Category Archives: Abstracts and Minutes

Case: 000260

Error and/or relief

At the defendant’s hearing on his petition filed under section 1172.6 for recall of sentence in light of the changes in homicide law, the trial court denied the defendant’s resentencing petition on the ground the evidence established beyond reasonable doubt he aided and abetted an implied malice murder. The trial court did not conclude that the defendant was the direct perpetrator or an aider and abettor in an express malice murder. The trial court misidentified the relevant life-endangering act and thereby used an incorrect legal standard for determining the defendant’s mens rea for aiding and abetting implied malice murder.

We therefore reverse and remand with directions to the trial court to conduct a new evidentiary hearing using the correct life-endangering act and consistent with this opinion. The trial court did not address the defendant’s convictions on counts 2 through 4 for attempted murder. Sentencing relief under section 1172.6 extends to attempted murder. In conducting a new evidentiary hearing following remand, the court shall make findings and rule on the defendant’s resentencing petition on the attempted murder convictions. The amended abstract of judgment indicates that the defendant pleaded guilty to second degree murder. That is incorrect: He was convicted by a jury, not pursuant to a plea agreement. The abstract of judgment must be corrected accordingly.

First Holding:

The trial court denied the defendant’s resentencing petition on the ground the evidence established beyond reasonable doubt he aided and abetted an implied malice murder. The trial court did not conclude that the defendant was the direct perpetrator or an aider and abettor in an express malice murder.

Murder is committed with implied malice 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. A defendant may directly aid and abet an implied malice murder. Notwithstanding Senate Bill 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.

Authority:

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

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

Second Holding:

Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea. 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:

People v. Reyes (2023) 14 Cal.5th 981, 990-991

Third Holding:

A life-endangering act is the act that proximately causes death. To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. Here, the life-endangering act was the shooting by the co-defendant at the vehicle carrying the victim.

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 713, fn. 27

People v. Jennings (2010) 50 Cal.4th 616, 643

Fourth Holding:

Although a homicide might have more than one proximate cause, to suffice for implied malice murder, the perpetrator’s act must not merely be dangerous to life in some vague or speculative sense; it must involve a high degree of probability that it will result in death.

Authority:

People v. Garcia (2022) 82 Cal.App.5th 956, 963

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

Fifth Holding:

The co-defendant perpetrator’s act of bringing the gun to the anticipated confrontation with the other gang did not in itself give rise to a high probability that death would result. Rather, that act merely created a dangerous situation in which death was possible depending on how circumstances unfolded. Deeming a life-endangering act to be the act of the co-defendant perpetrator bringing the gun to the fight comes precariously close to a natural and probable consequences theory of liability: Bringing the gun to a gang fight becomes life endangering only because a natural and probable consequence of doing so is the gun is fired and someone is killed. [GARY NOTE: Implicit in that example is that the change in the homicide law eliminated the natural and probable consequences rationale as supporting a murder conviction of the non-killer.]

Authority:

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

Sixth Holding:

By misidentifying the life-endangering act committed by the perpetrator, the trial court used the incorrect legal standard for determining mens rea for aiding and abetting implied malice murder.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990–991 [using incorrect life-endangering act constitutes legal error]

Seventh Holding:

We have the ability to order the correction of clerical errors in an abstract of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185–187

Case: 000258

Error and/or relief

The trial court’s minutes reflect the waiver of fees that the court ordered waived. The abstract of judgment, however, imposes the court security fee and the criminal conviction assessment as financial obligations against defendant. It is clear in this case that the abstract of judgment does not reflect the oral pronouncement of judgment as to the court security fee and the criminal conviction assessment. The abstract of judgment must be corrected accordingly.

Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the abstract of judgment, the oral pronouncement controls.

Authority:

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

Case: 000257

Error and/or relief

A jury found the defendant guilty of one count of murder, two counts of being a felon in possession of a firearm, and one count of being a felon in possession of ammunition. The trial court sentenced him on each count of conviction and did not stay the sentence on any count. The court improperly sentenced him on two counts of being a felon in possession of a firearm when he had only committed a single violation of that crime. The court erred when it sentenced him for being both a felon in possession of a firearm and a felon in possession of ammunition. We vacate defendant’s conviction on one count of being a felon in possession of a firearm and stay his sentence for being a felon in possession of ammunition. The abstract of judgment incorrectly marks trhe determinate term on count 2 as “M” for middle term rather than “H” to reflect the high term that was actually imposed, and must be corrected.

