Category Archives: Elements of crime

Appellate Principles, Elements of crime, Plea bargains

Case 000679

Posted on by Gary McCurdy

Error and/or relief

Count ten as pled created a legal impossibility requiring reversal of the trial court’s acceptance of defendant’s plea agreement.

First Holding:

A claim not presented in the opening brief and was first raised in the appellant’s reply brief is deemed waived.

Authority:

People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9

Second Holding:

Generally, a guilty or no contest plea precludes appellate consideration of issues related to guilt or innocence, including the sufficiency of the evidence to support the conviction. Nonetheless, a defendant may still assert that his, her, or their admission included a legal impossibility.

Authority:

People v. Palmer (2013) 58 Cal.4th 110, 114

People v. Voit (2011) 200 Cal.App.4th 1353, 1365

Third Holding:

The term ‘legal impossibility,’ as applied to a choate [sic] crime, is merely a catch phrase for saying that, as a matter of law, the statute under which the defendant is charged does not prohibit his, her, or their conduct. Put another way, legal impossibility exists when the facts as admitted cannot constitute the crime pled to, such as where the victim’s characteristics fall outside of the statutory definition.

Authority:

People v. Jerome (1984) 160 Cal.App.3d 1087, 1094, 1099 [setting aside plea to oral copulation of a minor under 14 where the victim was 15]

People v. Richardson (2021) 65 Cal.App.5th 360, 371-375 [setting aside no contest plea to human trafficking of a minor where victim was not a minor]

People v. Soriano (1992) 4 Cal.App.4th 781 [a death certificate is not an instrument within the meaning of section 115, so it was legally impossible for the defendant to be guilty of section 115 for attempting to forge a death certificate]

Fourth Holding:

We conclude that because section 134 [essentially, falsifying a document for a fraudulent or deceitful purpose] is not one of the specifically enumerated offenses in section 653f(a) [solicitation of another to commit specified crimes] and given that the elements of a section 134 offense do not necessarily establish one of the specifically enumerated offenses, defendant’s plea to violating section 653f(a) by committing a violation of section 134 has resulted in a legal impossibility requiring reversal.

Authority:

People v. Soriano (1992) 4 Cal.App.4th 781, 784, 786

Appellate Principles, Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000671

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to support the conviction for sexual penetration by force upon a child.

First Holding:

To evaluate the defendant’s challenge to the sufficiency of the evidence, we must review the entire record in the light most favorable to the judgment, and then determine whether it contains evidence that is reasonable, credible, and of solid value such that a reasonable jury could have found the defendant guilty beyond a reasonable doubt.  

We must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

But we cannot, however, venture beyond the evidence presented at trial, and may consider only those inferences that are reasonably supported by the record. A reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. It must logically flow from other facts established in the action, and it cannot be based entirely on the suspicions of the officers involved in the case and the conjecture of the prosecution.

Authority:

People v. Ware (2022) 14 Cal.5th 151, 167–168

Second Holding:

In reviewing the sufficiency of the evidence to determine whether retrial is permissible for purposes of double jeopardy, we must consider all of the evidence presented at trial, including evidence that should not have been admitted. Because the record contains no evidence that could support a reasonable inference that the defendant sexually penetrated the victim with a foreign object, insufficient evidence supports a verdict of guilt on that count. Double jeopardy bars retrial on that count.

Authority:

People v. Story (2009) 45 Cal.4th 1282, 1296

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

Third Holding:

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.

Authority:

PEN 1181(6)

PEN 1260

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225

People v. Navarro (2007) 40 Cal.4th 668, 677

Elements of crime, Fifth Amendment, Standard of review

Case 000663

Posted on by Gary McCurdy

Error and/or relief

Substantial evidence does not support the defendant’s conviction for exhibiting harmful matter to a minor.

First Holding:

The law governing sufficiency-of-the-evidence challenges is well established. In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt.

We neither reweigh the evidence nor reevaluate the credibility of witnesses. We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict.

Authority:

People v. Jennings (2010) 50 Cal.4th 616, 638-639

People v. Zamudio (2008) 43 Cal.4th 327, 357

Second Holding:

Under section 288.2(c), “harmful matter” is defined in section 313. Section 313(a) states that harmful matter means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

This definition is virtually identical to the constitutional standard of obscenity set forth in Miller. We conclude the record does not contain evidence from which a jury could reasonably find the video the defendant showed them minor was harmful matter within the meaning of section 288.2(a)(2) and section 313. Therefore, substantial evidence does not support the defendant’s conviction, and we will reverse the judgment and remand for resentencing.

