we must reverse the convictions unless, after examining the entire cause—including the evidence and considering all relevant circumstances—we determine the errors, including the disputed ones, were all harmless beyond a reasonable doubt.

Authority:

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

In re Ferrell (2023) 14 Cal.5th 593, 602

People v. Aledamat (2019) 8 Cal.5th 1, 13

Fifth Holding:

When a jury is instructed on both a legally valid theory and a legally invalid theory of guilt, harmlessness can be shown if the jury verdict on other points effectively embraces the valid theory or if, based on the evidence, it is impossible to have found what the verdict did find without also finding the facts underlying the valid theory.

To make this assessment, we must 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.

We must be convinced that the errors were harmless beyond a reasonable doubt, and we must be satisfied that this standard is beyond serious debate.

We have rigorously reviewed the totality of the record to determine whether, based on the evidence, it is impossible for a rational juror to have found what the verdicts did find without also finding the facts underlying a valid theory.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 443-444

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

In re Ferrell (2023) 14 Cal.5th 593, 602

Sixth Holding:

Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions.

Authority:

People v. Sanchez (2001) 26 Cal.4th 834, 852

Seventh Holding:

Section 12022.53(d) requires personal discharge by the defendant; it does not impose vicarious liability for another principal’s firearm discharge. Vicarious firearm liability is available only when a gang enhancement is proven. Once the gang allegations were dismissed on motion of the prosecution, the vicarious theory was unavailable.

Authority:

PEN 12022.53(d) and (e)

PEN 186.22(b)(1)

People v. Cooper (2023) 14 Cal.5th 735, 746

Eighth Holding:

Because personal discharge by appellant was neither charged nor expressly found true by the jury in the verdict forms, the court could not supply that missing fact at sentencing. Any fact increasing punishment must be found by the jury beyond a reasonable doubt.

The trial court lacked authority to stay the count 1 enhancement merely as an exercise of sentencing discretion. The court was only authorized to strike or dismiss the enhancement, not to stay it even based on its own discretionary sense of justice. Based on principles of double jeopardy, retrial is barred.

Authority:

PEN 12022.53(j)

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Porter v. Superior Court (2009) 47 Cal.4th 125, 132–133 [“Because the prosecution had a full opportunity to prove the facts necessary for a conviction but failed to do so, double jeopardy bars a second bite at the apple”]

Curry v. Superior Court of San Francisco (1970) 2 Cal.3d 707, 712 [jeopardy attaches when a defendant is placed on trial in a court of competent jurisdiction on a valid accusatory pleading]

Ninth Holding:

In January 2011, appellant was 16 years old when he committed the present crimes. In 2012, he was charged directly in adult court. In 2016, appellant filed a motion for remand to the juvenile court and a transfer hearing under Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57). Proposition 57 was passed in November 2016, and it prohibited prosecutors from charging crimes against juveniles directly in adult court.

Authority:

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303

Tenth Holding:

Before sentencing occurred in this matter, AB 2361 (2021–2022 Reg. Sess.) amended Welfare and Institutions Code section 707. These changes were effective January 1, 2023.

AB 2361 increased the burden of proof the prosecution was required to establish in order for a juvenile to be prosecuted in adult criminal court.

Under the newer heightened standard, it must be shown by clear and convincing evidence that a juvenile should be transferred to adult criminal court.

These developments materially changed the requirements for transfer in effect when the defendant originally waived his right to a transfer hearing. AB 2361 applies retroactively to nonfinal cases.

Authority:

In re E.P. (2023) 89 Cal.App.5th 409, 416

In re S.S. (2023) 89 Cal.App.5th 1277, 1284

Eleventh Holding:

A person who is eligible to have his case proceed in juvenile court may knowingly waive this statutory right. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.

A criminal defendant cannot be deemed to have waived or forfeited a legal argument that was not recognized at the time of his trial. Even where a right may be waived, a waiver generally does not include protections that were not reasonably available or contemplated at the time.

The matter must be remanded to the juvenile court to conduct a transfer hearing.

Authority:

People v. Nguyen (1990) 222 Cal.App.3d 1612, 1620

People v. Johnson (2020) 45 Cal.App.5th 123, 132 [legal counsel may waive the right to a juvenile fitness hearing for an accused who has reached adulthood]

Johnson v. Zerbst (1938) 304 U.S. 458, 464

People v. Cardenas (2007) 155 Cal.App.4th 1468, 1479

People v. French (2008) 43 Cal.4th 36, 48 [in a negotiated plea, waiver of right to jury trial on charged offenses does not extend to proof of aggravating circumstances when no such jury right was recognized at time of plea]

People v. Panizzon (1996) 13 Cal.4th 68, 85 [general waiver of right to appeal from a negotiated plea agreement will not bar the appeal of sentencing errors occurring subsequent to the plea]
People v. Becerra (2019) 32 Cal.App.5th 178, 188 [defendant cannot knowingly and intelligently waive right to appeal an issue not contemplated at time of waiver].

