Category Archives: Elements of crime

Duty of the court, Elements of crime, Juveniles, Sentencing

Case 000953

Posted on by Gary McCurdy

Error and/or relief

The court erred in setting the maximum confinement time for the minor to life imprisonment, because it did not make a finding that the attempted murder was willful, deliberate, and premeditated.

First Holding:

When committing a juvenile to a secure youth treatment facility as in the case here, the court must set a maximum term of confinement. The maximum term of confinement shall not exceed the middle term of imprisonment that can be imposed upon an adult convicted of the same offense or offenses.

Authority:

WIC 975(c)(1)

Second Holding:

Attempted murder is generally punishable by five, seven or nine years in state prison. However, if the attempted murder is willful, deliberate, and premeditated, and that fact is charged in the accusatory pleading and found true by the trier of fact, the crime is punishable by life in prison with the possibility of parole.

Authority:

PEN 664(a), 190

Third Holding:

A reading of the transcript of the proceedings reveal that neither the prosecution nor the court believed that the charge contained the language invoking a life term for the conviction of attempted murder. The trial court’s statement that “the intent to kill is clear” is insufficient because the mere intent to kill is not the equivalent of a deliberate and premeditated intent to kill.

The trial court never found, whether expressly or impliedly, that the attempted murder was willful, deliberate, and premeditated. The seven-year-to-life maximum term of confinement for count 1 is therefore unauthorized. Accordingly, we reverse and remand for a new disposition hearing.

(Gary note: The court did not cite additional authority for its reversal and remand order; likely, none was necessary. The court did cite Boatman, but that was on the point that intent to kill is not the equivalent of deliberated and premeditated intent to kill. Much of the court’s reasoning consisted of analysis of the comments at the disposition hearing, where the prosecution and court seemed to be under the impression that the charging document did not invoke the life term provisions, even though, in fact, the charging document did.

(But the oral pronouncements of the court strongly imply that it specifically did not conclude that the act was “willful, deliberate, and premeditated,” and that an underlying crime was planned, but the shooting was not. Hence, even though the charging document alleged it, the life term cannot be imposed/set as a maximum in the absence of a true finding on the necessary elements.)

Authority:

People v. Boatman (2013) 221 Cal.App.4th 1253, 1264

Elements of crime, Sentencing, Sixth Amendment, Standard of review

Case 000947

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of kidnapping, attempting kidnapping, and false imprisonment, and was sentenced on all three. We vacate the false imprisonment conviction and stay the sentence on the attempted kidnapping under section 654.

First Holding:

The defendant contends that (1) his conviction for the attempted kidnapping must be reversed because the completed kidnapping conviction covers the same conduct; and (2) his conviction for false imprisonment must be reversed because it is a lesser-included offense of the completed kidnapping crime of which he was convicted.

We review de novo these legal questions of whether convictions merge.

Authority:

People v. Chun (2009) 45 Cal.4th 1172

Second Holding:

The crime of kidnapping is a continuing offense that begins once the victim is forcibly moved and continues until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety. Thus, defendant could not stand convicted of two counts of kidnapping based on the uninterrupted, several-hour period where the defendant remained under defendant’s control.

Authority:

People v. Barnett (1998) 17 Cal.4th 1044, 1159

People v. Thomas (1994) 26 Cal.App.4th 1328, 1334-1335

Third Holding:

But the defendant stands convicted of kidnapping and attempted kidnapping.

Attempted kidnapping is no longer viewed as a lesser-included offense to the completed crime of kidnapping because the former requires proof of specific intent and the latter requires proof of asportation.

As a result, the rule that merges a completed crime with its lesser-included offense does not apply to the crimes of kidnapping and attempted kidnapping, and defendant is properly convicted of both crimes—but he cannot be sentenced on both crimes under section 654 given the uninterrupted kidnapping in this case.

Authority:

PEN 654

PEN 663

People v. Fontenot (2019) 8 Cal.5th 57, 76

People v. Medina (2007) 41 Cal.4th 685, 702

People v. Sanders (2012) 55 Cal.4th 731, 7

Fourth Holding:

Courts must determine the proper unit of prosecution for each crime based on whether the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. This doctrine explains why there could only be a single count of kidnapping, but does not account for the fact that attempted kidnapping and completed kidnapping are separate crimes, and that it is possible for defendant to stand convicted of both crimes.