Authority:

Miller v. California (1973) 413 U.S. 15, 24

People v. Dyke (2009) 172 Cal.App.4th 1377, 1383

Third Holding:

Nudity or depictions of sexual intercourse or other sexual activity do not, by themselves, make a movie obscene.

Authority:

People v. Powell (2011) 194 Cal.App.4th 1268, 1291

Fourth Holding:

The defendant may not be retried on this count.

Authority:

United States v. DiFrancesco (1980) 449 U.S. 117, 131

Appellate Principles, Discretion, Due process, Elements of crime, Pleading, Sentencing, Standard of review

Case 000654

Posted on by Gary McCurdy

Error and/or relief

The court imposed the wrong sentence for the consecutive term.

First Holding:

In one count, the defendant was convicted of second degree robbery (sec. 211). At sentencing, the trial court imposed an aggravated term of five years, which was ordered to be served consecutively at a subordinate term of one year four months. Because the robbery was a second degree felony, the middle term is three years in prison. As such, the consecutive subordinate term must be one-third the middle term, or one year. Thus, the sentence on that count must be reduced from 16 months to one year. We may correct this unauthorized sentence on appeal without remanding for a full resentencing.

Authority:

PEN 1170.1(a)

PEN 1260

People v. Lawley (2002) 27 Cal.4th 102, 171–172

Second Holding:

The defendant argues that he should have been charged with only one count of attempting to dissuade a witness rather than the 10 charged and found true. The ten calls all occurred on the same day over a span of six hours. The issue is whether appellant may be lawfully subject to multiple convictions. We review this claim de novo.

Authority:

PEN 954

People v. Duffy (2020) 51 Cal.App.5th 257, 261

Third Holding:

Section 954 defines what charges can be joined in one action. This statute does not permit multiple convictions for the same offense based on the same act or course of conduct. However, section 954 authorizes multiple convictions for different or distinct offenses. As a result, a defendant may be convicted of multiple counts of the same crime, such as grand theft, based on separate and distinct criminal acts, even if the acts were all part of a single overarching scheme.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 650

People v. Whitmer (2014) 59 Cal.4th 733, 74

Fourth Holding:

Determining whether a defendant has committed one or more criminal acts requires identifying what the Legislature intended to punish as a single offense under the relevant statute. Courts refer to this inquiry as determining the statute’s unit of prosecution. Courts should look to the characteristics of the crime, including both (1) the factual circumstances of the defendant’s criminal conduct and (2) the elements of the crime as defined by the Legislature in the relevant statute.

Authority:

Moore v. Superior Court (2020) 57 Cal.App.5th 441, 461

People v. Wilson (2015) 234 Cal.App.4th 193, 199-200

People v. Whitmer (2014) 59 Cal.4th 733, 744 (conc. opn. of Liu, J.)

Fifth Holding:

Section 136.1(a)(2) makes it a crime to knowingly and maliciously attempt to prevent or dissuade a witness from attending or giving testimony at a trial, proceeding or inquiry authorized by law. In relevant part, malice is defined under this statute as an intent to thwart or interfere in any manner with the orderly administration of justice. This crime is completed upon any attempt.

Authority:

PEN 136.1

People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519

Sixth Holding:

A trial court’s decision whether to impose consecutive or concurrent sentences is reviewed for an abuse of discretion. A defendant bears the burden to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, a reviewing court presumes the trial court acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on appeal. Moreover, a decision will not be reversed merely because reasonable people might disagree. Instead, the decision must be so irrational or arbitrary that no reasonable person could agree with it.

Authority:

PEN 669(a)

People v. Giminez (1975) 14 Cal.3d 68, 71–72

People v. Carmony (2004) 33 Cal.4th 367, 376–377

Seventh Holding:

Once a trial court lawfully decides to impose consecutive sentences on convictions for violating section 136.1, section 1170.15 applies. If a person is convicted of a felony, and of an additional felony that is a violation of section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony the Penal Code provides that those subordinate terms shall consist of the full middle term.

