Category Archives: Elements of crime

Amelioration, Elements of crime, Sentencing

Case 001117

Posted on by Gary McCurdy

Error and/or relief

Following the second of defendant’s two previous appeals, the matter was remanded to give the prosecution the opportunity to retry the gang enhancements. The prosecution declined to retry the gang enhancements. At sentencing, the court imposed previously stayed firearms enhancements that were tethered to the gang enhancements.

This was error. Once the prosecution declined to retry the gang enhancements, the firearm enhancements could no longer be imposed.

First Holding:

We observe that on remand the court resentenced the defendant to a higher aggregate term than both the original and second sentences. We note that although in some cases imposing a greater sentence to correct an unauthorized sentence is permissible, imposing a greater sentence after a successful appeal may be an excess of jurisdiction. Here, the issue is likely moot based on the disposition herein.

Authority:

People v. Serrato (1973) 9 Cal.3d 753, disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1

People v. Trammel (2023) 97 Cal.App.5th 415

Second Holding:

The trial court’s sentence on the most recent remand, imposing the previously-stayed gang-related firearms enhancements, was unauthorized. The firearms enhancements were contingent on the vacated gang enhancements. Once the prosecution declined to retry the gang enhancements, the allegations found true by the jury under section 12022.53(d) and (e)(1), having been reversed, could not be imposed.

Authority:

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

Discretion, Due process, Duty of the court, Eighth Amendment, Elements of crime, Equal protection, Fines and fees, Sentencing

Case 001110

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted under both section 4500 (assault by a life prisoner) and section 4501 (assault by means of force likely to produce great bodily injury by a prisoner) for the same act. Where section 4500 applies, the defendant cannot also be convicted of section 4501 for the same act.

The court misunderstood its discretion on imposing the minimum restitution fine. Also, the court failed to consider the defendant’s ability to pay before deteremining the amount of the restitution fine, and it did not recognize that it had discretion regarding the imposition of the assessments that it thought wer mandatory.

Defendant’s conviction for assault by a prisoner under section 4501(b) is reversed. We vacate the restitution fine, the court operations assessment, and the court facilities assessment and remand for the court to properly exercise its discretion regarding the amount of the restitution fine and immposition of assessments.

First Holding:

Penal Code section 4501(b) specifically states that, except as provided in section 4500, every person confined in the state prison of this state who commits an assault upon the person of another by any means of force likely to produce great bodily injury shall be guilty of a felony.

Sections 4500 and 4501 describe two mutually exclusive crimes. Section 4501’s “except as provided in section 4500” clause prevents the two statutes from covering the same conduct. It clarifies that when both statutes would otherwise apply, section 4500 governs and section 4501 is inapplicable. So when a defendant is convicted as provided in section 4500, the defendant cannot also be convicted as provided in section 4501 for the same conduct.

Authority:

People v. Nava (2024) 107 Cal.App.5th 624, 628-629

Second Holding:

The court erred in concluding that the amount of the restitution fine it imposed was the minimum required by statute. It imposed a $300 restitution fine for each of the seven counts of conviction, stating that $2100 was the minimum mandatory amount. The court misunderstood its discretion.

Section 1202.4(b) requires that in every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine of not less than $300 nor more than $10,000. This statute provides for a restitution fine in every case. A “case” is a formal criminal proceeding, filed by the prosecution and handled by the court as a separate action with its own number. The provision does not contemplate a separate restitution fine for each individual count.

The court misunderstood its discretion because the minimum restitution fine would be $300 for the entire case, not $300 per conviction. The matter must be remanded for reconsideration of the appropriate restitution fine.

