Category Archives: Amelioration

Amelioration, Sentencing, Standard of review

Case: 000319

Posted on by Gary McCurdy

Error and/or relief

Summary denial of of the defendant’s 1172.6 petition without an evidentiary hearing was error where the jury had been given instructions that permitted it to find defendant guilty of murder under the felony murder rule or under the natural and probable consequences doctrine, and allowed it to find him guilty of attempted murder under the natural and probable consequences doctrine.

First Holding:

In 2018, the Legislature passed SB 1437 that amended sections 188 and 189 to significantly limit the reach of the felony-murder rule and to eliminate the natural and probable consequences doctrine in cases of first and second degree murder as it applies to aiding and abetting. The bill also added section 1172.6 to provide a procedural mechanism for defendants who could no longer be convicted of murder because of the amendments to petition for retroactive relief. The Legislature later amended section 1172.6 effective January 1, 2022, to provide resentencing relief to defendants convicted of attempted murder under the natural and probable consequences doctrine.

Authority:

SB 1437

PEN 188

PEN 189

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 957, 959

People v. Rodriguez (2024) 103 Cal.App.5th 451, 457

Second Holding:

Section 189 as amended effective January 1, 2019, provides that a participant in the perpetration of a robbery or kidnapping (or attempted perpetration of those crimes) in which a death occurs is liable for first degree murder only if it is proven that the participant was the either (i) the actual killer; (ii) 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 the first degree murder; or, (iii) was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 189

Third Holding:

Upon receipt of a petition that sets forth the required allegations, the trial court must conduct a prima facie analysis and hearing to determine the defendant’s eligibility for relief. Although the court should not reject the petition’s factual allegations without first conducting an evidentiary hearing, it may make a credibility determination adverse to the defendant if the court’s own documents refute those allegations.

Authority:

PEN 1172.6(b)(3) and (c)

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

People v. Lewis (2021) 11 Cal.5th 952, 960

Fourth Holding:

We review de novo the trial court’s denial of a section 1172.6 petition at the prima facie stage.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 545

Fifth Holding:

It appears the trial court found that giving instructions that allowed the jury to find defendant guilty of murder based on theories of liability that had been abrogated by SB 1437 was harmless because the jury also received instructions on the still valid theories of being a major participant who aided and abetted with an intent to kill or acted with reckless indifference to human life. The difficulty here, however, is defendant was convicted in 2012, well before Banks clarified the law concerning major participant findings by identifying a series of considerations to assist in the inquiry whether a defendant is a major participant. Clark reiterated the Banks elements and substantially clarified the considerations relevant to determining whether a defendant acted with reckless indifference to human life.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 798-804

People v. Clark (2016) 63 Cal.4th 522, 611-623

Sixth Holding:

Unless a felony murder defendant was tried after Banks, a major participant finding will not defeat an otherwise valid prima facie case for section 1172.6 resentencing relief and, unless a defendant was tried after Clark, a reckless indifference to human life finding will not defeat an otherwise valid prima facie case for such relief. Because defendant was convicted before Banks and Clark, the special circumstance findings that he was a major participant who acted with reckless indifference to human life do not preclude him from establishing a prima facie case for resentencing relief.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 721

Amelioration, Duty of the court, Sentencing

Case: 000316

Posted on by Gary McCurdy

Error and/or relief

We affirm the order denying resentencing under section 1172.6, but direct the trial court to prepare a corrected abstract of judgment, because the credit for time served was miscalculated.

First Holding:

Both the date of arrest and the sentencing should be included in credit calculations

Authority:

People v. Bravo (1990) 219 Cal.App.3d 729, 735

Second Holding:

The failure to properly calculate custody and conduct credits is a jurisdictional error that may be corrected at any time.

