Category Archives: Elements of crime

Elements of crime, Sentencing

Case 000853

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of multiple counts of sexual assault on a child. We agree the trial court did not make the necessary probable cause finding for the defendant to undergo AIDS testing absent evidence of transfer of bodily fluids. Remanded for the court to hold a hearing to see if there is evidence warranting the order.

First Holding:

Section 1202.1 requires that a court order AIDS testing if the defendant is convicted of specified sex offenses if the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim.

Authority:

PEN 1202.1(e)(5)(A)

Second Holding:

There was no evidence presented to the sentencing court that such a transfer occurred. But it would be inappropriate simply to strike the testing order without remanding for further proceedings to determine whether the prosecution has additional evidence that may establish the requisite probable cause. On remand, the court should conduct further proceedings to determine whether probable cause exists to order AIDS testing under section 1202.1(e)(5)(A).

Authority:

People v. Butler (2003) 31 Cal.4th 1119, 1129

Amelioration, Appellate Principles, Elements of crime, Standard of review, Statutory interpretation, Vicarious liability

Case 000852

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s petition for resentencing under section 1172.6 at the prima facie stage. Remanded for an evidentiary hearing.

First Holding:

Morris held that an aider and abettor of murder must actually aid and abet the lethal act in order to be convicted of murder, we agree with defendant that the record of conviction does not show he was convicted as either the actual killer or as an aider and abettor who acted with the intent to kill as a matter of law,

Authority:

People v. Morris (2026) 19 Cal.5th 671, 678

Second Holding:

SB 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, significantly limited the scope of California’s felony-murder rule and eliminated liability for murder under the natural and probable consequences doctrine through two key statutory provisions.

Section 189 was amended so that a defendant is liable for felony murder only if he was (1) the actual killer, (2) a direct aider and abettor with the intent to kill, or (3) a major participant in the underlying felony and acted with reckless indifference to human life.

Section 188 was amended to impose a new requirement that, except in cases of felony murder, a principal in the crime of murder can only be convicted where he or she acted with malice aforethought, and malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

PEN 189

PEN 188

People v. Strong (2022) 13 Cal.5th 698, 707-708

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

People v. Love (2025) 107 Cal.App.5th 1280, 1286

People v. Antonelli (2025) 17 Cal.5th 719, 724

People v. Berry-Vierwinden (2023) 97 Cal.App.5th 921, 931

Third Holding:

A person convicted of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced.

Authority:

PEN 1172.6

Fourth Holding:

Courts may not engage in factfinding at the prima facie stage. The court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause.

A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. At the prima facie hearing, the court may consider the record of conviction. The record of conviction includes jury verdicts, jury instructions, and closing arguments.

This does not include our appellate opinion. The factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner’s eligibility for resentencing. If such evidence may not be considered at an evidentiary hearing to determine a petitioner’s ultimate eligibility for resentencing, we fail to see how such evidence could establish, as a matter of law, a petitioner’s ineligibility for resentencing at the prima facie stage.

If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

Authority:

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

People v. Harden (2022) 81 Cal.App.5th 45, 54-56 [considering jury instructions and verdicts to determine whether defendant made prima facie showing of eligibility]

People v. Ervin (2021) 72 Cal.App.5th 90, 106 [considering sentencing enhancements, jury instructions, closing arguments, and verdicts at prima facie stage]

People v. Flores (2022) 76 Cal.App.5th 974, 988, fn. omitted

People v. Clements (2022) 75 Cal.App.5th 276, 292 [Trial judges should not rely on the factual summaries contained in prior appellate decisions when a section 1172.6 petition reaches the stage of a full-fledged evidentiary hearing.]

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

Fifth Holding:

We independently review a trial court’s determination of whether a petitioner has made a prima facie showing. We may affirm a ruling that is correct in law on any ground.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

People v. Cortes (2022) 75 Cal.App.5th 198, 204

Sixth Holding:

For a person to be convicted of murder as an aider and abettor, the person must aid and abet the actual killer in the lethal act itself, and not just in the underlying felony.

Here, the record of conviction does not establish as a matter of law that defendant participated in aiding and abetting the kidnapping and other acts that led to the victim’s death and that he acted with the intent to kill. We thus reverse the trial court’s order and remand the matter with directions to issue an order to show cause and to conduct an evidentiary hearing.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 681

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

Case 000848

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing an indeterminate sentence on the attempted sodomy conviction and failed to properly calculate the defendant’s determinate sentence.

First Holding:

In evaluating claims of insufficient evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses substantial evidence such that a reasonable jury could find the defendant guilty beyond a reasonable doubt.

