Category Archives: Elements of crime

Elements of crime, Jury instructions

Case 000704

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to instruct that the jury could find the maul to be a deadly under either of two theories–(a) that it was inherently deadly or dangerous or (b) that it was used in such a way that it was capable of causing and likely to cause death or great bodily injury.

First Holding:

Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such.

Authority:

People v. Aledamat (2019) 8 Cal.5th 1, 6

Second Holding:

Add holding The trial court instructed the jury, pursuant to CALCRIM No. 3145, that if the jury found the defendant guilty of count three—vandalism—it must then decide whether the People have proved the additional allegation that the defendant personally used a deadly or dangerous weapon.

The instruction defined a deadly or dangerous weapon as any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. It went on to explain that an object is inherently deadly if it is deadly or dangerous in the ordinary use for which it was designed.

The court further instructed the jury to consider all the surrounding circumstances in determining whether the object constituted a deadly or dangerous weapon.
here

Authority:

CALCRIM no. 3145

Third Holding:

For assault with a deadly weapon our high court has defined a weapon that is not inherently deadly as deadly nonetheless, when it is used in a manner likely to produce death or great bodily injury. CALCRIM No. 3145 has, in turn, adopted the same definition in defining a deadly or dangerous weapon under section 12022.

Authority:

People v. Aguilar (1997) 16 Cal.4th 1023, 1029

People v. Stutelberg (2018) 29 Cal.App.5th 314, 317

Fourth Holding:

Whether a weapon is deadly or dangerous as used focuses on potentiality and not on an actual injury to a victim, or even physical contact. Although a mere possibility of serious injury is not enough, the question is whether serious injury was likely, even if it did not come to pass. This necessarily calls for an assessment of potential harm in light of the evidence.

Authority:

In re D.T. (2015) 237 Cal.App.4th 693, 698

In re B.M. (2018) 6 Cal.5th 528, 535

Fifth Holding:

The court committed alternative theory error by presenting the jury with two theories by which it could find the maul a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct.

Authority:

People v. Aledamat (2019) 8 Cal.5th 1, 7

Sixth Holding:

The error was factual and is subject to review under Watson. Under the Watson standard, reversal is required if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. A “probability” in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.

In making this evaluation, we may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715

People v. Breverman (1998) 19 Cal.4th 142, 177, disapproved on other grounds in People v. Schuller (2023) 15 Cal.5th 237

Seventh Holding:

The prosecutor repeatedly argued during closing that a maul was an inherently dangerous weapon. Indeed, during rebuttal, the prosecutor emphasized that the maul was an inherently dangerous weapon, like a firearm, and that in just its simple design, it is deadly and dangerous.

Given the relative weakness of the evidence that the defendant used the maul in a manner likely to cause death or great bodily injury and the prosecutor’s emphasis on the inherently deadly nature of the maul, there is a reasonable chance that at least one juror could have found the enhancement true under an inherently deadly theory. We therefore reverse the deadly or dangerous weapon enhancement.

Authority:

In re Martinez (2017) 3 Cal.5th 1216, 1226–1227 [prejudice found where the prosecutor argued a legally invalid theory during closing arguments]

(Compare with) People v. Stutelberg (2018) 29 Cal.App.5th 314, 322 [finding no prejudice because the prosecutor did not expressly refer to the inherently deadly weapon theory and did not invite the jury to classify the box cutter as inherently deadly]

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000699

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for further proceedings to determine whether the prior conviction constituting a strike because it involved criminal gang activity is still a strike when examined under the changes made by AB 333 to criminal gang activity law.

First Holding:

The defendant’s 2014 prior conviction qualified as a strike only by virtue of a gang enhancement under section 186.22 for possession of a firearm by a felon. Since this conviction in 2014, the elements of the gang allegation have been statutorily modified. Prior to 2022, an allegation of a prior conviction carrying a sentence enhancement under section 186.22(b), was deemed a serious felony pursuant to section 1192.7(c)(28), and could result in a sentence under the Three Strikes law.

In 2021, the Legislature passed AB 333. Relevant here, AB 333 amended section 186.22 by redefining the elements required to prove gang offenses and enhancements and narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. In Tran, the Supreme Court held AB 333 is ameliorative legislation that applies to nonfinal judgments as provided for in In re Estrada.

Authority:

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

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

Second Holding:

In Fletcher, the Supreme Court addressed the question of whether AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of the Three Strikes law.

The Supreme Court concluded 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. It also held that it applies retroactively to cases in which the judgment is not yet final.