First Holding:

Possession of a firearm by a felon is a continuing offense. In the case of continuing offenses, only one violation occurs even though the proscribed conduct may extend over an indefinite period. The crime of possession of a firearm by a felon continues for as long as the possession of the firearm continues and is not completed until the possession has ceased. Therefore, where there is no evidence that the defendant relinquished his possession of a firearm, or that his possession was interrupted for a time, he can be convicted of only one count of that offense. The defendant possessed the same firearm on both dates charged in the information. The People did not present any evidence to show that the defendant ceased his possession of that firearm at any time between the murder and the arrest. We therefore vacate defendant’s conviction on count 4.

Authority:

People v. Mason (2014) 232 Cal.App.4th 355, 365, 366-367

Wright v. Superior Court (1997) 15 Cal.4th 521, 525, fn. 1

People v. Warren (1940) 16 Cal.2d 103, 112

Second Holding:

Section 654 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 bars multiple punishment for separate offenses arising out of a single occurrence when all of the offenses were incident to one objective. It prohibits punishment for both unlawful possession of a firearm and unlawful possession of ammunition when the only ammunition at issue was either found inside or fired from the firearm.

Authority:

People v. Cowan (2010) 50 Cal.4th 401, 498

People v. Broadbent (2020) 47 Cal.App.5th 917, 922–923

People v. Sok (2010) 181 Cal.App.4th 88, 100

People v. Lopez (2004) 119 Cal.App.4th 132, 138

Third Holding:

Where multiple punishments have been improperly imposed, the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term. Here, the trial court should have stayed the punishment on count 3, the lesser term. We will therefore modify the judgment to stay the sentence on that count.

Authority:

People v. Spirlin (2000) 81 Cal.App.4th 119, 131

People v. Broadbent (2020) 47 Cal.App.5th 917, 922–923

People v. Sok (2010) 181 Cal.App.4th 88, 100

People v. Lopez (2004) 119 Cal.App.4th 132, 138

Fourth Holding:

The abstract of judgment for the determinate term on count 2 be modified to reflect that the defendant was sentenced to the high term (“H”), rather than the mid-term (“M”).

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 187

Case: 000249

Error and/or relief

Various clerical errors in the minute order memorializing the defendant’s sentence and on the abstract of judgment need to be corrected. In counts 3 through 9, defendant was found guilty of sexual battery within the meaning of section 243.4(a). The abstract of judgment for the determinate sentence correctly identified the applicable statute as section 243.4(a) for counts 3 and 4, but it incorrectly identified the applicable statute as section 243.5(a) for counts 5 through 9. At the sentencing hearing, the trial court imposed a minimum restitution fine of $300 and a suspended parole revocation fine of $300. However, the relevant minute order and the abstract of judgment list each of these fines as $4,500. We find both fines were $300.

First Holding:

Courts may correct clerical errors at any time, and appellate courts have jurisdiction to order corrections of clerical errors contained in an abstract of judgment. The abstract of judgment will be corrected to reflect the correct statute.

Authority:

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

Second Holding:

When there is a discrepancy between an oral pronouncement of judgment and an abstract of judgment, the oral pronouncement controls. A court of appeal can order trial courts to amend a minute order and abstract of judgment to accurately reflect the trial courts oral pronouncement.

Authority:

People v. Burke (2023) 89 Cal.App.5th 237, 244 [abstract of judgment]

People v. Morales (2014) 224 Cal.App.4th 1587, 1594 [minute order]

People v. Clark (2021) 67 Cal.App.5th 248, 260-261

Case: 000236

Error and/or relief

The abstracts of judgment for all of the defendants reflect assessments that were not orally pronounced (in fact, the trial court had found that the defendants did not have the ability to pay the fees) and must be stricken. The People agree. We agree with the parties and will order those assessments stricken from the abstract of judgment.

Holding:

It is well settled that an abstract of judgment is not the judgment of conviction; it does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize. When an abstract of judgment does not reflect the actual sentence imposed in the trial judge’s verbal pronouncement, the court has the inherent power to correct such clerical error on appeal, whether on our own motion or upon application of the parties.

Authority:

People v. Jones (2012) 54 Cal.4th 1, 89