Category Archives: Elements of crime

Amelioration, Appellate Principles, Elements of crime, Retroactivity, Standard of review, Vicarious liability

Case: 000295

Posted on by Gary McCurdy

Error and/or relief

There are two defendants, both convicted of murder and other matters. We reverse all counts of the conviction of Defendant A because of instructional error. It is therefore not necessary for us to consider the other errors urged by Defendant A. As to Defendant B, we reverse the conviction on the firearm offenses because of instructional error, and agree that the jury’s true findings on gang enhancements and related gang-related firearm enhancements must be vacatedand remanded because of changes in the law of gang criminal activity.

[GARY NOTE: The opinion is 70 pages long and goes into extensive discussion of the elements of murder. The reversals were based on the absence of proper jury instructions. I have chosen to summarize only a few of the pronouncements in the opinion rather than present a treatise on the elements of murder. I will, however, send the opinion to attorneys on request.]

First Holding:

Due to the trial court’s failure to instruct the jury on the meanings of “willfully,” “deliberately,” and “with premeditation,” or with the instructions describing aider and abettor liability for murder, Defendant A’s conviction for first degree murder requires reversal.

To be guilty of first degree murder as an aider and abettor, the jury must be instructed that a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.

Authority:

People v. Beeman (1984) 35 Cal.3d 547, 561

Second Holding:

We evaluate the failure to instruct the jury on an element of an offense for prejudice under Chapman. Under this standard, we must reverse the conviction unless after examining the entire cause, including the evidence, and considering all relevant circumstances, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.

Authority:

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

People v. Beck and Cruz (2019) 8 Cal.5th 548, 642

People v. Swain (1996) 12 Cal.4th 593, 607

Third Holding:

We review a claim of instructional error de novo. Review of the adequacy of instructions is based on whether the trial court fully and fairly instructed on the applicable law. Generally, the trial court is required to instruct the jury on the general principles of law that are closely and openly connected with the evidence and that are necessary to the jury’s understanding of the case. It also has a duty to refrain from giving incorrect instructions or instructions on principles of law that are irrelevant and that would have the effect of confusing the jury or relieving it from making findings on the relevant issues. The trial court’s duty in this regard extends to lesser included offenses that find substantial support in the evidence. In determining the correctness of jury instructions, we consider the entire charge of the court, in light of the trial record.

Authority:

People v. Manriquez (2005) 37 Cal.4th 547, 581, 584

People v. Barber (2020) 55 Cal.App.5th 787, 798-799

People v. Thomas (2023) 14 Cal.5th 327, 388–389

People v. Breverman (1998) 19 Cal.4th 142, 162

People v. Covarrubias (2016) 1 Cal.5th 838, 926

Fourth Holding:

An erroneous failure to instruct on a lesser included offense requires reversal of a conviction if, taking into account the entire record, it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. In a noncapital case, a failure to instruct sua sponte on a lesser necessarily included offense that is supported by the evidence is state law error that we review for prejudice under Watson. Under Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error. We also consider the instructions as a whole, the jury’s findings, and the closing arguments of counsel.

Authority:

People v. Breverman (1998) 19 Cal.4th 142, 169, 178

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

People v. Ledesma (2006) 39 Cal.4th 641, 716

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

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

People v. Larsen (2012) 205 Cal.App.4th 810, 831

Fifth Holding:

We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. When we review a purportedly erroneous instruction, we consider whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.

Authority:

People v. Ramos (2008) 163 Cal.App.4th 1082, 1088

People v. Richardson (2008) 43 Cal.4th 959, 1028

Sixth Holding:

AB 333 amended section 186.22, by, among other things, modifying the definitions of “pattern of criminal activity” and “criminal street gang,” as well as clarifying what is required to establish that an offense benefits, promotes, furthers, or assists a criminal street gang. Section 186.22 now requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have commonly benefited a criminal street gang where the common benefit is more than reputational; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense.

To benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

Authority:

People v. Perez (2022) 78 Cal.App.5th 192, 206

People v. Lopez (2021) 73 Cal.App.5th 327, 345

Seventh Holding:

Because the changes to the criminal street gang statute in AB 333 are ameliorative,those changes apply retroactively to defendants whose convictions are not yet final.