Accordingly, because there is no indication that the defendant’s 2014 conviction was obtained under AB 333’s more stringent requirements, we reverse the true finding on the strike prior and remand the matter to the trial court for further proceedings on the strike allegation.

Authority:

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

Defenses, Duty of the court, Elements of crime, Fifth Amendment, Jury instructions, Standard of review

Case 000691

Posted on by Gary McCurdy

Error and/or relief

The trial court gave an erroneous instruction on involuntary manslaughter requiring reversal. Based on the findings of the jury that the defendant was not guilty under any valid theory, we do not order retrial on the involuntary manslaughter.

First Holding:

(Gary note: I provide the following as context for the results in this opinion. These summaries are intended and designed to highlight principles of law, not so much the specific factual situation in which the error occurred. In this jury instruction error case, though, a little more factual specificity may aid the reader in understanding the more universal principles.

(In this case, the judge modified the standard instruction on involuntary manslaughter in such a way that the jury first had to find that the defendant acted in complete self-defense, and then had to determine whether he did so in a negligent matter. But that is not the law. Complete self-defense ends the question. Had the defendant acted in any way that was NOT complete self-defense, then he would not have been acting lawfully. And the jury necessarily found that he acted in complete self-defense, so it was misled by the instruction that allowed the jury to find him guilty of involuntary manslaughter.

(The opinion summarizes the context: “Here, the jury found defendant not guilty of first degree and second degree murder based on the finding that defendant acted in lawful self-defense in shooting defendant. It further found defendant not guilty of voluntary manslaughter rejecting that unreasonable self-defense was applicable. It found defendant guilty of involuntary manslaughter, finding, as recognized by the trial court, that defendant, ‘in a lawful act of self-defense, was criminally negligent in how he did it, and in his criminally negligent manner resulting in an involuntary manslaughter.’ As we have concluded, such determination was not a valid theory of involuntary manslaughter. There was no other theory of involuntary manslaughter presented to the jury. Here, the only question for the jury was whether defendant acted in reasonable self-defense in shooting [the victim] one time in the face. Once it concluded that such use of force was reasonable, it found lawful self-defense, which was a complete defense to involuntary manslaughter. The jury necessarily relied on the erroneous instruction to convict defendant of involuntary manslaughter after finding the complete defense of justifiable homicide. The error was prejudicial.”)

It is settled that in criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case. It is also well settled that this duty to instruct extends to defenses if it appears … the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.

Authority:

People v. Brooks (2017) 3 Cal.5th 1, 73

Second Holding:

In reviewing a claim that the court’s instructions were incorrect or misleading, we inquire whether there is a reasonable likelihood the jury understood the instructions as asserted by the defendant. We consider the instructions as a whole and assume the jurors are intelligent persons capable of understanding and correlating all the instructions.

Authority:

People v. Butler (2010) 187 Cal.App.4th 998, 1013

Third Holding:

Murder is the unlawful killing of a human being with malice aforethought. Manslaughter is the unlawful killing of a human being without malice. A defendant lacks malice and is guilty of voluntary manslaughter in limited, explicitly defined circumstances: either when the defendant acts in a sudden quarrel or heat of passion, or when the defendant kills in unreasonable self-defense—the unreasonable but good faith belief in having to act in self-defense.

Authority:

PEN 192

People v. Elmore (2014) 59 Cal.4th 121, 132

People v. Blakeley (2000) 23 Cal.4th 82, 87-88

Fourth Holding:

A defendant commits involuntary manslaughter by committing a homicide with the mens rea of criminal negligence. The offense must be based on one of three predicate acts: (1) killing in the commission of a misdemeanor ; (2) killing in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; or (3) killing in the commission of a noninherently dangerous felony committed without due caution and circumspection.

The performance of an act with criminal negligence supplies the criminal intent for involuntary manslaughter, regardless whether the conduct underlying the offense is a misdemeanor, a lawful act, or a noninherently dangerous felony.

Authority:

People v. Sevilla (2025) 115 Cal.App.5th 618, 626

Fifth Holding:

A killing in perfect self-defense is justifiable homicide. Perfect self-defense requires that one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. Imperfect self-defense reduces an intentional and unlawful killing to voluntary manslaughter. Imperfect self-defense occurs when defendants act in the actual but unreasonable belief they are in imminent danger of great bodily injury or death.

Authority:

People v. Odell (2023) 92 Cal.App.5th 307, 321

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

Sixth Holding:

In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole and assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.