Authority:

People v. Wilson (2015) 234 Cal.App.4th 193, 199

Fifth Holding:

Unlike attempted kidnapping, the crime of false imprisonment is a lesser included offense of kidnapping. As a result, the lesser-included crime merges upon conviction of the greater offense, and defendant’s false imprisonment conviction based on the same underlying conduct must be vacated.

Authority:

People v. Delacerda (2015) 236 Cal.App.4th 282, 296

People v. Chacon (1995) 37 Cal.App.4th 52, 65

People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820 [if both the false imprisonment count and kidnap[p]ing count relate to the same act, double conviction is prohibited]

People v. Jandres (2014) 226 Cal.App.4th 340, 362 [a defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act]

People v. Milward (2011) 52 Cal.4th 580, 589 [when the jury expressly finds defendant guilty of both the greater and lesser offense the conviction of [the greater offense is controlling, and the conviction of the lesser offense must be reversed]

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

Case 000923

Posted on by Gary McCurdy

Error and/or relief

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

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

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

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

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

First Holding:

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

Authority:

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

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

Second Holding:

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

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

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

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

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

Authority:

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

PEN 190.2(c) and (d)

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

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

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

Third Holding:

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

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

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

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

Authority:

PEN 1259

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

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

Fourth Holding:

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

Authority:

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

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

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

Fifth Holding:

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

To make this assessment, we must rigorously review the evidence to determine whether any rational juror who found the defendant guilty based on an invalid theory, and made the factual findings reflected in the jury’s verdict, would necessarily have found the defendant guilty based on a valid theory as well.

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

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

Authority:

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

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

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

Sixth Holding:

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

Authority:

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

Seventh Holding:

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

Authority:

PEN 12022.53(d) and (e)

PEN 186.22(b)(1)

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

Eighth Holding:

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

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

Authority:

PEN 12022.53(j)

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

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

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

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

Ninth Holding:

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

Authority:

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

Tenth Holding:

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

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

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

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

Authority:

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

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

Eleventh Holding:

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

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

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

Authority:

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

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

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

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

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

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

 

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

Case 000922

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

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

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

Authority:

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

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

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

Second Holding:

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

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

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

Authority:

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

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

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

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

Third Holding:

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

Authority:

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

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

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

Fourth Holding:

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

Authority:

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

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

Fifth Holding:

We must review the entire record in the light most favorable to the judgment, and then determine whether it contains evidence that is reasonable, credible, and of solid value such that a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Sufficiency determinations necessarily take account of the standard of proof that applied before the trial court.

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

Authority:

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

Sixth Holding:

We must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

But we cannot, however, venture beyond the evidence presented at trial, and may consider only those inferences that are reasonably supported by the record.

A reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. It must logically flow from other facts established in the action, and it cannot be based entirely on the suspicions of the officers involved in the case and the conjecture of the prosecution.

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

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

Authority:

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

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

Case 000908

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of three charges, including two counts of conspiracy. Under the circumstances in this case, he could be convicted of only a single count of conspiracy. We reverse the conviction on count 3.

First Holding:

The defendant was charged with explosion causing mayhem and great bodily injury in count 1, conspiracy to discharge a firearm from a motor vehicle in count 2), and conspiracy to commit assault with a firearm in count 3. Both conspiracy convictions both convictions arose from a single agreement and the single criminal objective of shooting the victim.

A defendant may be convicted of only a single count of conspiracy based on a single agreement. It is well settled that the essence of the crime of conspiracy is the agreement, and thus it is the number of the agreements (not the number of the victims or number of statutes violated) that determine the number of the conspiracies. The gist of the crime of conspiracy is the agreement or confederation of the conspirators to commit one or more unlawful acts. The conspiracy is the crime, and that is one, however diverse its objects.