Authority:

People v. McAllister (2026) 122 Cal.App.5th 92, 96

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court]

Third Holding:

 A defendant may challenge the imposition of any fine as constitutionally excessive under the federal and state Constitutions. There is no due process requirement to hold an ability to pay hearing before imposing every punitive fine, but the excessive fines analysis, which considers ability to pay, is the proper vehicle to challenge punitive fines, such as the restitution fine under section 1202.4 and the parole revocation restitution fine under section 1202.45.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 13-14

Fourth Holding:

A defendant may seek to contest the defendant’s inability to pay the amount exceeding the statutory minimum. Under section 1202.4(c), inability to pay may be considered in increasing the amount of the restitution fine in excess of the minimum fine. Under 1202.4(d), in setting the amount of the fine in excess of the minimum fine the court shall consider any relevant factors, including, but not limited to, the defendant’s inability to pay.

Authority:

PEN 1202.4(c), (d)

People v. Kopp (2025) 19 Cal.5th 1, 23-24

Fifth Holding:

If a defendant requests, a trial court must consider the defendant’s inability to pay before imposing a court operations assessment under Penal Code section 1465.8(a)(1) or a court facilities assessment under Government Code section 70373(a)(1). Given that the Legislature has provided fee waivers to indigent civil litigants, equal protection principles require a court, upon request, to consider a criminal defendant’s inability to pay before imposing either assessment.

Authority:

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

Amelioration, Elements of crime, Jury instructions, Sentencing, Vicarious liability

Case 001095

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding at the prima facie stage that the defendant was ineligible for relief under section 1172.6 as an aider and abettor. The matter is remanded to the superior court with directions to issue an order to show cause and hold an evidentiary hearing on the petition.

First Holding:

In 2018, the Legislature enacted SB 1437, which amended provisions of the Penal Code pertaining to the felony-murder rule and the natural and probable consequences doctrine. Regarding the felony-murder rule, SB 1437 added section 189(e), which states that a participant in the perpetration or attempted perpetration of qualifying felonies in which a death occurs is liable for murder only if one of the following is proven:

(1) The person was the actual killer.

(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.

(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

As to the natural and probable consequences doctrine, section 188(a)(3) now provides that, except for felony-murder liability as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.

SB 1437 created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended, by filing a petition for resentencing under what is now section 1172.6.

Pursuant to section 1172.6, a person previously convicted of murder or attempted murder may file a resentencing petition when all of the following conditions apply:

(1) the charging document filed against the petitioner permitted the prosecution to proceed under a theory of felony murder, or another theory of imputed malice;

(2) the petitioner was convicted of murder, attempted murder or manslaughter; and

(3) the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019.

Authority:

PEN 188

PEN 189

PEN 1172.6

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

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

Second Holding:

At the prima facie stage of a resentencing matter, the court evaluates both the petition and the record of conviction. If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

If, on the other hand, the defendant has made a prima facie showing of entitlement to relief, the court shall issue an order to show cause. Denial of a resentencing petition at the prima facie stage is reviewed de novo.

Authority:

PEN 1172.6

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

People v. Williams (2022) 86 Cal.App.5th 1244, 1251

People v. Lewis (2021) 11 Cal.5th 952, 97

Third Holding:

In this case, the dispositive issue under section 189 is whether the jury’s special circumstance findings (in the early 1990s, when the case was tried) conclusively establish the defendant’s liability for felony murder as a nonkiller aider and abettor. That is, we must determine whether the jury necessarily found that if the defendant was not the actual killer, he at least–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.

A finding of intent to kill made pursuant to a special-circumstance murder allegation is relevant and binding on the petitioner in a resentencing proceeding.

Importantly though, a resentencing petition puts at issue whether all elements of the murder offense are established by a valid theory.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 462, 453-460 [addressing a gang-murder special circumstance]

People v. Strong (2022) 13 Cal.5th 698, 710

People v. Lopez (2026) 19 Cal.5th 639, 659

Fourth Holding:

The true findings as to the special circumstance allegations do not establish that the jury necessarily found his conduct met the actus reus required for aiding and abetting murder under section 189(e)(2). Section 189(e)(2) requires proof that a nonkiller defendant not only intended to kill, but also assisted the actual killer in the commission of murder in the first degree. Section 189(e)(2) requires that the nonkiller aid or abet the actual killer in the lethal act itself, and not just the underlying felony.