Authority:

People v. Chilleli (2014) 225 Cal.App.4th 581, 591

Amelioration, Retroactivity, Sentencing

Case: 000315

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his motion to strike a strike that was based on gang activity under the definition existing prior to the changes to section 186.22 enacted by AB 333. The motion should have been granted, and we vacate the defendant’s admission of that strike. It is undisputed that the trial court did not evaluate whether the conduct underlying the defendant’s prior convictions would violate section 186.22 as amended by AB 333, and nothing in the record would have afforded it a basis to do so. We will reverse the judgment and remand the matter for the trial court to apply the elements of section 186.22 as amended. On remand, the People must decide whether to prosecute the prior strike allegations under the law as amended by AB 333 (2021–2022 Reg. Sess.). The trial court must resentence the defendant.

Holding:

When determining whether a prior serious felony conviction qualifies as a strike based on gang criminal activity, sentencing courts must consider whether the conduct underlying a prior conviction that by operation of section 186.22 is alleged to be a serious or violent felony still satisfies section 186.22 as amended.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 608

Amelioration, Elements of crime, Sentencing

Case: 000312

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his motion to strike a strike that was based on gang activity under the definition existing prior to the changes to PC 186.22 enacted by AB 333. The motion should have been granted, and we vacate the defendant’s admission of that strike.

First Holding:

The Three Strikes law doubles a felony sentence if the defendant has a prior conviction for a serious felony, which includes any felony offense, which would also constitute a felony violation of section 186.22. The prior firearm conviction constitutes a strike if committed for the benefit of a criminal street gang pursuant to section 186.22(b)(1).

Authority:

AB 333

PEN 1192.7(c)(28)

PEN 667

People v. Briceno (2004) 34 Cal.4th 451, 456

Second Holding:

AB 333, effective January 1, 2022, amended section 186.22 to narrow the definition of benefit to mean to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant. This provision applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike. With regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions.

Authority:

PEN 186.22(g)

People v. Fletcher (2025) 18 Cal.5th 576, 586-587

Amelioration, Elements of crime, Sentencing

Case: 000311

Posted on by Gary McCurdy

Error and/or relief

For a prior felony conviction based on gang criminal activity to qualify as a serious felony or a strike, it must have met the elements of section 186.22 as amended by AB 333. In this People’s appeal from the dismissal of that strike, we affirm the trial court’s order.

First Holding:

The Three Strikes law doubles a felony sentence if the defendant has a prior conviction for a serious felony, which includes any felony offense that would also constitute a felony violation of Section 186.22. The prior firearm conviction constitutes a strike if committed for the benefit of a criminal street gang pursuant to section 186.22(b)(1).

Authority:

PEN 1192.7(c)(28)

PEN 667

People v. Briceno (2004) 34 Cal.4th 451, 456

Second Holding:

AB 333, effective January 1, 2022, amended section 186.22 to narrow the definition of benefit to mean to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant. This provision applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike. With regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions.

Authority:

PEN 186.22(g)

People v. Fletcher (2025) 18 Cal.5th 576, 586-587

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

Case: 000309

Posted on by Gary McCurdy

Error and/or relief

Denial of petition to vacate judgment of murder and for resentencing under section 1172.6 is reversed. The appellant’s participation in the planning and commission of the robbery and failure to render aid to the co-defendant do not demonstrate that he acted with the requisite reckless indifference to human life to be culpable of murder.

First Holding:

The Legislature enacted SB 1437 to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. As amended by SB 1437, section 189 now limits liability under a felony-murder theory to actual killers and those who, with the intent to kill, aid or abet the actual killer in the commission of murder in the first degree. Individuals who do not fall into those categories can be held liable for murder only if they were major participants in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d)—the statute defining the felony-murder special circumstance. Section 1172.6 permits individuals who were convicted of felony murder or murder under a natural and probable consequences theory, but who could not be convicted of murder following SB 1437’s changes to sections 188 and 189, to petition the sentencing court to vacate the conviction and resentence on any remaining counts.