Authority:

People v. Meneses (2008) 165 Cal.App.4th 1648, 1669

People v. Lopez (1994) 21 Cal.App.4th 1551, 1557 [One agreement gives rise to only a single offense, despite any multiplicity of objects]

Braverman v. United States (1942) 317 U.S. 49, 53

Second Holding:

Where a defendant argues the evidence was insufficient to support a conviction, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. This standard applies whether direct or circumstantial evidence is involved. The evidence presented in this case supports only that there was a single agreement to commit one shooting of the victim.

Authority:

People v. Prince (2007) 40 Cal.4th 1179, 1251

Third Holding:

That the single shooting may have violated two separate criminal statutes is immaterial.

Authority:

People v. Patrick (1981) 126 Cal.App.3d 952, 965 [noting that a single agreement to commit acts which, if completed, would constitute more than one substantive crime, is but a single conspiracy]

People v. Meneses (2008) 165 Cal.App.4th 1648, 1669 [Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes]

Fourth Holding:

If the felony is conspiracy to commit two or more felonies which have different punishments and the commission of those felonies constitute but one offense of conspiracy, the penalty shall be that prescribed for the felony which has the greater maximum term. Here, because the maximum punishment for count 2 is seven years and the maximum punishment for count 3 is four years , count 3, having the lesser maximum term, must be reversed.

Authority:

PEN 182(a)

Amelioration, Elements of crime, Sentencing

Case 000885

Posted on by Gary McCurdy

Error and/or relief

As a result of a successful petition for writ of habeas corpus brought in 2024 challenging an illegal sentence imposed in his 2006 judgment, the defendant was resentenced. The court erred in declining to determine whether the counts and enhancements related to gang activity met the new elements of the crime as amended by AB 333.

First Holding:

In 2021, AB 333 made the following changes to the law on gang enhancements: 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 section 186.22, former subdivision (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 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 offenses 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, it narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational.

Authority:

AB 333

PEN 186.22

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

Second Holding:

Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. In the absence of a contrary indication of legislative intent, legislation that ameliorates punishment applies to all cases that are not yet final as of the legislation’s effective date.

Authority:

People v. Burgos (2024) 16 Cal.5th 1, 7–8

In re Estrada (1965) 63 Cal.2d 740, 745

Third 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. The resentencing court has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to a recall, and the court may consider any pertinent circumstances which have arisen since the prior sentence was imposed.

Authority:

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

Fourth Holding:

When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant’s right to a jury trial under the Sixth Amendment, and reversal is required unless it appears beyond a reasonable doubt that the jury verdict would have been the same in the absence of the error.

Here, AB 333 essentially adds new elements to the substantive offense and enhancements in section 186.22—for example, by requiring proof that gang members collectively engage in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang.

These changes have the effect of increasing the threshold for conviction of the section 186.22 offense and the imposition of the enhancement. When appellant was resentenced, his sentence became nonfinal and he was entitled to a full resentencing on all counts, with the sentencing court taking into consideration all pertinent circumstances that had arisen since appellant was originally sentenced.

Authority:

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

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

Fifth Holding:

Striking an enhancement’s punishment is not the same as striking the enhancement itself, and does not operate to defeat the factual finding of the truth of the allegation, instead, such act merely serves to prohibit a certain purpose for which the [allegation] may be used.

Authority:

In re Pacheco (2007) 155 Cal.App.4th 1439, 1445

Sixth Holding:

In certain cases, retrial is barred where a defendant successfully overturns a judgement of conviction based on insufficiency of the evidence. A finding of insufficient evidence is the functional equivalent of a judgment of acquittal, upon which retrial is prohibited.

The incentive of double jeopardy to protect a defendant against harassment and unnecessary, repeated trials serves no purpose when, as here, the prosecution did make such a case under the law as it then stood; having done so, the prosecution had little or no reason to produce other evidence of guilt. In other words, where the prosecution’s original burden of proof at trial is later altered, it is unrealistic to assume that the prosecution, with a perfect case for proof of the invalid theory, necessarily presented all available evidence relating to the valid theory.

Because we do not resolve this case on insufficiency of the evidence grounds but rather find instructional error due to the amendments to section 186.22 enacted by AB 333, double jeopardy does not bar the People from retrying the section 186.22(b)(1)(C) and section 12022.53(d) and (e)(1) enhancements.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 454–455, 459

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

Case 000878

Posted on by Gary McCurdy

Error and/or relief

The court’s use of the kill zone instruction was factually unsupported and should not have been given and the court’s instruction identified a primary target not supported by the evidence.