Authority:

People v. Jo (2017) 15 Cal.App.5th 1128, 1172

Amelioration, Appellate Principles, Elements of crime, Sentencing, Standard of review

Case 000681

Posted on by Gary McCurdy

Error and/or relief

The defendant was not foreclosed from filing a new petition for recall of his sentence under section 1172.6. The matter is remanded with directions to the court to issue an order to show cause and conduct an evidentiary hearing pursuant to section 1172.6(d).

First Holding:

Effective January 1, 2019, SB 1437 altered the substantive law of murder in two areas.

First, the bill narrowed the scope of the felony-murder rule so that a participant in the perpetration or attempted perpetration of a specified felony in which a death occurs can be liable for murder only if (1) the person was the actual killer, or (2) the person 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 murder in the first degree, or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Second, the bill eliminated liability for murder as an aider and abettor under the natural and probable consequences doctrine by requiring that, except in cases of felony murder, a principal in a crime shall act with malice aforethought to be convicted of murder. Now, malice shall not be imputed to a person based solely on his or her participation in a crime.

Additionally, SB 1437 added section what is now 1172.6, to provide a procedure for those convicted of a qualifying offense to seek relief where the two substantive changes described above affect a defendant’s conviction. Under section 1172.6, an offender seeking resentencing must first file a petition in the sentencing court, and the sentencing court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. If the sentencing court determines the petitioner has made a prima facie showing, the court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction.

Authority:

SB 1437

PEN 188(a)

PEN 189(e)

PEN 1172.6

People v. Curiel (2023) 15 Cal.5th 433, 448-449

People v. Arellano (2024) 16 Cal.5th 457, 467–468

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

Second Holding:

In general, whether a prior finding will be given conclusive effect in a later proceeding is governed by the doctrine of issue preclusion, also known as collateral estoppel. This doctrine bars relitigation of issues earlier decided only if several threshold requirements are fulfilled.

First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding.

Second, this issue must have been actually litigated in the former proceeding.

Third, it must have been necessarily decided in the former proceeding.

Fourth, the decision in the former proceeding must be final and on the merits.

Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. The party asserting collateral estoppel bears the burden of establishing these requirements.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 715

People v. Curiel (2023) 15 Cal.5th 433, 452

Third Holding:

Even if the threshold requirements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles of promoting efficiency while ensuring fairness to the parties. One well-settled equitable exception to the general rule of issue preclusion holds that preclusion does not apply when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue.

This exception ensures basic fairness by allowing for relitigation where the change in the law is such that preclusion would result in a manifestly inequitable administration of the laws. It also reflects a recognition that in the face of this sort of legal change, the equitable policies that underlie the doctrine of issue preclusion–preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation—are at an ebb.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 716

People v. Curiel (2023) 15 Cal.5th 433, 454

Fourth Holding:

We independently review a trial court’s issue preclusion ruling.

Authority:

People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238–1239

Fifth Holding:

In 2022, after the rulings on the defendant’s initial petitions, the law changed. As relevant here, section 1172.6 was amended, effective January 1, 2022, so as to provide that, at the hearing to determine whether the defendant is entitled to relief, the court may consider the procedural history of the case recited in any prior appellate opinion. Subsequently, multiple Courts of Appeal interpreted this provision to prohibit a trial court from considering the factual summary in a prior appellate opinion, even at the prima facie stage. This is a significant and relevant change in the law.

Authority:

People v. Bratton (2023) 95 Cal.App.5th 1100, 1113

People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238

People v. Lee (2023) 95 Cal.App.5th 1164, 1183

Sixth Holding:

The record of conviction will necessarily inform the trial court’s prima facie inquiry, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. However, the prima facie inquiry is limited. At this stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to section 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense.

A court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

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

People v. Curiel (2023) 15 Cal.5th 433, 463

Seventh Holding:

We independently review a trial court’s decision to deny a section 1172.6 petition for resentencing at the prima facie stage.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 121

Eighth Holding:

The defendant has prima facie established that he is eligible for relief because of the changes made to sections 188 and 189, and the record of conviction shows that both he and another individual were charged with murdering the victim. This alone is ordinarily enough to establish a prima facie case. Here, there is nothing in the record of conviction that demonstrates the defendant is ineligible for relief.

