Category Archives: Elements of crime

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

Case 000760

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction on count 2, and there are errors in the abstract of judgment that must be corrected.

First Holding:

The defendant was charged with taking a vehicle in violation of Vehicle Code section 10851 and with receiving stolen property (the same vehicle) under Penal Code section 496d(a). He was convicted of both counts. Though there was sufficient evidence that he took the vehicle, there was no evidence on what he did with it before its discovery. The evidence supports the theory that defendant was on one continuous journey away from the locus of the theft’ with the golf cart after taking it from the company premises until it was placed at the location from which the victim later retrieved it.

Authority:

People v. Strong (1994) 30 Cal.App.4th 366, 375

Second Holding:

Where a defendant challenges the sufficiency of the evidence supporting a criminal conviction, we apply the substantial evidence standard of review. Accordingly, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, 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.

While substantial evidence may consist of inferences, such inferences must be a product of logic and reason and must rest on the evidence; inferences that are the result of mere speculation or conjecture cannot support a finding.

Authority:

People v. Rangel (2016) 62 Cal.4th 1192, 1212

People v. Shively (2025) 111 Cal.App.5th 460, 468

Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633

Third Holding:

Vehicle Code section 10851(a) proscribes a wide range of conduct. A person can violate Vehicle Code section 10851(a) either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding). A taking is complete when the driving is not part of the escape from the scene of the theft.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

People v. Calistro (2017) 12 Cal.App.5th 387, 395

Fourth Holding:

A person who violates section 10851(a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. If, on the other hand, a section 10851(a) conviction is based on posttheft driving, a separate conviction under section 496(a) for receiving the same vehicle as stolen property is not precluded.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

Fifth Holding:

When a defendant is improperly convicted of both stealing and receiving the same stolen property, the theft conviction should be upheld and the receiving conviction reversed.

Authority:

People v. Ceja (2010) 49 Cal.4th 1, 10

Sixth Holding:

There were numerous errors in the abstract of judgment, in which the recitation of prison terms imposed were quite different than orally pronounced. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The abstract must be corrected.

Authority:

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

Amelioration, Elements of crime, Evidence, Sentencing, Vicarious liability

Case 000752

Posted on by Gary McCurdy

Error and/or relief

In denying the defendant’s petition for recall of his sentence imposed nearly 20 years ago for murder, attempted murder, a gang crime, and related enhancements, for which he was sentenced to life without the possibility of parole, plus 25 years to life, plus 20 years, the trial court erred in relying on the gang expert’s testimony that the defendant aided and abetted the shooter. The denial is reversed.

On remand, the court is directed to grant the petition, vacate the murder and attempted murder convictions, and resentence the defendant on the remaining substantive gang offense.

First Holding:

A defendant’s mere presence at a crime does not constitute substantial evidence that the defendant directly aided and abetted the commission of that crime.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 493

People v. Pettie (2017) 16 Cal.App.5th 23, 57–58 [Mere presence at the scene of a crime which does not itself assist its commission does not amount to aiding and abetting]

Second Holding:

We accept the trial court’s findings to the extent they are supported by substantial evidence. Substantial evidence means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.

Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. However, a reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guesswork; a finding of fact must be an inference drawn from evidence rather than a mere speculation as to probabilities. By definition, substantial evidence requires evidence and not mere speculation.

Authority:

People v. Breslin (2012) 205 Cal.App.4th 1409, 1415–1416

People v. Lehman (2016) 247 Cal.App.4th 795, 804

People v. Soriano (2021) 65 Cal.App.5th 278, 286

Third Holding:

Effective January 1, 2019, the Legislature passed SB 1437, which amended sections 188 and 189. The legislation effectively eliminated the natural and probable consequences doctrine as it relates to murder, and narrowed the scope of the felony-murder rule. However, it did not eliminate direct aider and abettor liability for murder or attempted murder. SB 1437 also added a procedure for those convicted under the former law to seek retroactive relief under the law as amended.

Authority:

People v. Gentile (2020) 10 Cal.5th 830, 848 [Senate Bill 1437 does not eliminate direct aiding and abetting liability for murder], superseded by statute on other grounds as stated in People v. Oyler (2025) 17 Cal.5th 756, 836

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

Fourth Holding:

Under section 1172.6, a petitioner must first file a petition containing a declaration that he or she is eligible for relief, including that he or she could not presently be convicted of murder because of changes to Section 188 or 189” effectuated by SB 1437. Upon the filing of a facially sufficient petition, the trial court must determine whether the petitioner has made a prima facie case for relief.

If the court concludes such a showing has been made, it must issue an order to show cause and hold an evidentiary hearing. At the evidentiary hearing, the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder under the law as amended by SB 1437. The trial court acts as an independent fact finder and determines whether the evidence establishes that the petitioner is ineligible for resentencing.

Authority:

PEN 1172.6

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

People v. Cody (2023) 92 Cal.App.5th 87, 110

Fifth Holding:

Except for strict liability offenses, every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission are principals in any crime so committed.

Authority:

PEN 31

People v. McCoy (2001) 25 Cal.4th 1111, 1117

Sixth Holding:

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.

Under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another if the accomplice aids the commission of that offense with knowledge of the direct perpetrator’s unlawful intent and with an intent to assist in achieving those unlawful ends.