First Holding:

To prove the crime of attempted murder, the prosecution must establish ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. The defendant’s mental state must be examined as to each alleged attempted murder victim.

Authority:

People v. Canizales (2019) 7 Cal.5th 591, 602

People v. Bland (2002) 28 Cal.4th 313, 328

Second Holding:

To be guilty of attempted murder under an aiding and abetting theory, the defendant must share the specific intent of the direct perpetrator, that is to say, the person must know the full extent of the direct perpetrator’s criminal purpose and must give aid or encouragement with the intent or purpose of facilitating the direct perpetrator’s commission of the crime. In short, to be guilty of attempted murder as an aider and abettor, the defendant must intend to kill.

Authority:

People v. Lee (2003) 31 Cal.4th 613, 624, superseded by statute on other grounds as stated in People v. Rodriguez (2022) 75 Cal.App.5th 816, 823–824

People v. McCoy (2001) 25 Cal.4th 1111, 1118

Third Holding:

The Supreme Court has expressly embraced the concept of a concurrent intent to kill as a permissible theory for establishing the specific intent requirement of attempted murder. This concurrent intent theory is referred to as the “kill zone.” Under the kill zone theory, a defendant may be convicted of the attempted murder of an individual who was not the defendant’s primary target.

The kill zone theory permits a jury to infer a defendant’s intent to kill an alleged attempted murder victim from circumstantial evidence (the circumstances of the defendant’s attack on a primary target).

Authority:

People v. Canizales (2019) 7 Cal.5th 591, 596-597, 602

People v. Mumin (2023) 15 Cal.5th 176, 193

Fourth Holding:

The kill zone theory may properly be applied only when a jury concludes:

(1) the circumstances of the defendant’s attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target’s death—around the primary target, and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm.

Relevant factors in determining whether defendant intended to create a kill zone are (1) number of shots fired, (2) nature of the zoned area, (3) distance between primary target and others, (4) distance between defendant and others, (5) type of weapon used, and (6) whether anyone was hit.

Authority:

People v. Canizales (2019) 7 Cal.5th 591, 607

Fifth Holding:

Our inquiry on appeal is whether substantial evidence was presented to support a reasonable inference by the jury that defendant intended to create a zone of fatal harm around a primary target.

Justification for instructing on the kill zone theory requires substantial evidence that: (1) the defendant intended to kill a primary target; (2) he concurrently intended to achieve that goal by killing all others in the fatal zone he creates; and (3) the alleged attempted murder victim was in that zone.

These requirements must be strictly adhered to in order to protect against an improper attempted murder conviction based only on a conscious disregard for life because the kill zone theory does not apply where the defendant merely subjected persons near the primary target to lethal risk.

Because use or attempted use of force that merely endangered everyone in the area is insufficient to support a kill zone instruction, trial courts must exercise caution when determining whether to permit the jury to rely upon the kill zone theory.

Indeed, as stated in Canizales, we anticipate there will be relatively few cases in which the theory will be applicable and an instruction appropriate.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 203

People v. Canizales (2019) 7 Cal.5th 591, 607-608

Sixth Holding:

Fundamental to the kill zone theory is a particular relationship between the primary target, the means of the attack, and the secondary target. Specifically, the would-be secondary targets must be endangered not because they were specifically targeted by defendant but because the defendant has a primary target and reasons that he cannot miss that intended target if he kills everyone in the area in which the target is located.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 203

(Gary note: The opinion goes on to analyze the facts in the case against the above principles to determine whether it was proper to instruct on the kill zone doctrine and whether the court correctly identified the specific target. It also analyzed the impact of the prosecutor’s summation on the matter. Because this is an unpublished opinion, and the importance lies only in its legal principles and the published authority in support of those principles, I am omitting the balance of the court’s discussion applying those principles in support of its conclusions that it was improper to instruct on kill zone in this case.)