Authority:

SB 1437

PEN 189

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 959

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

Second Holding:

On appeal from an order denying a section 1172.6 petition after an evidentiary hearing, we review the trial court’s factual findings for substantial evidence. We examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding the defendant guilty beyond a reasonable doubt. Our job on review is different from the trial judge’s job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder’s findings beyond a reasonable doubt. We do not reweigh evidence or revisit the trial court’s credibility determinations.

Authority:

People v. Richardson (2022) 79 Cal.App.5th 1085, 1090

People v. Clements (2022) 75 Cal.App.5th 276, 298

People v. San Nicolas (2004) 34 Cal.4th 614, 657-658

People v. Emanuel (2025) 17 Cal.5th 867, 885

People v. Cody (2023) 92 Cal.App.5th 87, 112-113

Third Holding:

In Banks, the Supreme Court set out a nonexhaustive list of considerations relevant to whether a defendant’s participation in criminal activities known to carry a grave risk of death is sufficiently significant to render him or her a major participant in the crime. Those considerations are: What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?

Authority:

People v. Banks (2015) 61 Cal.4th 788, 794, 803

People v. Strong (2022) 13 Cal.5th 698, 705

Fourth Holding:

Clark similarly set forth a list of considerations relevant to determining whether a defendant acted with reckless indifference to human life. The first factor relates to weapons: was the defendant aware that weapons would be used in the felony? Did the defendant use a weapon? How many weapons were used in the crime? The court cautioned that the mere fact of a defendant’s awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to human life. A robbery in which the only factor supporting reckless indifference to human life is the fact of the use of a gun is what the Banks court meant by a garden-variety armed robbery.

The second factor is the defendant’s physical proximity to the murder and the events leading up to it, and the opportunities that proximity afforded to restrain the crime or aid the victim.

The third factor is the duration of the felony, particularly the duration of the interaction between victims and perpetrators; more prolonged incidents provide “‘a greater window of opportunity for violence.

The fourth factor is the defendant’s awareness of his or her codefendants’ propensity for violence or likelihood of killing a victim.

The final factor is the defendant’s efforts to minimize the risk of violence during the felony, though the court cautioned that some effort to minimize the risk of violence does not, in itself, necessarily foreclose a finding that defendant acted with reckless indifference to human life. In cases where a defendant was a youth at the time of the crime, his or her age may also be relevant to determining whether he or she acted with reckless indifference.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 617-623

People v. Banks (2015) 61 Cal.4th 788, 794, 802

People v. Emanuel (2025) 17 Cal.5th 867, 885 fn 6

In re Moore (2021) 68 Cal.App.5th 434, 453-454

People v. Ramirez (2021) 71 Cal.App.5th 970, 987

Fifth Holding:

No single Banks or Clark factor is determinative. Lower courts should take care to consider the presence or absence relating to each relevant factor on its own merits before considering the evidence in its totality.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618, 621-623

People v. Emanuel (2025) 17 Cal.5th 867, 888

Sixth Holding:

There is significant overlap between being a major participant and acting with reckless indifference to human life, and the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life. However, that does not necessarily mean that every major participant in a crime acts with reckless indifference to human life. Participation in a gardenvariety armed robbery is insufficient without more to establish reckless indifference. The defendant must not merely be aware of the foreseeable risk of death inherent in any violent felony; he or she must knowingly create a grave risk of death to demonstrate reckless indifference to human life. The defendant’s actions before and during the crime are important but not determinative; the key inquiry is what his actions reveal about his mental state.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618, 614-615

People v. Emanuel (2025) 17 Cal.5th 867, 884

Amelioration, Appellate Principles, Sentencing, Standard of review

Case: 000305

Posted on by Gary McCurdy

Error and/or relief

The order denying the petition for resentencing under section 1172.6 is reversed.

First Holding:

Effective January 1, 2019, SB 1437 (2017–2018 Reg. Sess.) amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. It accomplished this by amending sections 188 and 189. Section 188(a)(3) now prohibits imputing malice based solely on an individual’s participation in a crime and requires proof of malice to convict a principal of murder, except under the revised felony-murder rule in section 189(e). Section 189 requires the prosecution to prove the defendant was the actual killer; an aider and abettor to murder who acted with the intent to kill; or a major participant in the underlying felony who acted with reckless indifference to human life.