Authority:

People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295–296

People v. Gentile (2020) 10 Cal.5th 830, 843

Seventh Holding:

Proof of aider and abettor liability requires proof of a culpable actus reus on the part of the aider and abettor in the form of some conduct by him that in fact assisted the achievement of the crime. A defendant’s mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant’s criminal responsibility.

Authority:

People v. Perez (2005) 35 Cal.4th 1219, 1225

People v. Richardson (2008) 43 Cal.4th 959, 1024

Eighth Holding:

Speculative testimony by a gang expert does not constitute substantial evidence to support a gang enhancement.

Authority:

People v. Soriano (2021) 65 Cal.App.5th 278, 288

People v. Ramon (2009) 175 Cal.App.4th 843, 847

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

Case 000736

Posted on by Gary McCurdy

Error and/or relief

There is insufficient evidence proving the defendant burned forest land as that term is defined by section 450(b).

First Holding:

Section 451 provides that a person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned any structure, forest land, or property. Section 451 identifies four types of felonious arson: (1) arson causing great bodily injury; (2) arson causing an inhabited structure or property to burn; (3) arson of a structure or forest land; and (4) arson of property. Section 450(b) defines forest land as any brush covered land, cut-over land, forest, grasslands, or woods.

By contrast, property means real property or personal property, other than a structure or forest land. The maximum sentence for arson of a structure or forest land is double that of the maximum sentence for arson of uninhabited property.

Authority:

PEN 451

PEN 450

Second Holding:

At the heart of this case lies a question of statutory interpretation—the meaning of forest land—which we consider de novo. Our primary task in interpreting the statute is to determine the lawmakers’ intent. We begin with the words of the statute and their usual and ordinary meaning, which would typically be their dictionary definition. Their plain meaning controls, unless the words are ambiguous. If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute’s purpose, and public policy.

Authority:

People v. Costella (2017) 11 Cal.App.5th 1, 5-6

People v. Prunty (2015) 62 Cal.4th 59, 71

Third Holding:

To the extent we must determine whether there was sufficient evidence of forest land, we consider whether the record discloses substantial evidence—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. We examine the whole record in the light most favorable to the judgment and we do not reweigh evidence. In the end, the only evidentiary question before us is whether the prosecution—consistent with the theory it advanced regarding what constituted forest land—presented sufficient proof in this case.

Authority:

People v. Costella (2017) 11 Cal.App.5th 1, 5

People v. Prunty (2015) 62 Cal.4th 59, 71

People v. Oyler (2025) 17 Cal.5th 756, 820

Fourth Holding:

It appears undisputed that the site here does not fall within the statutory definition of forest land as cut-over land, forest, or woods. The People argue it constitutes forest land as grasslands or brush covered land. We disagree. Merriam-Webster defines grassland as farmland occupied chiefly by forage plants and especially grasses, or land on which the natural dominant plant forms are grasses and forbs, or an ecological community in which the characteristic plants are grasses. Based on these definitions and the language of sections 450 and 451, we agree with the defendant that the mere presence of grass is insufficient to make an area a grassland.

The statutes distinguish between arson of forest land, including grasslands, and arson of other types of uninhabited property, suggesting that the Legislature intended forest land to mean something other than any land on which grass grows. The definitions suggest a grassland is an open land or prairie, occupied largely by grasses, rather than just any land with grass on it, such as a lawn or park. The 1979 amendment to the statute from “any grass” to “grasslands” suggests the Legislature intended to narrow the types of grassy areas giving rise to heightened punishment for arson.

Authority:

PEN 450

Fifth Holding:

Based on the definitions and the discussion in Costella, we believe the definition of “brush covered land” requires that at least some portion of the land in question be densely populated with brush, even if it is not continuously covered with brush. Here, there was insufficient evidence to support a conclusion that the area affected was forest land or grassland or brush covered land. In sum, there is insufficient evidence that the land at issue constituted forest land under sections 450, subdivision (b), and 451, subdivision (c). Therefore, the arson conviction must be reversed.

Authority:

PEN 450

PEN 451

People v. Costella (2017) 11 Cal.App.5th 1, 7

Elements of crime, Sentencing, Standard of review

Case 000735

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient as a matter of law to support the jury’s true findings on gang enhancements attached to counts 1 and 2, and a gang-murder special circumstance attached to count 1.

First Holding:

When considering a challenge to the sufficiency of the evidence to support an enhancement, 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. Such evidence must be reasonable, credible and of solid value.

Authority:

People v. Renteria (2022) 13 Cal.5th 951, 970

Second Holding:

To establish a gang enhancement, the prosecution was required to prove the defendant committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang and did so with the specific intent to promote, further, or assist in criminal conduct by gang members. The statute requires proof of a common benefit to members of a gang where the common benefit is more than reputational. Examples of qualifying nonreputational benefits include financial gain or motivation, retaliation, targeting rivals, or witness intimidation.

Authority:

PEN 186.22

Third Holding:

The gang-murder special circumstance required the prosecution to prove that the defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang and the murder was carried out to further the activities of the criminal street gang. Thus, the special-circumstance allegation depended upon the same gang-related findings underlying the section 186.22 enhancements, including the “more than reputational” requirement in section 186.22(g).

Authority:

PEN 190.2

PEN 186.22

People v. Campbell (2023) 98 Cal.App.5th 350, 378

Fourth Holding:

Substantial evidence does not support the jury’s true findings on the gang enhancements attached to counts 1 and 2 or the gang-murder special circumstance attached to count 1. In short, the requirements of section 186.22(g) were not met. Consequently, these findings must be stricken. Based on the principle of double jeopardy, retrial is barred.