Authority:

PEN 1170.15

Eighth Holding:

In relevant part, the rule against the dual use of facts prohibits a trial court from relying on the same fact “to impose both the upper term and a consecutive sentence. Only a single factor in aggravation is needed to support imposition of an upper term. Likewise, only one relevant and sustainable fact may explain a series of consecutive sentences. We presume the trial court acted to achieve legitimate sentencing objectives

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12

People v. Osband (1996) 13 Cal.4th 622, 730

People v. Carmony (2004) 33 Cal.4th 367, 376-377

Ninth Holding:

There is a developing split of authority regarding application of the forfeiture doctrine regarding the low term presumption under section 1170(b)(6). We need not decide that issue. Although the court did not specifically mention subdivision (b)(6), we presume it knew of that provision.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1039, 1044 [forfeiture doctrine applied when defendant failed to raise in the trial court the presumption in favor of a lower term]

People v. Fredrickson (2023) 90 Cal.App.5th 984, 994, fn. 8 [sec. 1170 mandates application of the lower term presumption and is not subject to forfeiture]People v. Caparrotta (2024) 103 Cal.App.5th 874, 905

Tenth Holding:

Under the cumulative error doctrine, errors that are individually harmless may nevertheless have cumulative prejudice. A claim of cumulative error is essentially a due process challenge. The issue is whether the defendant received a fair trial. Here, appellant’s claim of cumulative prejudice is without merit because we have rejected the individual claims. After reviewing the entire record, we are confident that appellant received due process throughout the entire proceeding, including sentencing.

Authority:

In re Avena (1996) 12 Cal.4th 694, 772, fn. 32

People v. Rivas (2013) 214 Cal.App.4th 1410, 1436

People v. Bradford (1997) 14 Cal.4th 1005, 1057

People v. Cunningham (2001) 25 Cal.4th 926, 1009 [a defendant is “entitled to a fair trial but not a perfect one”]

Appellate Principles, Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case 000624

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by failing to instruct the jury regarding unlawful detention or unlawful arrest. The judgment is reversed. Because there was sufficient evidence that a properly instructed jury could have returned the same verdict, double jeopardy principles do not apply and the matter may be retried.

First Holding:

All criminal defendants have the right to a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Thus, the trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense.

A claim of instructional error is reviewed de novo. An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law.

Similarly, if the trial court decides to provide supplemental instruction to the jury during deliberation, we review de novo the legal accuracy of any supplemental instructions provided.

Authority:

People v. Merritt (2017) 2 Cal.5th 819, 824

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Parker (2025) 113 Cal.App.5th 1261, 1271

Second Holding:

Section 69 provides that every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law is punishable by a fine or by imprisonment. Similarly, section 148(a)(1) prohibits resisting an officer in the performance of duty, though the resistance need not be forceful or violent.

Authority:

PEN 69

PEN 148

People v. Hupp (2023) 96 Cal.App.5th 946, 950

In re A.L. (2019) 38 Cal.App.5th 15, 22

Third Holding:

The lawfulness of an officer’s conduct is an essential element of both offenses because there is no distinction between performing a duty and lawfully performing a duty, since an officer who is acting unlawfully cannot be said to be performing his or her duty. And the prosecution has the burden of proving the lawfulness of the officers’ conduct beyond a reasonable doubt. Thus, the lawfulness of the officers’ conduct is an essential element upon which the trial court had a sua sponte duty to properly instruct the jury.

Authority:

In re A.L. (2019) 38 Cal.App.5th 15, 25

People v. Southard (2021) 62 Cal.App.5th 424, 435

Fourth Holding:

To convict defendant of a violation of section 69 or 148, the prosecution was required to prove, and the jury was required to find, that officers were engaged in the lawful performance of their duties. The pattern jury instructions include definitions for various scenarios in which an officer can be considered engaged in a lawful performance of duty, including during a detention, an arrest without a warrant, and an arrest for a misdemeanor offense. (CALCRIM 2670.)

However, the trial court did not give any of these definitions to the jury. Nor did the trial court offer its own definition for the jury to consider. In essence, the trial court instructed the jury that it was required to find that the officers were engaged in a lawful performance of duty but provided no definitions or guidance to the jury regarding how to make this finding. This was clearly error.