Authority:

PEN 189

People v. Lewis (2021) 11 Cal.5th 952, 957

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

People v. Wilson (2023) 14 Cal.5th 839, 868–869

Second Holding:

The Legislature, to provide relief to those with existing murder convictions dependent on theories of the crime it had rejected, devised a path to resentencing. It has since expanded this path to allow relief for those with attempted murder convictions based on the natural and probable consequences doctrine.

Authority:

PEN 1172.6

People v. Patton (2025) 17 Cal.5th 549, 558

Third Holding:

If the record of conviction establishes ineligibility for resentencing as a matter of law, the petition is properly denied at the prima facie stage. However, the petition and record of conviction must establish conclusively that the defendant is ineligible for relief.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 970-972

People v. Lopez (2022) 78 Cal.App.5th 1, 14

Fourth Holding:

We independently review a trial court’s determination whether a petitioner has made a prima facie showing of eligibility for relief.

Authority:

We independently review a trial court’s determination whether a petitioner has made a prima facie showing of eligibility for relief.

Fifth Holding:

We conclude the defendant has made a prima facie showing that he was entitled to relief. The record of conviction does demonstrate a possibility that he was convicted of second degree murder under an imputed malice theory, that is, that he was guilty of murder based solely on his participation in the robbery. In assessing section 1172.6 petitions, the jury instructions will be critical. Indeed we look at the jury’s verdicts, viewed in light of the court’s jury instructions, to assess whether a defendant has made a prima facie showing for relief under section 1172.6.

Authority:

People v. Antonelli (2025) 17 Cal.5th 719, 731

People v. Curiel (2023) 15 Cal.5th 433, 441

Amelioration, Elements of crime, Sentencing

Case: 000303

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to determine that one of the prior serious felony convictions qualified as a strike under the Three Strikes law and for enhancement as a prior serious felony, because AB 333 amended the elements of the crime under section 186.22, and the acts constituting the crime were tried under the former version. The matter is remanded to the trial court with directions that the People be allowed to elect whether to retry appellant, under current law, on the strike and the prior serious felony enhancement. We also remand the matter for a full resentencing.

First Holding:

Current law governs whether defendants prior convictions would also constitute a felony violation of section 186.22 for purposes of the Three Strikes law and prior serious felony enhancements. The current law includes Assembly Bill 333’s redefinition of the elements of gang offenses and enhancements under section 186.22. Thus, Assembly Bill 333 applies to the determination of whether a prior conviction qualifies as a serious or violent felony under section 192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements. There is no indication that defendants’ prior convictions were obtained under Assembly Bill 333’s more stringent requirements. The appropriate remedy is reversal of the findings on these enhancements for retrial under the correct law.

Authority:

AB 333

PEN 186.22

PEN 1192.7(c)(28)

PEN 667

People v. Fletcher (2025) 18 Cal.5th 576, 607-608

Second Holding:

When part of a sentence is stricken on review, on remand for resentencing 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. Buycks (2018) 5 Cal.5th 857, 893

Abstracts and Minutes, Amelioration, Elements of crime, Jury instructions, Sentencing, Standard of review

Case: 000302

Posted on by Gary McCurdy

Error and/or relief

The defendants are entitled to retrial on the counts for active participation in a criminal street gang in light of AB 333’s retroactive changes to section 186.22. It was error to order Defendant’s 2 and 3 to be jointly responsible for the funeral expenses of the victim killed by Defendant 1. In addition there were several errors in Defendant 1’s consolidated abstract of judgment that need correction.

First Holding:

During the appeal, the Legislature amended section 186.22’s defendant of a criminal street gang. It narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons; it requires that the pattern of criminal activity foundational to a criminal street gang have been collectively engaged in by members of the gang; it also imposed further requirements limiting the offenses on which a pattern of criminal gang activity could be predicated; and it required that for an offense to have commonly benefitted a street gang, any common benefit be more than reputational.