Appellate Principles, Elements of crime, Juveniles, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000875

Posted on by Gary McCurdy

Error and/or relief

We reverse four of the five counts of evading the police under Vehicle Code section 2800.3 and remand for a new disposition order.

The minor’s constitutional challenges to the dispositional order are forfeited on appeal, and we will not consider them.

First Holding:

Dispositional orders in juvenile matters are entrusted to the discretion of the juvenile court. Failure to object to a discretionary dispositional choice forfeits the claim on appeal.

But the forfeiture rule does not apply if the disposition is unauthorized; that is, if it could not lawfully be imposed under any circumstance in the particular case. In those situations, the unauthorized disposition presents a pure question of law.

The unauthorized sentence concept is a narrow exception to the general requirement that only preserved claims are reviewable on appeal. And while reviewing courts have the discretion to consider forfeited claims on appeal, they should do so rarely, keeping in mind that the forfeiture rule exists to encourage prompt detection and correction of error and to promote the state’s interest in finality of judgments.

Authority:

In re Greg F. (2012) 55 Cal.4th 393, 411

In re G.C. (2020) 8 Cal.5th 1119, 1130-1131

People v. Scott (1994) 9 Cal.4th 331, 351, 354

In re Sheena K. (2007) 40 Cal.4th 875, 885

People v. Fisher (2021) 71 Cal.App.5th 745, 751-752

In re H.D. (2024) 99 Cal.App.5th 814, 817-818

People v. Anderson (2020) 9 Cal.5th 946, 962 [the unauthorized sentence exception is designed to provide relief from forfeiture for obvious legal errors at sentencing such as a sentence in excess of the statutory maximum]

Second Holding:

Further, we disagree with the minor’s contention that his constitutional challenges to the disposition present pure legal questions. His challenges ask us to consider his self-evident lesser culpability relative to an older juvenile. But culpability determinations are for the trier of fact, not an appellate court.

Authority:

People v. Vang (2010) 184 Cal.App.4th 912, 915-916

Third Holding:

Finally, the minor contends we should consider his forfeited claims because his trial counsel provided ineffective assistance by failing to raise them. But trial counsel is not ineffective for failing to raise novel claims like the ones here.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [to forestall a claim of ineffective assistance of counsel, reviewing courts can exercise their discretion to reach the merits of the claim].

In re Grinder (2025) 114 Cal.App.5th 845, 871-872

People v. Foster (2003) 111 Cal.App.4th 379, 385.

Fourth Holding:

We decline to exercise any discretion we might have to consider these forfeited claims because doing so (1) would be unfair to the People and the juvenile court, which had no opportunity to address the claims below, and (2) would undermine both the state’s interest in finality of judgments and litigants’ incentive to seek correction of error in the first instance.

Further, we should not reach constitutional questions unless absolutely required to do so to dispose of the matter before us. Accordingly, the minor’s constitutional challenges to the dispositional order are forfeited on appeal, and we will not consider them.

Authority:

In re M.H. (2016) 1 Cal.App.5th 699, 713-714

In re G.C. (2020) 8 Cal.5th 1119, 1130-1131

People v. Scott (1994) 9 Cal.4th 331, 351,

Facebook, Inc. v. Superior Court (Hunter) (2018) 4 Cal.5th 1245, 1275, fn. 31

Fifth Holding:

Penal Code section 26 provides, in relevant part, that all persons are capable of committing crimes except those belonging to the following classes: One—Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness. ….

Authority:

PEN 26

Sixth Holding:

Clear proof means clear and convincing evidence. The test on appeal is whether substantial evidence supports the conclusion of the trier of fact.

We review the entire record in the light most favorable to the judgment and affirm the juvenile court’s findings that the minor understood the wrongfulness of his conduct if they are supported by substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. In determining capacity the juvenile court must consider the child’s age, experience, and understanding.

A minor’s knowledge of his act’s wrongfulness may be inferred from the circumstances, such as the method of its commission or its concealment.

Authority:

In re Joseph H. (2015) 237 Cal.App.4th 517, 538-539

Seventh Holding:

While the language of the statute refers to knowledge of wrongfulness, the question is whether a minor appreciates the wrongfulness of their conduct. As minors approach the age of 14, they are increasingly likely to appreciate the wrongfulness of their acts.