We presume the existence of every fact supporting the judgment that the jury reasonably could deduce from the evidence. A judgment will be reversed only if there is no substantial evidence to support the verdict under any hypothesis. We may not substitute our judgment for that of the jury, reweigh the evidence, or reevaluate the credibility of witnesses.

Authority:

People v. Elliot (2005) 37 Cal.4th 453, 466

People v. Ochoa (1993) 6 Cal.4th 1199, 1206

People v. Bolin (1998) 18 Cal.4th 297, 331

Second Holding:

Under either simple or aggravated kidnapping, the asportation element requires that the movement be more than that which is merely incidental to the commission or attempted commission of the associated crime.

Simple kidnapping requires that the defendant moved the victim a substantial distance, but no minimum distance is required.

The aggravated kidnapping circumstance, however, also requires that the movement substantially increased the risk of harm to the victim beyond that inherent in the underlying offense. The increased risk may be of either physical or psychological harm.

Authority:

People v. Waqa (2023) 92 Cal.App.5th 565, 577-578

Third Holding:

The crime of attempted sodomy is not subject to the One Strike law under section 667.61(c). Thus, it was error to impose an indeterminate sentence for that offense.

Authority:

PEN 667.61

People v. Rodriguez (2012) 207 Cal.App.4th 204, 217

Fourth Holding:

Sentencing a defendant for offenses subject to determinate terms involves a three-step process:

First, the trial court is required to select a base term—either the statutory low, middle or upper term—for each of the crimes.

Second, if the court determines that a consecutive sentence is merited, it must designate the crime with the greatest selected base term as the principal term and the other crimes as subordinate terms.

Third, the court sentences the defendant to the full base term it selected for the principal term crime and one-third of the middle term for any crimes for which the sentence is ordered to run consecutively.

A subordinate term is one-third of the middle term even if the trial court had initially selected the lower or upper term as the base term. The court did not follow this procedure on three of the counts, and resentencing is required.

Authority:

PEN 1170.1

People v. Rodriguez (2012) 207 Cal.App.4th 204, 211-212

Fifth Holding:

Generally, when a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing.

This rule does not apply, however, when a trial court imposes an unauthorized sentence. In such cases, courts may impose the proper judgment on remand even though it is more severe than the original unauthorized pronouncement.

Authority:

People v. Vizcarra (2015) 236 Cal.App.4th 422, 431

People v. Burhop (2021) 65 Cal.App.5th 808, 814 [An unauthorized sentence renders the unlawful part of a judgment of conviction and sentence void and correctable at any time.]

People v. Govan (2023) 91 Cal.App.5th 1015, 1036, fn. 21 [We must correct an unauthorized sentence even where the corrected sentence results in a longer term.]

Sixth Holding:

Here, the trial court’s sentence on count 4 of an indeterminate term of 25 years to life was unauthorized and must be corrected. Likewise, the court’s failure to designate a principal term among counts 6 through 8 amounted to an unauthorized sentence. Accordingly, the trial court is not constrained by the length of the original determinative sentence for purposes of resentencing.

Authority:

People v. Neely (2009) 176 Cal.App.4th 787, 797–798 [court erroneously applied principal term/subordinate term methodology set forth in sec. 1170.1 to all the offenses when it imposed one-third of the middle term sentences for the determinate term offenses]

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

Case 000833

Posted on by Gary McCurdy

Error and/or relief

The trial court’s true findings on three of the four strike priors and three of the four prior serious felony enhancements must be vacated and the matter remanded to the court for any retrial of these allegations, because there is insufficient evidence to support the finding defendant’s three 2016 convictions qualify as serious or violent felonies for purposes of three of the four strike priors and three of the four prior serious felony enhancements under the 2022 amendments to section 186.22 enacted by AB 333.

First Holding:

Under the Three Strikes law, defendants previously convicted of serious or violent felonies are subject to increased prison terms: if a defendant has one prior conviction for a serious or violent felony, the defendant’s term of imprisonment is doubled, and if a defendant has two or more such strike priors, the defendant may receive life imprisonment.

The Three Strikes law defines “serious or violent” felony to include any offense defined as a serious felony under section 1192.7(a). Section 1192.7 defines “serious felony” to include, among other things, any felony offense that would also constitute a felony violation of section 186.22.

Authority:

PEN 1170.12

PEN 1192.7(c)(28)

Second Holding:

Section 186.22(a) makes it unlawful to actively participate in a criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and to willfully promote, further, or assist in felonious criminal conduct by members of that gang.

Section 186.22(b) provides for enhancements if a person commits a felony for the benefit of such a gang. Section 186.22 also defines the terms criminal street gang and pattern of criminal gang activity as well as benefitting a gang.