Authority:

People v. Serrano (2022) 77 Cal.App.5th 902, 913 [Where a term or phrase has a special definition for purposes of a statute, the failure to define it for the jury is error.]

People v. Reyes (1992) 2 Cal.App.4th 1598, 1601 [Failure to define terms essential to an element of an offense is “equivalent to the omission of an element from the definition of the crime given to the jury.]

Fifth Holding:

The question of reasonable or probable cause is ordinarily one for the court and, where there are disputed facts to be resolved by a jury, the jury is to be told that if it finds the facts in a designated way such facts do or do not amount to probable cause.

Authority:

Roberts v. City of Los Angeles (1980) 109 Cal.App.3d 625, 629-630

Sixth Holding:

Whether an offense has been committed in an officer’s presence is determined by whether the officer could testify to actual knowledge to every element of the offense.

Authority:

People v. Garrison (1961) 189 Cal.App.2d 549, 557

In re Alonzo C. (1978) 87 Cal.App.3d 707, 714

People v. Welsch (1984) 151 Cal.App.3d 1038, 1044

Seventh Holding:

When the jury is misinstructed on an element of the offense reversal is required unless we are able to conclude that the error was harmless beyond a reasonable doubt. In such cases, a reviewing court must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error. Here, we cannot say with any confidence that the jury would have reached the same verdict had it been properly instructed in this case.

Authority:

People v. Wilkins (2013) 56 Cal.4th 333, 348

People v. Merritt (2017) 2 Cal.5th 819, 831

Eighth Holding:

It has long been settled that the Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction. However, a settled exception to this rule permitting retrial after a successful appeal occurs when a conviction has been reversed due to insufficiency of the evidence.

Thus, even where reversal is required based on instructional error, an appellant’s arguments regarding insufficiency of the evidence should be considered to determine whether retrial is barred by double jeopardy principles. The inquiry at this stage is to determine whether, if properly instructed, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Authority:

People v. Wilson (2023) 14 Cal.5th 839, 852-853

People v. Wetle (2019) 43 Cal.App.5th 375, 388

People v. Hallock (1989) 208 Cal.App.3d 595, 608-609;

In re Martinez (2017) 3 Cal.5th 1216, 1224 [Where instructional error occurs, retrial is barred if defendant can show there was insufficient evidence to support a conviction even when the law is properly construed.]

Ninth Holding:

While an offense may be considered a “wobbler” punishable as either a misdemeanor or felony, its status as a wobbler has no bearing on the lawfulness of a warrantless arrest. This is because the commission of a wobbler is a felony at the time it is committed and remains deemed a felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by the sentencing court.

Authority:

People v. Moomey (2011) 194 Cal.App.4th 850, 857-858

People v. Statum (2002) 28 Cal.4th 682, 685

Amelioration, Elements of crime, Sentencing

Case 000615

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals an order partially denying her request for resentencing under Penal Code section 1172.75. We reverse the order because she was entitled to have the court consider her eligibility for ameliorative relief under changes to the former version of section 186.22 (under which she had been convicted) made by AB 333.

First Holding:

The defendant’s judgment became nonfinal when she returned to the trial court under section 1172.75 for recall and resentencing. Section 1172.75 provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense, is legally invalid.

Once the trial court verifies the current judgment includes the enhancement, the court shall recall the sentence and resentence the defendant. When resentencing the defendant, the court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

By the plain language of the statute, the defendant was entitled to be considered for any legislative enactments that might provide for a reduction of sentence.

Authority:

PEN 1172.75

People v. Saldana (2023) 97 Cal.App.5th 1270, 1276

Second Holding:

In the criminal law context, when ameliorative legislation goes into effect, we generally presume the Legislature intends the benefits of the new enactment to apply as broadly as constitutionally permissible to all nonfinal cases. For purposes of Estrada, the test for finality is whether the criminal prosecution or proceeding as a whole is complete.

The meaning of finality in the Estrada context is distinct from the issue of whether a judgment is final for purposes of appealability. In the context of recall and resentencing, a granting of a petition for resentencing renders a conviction nonfinal for purposes of retroactive application of ameliorative legislation.