Authority:

PEN 186.22(g)

Lockhart v. Nelson (1988) 488 U.S. 33, 39

People v. Garcia (2014) 224 Cal.App.4th 519, 526 [a gang enhancement reversed for insufficient evidence may not be retried]

Fifth Holding:

Because these findings formed part of the overall sentencing package, remand for full resentencing is required.

Authority:

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

Elements of crime, Sentencing

Case 000727

Posted on by Gary McCurdy

Error and/or relief

Under section 654, the trial court should not have punished the defendant for both robbery and assault with a deadly weapon.

First Holding:

We review the trial court’s decision to sentence the defendant separately for the robbery conviction and the assault with a deadly weapon conviction, for substantial evidence that he harbored a separate intent and objective for each offense. Here, there is no substantial evidence to support the trial court’s implicit finding that the defendant’s intent in assaulting the victim was separate from his intent to rob him of the item.

Authority:

PEN 654

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414

Second Holding:

Section 654(a) 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. Section 654 bars the imposition of multiple sentences for a single act or omission, even though the act or omission may violate more than one provision of the Penal Code. The purpose of the protection against multiple punishment is to insure that the defendant’s punishment will be commensurate with his criminal liability.

Authority:

PEN 654

People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414

Third Holding:

Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. Whether an assault was committed with the intent to facilitate a robbery is a fact-bound determination.

Authority:

People v. Rodriguez (2009) 47 Cal.4th 501, 507

People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299

Fourth Holding:

Additionally, temporal proximity, or the lack of it, can be a relevant consideration in determining the divisibility of a course of conduct.

Authority:

People v. Nunez (2012) 210 Cal.App.4th 625, 630 [Use of hammer to facilitate carjacking could not be punished as both the robbery and assault with a deadly weapon]

Fifth Holding:

A robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner’s immediate presence regardless of the means by which defendant originally acquired the property.

Authority:

People v. Estes (1983) 147 Cal.App.3d 23, 27-28

Abstracts and Minutes, Effective assistance of counsel, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000711

Posted on by Gary McCurdy

Error and/or relief

There is insufficient evidence that the defendant sent harmful material to the minor with the required intent to engage in sexual conduct or intimate touching with him. We therefore reverse the conviction and eight-month consecutive sentence for count one, and remand for full resentencing.

First Holding:

We apply the substantial evidence standard in reviewing a claim of insufficient evidence. We must examine the record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. In doing so, we presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.

Authority:

People v. Zaragoza (2016) 1 Cal.5th 21, 44

Second Holding:

The relevant question for purposes of substantial evidence review is whether, in light of all the evidence, any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Reversal based on insufficient evidence is warranted only if it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Authority:

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

Third Holding:

Substantial evidence includes circumstantial evidence and any reasonable inferences that can be drawn from the evidence. We presume every reasonable inference from the evidence to support the judgment.

Authority:

People v. Clark (2011) 52 Cal.4th 856, 943

People v. Covarrubias (2016) 1 Cal.5th 838, 890

Fourth Holding:

While it is the jury, not the appellate court that must be convinced of the defendant’s guilt, in order to affirm, we must be able to conclude the evidence is sufficient to have convinced that jury of the defendant’s guilt beyond a reasonable doubt. In making this determination, we must necessarily take into account the prosecution’s burden of proof beyond a reasonable doubt at trial. The question is whether a reasonable trier of fact could have regarded the evidence as satisfying this standard of proof.

Authority:

People v. Lara (2017) 9 Cal.App.5th 296, 320

Jackson v. Virginia (1979) 443 U.S. 307, 317–320 [conviction based on insufficient evidence violates due process clause of Fourteenth Amendment]

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

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1009

Fifth Holding:

The officer gave testimony that 75 percent of adults who send explicit images to undercover law enforcement agents posing as children online will arrange a meeting and show up with the intent to have a sexual relationship. Although this testimony was admitted without objection, we caution that California courts have excluded other similar forms of probability evidence.

Statistical odds are not a substitute for admissible evidence to decide the guilt or innocence of the defendant. We will not decide the admissibility of this probability evidence, however, because we must consider all admitted evidence in our sufficiency of evidence review. Incompetent testimony received without objection takes on the attributes of competent proof when considered on the sufficiency of evidence to support a finding.

Authority:

People v. Collins (1968) 68 Cal.2d 319, 327–332

People v. Julian (2019) 34 Cal.App.5th 878, 880, 885–889

People v. Wilson (2019) 33 Cal.App.5th 559, 568–572

People v. Panah (2005) 35 Cal.4th 395, 476

Sixth Holding:

Although there was ample evidence of the defendant’s sexual attraction to children and child pornography, there was no evidence that he had ever engaged or attempted to engage in any sexual conduct or intimate touching with a minor, or that he had expressed an intent to do so, or that he had made any arrangements to meet a minor in person for such a purpose. The record is devoid of evidence of the type offered to prove intent in other cases of this nature.