While the special circumstances findings established that the defendant had the intent to kill and aided a cohort, the jury was not required to find that the defendant aided the actual killer in the act of killing.

Further, the instructions on the special circumstances referred to murder in the first degree, which may have led jurors to consider the instructions on first degree murder. Those instructions on murder contained no-longer-valid theories, which may have led the jury to believe the defendant aided or abetted in the commission of first degree murder without finding that he assisted in the lethal act itself.

True findings as to special circumstance allegations did not necessarily establish defendant was a direct aider and abettor even though jury received general instruction regarding aider and abettor liability.

Authority:

PEN 189(e)(2)

People v. Morris (2026) 19 Cal.5th 671, 693

In re Lopez (2023) 14 Cal.5th 562, 587–588

ADD AUTHORITIES HERE

Amelioration, Elements of crime, Sentencing, Standard of review

Case 001088

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying at the prima facie stage the defendant’s 1172.6 petition for recall of his sentence.

First Holding:

In 2018, the Legislature amended the law of homicide, eliminating several theories of liability based on imputed malice. It has also offered relief to those convicted under certain homicide theories, such as murder or attempted murder under the natural and probable consequences doctrine, whose convictions are now tainted. Under what is now section 1172.6, it provided a mechanism for individuals previously convicted of murder to show their entitlement to retroactive relief under the legislative changes.

Pertinent to this case, SB 1437 added section 189(e), providing felony-murder liability only if the defendant:

(1) was the actual killer;

(2) was not the actual killer but, with intent to kill, aided, abetted, or assisted the actual killer in the commission of first degree murder; or

(3) was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 1172.6(a)

People v. Patton (2025) 17 Cal.5th 549, 556

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

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

Second Holding:

SB 775 expanded eligibility to individuals convicted of attempted murder under the natural and probable consequences doctrine.

Authority:

People v. Muhammad (2024) 107 Cal.App.5th 268, 275

Third Holding:

A section 1172.6 petition may be filed by a person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter when certain specified conditions apply.

An individual convicted under prior law may petition to vacate the conviction and be resentenced on any remaining counts, if he or she could not now be convicted of murder or attempted murder because of the changes made by SB 1437.

Upon receipt of a petition containing all required information, the trial court must appoint counsel to represent the petitioner, if requested. The trial court must also set a briefing schedule and hold a prima facie hearing. If the trial court determines that petitioner has made a prima facie case for relief, it must issue an order to show cause and conduct an evidentiary hearing.

Authority:

PEN 1172.6

People v. Strong (2022) 13 Cal.5th 698, 708-709

People v. Lewis (2021) 11 Cal.5th 952, 959-960

Fourth Holding:

The prima facie inquiry under section 1172.6(c) is limited. 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. Acourt should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.

However, if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner.

Authority:

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

Fifth Holding:

Whether the record of conviction shows that petitioner is ineligible for section 1172.6 relief as a matter of law is a legal question we review de novo.

(Gary note: The court then continued by determining that the record the trial court was permitted to review at the prima facie stage did not necessarily reflect that the defendant was ineligible for relief under section 1172.6 and remanded to the trial court to issue an order to show cause and conduct an evidentiary hearing.)

Authority:

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

Amelioration, Appellate Principles, Elements of crime, Plea bargains, Sentencing, Standard of review, Vicarious liability

Case 001078

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s petition under section 1172.6 at the prima facie stage, reasoning that the defendant was ineligible for relief because his plea occurred after the Legislature had eliminated liability for attempted murder under the natural and probable consequences doctrine. The trial court erred in concluding that the defendant’s plea to attempted murder after the adoption of SB 1437, but before SB 775’s effective date, standing alone, established his ineligibility for resentencing as a matter of law.

Further, the minutes of the sentencing and the abstract of judgment each contain separate errors, which must be corrected on remand.