Authority:

In re Estrada (1965) 63 Cal.2d 740, 745

People v. Esquivel (2021) 11 Cal.5th 671, 679

People v. Lopez (2025) 17 Cal.5th 388, 392-393

People v. Trent (2025) 112 Cal.App.5th 251 [defendant entitled to retroactive application of Assembly Bill No. 333 upon resentencing under section 1172.6 based on changes to felony murder rule]

People v. Keel (2022) 84 Cal.App.5th 546, 551 [defendant entitled to retroactive application for Proposition 57 and Senate Bill No. 1391 (2017–2018 Reg. Sess.) upon resentencing pursuant to section 1172.6]

Third Holding:

In 2021, the Legislature passed AB 333, enacting the STEP Forward Act of 2021. AB 333 made several changes to the law on gang enhancements.

First, it substantively narrowed the definition of a criminal street gang.

Second, it also changed former subdivision (f)’s requirement that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang to now require that any such pattern be collectively engaged in by members of the gang.

Third, it also narrowed the definition of a pattern of criminal activity by requiring that (l) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as oppose to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, it narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. The defendant was entitled to the benefit of AB 333 because her judgment was not final when the court engaged in resentencing pursuant to section 1172.75

Authority:

PEN 186.22

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

Elements of crime, Sentencing

Case 000614

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of being a felon in possession of a firearm and a felon in possession of an assault weapon. The trial court erred in sentencing defendant separately on his firearm possession convictions and remand for resentencing consistent with section 654 to stay either one of defendant’s firearm possession convictions.

First 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. 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 of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

The defendant’s intent and objective are factual questions for the trial court; to permit multiple punishments, there must be evidence to support the finding the defendant formed a separate intent and objective for each offense for which he was sentenced.

Authority:

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

People v. Capistrano (2014) 59 Cal.4th 830, 885, 886, overruled on other grounds in People v. Hardy (2018) 5 Cal.5th 56, 104

People v. Coleman (1989) 48 Cal.3d 112, 162

Second Holding:

These convictions arose from possession of the same weapon. Specifically, law enforcement officers found a handgun in a shoebox located in defendant’s living room, which was the basis for both firearm possession convictions. Accordingly, defendant may only be punished once for his act of possessing the handgun.

Authority:

People v. Jones (2012) 54 Cal.4th 350, 357 [a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654]

Appellate Principles, Elements of crime, Sentencing, Sufficiency of and substantial evidence, Vicarious liability

Case 000608

Posted on by Gary McCurdy

Error and/or relief

The denial of the defendant’s motion for recall of sentence under section 1172.6 is reversed, and the court is directed to grant the petition. After examination of all the evidence, we conclude that there is insufficient evidence to support any theory today under which the defendant coould be convicted of murder.

First Holding:

The defendant was the assigned getaway driver who was not present in the building where the robbery took place. A bystander was killed by the police during the confrontation between the other defendants and the police. The defendant entered a plea bargain in which he pleaded guilty to one count of felony murder. First degree implied malice murder is not a valid theory of conviction for an accomplice under the provocative act theory of murder; the accomplice must harbor express malice–the specific intent to kill–in order to be properly convicted of first degree murder under this theory.

Authority:

People v. Concha (2009) 47 Cal.4th 653, 662

Second Holding:

The felony murder rule is not applicable where the killing was committed by a third party (e.g., police officer) who was not involved in the perpetration of the underlying felony. Because the felony murder rule is not applicable to these facts, the Banks/Clark inquiry as to the degree of defendant’s participation in the robbery and whether he displayed reckless indifference to human life during the course of the robbery is also inapplicable.

The provocative act murder doctrine arose as an alternative to felony-murder liability in circumstances where the killing was committed by a third party who was not involved in the perpetration of the underlying felony. A provocative act murder case necessarily involves at least three people—the perpetrator of the underlying offense, an accomplice, and a victim of their crime.

Authority:

People v. Taylor (2025) 108 Cal.App.5th 849, 861, 866

People v. Clark (2016) 63 Cal.4th 522

People v. Banks (2015) 61 Cal.4th 788

People v. Antonelli (2025) 17 Cal.5th 719, 727

Third Holding:

SB 1437, which took effect on January 1, 2019, limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, to ensure that a person’s sentence is commensurate with his or her individual criminal culpability.

