Category Archives: Elements of crime

Discretion, Effective assistance of counsel, Elements of crime, Sentencing

Case 000558

Posted on by Gary McCurdy

Error and/or relief

The restitution amount is wrong, and the protective order is unauthorized.

First Holding:

Appellant contends changes to section 1001.36 that went into effect after she was denied pretrial diversion apply to her case. We agree. Appellant further contends this matter should be conditionally reversed and remanded so the trial court can exercise its discretion to determine her motion for pretrial diversion in light of the amendment. We disagree.

Appellant has forfeited this claim. Frahs, decided in 2020, made clear that recently enacted section 1001.36 applied in nonfinal cases. Thus, when the law was amended effective January 1, 2023, appellant should have known the amendments applied retroactively. Once the law was amended, appellant had more than three months before she pled and more than seven months before she was sentenced to seek reconsideration of the trial court’s denial of diversion. She did not.

Authority:

People v. Frahs (2020) 9 Cal.5th 618, 631-632

People v. Doron (2023) 95 Cal.App.5th 1, 6

People v. Trujillo (2015) 60 Cal.4th 850, 856

People v. Brown (2024) 101 Cal.App.5th 113, 128 [failure to seek reconsideration excused where amendment to statute effective after entry of plea but only 10 days before sentencing]

Second Holding:

In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel’s performance was deficient, and that the defendant suffered prejudice as a result of such deficient performance. The record is silent, however, why defense counsel failed to seek reconsideration under the amended law.

It is possible that counsel was unaware of the newly passed statute. It is also possible, however, that counsel had sound reasons not to pursue the issue. For example, appellant may have changed her mind and decided to refuse to accept the treatment required for participation in the diversion program. Because trial counsel’s reasons for not raising the issue are not readily apparent, the issue is more appropriately considered in a habeas corpus proceeding.

Authority:

People v. Mickel (2016) 2 Cal.5th 181, 198

Strickland v. Washington (1984) 466 U.S. 668, 687-692

People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267

People v. Wilson (1992) 3 Cal.4th 926, 936

Third Holding:

We review the trial court’s restitution order for abuse of discretion. We apply the substantial evidence standard in a challenge to the sufficiency of evidence to support a factual finding necessary for a victim restitution order. Sentencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. The court may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole. It may make a restitution order based on truncated evidence such as declarations or probation reports, business records, and checks.

Authority:

People v. Giordano (2007) 42 Cal.4th 644, 663

People v. Jessee (2013) 222 Cal.App.4th 501, 507

People v. Hove (1999) 76 Cal.App.4th 1266, 1275

People v. Plains All American Pipeline L.P. (2024) 101 Cal.App.5th 872, 898-899

Fourth Holding:

The total restitution awarded to the victim includes two computational errors. The court erroneously included a $4,520 attorney fees bill twice and included $880 for an unknown reason. We will correct those errors.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 854

Fifth Holding:

Section 136.2(i) authorizes a court to issue an order restraining a defendant for up to 10 years when the defendant has been convicted of a qualifying crime. Appellant’s conviction for assault with a deadly weapon under section 245 is not a qualifying crime under section 136(i). The court did not have statutory authority to issue the protective order, therefore, the order must be stricken.

Authority:

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Amelioration, Elements of crime, Evidence, Jury instructions, Jury trial, Sentencing, Sixth Amendment, Standard of review, Statutory interpretation

Case 000555

Posted on by Gary McCurdy

Error and/or relief

Because we are unable to conclude beyond a reasonable doubt that the omission of an instruction on the organizational nexus element of the gang allegations did not contribute to the verdict obtained, we reverse all gang enhancements under section 186.22(b), the gang-related firearm enhancement on count 1 under section 12022.53,(d) and (e)(1), and the gang-related indeterminate sentence imposed on count 13 under section 186.22(b)(C)(4). We remand for resentencing and for further proceedings consistent with this opinion.

First Holding:

All gang-related enhancements must be reversed because the jury was not instructed on the organizational nexus element of the gang enhancement under amended Penal Code section 186.22(b).

Authority:

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

AB 333 substantially narrowed the definition of a criminal street gang and made numerous amendments to the statutory language. The specific amendment relevant here concerns the definition of criminal gang activity. Under the amended language, the prosecution must now present evidence that the members of the gang collectively engaged in a pattern of criminal activity, as opposed to the former language under which individual criminal action by members was sufficient.

While the evidence necessary to establish an organizational nexus might often overlap with the evidence used to demonstrate how a predicate offense commonly benefitted the gang, the inquiries are nonetheless conceptually distinct. The phrase collective engagement calls for an inquiry not just into how the predicate offenses benefited the gang, but also how the gang works together as a gang. It calls for a showing of a connection, or nexus, between an offense committed by one or more gang members and the organization as a whole.

Authority:

PEN 186.22

People v. Clark (2024) 15 Cal.5th 743, 752, 762

People v. Cooper (2023) 14 Cal.5th 735, 738

Third Holding:

Section 186.22 now requires evidence demonstrating a nexus between the individual predicate offenses and the gang as an organized, collective enterprise. This organizational nexus requirement is satisfied by showing a connection between the predicate offenses and the organizational structure, primary activities, or common goals and principles of the gang. Defendant’s trial took place several months before the Supreme Court issued its decision in Clark and before CALCRIM No. 1401 was amended. The jury was therefore not instructed on the organizational nexus element as interpreted in Clark. The pre-Clark instruction given below was adequate.