First Holding:

Effective January 1, 2019, SB 1437 narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. Among other things, the enactment amended section 188 to require that a principal convicted of murder act with malice aforethought. It further provided that malice shall not be imputed to a person based solely on his or her participation in a crime. It also added a procedure, now codified in section 1172.6, to permit individuals convicted of murder under prior law to request that their conviction be vacated and to seek resentencing.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448-450

Second Holding:

In 2021, the Legislature adopted SB 775 to expressly allow those convicted of attempted murder under the natural and probable consequences doctrine or manslaughter to seek resentencing under section 1172.6. The Legislature enacted the provision to clarify that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories. The law took effect on January 1, 2022.

Authority:

People v. Coley (2022) 77 Cal.App.5th 539, 544, 548

Third Holding:

A person convicted of attempted murder under the natural and probable consequences doctrine may file a petition to have his or her conviction vacated when:

(1) the charges filed against the person allowed the prosecution to proceed on a theory of attempted murder under the natural and probable consequences doctrine;

(2) the person was convicted of attempted murder after trial or accepted a guilty plea in lieu of a trial at which he or she could have been convicted of attempted murder; and

(3) the person could not presently be convicted of attempted murder because of changes to section 188 made effective January 1, 2019.

Authority:

PEN 1172.6(a)

Fourth Holding:

After briefing on the petition, the trial court must hold a hearing to determine whether the petitioner has made out a prima facie case for relief. If the petition and record establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.

If instead the petition shows a prima facie entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioning defendant is guilty of attempted murder under section 188 as amended.

If the prosecution fails to carry its burden, the challenged conviction and any accompanying allegations or enhancements must be vacated and the petitioner resentenced on any remaining charges.

Authority:

PEN 1172.6(c), (d)

People v. Strong (2022) 13 Cal.5th 698, 708-709

Fifth Holding:

A trial court’s inquiry into whether a petitioner has stated a prima facie case for relief is limited. The court takes the 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.

The record of conviction necessarily informs the court’s inquiry. If the record contains facts refuting the allegations in the petition, the court may make a credibility determination adverse to the petitioner. A petitioner who offers only conclusory allegations of entitlement to relief under section 1172.6, in response to a record of conviction that demonstrates the petitioner’s conviction was under a still-valid theory, has not, thereby, made a prima facie showing.

But a trial court may 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. Patton (2025) 17 Cal.5th 549, 557, 563

Sixth Holding:

We review de novo a trial court’s decision to deny a section 1172.6 petition at the prima facie stage.

Authority:

People v. Ervin (2021) 72 Cal.App.5th 90, 101

Seventh Holding:

When the defendant changed his plea in 2021, before SB 775 took effect, the Courts of Appeal were divided on whether SB 1437 had abrogated the natural and probable consequences doctrine as a valid basis for an attempted murder prosecution.

It was not until SB 775 became effective in January 2022—several months after the defendant pleaded guilty—that the law expressly eliminated that possibility. It therefore would have been theoretically possible, at the time of the defendant’s prosecution, for the People to proceed against him under a natural and probable consequences theory of attempted murder.

Accordingly, the trial court erred in concluding that the defendant’s plea to attempted murder after the adoption of SB 1437, but before SB 775’s effective date, standing alone, established his ineligibility for resentencing as a matter of law.

Authority:

People v. Alaybue (2020) 51 Cal.App.5th 207, 222

People v. Coley (2022) 77 Cal.App.5th 539, 544

Eighth Holding:

The sentencing minutes incorrectly reflect that the defendant’s attempted murders were willful, deliberate, and premeditated. We direct the trial court to amend the minutes to delete the “willful, deliberate, and premeditated” language.

The abstract of judgment incorrectly reflects the defendant’s sentence for the two attempted murders as 15 years and 4 years, respectively. If the attempted murders are not vacated on remand after hearing on the 1172.6 petition, the trial court shall amend the abstract of judgment to correctly state that his sentences for those two convictions are nine years and two years, four months, respectively.

(Gary note: The court did not cite authority for its orders to correct the minutes and the abstract of judgment, though there is much authority available. I have set forth a few that would support the court’s action.)

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2