Authority:

In re Manuel L. (1994) 7 Cal.4th 229, 232

People v. Cottone (2013) 57 Cal.4th 269, 281

In re J.E. (2020) 54 Cal.App.5th 309, 314

Eighth Holding:

Cases are not authority for propositions not considered.

Authority:

B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11

Ninth Holding:

Four of the five Vehicle Code section 2800.3 true findings must be stricken. A charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act only where the act prohibited by the statute is centrally an act of violence against the person.

Authority:

Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349

People v. Garcia (2003) 107 Cal.App.4th 1159

Tenth Holding:

Vehicle Code section 2800.3 provides that whenever willful flight or attempt to elude a pursuing peace officer in violation of section 2800.1 proximately causes serious bodily injury or death, the person driving the pursued vehicle shall be punished. Felony evading, as defined by the Legislature, in Vehicle Code section 2800.3, is not a crime of violence.

Under Wilkoff and Garcia there can be only one Vehicle Code section 2800.3 true finding here. Thus, four of the five Vehicle Code section 2800.3 true findings must be stricken.

Authority:

VEH 2800.3

Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349

People v. Garcia (2003) 107 Cal.App.4th 1159, 1163

People v. Sanchez (2001) 86 Cal.App.4th 970, 973-974 [Because dispositive elements of Vehicle Code section 2800.3 can be satisfied by conduct that does not necessarily pose a high probability of death, it is not a felony inherently dangerous to human life.]

Eleventh Holding:

It is improper to raise new contentions in a reply brief. Further, appellate arguments may be deemed forfeited when they do not contain meaningful analysis and citation to supporting authority.

Authority:

People v. Taylor (2004) 119 Cal.App.4th 628, 642-643

People v. Stanley (1995) 10 Cal.4th 764, 793

Twelfth Holding:

In criminal court, 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. The same principle applies in juvenile court. Since we strike four of the juvenile court’s Vehicle Code section 2800.3 true findings, a new disposition is required.

Authority:

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

In re Shaun R. (2010) 188 Cal.App.4th 1129, 1140 [every time a ward appears for disposition, the court may consider the minor’s entire history and the order must be all encompassing]

Amelioration, Elements of crime, Sentencing

Case 000873

Posted on by Gary McCurdy

Error and/or relief

The evidence was insufficient to sustain the section 190.2 gang special circumstance.

First Holding:

Section 190.2(a)(22) provides that the penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if the defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in section 186.22(f), and the murder was carried out to further the activities of the criminal street gang.

Proof of the existence of a criminal street gang as defined in section 186.22(f) is a prerequisite to proving the gang-murder special circumstance.

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 565

People v. Rodriguez (2022) 75 Cal.App.5th 816, 823

Second Holding:

Prior to the defendant’s trial, the Legislature enacted AB 333, which made multiple changes to section 186.22. The changes, as incorporated into the gang-murder special circumstance, retroactively apply to cases that are not yet final.

Following AB 333, section 186.22(f) defines a criminal street gang as an ongoing, organized association or group of three or more persons having as one of its primary activities the commission of one or more of the criminal acts enumerated in subdivision (e), having a common name or common identifying sign or symbol, and whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.

Section 186.22(e) defines pattern of criminal gang activity as committing offenses that benefit a gang in a way that is more than reputational.

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 566-567

In re A.M. (2024) 102 Cal.App.5th 557, 569

Third Holding:

The prosecution’s gang expert did not testify the murders the defendant committed benefited his gang in any way that was more than reputational. The evidence was thus insufficient under the law as amended after trial by AB 333 to sustain the special circumstance finding under section 190.2. Accordingly, we reverse the gang special circumstance findings and remand for retrial of the allegations at the option of the prosecution.

(Gary note: It is unclear to me whether the trial was held before AB 333 or after. In what I have shown as Second Holding, the court states, “Prior to [defendant’s] trial, the Legislature enacted Assembly Bill 333 ….” And in a portion that I did not set out in this summary, the opinion says, “At sentencing, the trial court dismissed the section 186.22 gang enhancement because the People did not prove the gang allegation under the new statutory requirements of AB 333, in which they have to show that the benefit to the gang is more than reputational.   The court declined the defense’s request to dismiss the section 190.2 gang special circumstance.” So clearly the superior court was aware of AB 333 as of the time of sentencing, though that doesn’t say anything about when the trial was.