Authority:

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

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000277

Posted on by Gary McCurdy

Error and/or relief

AB 333’s amendments to section 186.22 are retroactive and should have been addressed when appellant’s sentence was recalled under section 1172.75. As a result of those amendments, we reverse appellant’s conviction in count 4 for active participation in a criminal street gang, vacate the gang enhancements found true as to three felony convictions, and remand for the People to determine whether to retry appellant on the gang allegations pursuant to the amended version of section 186.22.

First Holding:

AB 333 changed the elements required to prove both the gang conviction under section 186.22(a) and the gang enhancement under subdivision (b). AB 333 added new elements to the substantive gang offense and gang 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 had the effect of increasing the threshold for conviction of the section 186.22 offense and the imposition of the enhancement.

Authority:

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

People v. Burgos (2024) 16 Cal.5th 1, 9

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

Second Holding:

AB 333’s amendments to section 186.22 are ameliorative and retroactive to all cases not final as of the legislation’s effective date. When a defendant’s sentence is recalled, the amended version of section 186.22 is applicable at the section 1172.75 resentencing hearing.

Authority:

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

People v. Burgos (2024) 16 Cal.5th 1, 25

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

People v. Lopez (2025) 17 Cal.5th 388, 395–396

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

People v. Sek (2022) 74 Cal.App.5th 664, 667

Abstracts and Minutes, Duty of the court, Elements of crime, Jurisdiction, Sentencing, Sixth Amendment

Case: 000276

Posted on by Gary McCurdy

Error and/or relief

The sentence on count 1 is unauthorized because no findings were ever made, either by the jury or the court, as to whether the defendant was previously convicted of a qualifying prior vehicle theft offense within the meaning of Penal Code section 666.5(a). On remand, the court shall also address whether one count should be stayed under section 654.  It should be noted that the minute order incorrectly states that the defendant admitted the prior conviction.

First Holding:

Penal Code section 666.5(a) provides that a person convicted of a felony violation of Vehicle Code section 10851 who has been previously convicted of any of several enumerated sections of the Vehicle Code shall be punished by increased by a higher triad than the usual for section 10851. Though the defendant admitted three prior strike convictions, they were not the prior convictions relied on for the PC 666.5 allegation. In the absence of any findings on the allegation, the sentence is unauthorized and exceeded the court’s jurisdiction.

Authority:

PEN 666.5

People v. Neal (1993) 19 Cal.App.4th 1114, 1120

Second Holding:

The record does not reflect that the defendant personally admitted the one strike prior, as required by the law. Every plea shall be entered or withdrawn by the defendant himself or herself in open court.

Authority:

PEN 1018

People v. Hofferber (1977) 70 Cal.App.3d 265, 268

Third Holding:

The minute order indicates the defendant admitted the prior strike, but we generally resolve conflicts between the reporter’s and clerk’s transcript in favor of the reporter’s transcript.

Authority:

In re Merrick V. (2004) 122 Cal.App.4th 235, 249

Fourth Holding:

A defendant may be charged with—and in some cases convicted of—multiple crimes arising out of the same conduct but cannot receive multiple punishments for the same act or omission. Concurrent sentences based on one act or an indivisible course of conduct violate the rules against double punishment. The defendant asserts the chains and stabilizing bars referenced in count 4 were used to tow the motorhome, that any taking or receiving of them was part of one continuous act, and that the court therefore should have stayed the sentence on count 4. The People concede, and we agree, that the matter can be addressed on remand.

Authority:

PEN 654

PEN 954

People v. Reed (2006) 38 Cal.4th 1224, 1226−1227

People v. Jones (2012) 54 Cal.4th 350, 353

Appellate Principles, Elements of crime, Statutory interpretation

Case: 000275

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s motion to dismiss the two counts of driving a vehicle while under the influence, as he was also changed with operating a motor scooter while under the influence of alcohol. The latter is a more specific statute than the former, and the defendant must therefore be prosecuted under the more specific statute.

First Holding:

A criminal defendant may not be prosecuted under a general statute if the conduct at issue is covered under a more specific statute.