Authority:

People v. Gentile (2020) 10 Cal.5th 830, 842-844

Fourth Holding:

This court will ignore the findings purportedly made by the trial court following the remand from the court in the earlier appeal, as they were outside the scope of the remittitur. The remittitur defines the scope of the trial court’s jurisdiction to act, and action which does not conform to the reviewing court’s directions is unauthorized and void. Trial courts are bound by the directions given by a reviewing court and have no authority to retry any other issue or to make any other findings; the court’s authority is limited wholly and solely to following the directions of the reviewing court.

Authority:

In re J.M. (2024) 103 Cal.App.5th 745, 755

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367

Fifth Holding:

Murder is the unlawful killing of a human being with malice aforethought. The requisite malice may be express or implied. 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.

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. The defendant’s life-endangering act must proximately cause the victim’s death and to suffice for implied malice murder, the defendant’s act must involve a high degree of probability that it will result in death.

A relevant life-endangering act is one that proximately causes the victim’s death. It is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the death of the victim and without which the death would not occur.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988-989

People v. Cervantes (2016) 26 Cal.4th 860, 866

Sixth Holding:

Notwithstanding SB 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. Reyes (2023) 14 Cal.5th 981, 990

Seventh 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.

The direct aider and abettor must, therefore, act with intent to aid the life-endangering act of the direct perpetrator that proximately causes the death. Implied malice murder requires attention to the aider and abettor’s mental state concerning the life endangering act committed by the direct perpetrator, such as shooting at the victim.

The aider and abettor must know the direct perpetrator intends to commit the murder or life-endangering act and intend to aid the direct perpetrator in its commission. It is this mental relationship to the perpetrator’s acts that confers liability on the aider and abettor.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990-992

People v. Collins (2025) 17 Cal.5th 293, 311

People v. Curiel (2023) 15 Cal.5th 433, 468

Eighth Holding:

We remand the case with directions to grant the petition and resentence defendant on the underlying offense of robbery.

Authority:

People v. Dixon (2026) 118 Cal.App.5th 116, 137, fn. 3 [Granting the petition for resentencing, as opposed to ordering a new evidentiary hearing, may be the appropriate remedy where a petitioner successfully demonstrates no substantial evidence supports the denial of a section 1172.6 petition even considering erroneously admitted evidence at an evidentiary hearing]

Amelioration, Elements of crime, Sentencing

Case 000607

Posted on by Gary McCurdy

Error and/or relief

Because the prior strikes were incurred before the AB 333 amendments to criminal gang activity laws, and were dependent on gang activity findings made under the old law, the sentence is reversed and the matter is remanded for the court to determine whether those prior convictions would still be considered strikes under the current law on gang activity crimes.

Holding:

Effective January 1, 2022, AB 333 (2021–2022 Reg. Sess.) significantly modified the elements of gang-related offenses and enhancements. After appellant was sentenced, the California Supreme Court issued its opinion in Fletcher. In Fletcher, the high court held that when a defendant has a conviction under the prior version of section 186.22, whether that conviction still qualifies as a prior serious felony for purposes of the “Three Strikes” law and prior serious felony enhancements must be viewed under the current version of section 186.22. Because the sentence is vacated, the court shall conduct a full resentencing consistent with current law.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 608

People v. Buycks (2018) 5 Cal.5th 857, 893

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

Case 000606

Posted on by Gary McCurdy

Error and/or relief

The jury found the defendant guilty of two felonies (maintaining a place for the purpose of using, selling, or giving away a controlled substance and felon in position of ammunition) and several misdemeanors (possession of cocaine, cultivating more than six marijuana plants, and possession of marijuana).

We conclude that two felony convictions must be reversed, the fee and assessment imposed for the possession of more than 28.5 grams of marijuana conviction must be reversed, either the possession of marijuana misdemeanor or the cultivating more than six marijuana plants misdemeanor must be stayed pursuant to section 654, and the four clerical errors in the judgment must be corrected.

First Holding:

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.

Appellate courts presume in support of the judgment every fact that the trier of fact could reasonably deduce from the evidence. Appellate courts also properly consider erroneously admitted evidence, notwithstanding the erroneous admission. Appellate courts do not resolve credibility issues or evidentiary conflicts. A judgment will not be reversed for insufficiency of the evidence merely because the circumstances may also be reasonably reconciled with a conclusion contrary to the judgment.