Authority:

People v. Clark (2024) 15 Cal.5th 743, 749

Fourth Holding:

When a jury instruction omits an element of an offense or special allegation, it impermissibly lessens the prosecution’s burden of proof and implicates the defendant’s federal due process rights. When such an instructional error occurs, we assess prejudice under the federal harmless error standard of Chapman In this context, our review under Chapman requires an examination of the record in its totality. If, at the end of that examination, we cannot conclude beyond a reasonable doubt the jury verdict would have been the same absent the error, the instructional error was not harmless. Put another way, the error was prejudicial if we determine the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742 [concluding Chapman applied in assessing prejudice where instructions omitted new element of gang enhancement that common benefit to gang must be more than reputational]

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

People v. Mil (2012) 53 Cal.4th 400, 417

Fifth Holding:

Defendant had the right to cross-examine a witness about whether he had been offered inducements to testify, expected benefits from giving his testimony, or otherwise had a motive to lie. Exposing a witness’s potential for bias and fabrication has long been recognized as one of the most important functions of cross-examination.

Authority:

EVID 780(f)

People v. Pearson (2013) 56 Cal.4th 393, 455

Delaware v. Van Arsdall (1986) 475 U.S. 673, 678–679

Sixth Holding:

The trial court is vested with broad discretion to impose reasonable limitations on defendant’s cross-examination without offending the constitution. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. The Sixth Amendment guarantees a defendant an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.

Authority:

People v. Contreras (2013) 58 Cal.4th 123, 152

Delaware v. Van Arsdall (1986) 475 U.S. 673, 679

People v. Harris (2008) 43 Cal.4th 1269, 1292

Seventh Holding:

We review the trial court’s evidentiary rulings in this context under the deferential abuse of discretion standard. Moreover, as a general rule, the application of the ordinary rules of evidence do not impermissibly infringe on a defendant’s right to present a defense.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 9–10 [discretion abused only where exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice]

People v. Gurule (2002) 28 Cal.4th 557, 620

Eighth Holding:

In order to establish a prejudicial abuse of discretion that violated the Sixth Amendment right to confrontation, a defendant is required to affirmatively show the trial court’s order limiting or precluding cross-examination left the jury with a significantly different impression of the witness’ credibility. Otherwise, the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.

Authority:

People v. Pearson (2013) 56 Cal.4th 393, 455-456

Delaware v. Van Arsdall (1986) 475 U.S. 673, 680

People v. Gonzalez (2021) 12 Cal.5th 367, 406

Ninth Holding:

The record reflects the trial court failed to impose sentence on counts 14 and 15, two of the extortion counts on which the jury found defendant guilty. As defendant concedes in his reply brief, the appropriate course of action in such circumstances is a remand for the purpose of pronouncement of a judgment in accordance with the verdict. In light of the reversal of all gang enhancements, the gang-related firearm enhancement on count 1 and the gang-related indeterminate term on count 13, the superior court, on remand, shall conduct a full resentencing at which it may consider all of its sentencing choices anew.

Authority:

People v. Taylor (1971) 15 Cal.App.3d 349, 353

Elements of crime, Evidence, Fifth Amendment, Fines and fees, Sufficiency of and substantial evidence

Case 000546

Posted on by Gary McCurdy

Error and/or relief

In this trial that resulted in a conviction of two counts of felony vandalism, the trial court erred under state law by admitting the victim’s hearsay testimony about the costs to repair her vehicle. The admission of the hearsay testimony was prejudicial under state law. We reverse the vandalism convictions and remand for the People to elect whether to retry them as felonies or accept their reduction to misdemeanors.

First Holding:

Other than the deductible, an insurance company paid for the repair of the damages. The victims testified to what she was told was the cost of the repairs. No repair bill was introduced into evidence. The trial court erroneously overruled defendant’s objections to the victim’s hearsay statements regarding the cost of repairs. State-law errors are reviewed for harmlessness under Watson. Under Watson, reversal is required if there is a reasonable probability that the defendant would have achieved a more favorable result absent the out-of-court statements.

Authority:

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

People v. Seumanu (2015) 61 Cal.4th 1293, 1308

People v. Lozano (2024) 101 Cal.App.5th 366, 381–382

Second Holding:

The vandalism convictions must be reduced to misdemeanors because of the error in admitting the victim’s hearsay testimony. The only further relief the defendant could obtain from prevailing on his substantial-evidence claim is a bar to retrying him on the damage-value element. To resolve this claim, we consider whether the record contains substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

Authority:

People v. Eroshevich (2014) 60 Cal.4th 583, 591

People v. Manibusan (2013) 58 Cal.4th 40, 87

Third Holding:

Evidence erroneously admitted is properly considered in weighing the sufficiency of evidence to support a conviction, notwithstanding its erroneous admission. The reason for this is that a reversal based solely on evidentiary insufficiency has fundamentally different implications, for double jeopardy purposes, than a reversal based on such ordinary trial errors as the incorrect receipt or rejection of evidence. While the former is in effect a finding that the government has failed to prove its case against the defendant, the latter implies nothing with respect to the guilt or innocence of the defendant, but is simply a determination that the defendant has been convicted through a judicial process that is defective in some fundamental respect.