Authority:

In re Williamson (1954) 43 Cal.2d 651

Second Holding:

A motorized scooter is a vehicle under the definition of vehicle under Vehicle Code section 670: A vehicle is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.

Authority:

VEH 670

Third Holding:

Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute. Absent some indication of legislative intent to the contrary, the Williamson rule applies when (1) each element of the general statute corresponds to an element on the face of the special statute or (2) when it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.

Authority:

People v. Murphy (2011) 52 Cal.4th 81, 86

People v. Henry (2018) 28 Cal.App.5th 786, 791-792

Fourth Holding:

It is not correct to assume that the Williamson rule is inapplicable whenever the general statute contains an element not found within the four corners of the special law. Rather, the courts must consider the context in which the statutes are placed. If it appears from the entire context that a violation of the special statute will commonly result in a violation of the general statute, the Williamson rule may apply even though the elements of the general statute are not mirrored on the face of the special statute.

Authority:

People v. Murphy (2011) 52 Cal.4th 81, 8

Elements of crime, Statutory interpretation

Case: 000265

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction of attempted dissuasion of a witness. We reverse the attempted dissuasion of a witness conviction, and remand for resentencing. In this case, the indictment was filed in 2012, and the dissuading charge pertained to conduct that occured in 2016.

[GARY NOTE: THE STATUTE WAS AMENDED EFFECTIVE 1/1/2026, AND POST-COMPLAINT-FILING DISSUASION BY ITSELF IS NOW PUNISHABLE. I have chosen to post this victory anyway, because there are likely still cases in which the conduct occurred prior to 1/1/2026, and ex post facto prohibitions would preclude application of the amended law.]

First Holding:

Section 136.1(b)(2) makes it a crime to attempt to dissuade a victim or witness from causing a complaint to be sought and prosecuted, and assisting in the prosecution thereof.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 986

[Gary note: remember that the statute has since been amended to outlaw the conduct that was not previously covered under section 136.1(b)(2).]

Second Holding:

The issue before the Supreme Court in Reynoza was whether section 136.1(b)(2) [Gary note: referring to the version in effect prior to the 1/1/26 amendment] required proof of an attempt to dissuade a witness from causing a charging document to be sought and prosecuted or whether the statute also independently applies where a defendant dissuades a witness only from assisting in the prosecution of a case after the charging document has already been filed.

Put another way, can the statute support a disjunctive interpretation—in which the statute independently applies where a defendant dissuades a witness from assisting in the prosecution of a case after the charging document has already been filed—or whether a conjunctive interpretation precludes a conviction under such circumstances.

The court concluded that because section 136.1(b)(2) is equally susceptible to both the conjunctive and disjunctive constructions, the rule of lenity points to an interpretation more favorable to the defendant. As a result, the statute must be read in the conjunctive construction, which does not permit a conviction to be based solely on proof of dissuasion from assisting in the prosecution of an already-filed charging document.

Consequently, because the defendant’s conduct in Reynoza amounted to, at most, dissuasion after a complaint was filed, the conviction had to be reversed. Therefore, where criminal charges have already been filed, postcharging dissuasion alone does not constitute an offense under section 136.1(b)(2).

[Gary note: Did I adequately mention that the ambiguity has been cleared up by the Legislature, effective 1/1/26, and now it is clear that section 136.1(b)(2) applies even if the only attempted dissuasion occurred after the charging document has been filed? Thus, Reynoza’s conclusion applies to only those cases in which the attempt at dissuasion occurred prior to 1/1/26.]

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 986, 987, 989, 1013

Third Holding:

[Gary note: to demonstrate the significance of choice of words, I have set forth the original language that was interpreted in Reynoza and the amended version. The only difference is the change from “and” to “or.” I have added *** on both sides of the affected word to highlight it better. Goes to show sometimes it’s just all in the wrist.]

Authority:

PEN 136.1(b)(2) PRIOR TO AMENDMENT 1/1/26: “Causing a complaint, indictment, information, or probation or parole violation to be sought and prosecuted, *** and *** assisting in the prosecution thereof.”

PEN 136.1(b)(2) AS AMENDED EFFECTIVE 1/1/26: “Causing a complaint, indictment, information, or probation or parole violation to be sought and prosecuted, *** or *** assisting in the prosecution thereof.”