Authority:

AB 333

PEN 186.22

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

Second Holding:

The ameliorative amendments apply retroactively to all cases not yet final as of its effective date.

Authority:

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

In re Estrada (1965) 63 Cal.2d 740

Third Holding:

The trial court instructed the jury on the then-applicable definition of a criminal street gang, omitting several of the requirements that have now been imposed by AB 333. The jury instruction thus relieved the prosecution of its burden to prove all elements of the crime as now defined.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742

Fourth Holding:

We apply the harmless beyond a reasonable doubt standard articulated in Chapman. When a jury instruction has omitted an element of an offense, our task is to determine whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. The question is not whether there is evidence in the record that would support a jury finding of the missing element, but whether we can conclude beyond a reasonable doubt that the jury verdict would have been the same had the jury been instructed on the missing element.

Authority:

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

People v. Cooper (2023) 14 Cal.5th 735, 742-743

People v. Lamb (2024) 16 Cal.5th 400, 449

Fifth Holding:

All three defendants will be entitled to a full resentencing upon remand, independent of the prosecution’s election whether to pursue the gang charge or enhancements on remand. The full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Valenzuela (2019) 7 Cal.5th 415, 424–425

Sixth Holding:

We observe, however, that neither Defendant 2 nor Defendant 3 can be ordered to pay restitution for any losses attributable to Defendant 1’s murder of the deceased. Neither of them were charged with any offense involving the deceased, and nothing in the evidence before the jury or the court at sentencing implicated them in his murder. It was accordingly error to make them jointly and severally liable for the deceased’s funeral expenses.

Authority:

PEN 1202.4(f) [authorizing restitution where a victim has suffered economic loss as a result of the defendant’s conduct]

People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence cannot be lawfully imposed]

Seventh Holding:

Defendant 1’s consolidated abstract of judgment requires correction. First, in case number A, the abstract of judgment erroneously lists as stayed count 2’s multiple-murder special circumstance when the trial court vacated this finding. In case number B, Defendant 1’s conviction for assault with force likely to produce great bodily injury in violation of section 245(a)(4) is described on the abstract as “Asslt w/deadly wpn/force likely to prod GBI.” We agree that an amended abstract should be reworded to avoid confusion between assault with a deadly weapon (sec. 245(a)(1), (2), or (3))—a serious felony under section 1192.7—and assault by force likely to produce great bodily injury (sec. 245(a)(4)).

(GARY NOTE–the appellate court did not cite case authority for the correction of the abstract, but it is abundantly clear the court has that authority. I have set forth some below)

Authority:

PEN 1192.7(c) [listing serious felonies]

People v. Delgado (2008) 43 Cal.4th 1059, 1065

[on correction of abstracts]

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, Amelioration, Appellate Principles, Fines and fees, Sentencing

Case: 000301

Posted on by Gary McCurdy

Error and/or relief

Though affirming the trial court’s reimposition of the original sentence (minus the now-invalid enhancements for prior prison terms), it remanded the matter to the trial court to expressly state which fines and fees it was imposing, as it was not clear from the record.

First Holding:

The abstract of judgment lists several fines and fees, some of which are mandatory. The trial court, however, imposed only direct restitution (which is also listed in the abstract). A superior court’s failure to orally impose mandatory fines or assessments results in an unauthorized sentence that the appellate court may correct on appeal. But we do not believe the superior court sufficiently addressed ability to pay. It mentioned ability to pay only in the context of the direct restitution. It sidestepped the issue of ability to pay, treating it as irrelevant to the issue of direct victim restitution. As the court did not orally impose any additional fines or fees, the defendant had no meaningful opportunity to raise his ability to pay with respect to them.