Authority:

Cf. People v. Nakai (2010) 183 Cal.App.4th 499, 509–510

Cf. People v. Hsu (2000) 82 Cal.App.4th 976, 981

Seventh Holding:

Although we must draw all reasonable inferences in favor of the prosecution, a reasonable inference is one that is supported by a chain of logic, rather than, as in this case, mere speculation dressed up in the guise of evidence. A jury must avoid unreasonable inferences and not resort to imagination or suspicion. Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and does not constitute proof.

The defendant’s conduct with the victim was unquestionably harmful, but on this record, the evidence of his specific intent to commit a sexual or intimate act with the victim does not rise to a level beyond bare suspicion or conjecture. We therefore reverse the defendant’s conviction on count one and the eight-month consecutive sentence imposed for that count. This also requires us to remand the matter for full resentencing.

Authority:

People v. Lara (2017) 9 Cal.App.5th 296, 324

People v. Collins (2025) 17 Cal.5th 293, 307–308

People v. Buycks (2018) 5 Cal.5th 857, 893 [remand for full resentencing required where part of sentence is stricken on review]

Eighth Holding:

We review any express or implied factual findings underlying the trial court’s ruling for substantial evidence. We must review the record in a light most favorable to the trial court’s decision and assume any facts the trial court could have reasonably deduced from the evidence presented at trial.

Authority:

People v. Brents (2012) 53 Cal.4th 599, 618

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

Ninth Holding:

Further, the abstract of judgment and the minute order incorrectly indicate that the out-on-bail enhancement (sec. 12022.1) was attached to the misdemeanor count. The enhancement applies only to felonies. The abstract of judgment and the minute order must be corrected accordingly upon resentencing.

(Gary note: The opinion was modified a few weeks later regarding the 12022.1 enhancement. It recognized that if the primary offense (i.e., the felony on which the defendant had been released on bail,to which the 12022.1 enhancement attaches) is reversed on appeal, the enhancement must be suspended pending retrial and reimposed only upon retrial and reconviction of the primary offense.)

(Gary note: The court did not cite authority for the order for correction. Given that the case was being remanded for resentencing, the court’s comments were more for guidance of the trial court rather than an actual order correcting the documents. But there is much authority regarding the need for the abstract of judgment and the minute order to conform to the oral pronouncement of judgment, and I have set forth some below.)

Authority:

(Regarding section 12022.1 on reversal of primary count:)

PEN 12022.1(g)

(Regarding authority of court to direct the correction of abstracts of judgments and minute orders:)

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

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

Tenth Holding:

Gary note: The court declined to find that section 654 applied, but the opinion contains several principles important to know about section 654, so I’ve laid them out below.)

Section 654 prohibits multiple punishment for an act or omission that is punishable in different ways by different provisions of law. This restriction applies not only to a single act or omission, but also an indivisible course of conduct violating multiple provisions.

Authority:

People v. Latimer (1993) 5 Cal.4th 1203, 1207–1209

Eleventh Holding:

Whether a course of conduct is divisible for purposes of section 654 depends on the intent and objective of the defendant. If multiple offenses were incident to a single objective, the defendant may be punished for no more than one. However, a course of conduct divisible in time, though directed to only one objective, may give rise to multiple violations and punishment, particularly when the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.

Authority:

People v. Fuentes (2022) 78 Cal.App.5th 670, 680

People v. Andra (2007) 156 Cal.App.4th 638, 640

Twelfth Holding:

When section 654 applies, it does not allow any multiple punishment, including either concurrent or consecutive sentences. If punishment for multiple offenses is prohibited by section 654, the court must impose sentence for one of the offenses and stay sentence on the others.

Authority:

People v. Deloza (1998) 18 Cal.4th 585, 591-592

Thirteenth Holding:

If the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct.

Authority:

People v. Cleveland (2001) 87 Cal.App.4th 263, 267–268

Abstracts and Minutes, Appellate Principles, Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case 000710

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the count 4 conviction. The court erred by imposing the additional 25-year-to-life terms on counts 1 through 3. Section 1170(b) requires remand and resentencing on count 8 on which the court imposed the upper term. The court must correct the error in the abstract of judgment.

First Holding:

To prove that a defendant committed attempted murder, the prosecution must demonstrate beyond a reasonable doubt that the defendant acted with the intent to kill.T]he intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be transferred from one attempted murder victim to another under the transferred intent doctrine.

As there was no evidence that the defendant had the intent to kill, there was insufficient evidence of attempted murder. We reverse the defendant’s attempted murder conviction on count 4, and double jeopardy principles bar retrial of the charge. A finding of insufficient evidence is the functional equivalent of a judgment of acquittal, upon which retrial is prohibited.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 455, 456

Second Holding:

We cannot reduce the defendant’s attempted murder conviction to one for the lesser included offense of attempted voluntary manslaughter or the lesser related offense of assault with a firearm. To prove the crime of attempted voluntary manslaughter, the prosecution must introduce evidence demonstrating that the defendant intended to kill—evidence absent from the record here. And we are authorized to reduce a conviction only to a lesser included offense, not a lesser related offense.

Authority:

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225 [when a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence]

People v. Montes (2003) 112 Cal.App.4th 1543, 1545–1547

People v. Hamilton (2018) 30 Cal.App.5th 673, 685

People v. Parks (2004) 118 Cal.App.4th 1, 5–7 [assault with a firearm is not a lesser included offense of attempted murder]

Third Holding:

Double jeopardy principles prohibit retrying the defendant on these lesser offenses.