Authority:

People v. Mares (2024) 99 Cal.App.5th 1158, 1173 [If a defendant who faced a murder charge before SB 1437 pled guilty and the record contains any indication he had an accomplice who may have been the killer, a prima facie case ordinarily would be readily established, even by conclusory assertions in a form petition]

People v. Muhammad (2024) 107 Cal.App.5th 268, 280 [same]

Ninth Holding:

The charging document did not specify any particular theory of first degree murder, nor did it need to. Only a single statutory offense of murder exists. It has long been the law in this state that an accusatory pleading charging murder need not specify the manner in which the murder was committed. Nor does an accusatory pleading need to specify the theory of murder on which the prosecution relies at trial. Specifically, neither felony murder nor murder under the natural and probable consequences doctrine need be separately pleaded. Accordingly, the complaint allowed the prosecutor to proceed under now-invalid theories.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 338

People v. Muhammad (2024) 107 Cal.App.5th 268, 277

TENTH Holding:

The People refer to the probation report to establish that the defendant is not eligible. But it is not clear that the probation report can even be considered at this stage of the proceeding. The People have not cited a single case, nor are we aware of one, holding that a probation report is part of the record of conviction that can be considered at the prima facie stage. In fact, while in a different context, courts have held otherwise.

Authority:

People v. Burnes (2015) 242 Cal.App.4th 1452, 1458 [A probation report ordinarily is not part of the record of conviction]

Appellate Principles, Elements of crime, Jury trial, Pleading, Sentencing, Sixth Amendment

Case 000680

Posted on by Gary McCurdy

Error and/or relief

The court committed three errors requiring reversal. It improperly imposed the upper term on the felony offense by considering an aggravating factor that the jury did not find. It improperly refused to award the defendant certain sentencing credits without giving him notice that it might do so. The defendant’s conduct can support only one conviction for drawing and exhibiting a firearm in an angry or threatening manner, not three convictions.

First Holding:

After the jury found the defendant guilty on all counts, the prosecution presented evidence and argument to the jury on the aggravating factors that his unlawful possession of a firearm (1) was of increasing seriousness in relation to his earlier misdemeanor conviction and (2) occurred while he was on probation.

The jury found only the latter aggravating factor true. In selecting the upper term, the court relied on factors including that the defendant was armed and engaged in violent conduct, which indicates a danger to society, as well as the jury’s finding that he was on probation at the time of the offenses.

The trial court clearly erred by relying on an aggravating circumstance that the jury did not find—i.e., that the defendant engaged in violent conduct, which indicates a danger to society.

Authority:

Cal. Rules of Court, rule 4.421(b)(1)

People v. Wiley (2025) 17 Cal.5th 1069, 1076 [criminal defendants are entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose them to imposition of a sentence more serious than the statutorily provided midterm]

Second Holding:

We do not have enough confidence to conclude beyond a reasonable doubt that a jury would have found that circumstance in aggravation true beyond a reasonable doubt. Therefore, we remand for resentencing.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087 [this kind of sentencing error requires reversal and remand unless the reviewing court concludes beyond a reasonable doubt that a jury would have found true all aggravating facts relied on to justify the upper term; the error is not harmless if the record contains evidence that could rationally support a contrary finding regarding the aggravating fact at issue]

Third Holding:

A circumstance that is an element of the substantive offense cannot be used as a factor in aggravation. This prohibition applies only if the crime as defined by statute cannot be accomplished without performance of the acts which constitute such factor.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1261-1262

Fourth Holding:

The People contend that the defendant forfeited his claims of improper sentencing by not raising them in the trial court. We exercise our discretion to consider them in the interests of justice.

Authority:

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1143 [in the interests of justice we have decided to overlook forfeiture, and remand the matter for resentencing]

Fifth Holding:

A single act of brandishing a firearm in the presence of multiple people can support only a single conviction for brandishing. Brandishing a deadly weapon in the presence of another person is not a crime of violence upon that person, but is committed in someone’s presence, a single act of brandishing can only support a conviction of a single count no matter how many people witness the act. Two of the three brandishing counts are reversed.

Authority:

In re Peter F. (2005) 132 Cal.App.4th 877, 881

Sixth Holding:

The general rule is that on remand for resentencing the trial court may reconsider all sentencing choices.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976

Seventh Holding:

The trial court erred in denying section 4019 conduct credits to the defendant at sentencing without giving him notice that it might do so.

Authority:

People v. Lara (2012) 54 Cal.4th 896, 906 [defendant is entitled to notice of the facts that restrict his ability to earn credits and, if he does not admit them, a reasonable opportunity to prepare and present a defense]