Authority:

People v. Talibdeen (2002) 27 Cal.4th 1151, 1153–1157

People v. Pack-Ramirez (2020) 56 Cal.App.5th 851, 859 [ability-to-pay principles have not been extended to a victim restitution payment under section 1202.4(f)]

People v. Abrahamian (2020) 45 Cal.App.5th 314, 338

People v. Evans (2019) 39 Cal.App.5th 771, 777

Second Holding:

By statute, restitution fines and probation restitution fines under section 1202.4(b) and section 1202.45 that exceed the $300 minimum shall account for ability to pay. And because of equal protection principles, a court must consider ability to pay before imposing ancillary assessments under section 1465.8(a)(1) and Government Code section 70373. As to the remaining fine in the defendant’s case, under section 1202.5, the parties do not dispute the fine must be set with ability to pay in mind, but is mandatory if affordable. Given this, we will order a limited remand for the superior court to consider the mandatory fines and assessments omitted from its oral sentencing pronouncements in connection with defendant’s ability to pay.

Authority:

PEN 1202.5

People v. Kopp (2025) 19 Cal.5th 1, 30

Third Holding:

Regarding restitution fines, section 1465.9 has recently been amended to provide that, upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to Section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated. At least one Court of Appeal has held a court conducting a section 1172.75 resentencing cannot reimpose a restitution fine that is more than 10 years old and has held, instead, the fine should be stricken. As no restitution fine has been properly imposed, we are in no position to consider striking it, and the superior court can consider these developments on remand.

Authority:

PEN 1465.9(d)

People v. Salstrom (2025) 117 Cal.App.5th 596, 601, review granted Mar. 11, 2026, S295038

Fourth Holding:

Walker approved Court of Appeal decisions that viewed section 1385 as calling for holistic balancing with special emphasis on the enumerated mitigating factors. Gonzalez did not create a new rule of law, but rather corrected a superior court’s misunderstanding regarding the term endangerment to public safety in section 1385(c)(2). The statute defines the term as a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others, which does not contemplate a laser-like focus on dangerousness at the time of sentencing. The superior court in Gonzalez had expressly limited its consideration to the defendant’s current dangerousness despite the call of the statute, a mistake not present here.

Authority:

PEN 1385(c)(2)

People v. Walker (2024) 16 Cal.5th 1024, 1036

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228

Fifth Holding:

We need not, and typically do not, address arguments raised for the first time in a reply brief.

Authority:

People v. Dunn (2025) 18 Cal.5th 129, 183, fn. 13

People v. Adir Internat., LLC (2025) 114 Cal.App.5th 275, 298

Amelioration, Sentencing

Case: 000297

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to a full resentencing because Penal Code section 1172.75 applies to enhancements imposed as part of the defendant’s original judgment, regardless of whether the enhancement was stayed or executed. We reverse and remand for the trial court to conduct a full resentencing. the trial court erred when it failed to recalculate his presentence custody credit

First Holding:

Effective January 1, 2020, the Legislature eliminated these one-year prior-prison-term enhancements except in cases involving prior terms for sexually violent offenses. Two years later, the Legislature made the change retroactive. In Penal Code section 1172.75, the Legislature declared that, aside from enhancements imposed for sexually violent offenses, any sentence enhancement that was imposed prior to January 1, 2020, pursuant to Penal Code section 667.5(b) is legally invalid. In the same provision, the Legislature established a mechanism for resentencing individuals currently serving a term for a judgment that includes’ such an enhancement.

Authority:

PEN 1172.75

PEN 667.5

Second Holding:

Penal Code section 1172.75 entitles a defendant to resentencing if the underlying judgment includes a prior-prison-term enhancement that was imposed before January 1, 2020, regardless of whether the enhancement was then executed or instead stayed.

Authority:

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

Third Holding:

Defendant’s actual presentence custody credits must be recalculated at this resentencing.

Authority:

People v. Sek (2022) 74 Cal.App.5th 657, 673

People v. Buckhalter (2001) 26 Cal.4th 20, 29, 37

Amelioration, Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case: 000296

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to support the defendant’s conviction on count 2 for attempted voluntary manslaughter, and that conviction must be reversed. We also conclude the court’s use of the pre-AB 333 pattern jury instruction was prejudicial. This requires reversal of the gang enhancements, the substantive gang offense (count 7), and the related section 12022.53(d) and (e)(1) gang related firearm use enhancements.