(And in what I have set out as the Third Holding, the court states, “The evidence was thus insufficient under the law as amended after trial by Assembly Bill 333 to sustain the special circumstance finding under section 190.2.” If the trial was held before AB 333 was enacted, then the appellate decision makes sense in relying on Hin to permit retrial. The notice of appeal was filed in the middle of 2023. AB 333 went into effect 1/2/2022, nearly a year and a half before the notice of appeal was filed. So I am a little puzzled on whether AB 333 was in place at the time of trial. If so, then I wonder whether Hin is the best authority, as it seems to find significant that the change in the law came after the trial in Hin. Life’s little mysteries, eh? Maybe (likely, in fact) I’m missing something in the opinion that would clarify the timing for me.)

Authority:

People v. Rojas (2023) 15 Cal.5th 561, 580

In re A.M. (2024) 102 Cal.App.5th 557, 570

People v. Hin (2025) 17 Cal.5th 401, 464 [retrial is permitted where the appellate court finds only that the evidence was insufficient under the law as amended posttrial by Assembly Bill 333]

Elements of crime, Sentencing

Case 000870

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by not staying the term for conspiracy to commit murder.

Holding:

Section 654 provides that an act or omission that is punishable in different ways by different provisions of the 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 has long been interpreted to preclude multiple punishments not only for a single act that violates more than one statute, but for an indivisible course of conduct. In particular, a defendant may not be punished for both murder and conspiracy to commit murder. Thus, the sentence on the conspiracy count must be stayed.

Authority:

PEN 654

People v. Mejia (2017) 9 Cal.App.5th 1036, 1042

People v. Hernandez (2003) 30 Cal.4th 835, 866

People v. Vu (2006) 143 Cal.App.4th 1009, 1032–1033

People v. Alford (2010) 180 Cal.App.4th 1463, 1472

Amelioration, Duty of counsel, Effective assistance of counsel, Elements of crime, Retroactivity

Case 000859

Posted on by Gary McCurdy

Error and/or relief

Habeas petition granted on the basis of appellate ineffective assistance of counsel in a prior appeal. The matter is remanded to the trial court with directions to vacate petitioner’s gang convictions and enhancements, to determine whether the prosecution will elect retrial, to conduct a retrial if so elected, and to fully resentence petitioner.

First Holding:

The defendant was convicted of several crimes, including substantive crimes and enhancements related to criminal gang activity. While the matter was pending on appeal in an earlier appeal, AB 333 amended section 186.22.

Among other things, AB 333 changed the elements of gang offenses and enhancements by 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.

AB 333 requires that predicate offenses were committed on separate occasions or by two or more members, the offenses commonly benefited a criminal street gang, and the common benefit of the offenses is more than reputational.

In addition, the currently charged offense cannot be used as a predicate offense under the amendments. AB 333 is ameliorative legislation that applies to nonfinal judgments under the rule of In re Estrada.

Authority:

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

People v. Vasquez (2022) 74 Cal.App.5th 1021, 1032

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

Second Holding:

To establish an ineffective assistance of counsel claim, a defendant must show: (1) counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) this resulted in prejudice to the defendant.

Authority:

People v. Lepere (2023) 91 Cal.App.5th 727, 738

Third Holding:

The prosecution’s expert witness testified that he could not conclude that certain conduct was for the benefit of the gang. The evidence adduced at trial was therefore insufficient to qualify the crime as a predicate offense under AB 333.

Because a criminal street gang was not established under the subsequent requirements of AB 333, the gang convictions and enhancements would have been vacated if properly challenged on direct appeal.

Appellate counsel’s failure to raise the issue was therefore prejudicial to petitioner. Because we do not reverse based on the insufficiency of the evidence required to prove a violation of the statute as it read at the time of trial, the double jeopardy clause of the Constitution will not bar a retrial.

Authority:

People v. Salgado (2022) 82 Cal.App.5th 376, 380–381

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