Category Archives: Elements of crime

Abstracts and Minutes, Amelioration, Elements of crime, Sentencing, Vicarious liability

Case: 000260

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s hearing on his petition filed under section 1172.6 for recall of sentence in light of the changes in homicide law, the trial court denied the defendant’s resentencing petition on the ground the evidence established beyond reasonable doubt he aided and abetted an implied malice murder. The trial court did not conclude that the defendant was the direct perpetrator or an aider and abettor in an express malice murder. The trial court misidentified the relevant life-endangering act and thereby used an incorrect legal standard for determining the defendant’s mens rea for aiding and abetting implied malice murder.

We therefore reverse and remand with directions to the trial court to conduct a new evidentiary hearing using the correct life-endangering act and consistent with this opinion. The trial court did not address the defendant’s convictions on counts 2 through 4 for attempted murder. Sentencing relief under section 1172.6 extends to attempted murder. In conducting a new evidentiary hearing following remand, the court shall make findings and rule on the defendant’s resentencing petition on the attempted murder convictions. The amended abstract of judgment indicates that the defendant pleaded guilty to second degree murder. That is incorrect: He was convicted by a jury, not pursuant to a plea agreement. The abstract of judgment must be corrected accordingly.

First Holding:

The trial court denied the defendant’s resentencing petition on the ground the evidence established beyond reasonable doubt he aided and abetted an implied malice murder. The trial court did not conclude that the defendant was the direct perpetrator or an aider and abettor in an express malice murder.

Murder is committed with implied malice when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. A defendant may directly aid and abet an implied malice murder. Notwithstanding Senate Bill 1437’s elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 143

People v. Reyes (2023) 14 Cal.5th 981, 990

Second Holding:

Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea. In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990-991

Third Holding:

A life-endangering act is the act that proximately causes death. To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. Here, the life-endangering act was the shooting by the co-defendant at the vehicle carrying the victim.

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 713, fn. 27

People v. Jennings (2010) 50 Cal.4th 616, 643

Fourth Holding:

Although a homicide might have more than one proximate cause, to suffice for implied malice murder, the perpetrator’s act must not merely be dangerous to life in some vague or speculative sense; it must involve a high degree of probability that it will result in death.

Authority:

People v. Garcia (2022) 82 Cal.App.5th 956, 963

People v. Reyes (2023) 14 Cal.5th 981, 989

Fifth Holding:

The co-defendant perpetrator’s act of bringing the gun to the anticipated confrontation with the other gang did not in itself give rise to a high probability that death would result. Rather, that act merely created a dangerous situation in which death was possible depending on how circumstances unfolded. Deeming a life-endangering act to be the act of the co-defendant perpetrator bringing the gun to the fight comes precariously close to a natural and probable consequences theory of liability: Bringing the gun to a gang fight becomes life endangering only because a natural and probable consequence of doing so is the gun is fired and someone is killed. [GARY NOTE: Implicit in that example is that the change in the homicide law eliminated the natural and probable consequences rationale as supporting a murder conviction of the non-killer.]

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 989

Sixth Holding:

By misidentifying the life-endangering act committed by the perpetrator, the trial court used the incorrect legal standard for determining mens rea for aiding and abetting implied malice murder.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990–991 [using incorrect life-endangering act constitutes legal error]

Seventh Holding:

We have the ability to order the correction of clerical errors in an abstract of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185–187

Abstracts and Minutes, Elements of crime, Sentencing

Case: 000257

Posted on by Gary McCurdy

Error and/or relief

A jury found the defendant guilty of one count of murder, two counts of being a felon in possession of a firearm, and one count of being a felon in possession of ammunition. The trial court sentenced him on each count of conviction and did not stay the sentence on any count. The court improperly sentenced him on two counts of being a felon in possession of a firearm when he had only committed a single violation of that crime. The court erred when it sentenced him for being both a felon in possession of a firearm and a felon in possession of ammunition. We vacate defendant’s conviction on one count of being a felon in possession of a firearm and stay his sentence for being a felon in possession of ammunition. The abstract of judgment incorrectly marks trhe determinate term on count 2 as “M” for middle term rather than “H” to reflect the high term that was actually imposed, and must be corrected.