Authority:

People v. Anderson (2009) 47 Cal.4th 92, 103–104 The double jeopardy bar protects against a second prosecution for the same offense following an acquittal and both federal and California law generally treat greater and lesser included offenses as the same offense for purposes of double jeopardy]

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1224–1226 [double jeopardy principles prohibit retrial on a lesser related offense where, as here, the court instructs on the lesser offense and the jury is discharged without rendering a verdict on the offense]

Fourth Holding:

In addition to sentencing the defendant to LWOP on each of counts 1 through 3, the court imposed terms of 25 years to life under the Three Strikes law on each count. This was improper. The finding of a special circumstance eliminates the possibility of a 25-year-to-life sentence and leaves only the sentencing options of death or LWOP. We therefore direct the trial court on remand to strike the terms of 25 years to life imposed on each of counts 1 through 3.

Authority:

PEN 190.2(a)

People v. Rodriguez (1998) 66 Cal.App.4th 157, 164

Fifth Holding:

A defendant’s citation to a silent record is insufficient to meet his burden to demonstrate an abuse of discretion.

Authority:

People v. Coleman (2024) 98 Cal.App.5th 709, 725

Sixth Holding:

Once the court elected to impose the greater section 12022.53(d) enhancements on counts 1 through 7, it erred by failing to stay or strike the lesser section 12022.53(b) and (c) firearm enhancements. We therefore direct the trial court on remand to stay or strike the lesser firearm enhancements found true by the jury.

Authority:

People v. Gonzalez (2008) 43 Cal.4th 1118, 1122–1123 [after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed]

People v. Vizcarra (2015) 236 Cal.App.4th 422, 432 [failure to pronounce sentence for an enhancement represents an unauthorized sentence]

Seventh Holding:

The trial court violated section 1170(b) and ran afoul of the defendant’s constitutional due process and jury-trial rights by relying on unproven aggravating circumstances in imposing an upper term sentence on count 8. Under section 1170(b)(1), when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).

Paragraph (2), in turn, provides that the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Thus, section 1170(b), by its terms, governs sentences imposed pursuant to a statutory triad. It does not apply to indeterminate terms. But it does apply to count 8. The court failed to comply with section 1170(b)(5)’s requirement that it set forth on the record the facts and reasons for choosing the sentence imposed on count 8. Without any statement of reasons, we cannot properly review the propriety of the court’s selection of the upper term.

Accordingly, we direct the trial court on remand to resentence the defendant on count 8, consistent with section 1170(b). We express no opinion concerning how the court should exercise its sentencing discretion on remand, apart from requiring that it set forth the facts and reasons for choosing the sentence imposed.

Authority:

PEN 1170(b)(1) and (b)(5)

People v. Mitchell (2026) 19 Cal.5th 729

People v. May (1990) 221 Cal.App.3d 836, 838 [the absence of a statement of reasons for a sentencing decision may impede appellate review]

Eighth Holding:

Although the trial court orally awarded the defendant [more than 1300] days of actual custody credit, the last page of the written abstract of judgment reflects only [less than 300] such credits. Accordingly, we direct the court on remand to recalculate the defendant’s actual custody credits and to prepare an amended abstract of judgment that accurately reflects the court’s award of such credits.

[Gary note: the court did not separately list any citations for its order regarding the abstract of judgment. The opinion characterized the error as a clerical error in the abstract, and does not actually claim that the trial court did not adequately calculate the credits. So for your convenience, I have added below Buckhalter some additional authorities not cited by the court for its power to order the correction of abstracts of judgment.]

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23 When an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence]

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

Elements of crime, Jury instructions

Case 000704

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to instruct that the jury could find the maul to be a deadly under either of two theories–(a) that it was inherently deadly or dangerous or (b) that it was used in such a way that it was capable of causing and likely to cause death or great bodily injury.

First Holding:

Some few objects, such as dirks and blackjacks, have been held to be deadly weapons as a matter of law; the ordinary use for which they are designed establishes their character as such.

Authority:

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

Second Holding:

Add holding The trial court instructed the jury, pursuant to CALCRIM No. 3145, that if the jury found the defendant guilty of count three—vandalism—it must then decide whether the People have proved the additional allegation that the defendant personally used a deadly or dangerous weapon.

The instruction defined a deadly or dangerous weapon as any object, instrument, or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. It went on to explain that an object is inherently deadly if it is deadly or dangerous in the ordinary use for which it was designed.

The court further instructed the jury to consider all the surrounding circumstances in determining whether the object constituted a deadly or dangerous weapon.
here

Authority:

CALCRIM no. 3145

Third Holding:

For assault with a deadly weapon our high court has defined a weapon that is not inherently deadly as deadly nonetheless, when it is used in a manner likely to produce death or great bodily injury. CALCRIM No. 3145 has, in turn, adopted the same definition in defining a deadly or dangerous weapon under section 12022.

Authority:

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

People v. Stutelberg (2018) 29 Cal.App.5th 314, 317

Fourth Holding:

Whether a weapon is deadly or dangerous as used focuses on potentiality and not on an actual injury to a victim, or even physical contact. Although a mere possibility of serious injury is not enough, the question is whether serious injury was likely, even if it did not come to pass. This necessarily calls for an assessment of potential harm in light of the evidence.

Authority:

In re D.T. (2015) 237 Cal.App.4th 693, 698

In re B.M. (2018) 6 Cal.5th 528, 535

Fifth Holding:

The court committed alternative theory error by presenting the jury with two theories by which it could find the maul a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct.