 

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

Case 000922

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the juvenile court’s finding that the minor committed count 1 (conspiracy to commit assault with a firearm).

First Holding:

Conspiracy is an inchoate crime. A conviction of conspiracy requires proof that the defendant and another person had the specific intent to agree or conspire to commit an offense, as well as the specific intent to commit the elements of that offense, together with proof of the commission of an overt act by one or more of the parties to such agreement in furtherance of the conspiracy.

Criminal conspiracy is an offense distinct from the actual commission of a criminal offense that is the object of the conspiracy. Other than the agreement, the only act required is an overt act by any of the conspirators, not necessarily the defendant, and that overt act need not itself be criminal. Conspiracy thus criminalizes preparatory conduct at an earlier stage than an attempt to commit a crime.

As an inchoate crime, conspiracy fixes the point of legal intervention at the time of agreement to commit a crime, and thus reaches further back into preparatory conduct than attempt. An overt act in furtherance of a conspiracy must occur after the agreement but before the completed offense.

Authority:

People v. Smith (2014) 60 Cal.4th 603, 616, superseded on other grounds in People v. Carr (2023) 90 Cal.App.5th 136, 142

People v. Zamora (1976) 18 Cal.3d 538, 560, overruled in part on other grounds in Cowan v. Superior Court (1996) 14 Cal.4th 367, 376

People v. Brown (1991) 226 Cal.App.3d 1361, 1368

Second Holding:

Conspiracy requires specific intent to commit the target offense. The mental state elements of conspiracy require the prosecution to demonstrate the defendant had the specific intent both to agree to the conspiracy and to commit the object offense.

The two elements are distinct, but closely related. In some cases, it may be useful to distinguish between the two elements, especially when evidence of one is direct and the other is circumstantial. But in many cases, proof of the two specific intent elements will overlap.

Together, these two specific intent elements play a critical role in a conspiracy prosecution: Proof of these elements is what separates a coconspirator from a mere bystander to the crime.

Authority:

People v. Ware (2022) 14 Cal.5th 151, 164

People v. Swain (1996) 12 Cal.4th 593, 600

People v. Marsh (1962) 58 Cal.2d 732, 742–744 [focusing on intent to commit a crime where there was clear evidence of intent to agree]

People v. Beck and Cruz (2019) 8 Cal.5th 548, 629 [focusing on intent to agree where there was clear evidence of intent to commit a crime]

Third Holding:

The First Amendment forbids punishing a person merely for associating with others—even as part of a group premised on a violent aim. Because the law will not recognize a rule of guilt by association, we insist on proof of a defendant’s knowledge of, and specific intent to further, the group’s unlawful ends.

Authority:

Scales v. United States (1961) 367 U.S. 203

Elfbrandt v. Russell (1966) 384 U.S. 11, 19 [A law that applies to membership without the specific intent to further the illegal aims of the organization rests on the doctrine of guilt by association, which has no place here]

Holder v. Humanitarian Law Project (2010) 561 U.S. 1, 18 [noting that mere membership in, or association with, an organization that advocates terrorism cannot itself be criminalized]

Fourth Holding:

To prove conspiracy, the prosecution need not establish the intent to participate in every act necessary to complete the object offense. But ultimately, to connect any individual to the charged conspiracy, the prosecution must at least establish that the individual specifically intended to agree to commit the criminal offense and to play at least some role in achieving it.

Authority:

Salinas v. United States (1997) 522 U.S. 52, 63 [A conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense]

People v. Ware (2022) 14 Cal.5th 151, 166-167

Fifth Holding:

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. Sufficiency determinations necessarily take account of the standard of proof that applied before the trial court.

That is why in criminal cases we must ensure the record demonstrates substantial evidence to establish guilt beyond a reasonable doubt.

Authority:

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

Sixth Holding:

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.

In sum, after considering the record in its entirety, we conclude that the evidence presented at the contested jurisdiction hearing is insufficient to show that minor had the requisite specific intent to participate in a conspiracy to commit the target offense of assault with a firearm.

(Gary note: I omitted the recitation of facts the court relied on to reach its conclusion after applying the various principles set forth in the opinion and this summary.)

Authority:

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