First Holding:

Possession of a firearm by a felon is a continuing offense. In the case of continuing offenses, only one violation occurs even though the proscribed conduct may extend over an indefinite period. The crime of possession of a firearm by a felon continues for as long as the possession of the firearm continues and is not completed until the possession has ceased. Therefore, where there is no evidence that the defendant relinquished his possession of a firearm, or that his possession was interrupted for a time, he can be convicted of only one count of that offense. The defendant possessed the same firearm on both dates charged in the information. The People did not present any evidence to show that the defendant ceased his possession of that firearm at any time between the murder and the arrest. We therefore vacate defendant’s conviction on count 4.

Authority:

People v. Mason (2014) 232 Cal.App.4th 355, 365, 366-367

Wright v. Superior Court (1997) 15 Cal.4th 521, 525, fn. 1

People v. Warren (1940) 16 Cal.2d 103, 112

Second Holding:

Section 654 provides that an act or omission that is punishable in different ways by different provisions of 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 bars multiple punishment for separate offenses arising out of a single occurrence when all of the offenses were incident to one objective. It prohibits punishment for both unlawful possession of a firearm and unlawful possession of ammunition when the only ammunition at issue was either found inside or fired from the firearm.

Authority:

People v. Cowan (2010) 50 Cal.4th 401, 498

People v. Broadbent (2020) 47 Cal.App.5th 917, 922–923

People v. Sok (2010) 181 Cal.App.4th 88, 100

People v. Lopez (2004) 119 Cal.App.4th 132, 138

Third Holding:

Where multiple punishments have been improperly imposed, the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term. Here, the trial court should have stayed the punishment on count 3, the lesser term. We will therefore modify the judgment to stay the sentence on that count.

Authority:

People v. Spirlin (2000) 81 Cal.App.4th 119, 131

People v. Broadbent (2020) 47 Cal.App.5th 917, 922–923

People v. Sok (2010) 181 Cal.App.4th 88, 100

People v. Lopez (2004) 119 Cal.App.4th 132, 138

Fourth Holding:

The abstract of judgment for the determinate term on count 2 be modified to reflect that the defendant was sentenced to the high term (“H”), rather than the mid-term (“M”).

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 187

Elements of crime, Sentencing, Standard of review, Statutory interpretation

Case: 000253

Posted on by Gary McCurdy

Error and/or relief

Insufficient evidence supported the defendant’s perjury conviction. We reverse the perjury conviction. His excess presentence custody credits must be applied to reduce his parole period. The record does not permit a determination of the precise number of excess custody credits. Because we are remanding for resentencing, we direct the trial court to calculate and determine the appropriate application of those credits.

First Holding:

A conviction under section 118(a) requires proof that the challenged statement was made under penalty of perjury, and that the sex offender registration form signed by the defendant did not contain such a declaration. Because the statutory element was not established, reversal is required.

Authority:

PEN 118(a)

Second Holding:

When a defendant challenges the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In conducting that review, we presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. Reversal for insufficient evidence is warranted only where it appears that, under no hypothesis whatsoever, is there sufficient evidence to support the verdict.

Authority:

People v. Kraft (2000) 23 Cal.4th 978, 1053

People v. Bolin (1998) 18 Cal.4th 297, 331

Third Holding:

Section 118(a) provides that a person commits perjury when he or she certifies under penalty of perjury and willfully states as true any material matter that he or she knows to be false. Proof that the false statement was made under penalty of perjury is therefore an essential element of the offense. Here, the Criminal Justice Information System (CJIS) Form 8102S signed by the defendant states: “I certify the information provided is true and accurate. I understand failure to comply with the registration requirements, providing false information on the form, or failing to provide accurate information is punishable as a criminal offense.” The form does not state that the certification is made under penalty of perjury. Because the prosecution failed to establish this essential statutory element, the evidence is insufficient to support the defendant’s conviction for perjury under section 118(a). Accordingly, the conviction on that count must be reversed, and the matter remanded for resentencing.