Authority:

People v. Aledamat (2019) 8 Cal.5th 1, 7

Sixth Holding:

The error was factual and is subject to review under Watson. Under the Watson standard, reversal is required if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. A “probability” in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.

In making this evaluation, we may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.

Authority:

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

College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715

People v. Breverman (1998) 19 Cal.4th 142, 177, disapproved on other grounds in People v. Schuller (2023) 15 Cal.5th 237

Seventh Holding:

The prosecutor repeatedly argued during closing that a maul was an inherently dangerous weapon. Indeed, during rebuttal, the prosecutor emphasized that the maul was an inherently dangerous weapon, like a firearm, and that in just its simple design, it is deadly and dangerous.

Given the relative weakness of the evidence that the defendant used the maul in a manner likely to cause death or great bodily injury and the prosecutor’s emphasis on the inherently deadly nature of the maul, there is a reasonable chance that at least one juror could have found the enhancement true under an inherently deadly theory. We therefore reverse the deadly or dangerous weapon enhancement.

Authority:

In re Martinez (2017) 3 Cal.5th 1216, 1226–1227 [prejudice found where the prosecutor argued a legally invalid theory during closing arguments]

(Compare with) People v. Stutelberg (2018) 29 Cal.App.5th 314, 322 [finding no prejudice because the prosecutor did not expressly refer to the inherently deadly weapon theory and did not invite the jury to classify the box cutter as inherently deadly]

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000699

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for further proceedings to determine whether the prior conviction constituting a strike because it involved criminal gang activity is still a strike when examined under the changes made by AB 333 to criminal gang activity law.

First Holding:

The defendant’s 2014 prior conviction qualified as a strike only by virtue of a gang enhancement under section 186.22 for possession of a firearm by a felon. Since this conviction in 2014, the elements of the gang allegation have been statutorily modified. Prior to 2022, an allegation of a prior conviction carrying a sentence enhancement under section 186.22(b), was deemed a serious felony pursuant to section 1192.7(c)(28), and could result in a sentence under the Three Strikes law.

In 2021, the Legislature passed AB 333. Relevant here, AB 333 amended section 186.22 by redefining the elements required to prove gang offenses and enhancements and 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. In Tran, the Supreme Court held AB 333 is ameliorative legislation that applies to nonfinal judgments as provided for in In re Estrada.

Authority:

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

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

Second Holding:

In Fletcher, the Supreme Court addressed the question of whether AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of the Three Strikes law.

The Supreme Court concluded that where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law. It also held that it applies retroactively to cases in which the judgment is not yet final.

Accordingly, because there is no indication that the defendant’s 2014 conviction was obtained under AB 333’s more stringent requirements, we reverse the true finding on the strike prior and remand the matter to the trial court for further proceedings on the strike allegation.

Authority:

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

Defenses, Duty of the court, Elements of crime, Fifth Amendment, Jury instructions, Standard of review

Case 000691

Posted on by Gary McCurdy

Error and/or relief

The trial court gave an erroneous instruction on involuntary manslaughter requiring reversal. Based on the findings of the jury that the defendant was not guilty under any valid theory, we do not order retrial on the involuntary manslaughter.

First Holding:

(Gary note: I provide the following as context for the results in this opinion. These summaries are intended and designed to highlight principles of law, not so much the specific factual situation in which the error occurred. In this jury instruction error case, though, a little more factual specificity may aid the reader in understanding the more universal principles.

(In this case, the judge modified the standard instruction on involuntary manslaughter in such a way that the jury first had to find that the defendant acted in complete self-defense, and then had to determine whether he did so in a negligent matter. But that is not the law. Complete self-defense ends the question. Had the defendant acted in any way that was NOT complete self-defense, then he would not have been acting lawfully. And the jury necessarily found that he acted in complete self-defense, so it was misled by the instruction that allowed the jury to find him guilty of involuntary manslaughter.

(The opinion summarizes the context: “Here, the jury found defendant not guilty of first degree and second degree murder based on the finding that defendant acted in lawful self-defense in shooting defendant. It further found defendant not guilty of voluntary manslaughter rejecting that unreasonable self-defense was applicable. It found defendant guilty of involuntary manslaughter, finding, as recognized by the trial court, that defendant, ‘in a lawful act of self-defense, was criminally negligent in how he did it, and in his criminally negligent manner resulting in an involuntary manslaughter.’ As we have concluded, such determination was not a valid theory of involuntary manslaughter. There was no other theory of involuntary manslaughter presented to the jury. Here, the only question for the jury was whether defendant acted in reasonable self-defense in shooting [the victim] one time in the face. Once it concluded that such use of force was reasonable, it found lawful self-defense, which was a complete defense to involuntary manslaughter. The jury necessarily relied on the erroneous instruction to convict defendant of involuntary manslaughter after finding the complete defense of justifiable homicide. The error was prejudicial.”)

It is settled that in criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case. It is also well settled that this duty to instruct extends to defenses if it appears … the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.

Authority:

People v. Brooks (2017) 3 Cal.5th 1, 73

Second Holding:

In reviewing a claim that the court’s instructions were incorrect or misleading, we inquire whether there is a reasonable likelihood the jury understood the instructions as asserted by the defendant. We consider the instructions as a whole and assume the jurors are intelligent persons capable of understanding and correlating all the instructions.