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 684

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

Case 000540

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of five offenses arising from a violent, domestic-violence-related altercation. The trial court erred when it failed to instruct the jury on a lesser included offense. The court issued a protective order outside of its jurisdiction under Penal Code section 136.2. The court miscalculated the total assessment due from the defendant pursuant to Government Code section 70373(a). We vacate the protective order and reverse the judgment, remanding for a possible retrial on one conviction and for a full resentencing.

First Holding:

We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law.

Authority:

People v. Lueth (2012) 206 Cal.App.4th 189, 195

Second Holding:

In a criminal case, a jury verdict must be unanimous. When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. The unanimity instruction requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. If required, the instruction must be given sua sponte.

Authority:

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

People v. Melhado (1998) 60 Cal.App.4th 1529, 1534

People v. Riel (2000) 22 Cal.4th 1153, 1199

Third Holding:

If a prosecutor elects to rely upon a specific act to prove a charged crime, then the trial court has no duty to give the jury an instruction that it must unanimously agree on the act that constituted the crime charged.

Authority:

People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455

Fourth Holding:

The trial court instructed the jury with the elements of assault with a deadly weapon, but did not instruct them with the elements of simple assault. We conduct an independent review of the question of whether this was error.

Authority:

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

Fifth Holding:

We conclude that it was error for the to not instruct the jury with the elements of simple assault. A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. Simple assault is a lesser included offense of aggravated assault The trial court, accordingly, was required to instruct the jury on the lesser included offense of simple assault if a reasonable jury could have found that the defendant committed only a simple assault and not an assault with a deadly weapon.

Authority:

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

People v. McDaniel (2008) 159 Cal.App.4th 736, 747

Sixth Holding:

Under section 245 (assault with a deadly weapon), an object may be a deadly weapon in two ways. First, objects are considered deadly weapons as a matter of law, or deadly per se, when the ordinary use for which they are designed establishes their character as such. Typical examples include dirks and blackjacks. Second, if an object is not inherently deadly, the prosecution must prove to the trier of fact that the object was used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. Objects which have been found to be a deadly weapon based on the way they were used include a pillow, an automobile, a large rock, a razor blade, and a fingernail file. A wrench is not inherently deadly as a matter of law. It is designed and typically used for innocent purposes.

Authority:

People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029

People v. Montes (1999) 74 Cal.App.4th 1050, 1054

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

Seventh Holding:

Based on the evidence, we conclude reasonable jurors could have decided the evidence was sufficient to prove the defendant assaulted the victim with the wrench but was insufficient to prove he did so in a manner likely to cause death or great bodily injury. And so we must reverse the judgment and conviction for assault with a deadly weapon. Under settled law, the judgment will be modified unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

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

Eighth Holding:

Whether section 136.2(i)(1) authorized the court to issue a protective order against a defendant is an issue of statutory interpretation we review de novo.

Authority:

People v. Pena (2025) 113 Cal.App.5th 640, 645

Ninth Holding:

Under section 136.2(i)(2), trial courts, generally speaking, are authorized to issue postconviction orders restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a percipient witness to the crime who has been harassed by the defendant. It was improper to issue a protective order under section 136.2(i) where the person was not a percipient witness. The broader protective orders under section 136.2 are limited to the time frame during the pendency of the criminal action. It does not apply to postconviction orders.

Authority:

PEN 136.2

People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465 and fn. 4, 466

People v. Walts (2025) 112 Cal.App.5th 127, 140–144

Tenth Holding:

The court imposed $180 as the court facilities funding assessment for the five counts. However, at $30 for each count, the assessment should have been $150, not $180.

Authority:

GOV 70373(a)

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000537

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded to give the prosecution an opportunity to prove that the 2011 prior strike conviction alleged in the information remains a strike under the current version of section 186.22, criminal gang activity.

First Holding:

The defendant was convicted in 2011 of carrying a loaded firearm with an enhancement that the crime was committed for the benefit of a gang. A prior felony firearm conviction constitutes a strike if committed for the benefit of a criminal street gang pursuant to section 186.22(b)(1). Thus, the prior conviction was alleged as a strike, resulting in a doubled sentence.

Authority:

PEN 186.22

PEN 667(d)(1)

PEN 1192.7(c)(28)

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

Second Holding:

AB 333 (2021–2022 Reg. Sess.), effective January 1, 2022, amended section 186.22 to narrow the definition of benefit to mean to provide a common benefit to members of a gang where the common benefit is more than reputational. The amendment applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike or a five-year sentence enhancement. Current law applies in determining whether they qualify as prior serious felony convictions. The appropriate remedy is to remand to permit the prosecution the opportunity to establish that the prior conviction constitutes a strike under current law.

Authority:

PEN 186.22(g

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