Authority:

PEN 186.22

Third Holding:

Effective January 1, 2022, AB 333 narrowed the definition of a criminal street gang, the definition of a pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

First, 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.

Second, whereas former section 186.22(f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a ‘criminal street gang, AB 333 requires that any such pattern that have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offense commonly benefitted a criminal street gang and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. Moreover, because these changes are ameliorative in nature, they apply to nonfinal judgments on appeal.

Authority:

PEN 186.22

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

Fourth Holding:

Fletcher held that, where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Whether a prior conviction was for an offense that constitutes a felony violation of section 186.22 is determined by applying the current version of section 186.22.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 607

Fifth Holding:

On appeal, a reviewing court must examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, the reviewing court determines whether a rational trier of fact could have found the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.

The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. Where the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue.

Authority:

People v. Miles (2008) 43 Cal.4th 1074, 1082, 1083

People v. Delgado (2008) 43 Cal.4th 1059, 1067

Sixth Holding:

The inquiry concerning whether a prior conviction qualifies as a serious felony is a determination regarding the nature or basis of the defendant’s prior conviction—specifically, whether that conviction qualified as a conviction of a serious felony.

If the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense.

In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden.

Authority:

People v. McGee (2006) 38 Cal.4th 682, 706

People v. Delgado (2008) 43 Cal.4th 1059, 1065 (superseded by statute on another ground, as stated in People v. Frahs (2018) 27 Cal.App.5th 784, 795)

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

Case 000828

Posted on by Gary McCurdy

Error and/or relief

The Trial Court Erred by Failing to Instruct on the Lesser Included Offense of Nonforcible Lewd Acts as to Count 8.

First Holding:

A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 645

Second Holding:

On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense. Where a trial court has erred in failing to instruct on a lesser included offense, we review for prejudice under the standard set forth in Watson. Under this standard, the failure to instruct on a lesser included offense is not subject to reversal unless it is reasonably probable a more favorable result would have been obtained absent the error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

People v. Watson (1956) 46 Cal.2d 818

People v. Beltran (2013) 56 Cal.4th 935, 955

Third Holding:

Nonforcible lewd act under section 288(a), is a lesser included offense of forcible lewd act under section 288(b)(1). The crimes are distinguishable in that forcible lewd act requires the defendant to have committed the crime by means of force, violence, duress, menace, or fear.

Authority:

People v. Chan (2005) 128 Cal.App.4th 408, 421

People v. Griffin (2004) 33 Cal.4th 1015, 1026

Fourth Holding:

In this context, force means physical force substantially different from or substantially greater than that necessary to accomplish the act itself. Fear has been defined as (1) A feeling of alarm or disquiet caused by the expectation of danger, pain, disaster, or the like; terror; dread; apprehension and (2) Extreme reverence or awe, as toward a supreme power.

And duress as used in this context means a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.

Authority:

People v. Cochran (2002) 103 Cal.App.4th 8, 13, disapproved on another ground in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12

People v. Cardenas (1994) 21 Cal.App.4th 927, 939–940

Fifth Holding:

On this record, there is simply no evidence that the defendant employed the requisite force, duress, or fear to commit the forcible lewd act charged in count 8.

Authority:

People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319–1321

Sixth Holding:

Consequently, we must reverse the judgment and conviction for forcible lewd act under section 288(b)(1), as charged in count 8. Under settled law, the judgment will be modified to reflect a conviction for nonforcible lewd act under section 288(a), unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Seventh Holding:

The federal and state prohibitions against ex post facto laws apply to any statute that punishes as a crime an act previously committed which was not a crime when done or that inflicts greater punishment than the applicable law when the crime was committed.

It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.

And, where the prosecutor failed to establish at trial when the charged acts occurred, it would be inappropriate for an appellate court to review the record and select among acts that occurred before and after that date, or to infer that certain acts probably occurred after that date.

In sum, as to counts 8 and 10, the prosecution failed to present unambiguous evidence that the acts underlying these counts occurred after the law increasing the sentence range took effect. Given the ambiguity, the trial court was not permitted to impose the harsher penalty under the revised law as to these counts.

The defendant’s 10-year sentences on counts 8 and 10 therefore violate the ex post facto clause and resentencing is required on these counts. At resentencing, as to counts 8 and 10, the court must apply the sentencing provisions applicable before the statute was amended to increase the sentence range.

Authority:

People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 261

Eighth Holding:

Because we conclude that the judgment must be reversed in part and this action must be remanded to the trial court for further proceedings, the defendant will ultimately be entitled to full resentencing.

Authority:

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

People v. Navarro (2007) 40 Cal.4th 668, 681 [Although the Court of Appeal’s prior remand order was for resentencing on the modified convictions only, we believe a remand for a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.]