Authority:

People v. Tafoya (2025) 109 Cal.App.5th 868, 902

Fourth Holding:

Section 2900.5 requires that all days a defendant spends in custody—including time in jail or a rehabilitation facility—be credited against the defendant’s term of imprisonment, which expressly includes any period of parole prior to discharge. By the time the defendant was sentenced, he had already served enough days in custody to qualify for release on parole.

Authority:

PEN 2900.5

In re Ballard (1981) 115 Cal.App.3d 647, 650

Fifth Holding:

The parties and trial court disagreed on how to calculate the time expected to complete a 16-month term against which the known number of days in custody would apply, but approaches proposed are flawed. Section 7(b)(13) defines a “month” as a “calendar month.” A calendar month is not a fixed number of days, but rather the space of time from any day of any such month to the corresponding day of the next, and may therefore vary in length. Consequently, a sentence expressed in months cannot be converted into a predetermined number of days by multiplying months by 30, nor by fractionalizing a year into parts. Instead, the proper calculation depends on the defendant’s actual dates of incarceration and release. Because the record does not disclose the precise date of the defendant’s incarceration, we cannot determine the exact number of days constituting his 16-month term. Accordingly, this issue must be remanded for the trial court to calculate his sentence based on his actual custodial dates and to apply any excess custody credits to reduce his parole period as required by section 2900.5

Authority:

PEN 7(b)(13)

In re Kemper (1980) 112 Cal.App.3d 434, 439, fn. 2

People v. Superior Court (J.C. Penney Corp., Inc.) (2019) 34 Cal.App.5th 376, 414, fn. 23 [a three-month statutory period may range from 89 to 92 days depending on the specific dates involved]

Elements of crime, Jury instructions, Standard of review

Case: 000219

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in instructing the jury that implied malice murder can be based on an act that was reasonably foreseeable to cause death rather than highly likely to cause death. The prosecutor erred by making arguments to the jury on the same point. The defendant’s convictions on the counts of murder are reversed. The charges may be retried on remand. [The defendant was convicted as a result of the death of three occupants of a vehicle he crashed into while he was driving under the influence.]

First Holding:

Malice may be implied when a defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. The trial court erred here by requiring only that death be a reasonably foreseeable consequence of appellant’s act, rather than a highly probable one. Similarly, the prosecutor erred by arguing to the jury that it need not find that appellant’s act of driving impaired created a strong probability of death.

Authority:

People v. Dellinger (1989) 49 Cal.3d 1212, 1219

Second Holding:

When the trial court misinstructs the jury on an element of a charged crime, we consider prejudice under the standard of Chapman. Under that standard, we reverse the judgment unless the error was harmless beyond a reasonable doubt.

Authority:

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

People v. Hendrix (2022) 13 Cal.5th 933, 942

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000214

Posted on by Gary McCurdy

Error and/or relief

After the defendant was convicted, but before the judgment became final, AB 333 was enacted, and its application in defendant’s case. We vacate the gang enhancement allegation findings under section 186.22(b), and remand the matter to the trial court to permit the People to elect to retry the gang enhancements or, if the People do not so elect, for the trial court to proceed with resentencing petitioner in conformance with this opinion.

Holding:

AB 333 made substantial changes to the elements of criminal gang activity. These changes apply retroactively to all cases not yet final on the effective date of AB 333, January 1, 2022. A defendant is entitled to relief under AB 333 if an appellate court affirmed the judgment, but sentencing issues were pending upon remand as of its effective date.

Authority:

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

People v. Lopez (2025) 17 Cal.5th 388