Authority:

People v. Butler (2010) 187 Cal.App.4th 998, 1013

Third Holding:

Murder is the unlawful killing of a human being with malice aforethought. Manslaughter is the unlawful killing of a human being without malice. A defendant lacks malice and is guilty of voluntary manslaughter in limited, explicitly defined circumstances: either when the defendant acts in a sudden quarrel or heat of passion, or when the defendant kills in unreasonable self-defense—the unreasonable but good faith belief in having to act in self-defense.

Authority:

PEN 192

People v. Elmore (2014) 59 Cal.4th 121, 132

People v. Blakeley (2000) 23 Cal.4th 82, 87-88

Fourth Holding:

A defendant commits involuntary manslaughter by committing a homicide with the mens rea of criminal negligence. The offense must be based on one of three predicate acts: (1) killing in the commission of a misdemeanor ; (2) killing in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; or (3) killing in the commission of a noninherently dangerous felony committed without due caution and circumspection.

The performance of an act with criminal negligence supplies the criminal intent for involuntary manslaughter, regardless whether the conduct underlying the offense is a misdemeanor, a lawful act, or a noninherently dangerous felony.

Authority:

People v. Sevilla (2025) 115 Cal.App.5th 618, 626

Fifth Holding:

A killing in perfect self-defense is justifiable homicide. Perfect self-defense requires that one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. Imperfect self-defense reduces an intentional and unlawful killing to voluntary manslaughter. Imperfect self-defense occurs when defendants act in the actual but unreasonable belief they are in imminent danger of great bodily injury or death.

Authority:

People v. Odell (2023) 92 Cal.App.5th 307, 321

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

Sixth Holding:

In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole and assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.

Authority:

People v. Jo (2017) 15 Cal.App.5th 1128, 1172

Amelioration, Appellate Principles, Elements of crime, Sentencing, Standard of review

Case 000681

Posted on by Gary McCurdy

Error and/or relief

The defendant was not foreclosed from filing a new petition for recall of his sentence under section 1172.6. The matter is remanded with directions to the court to issue an order to show cause and conduct an evidentiary hearing pursuant to section 1172.6(d).

First Holding:

Effective January 1, 2019, SB 1437 altered the substantive law of murder in two areas.

First, the bill narrowed the scope of the felony-murder rule so that a participant in the perpetration or attempted perpetration of a specified felony in which a death occurs can be liable for murder only if (1) the person was the actual killer, or (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, or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Second, the bill eliminated liability for murder as an aider and abettor under the natural and probable consequences doctrine by requiring that, except in cases of felony murder, a principal in a crime shall act with malice aforethought to be convicted of murder. Now, malice shall not be imputed to a person based solely on his or her participation in a crime.

Additionally, SB 1437 added section what is now 1172.6, to provide a procedure for those convicted of a qualifying offense to seek relief where the two substantive changes described above affect a defendant’s conviction. Under section 1172.6, an offender seeking resentencing must first file a petition in the sentencing court, and the sentencing court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. If the sentencing court determines the petitioner has made a prima facie showing, the court must issue an order to show cause and hold a hearing to determine whether to vacate the murder conviction.

Authority:

SB 1437

PEN 188(a)

PEN 189(e)

PEN 1172.6

People v. Curiel (2023) 15 Cal.5th 433, 448-449

People v. Arellano (2024) 16 Cal.5th 457, 467–468

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

Second Holding:

In general, whether a prior finding will be given conclusive effect in a later proceeding is governed by the doctrine of issue preclusion, also known as collateral estoppel. This doctrine bars relitigation of issues earlier decided only if several threshold requirements are fulfilled.

First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding.

Second, this issue must have been actually litigated in the former proceeding.

Third, it must have been necessarily decided in the former proceeding.

Fourth, the decision in the former proceeding must be final and on the merits.

Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. The party asserting collateral estoppel bears the burden of establishing these requirements.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 715

People v. Curiel (2023) 15 Cal.5th 433, 452

Third Holding:

Even if the threshold requirements are satisfied, the doctrine will not be applied if such application would not serve its underlying fundamental principles of promoting efficiency while ensuring fairness to the parties. One well-settled equitable exception to the general rule of issue preclusion holds that preclusion does not apply when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue.

This exception ensures basic fairness by allowing for relitigation where the change in the law is such that preclusion would result in a manifestly inequitable administration of the laws. It also reflects a recognition that in the face of this sort of legal change, the equitable policies that underlie the doctrine of issue preclusion–preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation—are at an ebb.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 716

People v. Curiel (2023) 15 Cal.5th 433, 454

Fourth Holding:

We independently review a trial court’s issue preclusion ruling.

Authority:

People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238–1239

Fifth Holding:

In 2022, after the rulings on the defendant’s initial petitions, the law changed. As relevant here, section 1172.6 was amended, effective January 1, 2022, so as to provide that, at the hearing to determine whether the defendant is entitled to relief, the court may consider the procedural history of the case recited in any prior appellate opinion. Subsequently, multiple Courts of Appeal interpreted this provision to prohibit a trial court from considering the factual summary in a prior appellate opinion, even at the prima facie stage. This is a significant and relevant change in the law.

Authority:

People v. Bratton (2023) 95 Cal.App.5th 1100, 1113

People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1238

People v. Lee (2023) 95 Cal.App.5th 1164, 1183

Sixth Holding:

The record of conviction will necessarily inform the trial court’s prima facie inquiry, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. However, the prima facie inquiry is limited. At this stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to section 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense.