First Holding:

Attempted voluntary manslaughter requires proof that the defendant specifically intended to kill the named victim, although the intent is mitigated by heat of passion or imperfect self-defense.

Authority:

People v. Manriquez (2005) 37 Cal.4th 547, 583

Second Holding:

The jury must agree unanimously the defendant is guilty of a specific crime. When the evidence suggests more than one discrete crime under a single count, either the prosecution must elect the act relied upon or the court must instruct the jury to agree on the same criminal act. The unanimity instruction exists to prevent jurors from convicting a defendant based on different instances of conduct, thereby ensuring all 12 jurors are convinced beyond a reasonable doubt that the same act constituted the offense. A unanimity instruction is required when the record shows evidence of more than one crime that could support conviction under a single count. But if the evidence shows only a single discrete crime, no instruction is necessary.

Authority:

People v. McDaniel (2021) 12 Cal.5th 97, 142

People v. Russo (2001) 25 Cal.4th 1124, 1132

People v. Covarrubias (2016) 1 Cal.5th 838, 877

People v. Hernandez (2013) 217 Cal.App.4th 559, 569

People v. Grimes (2016) 1 Cal.5th 698, 727

People v. Diedrich (1982) 31 Cal.3d 263, 281

Third Holding:

Determining whether a particular instruction was required presents a predominantly legal mixed question of law and fact. We therefore review claims of instructional error de novo.

Authority:

People v. Hernandez (2013) 217 Cal.App.4th 559, 568

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Guiuan (1998) 18 Cal.4th 558, 569

Fourth Holding:

In a criminal case, the trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues raised by the evidence and necessary to the jury’s understanding of the case. The correctness of jury instructions is determined by considering the charge as a whole, not by viewing individual instructions in isolation.

Authority:

People v. Martinez (2010) 47 Cal.4th 911, 953

People v. Carrington (2009) 47 Cal.4th 145, 192

Fifth Holding:

To determine whether the trial court properly instructed on the kill zone theory, we apply the substantial evidence standard of review. Under this standard, the question is whether the record contains evidence from which a reasonable jury could infer that the defendant intended to kill everyone within the zone of harm as a means of killing the primary target.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 193, 203 [Without substantial evidence showing the defendant acted with intent to kill a primary target, the essential basis for a concurrent intent analysis is not satisfied]

Sixth Holding:

The standard for assessing a sufficiency of the evidence claim is highly deferential. We examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence; that is, evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In conducting our review, we must presume in support of the judgment the existence of every fact the trial court could reasonably deduce from the evidence. We also accept all logical inferences the trial court could have drawn from circumstantial evidence. The question is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence supports the trier of fact’s finding. The judgment must be upheld unless it appears that, under no hypothesis whatsoever, is there sufficient substantial evidence to support it.

Authority:

People v. Cravens (2012) 53 Cal.4th 500, 507-508

People v. Kurey (2001) 88 Cal.App.4th 840, 848–849 [we resolve all inferences and intendments in favor of the judgment, and all conflicting evidence will be resolved in favor of the decision]

People v. Medina (2009) 46 Cal.4th 913, 919, superseded by statute on other grounds

People v. Flores (2020) 9 Cal.5th 371, 411

People v. Crittenden (1994) 9 Cal.4th 83, 139

People v. Sanchez (2003) 113 Cal.App.4th 325, 329

Seventh Holding:

The jury was instructed on the gang participation law as it existed at the time of trial. Because subsequent amendments under AB 333 changed the elements considerably and the defendant’s judgment is not final, the gang-related convictions must be retried under the new law.

Authority:

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

People v. Lopez (2025) 17 Cal.5th 388, 394

People v. Hallock (1989) 208 Cal.App.3d 595, 610