A court should 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. Curiel (2023) 15 Cal.5th 433, 463

Seventh Holding:

We independently review a trial court’s decision to deny a section 1172.6 petition for resentencing at the prima facie stage.

Authority:

People v. Gaillard (2024) 99 Cal.App.5th 1206, 121

Eighth Holding:

The defendant has prima facie established that he is eligible for relief because of the changes made to sections 188 and 189, and the record of conviction shows that both he and another individual were charged with murdering the victim. This alone is ordinarily enough to establish a prima facie case. Here, there is nothing in the record of conviction that demonstrates the defendant is ineligible for relief.

Authority:

People v. Mares (2024) 99 Cal.App.5th 1158, 1173 [If a defendant who faced a murder charge before SB 1437 pled guilty and the record contains any indication he had an accomplice who may have been the killer, a prima facie case ordinarily would be readily established, even by conclusory assertions in a form petition]

People v. Muhammad (2024) 107 Cal.App.5th 268, 280 [same]

Ninth Holding:

The charging document did not specify any particular theory of first degree murder, nor did it need to. Only a single statutory offense of murder exists. It has long been the law in this state that an accusatory pleading charging murder need not specify the manner in which the murder was committed. Nor does an accusatory pleading need to specify the theory of murder on which the prosecution relies at trial. Specifically, neither felony murder nor murder under the natural and probable consequences doctrine need be separately pleaded. Accordingly, the complaint allowed the prosecutor to proceed under now-invalid theories.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 338

People v. Muhammad (2024) 107 Cal.App.5th 268, 277

TENTH Holding:

The People refer to the probation report to establish that the defendant is not eligible. But it is not clear that the probation report can even be considered at this stage of the proceeding. The People have not cited a single case, nor are we aware of one, holding that a probation report is part of the record of conviction that can be considered at the prima facie stage. In fact, while in a different context, courts have held otherwise.

Authority:

People v. Burnes (2015) 242 Cal.App.4th 1452, 1458 [A probation report ordinarily is not part of the record of conviction]

Appellate Principles, Elements of crime, Jury trial, Pleading, Sentencing, Sixth Amendment

Case 000680

Posted on by Gary McCurdy

Error and/or relief

The court committed three errors requiring reversal. It improperly imposed the upper term on the felony offense by considering an aggravating factor that the jury did not find. It improperly refused to award the defendant certain sentencing credits without giving him notice that it might do so. The defendant’s conduct can support only one conviction for drawing and exhibiting a firearm in an angry or threatening manner, not three convictions.

First Holding:

After the jury found the defendant guilty on all counts, the prosecution presented evidence and argument to the jury on the aggravating factors that his unlawful possession of a firearm (1) was of increasing seriousness in relation to his earlier misdemeanor conviction and (2) occurred while he was on probation.

The jury found only the latter aggravating factor true. In selecting the upper term, the court relied on factors including that the defendant was armed and engaged in violent conduct, which indicates a danger to society, as well as the jury’s finding that he was on probation at the time of the offenses.

The trial court clearly erred by relying on an aggravating circumstance that the jury did not find—i.e., that the defendant engaged in violent conduct, which indicates a danger to society.

Authority:

Cal. Rules of Court, rule 4.421(b)(1)

People v. Wiley (2025) 17 Cal.5th 1069, 1076 [criminal defendants are entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose them to imposition of a sentence more serious than the statutorily provided midterm]

Second Holding:

We do not have enough confidence to conclude beyond a reasonable doubt that a jury would have found that circumstance in aggravation true beyond a reasonable doubt. Therefore, we remand for resentencing.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087 [this kind of sentencing error requires reversal and remand unless the reviewing court concludes beyond a reasonable doubt that a jury would have found true all aggravating facts relied on to justify the upper term; the error is not harmless if the record contains evidence that could rationally support a contrary finding regarding the aggravating fact at issue]

Third Holding:

A circumstance that is an element of the substantive offense cannot be used as a factor in aggravation. This prohibition applies only if the crime as defined by statute cannot be accomplished without performance of the acts which constitute such factor.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1261-1262

Fourth Holding:

The People contend that the defendant forfeited his claims of improper sentencing by not raising them in the trial court. We exercise our discretion to consider them in the interests of justice.

Authority:

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1143 [in the interests of justice we have decided to overlook forfeiture, and remand the matter for resentencing]

Fifth Holding:

A single act of brandishing a firearm in the presence of multiple people can support only a single conviction for brandishing. Brandishing a deadly weapon in the presence of another person is not a crime of violence upon that person, but is committed in someone’s presence, a single act of brandishing can only support a conviction of a single count no matter how many people witness the act. Two of the three brandishing counts are reversed.

Authority:

In re Peter F. (2005) 132 Cal.App.4th 877, 881

Sixth Holding:

The general rule is that on remand for resentencing the trial court may reconsider all sentencing choices.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976

Seventh Holding:

The trial court erred in denying section 4019 conduct credits to the defendant at sentencing without giving him notice that it might do so.

Authority:

People v. Lara (2012) 54 Cal.4th 896, 906 [defendant is entitled to notice of the facts that restrict his ability to earn credits and, if he does not admit them, a reasonable opportunity to prepare and present a defense]