Authority:

People v. Cardenas (2025) 18 Cal.5th 797, 821

People v. Brooks (2017) 3 Cal.5th 1, 57

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

People v. Jackson (2014) 58 Cal.4th 724, 749

Second Holding:

Every person who opens or maintains any place for the purpose of unlawfully selling, giving away, or using any controlled substance as identified in particular sections of the Health and Safety Code shall be punished by imprisonment in the county jail for a period of not more than one year or the state prison. Because of the disjunctive “or,” section 11366 does not require that the place be maintained for the purpose of selling; it can be violated without selling, merely by providing a place for drug abusers to gather and share their experience.

Section 11366 proscribes continuously selling, giving away, or using a controlled substance; a single or isolated instance of this forbidden conduct is insufficient. Further, section 11366 is violated by selling or giving away to others, or allowing others to use, a controlled substance in a place maintained or opened for that purpose; it is not violated by an individual’s repeated personal use of a controlled substance at his home.

Authority:

HSC 11366

People v. Franco (2009) 180 Cal.App.4th 713, 716, 718

People v. Vera (1999) 69 Cal.App.4th 1100, 1102-1103 and fn. 2

People v. Green (1988) 200 Cal.App.3d 538, 544

People v. Shoals (1992) 8 Cal.App.4th 475, 490, 492

Third Holding:

In determining whether a place is opened or maintained for the purpose of selling, giving away, or using a controlled substance, the trier of fact should consider the surrounding circumstances, including: the quantity of any controlled substance discovered; the character of the place opened or maintained; how the place is fitted up; whether other individuals visited the place in unusual numbers or at unusual times; whether other individuals who were under the influence of a controlled substance were found at the place; whether lookouts were posted near or at the place; whether a password or passcode was needed for entry into the place; any pertinent statements by the defendant or those found at the premises; and whether any drug paraphernalia or drug residue was found in the place.

However, the quantity of controlled substance discovered at a place is alone insufficient to show that the place was maintained or opened for the purpose of continuously selling, giving away, or using a controlled substance.

Authority:

People v. Franco (2009) 180 Cal.App.4th 713, 726

People v. Hawkins (2004) 124 Cal.App.4th 675, 683

People v. Shoals (1992) 8 Cal.App.4th 475, 491-492

People v. Cannon (1957) 148 Cal.App.2d 163, 168

Fourth Holding:

Health and Safety Code section 11366 prohibits opening or maintaining a place for the purpose of selling, using, or giving away a controlled substance; it does not prohibit opening or maintaining a place for the purpose of growing or cultivating a controlled substance/marijuana. (Cf. sec. 11366 with 11358 [prohibiting the cultivation of marijuana]; 11366.5 [prohibiting individuals from making available a premises for the manufacture of a controlled substance]; cf. also Dowl [describing separate criminal provisions that are exempt from prosecution pursuant to the Medical Marijuana Program of sec. 11362.7 et seq.]

Authority:

People v. Dowl (2013) 57 Cal.4th 1079, 1086

Fifth Holding:

Section 11366 requires that a controlled substance be sold, used, or given away at the place maintained for such a purpose. Section 11366 simply does not address controlled substances that are sold, used, or given away at a location other than the place, even if the controlled substance is produced at the place. Accordingly, Shoals and related considerations do not support the conclusion that the instant property was used for the purpose of continuously selling, using, or giving away marijuana to others.

Authority:

HSC 11366

People v. Shoals (1992) 8 Cal.App.4th 475, 491 [The prosecution must prove that appellant opened or maintained the hotel room for the purpose of selling the cocaine base.]

People v. Holland (1958) 158 Cal.App.2d 583, 588 [There is no evidence that this barbecue stand was opened for the prohibited purpose.]

Sixth Holding:

A conviction cannot be constitutionally sustained on the basis of a theory that was not actually presented to the jury. Here, the instructions informed the jury that the controlled substance at issue was cannabis; cocaine was not mentioned. Therefore, the defendant’s conviction cannot be sustained based on the cocaine discovered at the property. In sum, the evidence shows the property was used to grow, cultivate, and process marijuana, but that is all. Substantial evidence does not support the section 11366 conviction because there is insufficient evidence that the defendant maintained the property for the purpose of continuously selling, using, or giving away marijuana at the property.

Authority:

Jackson v. Virginia (1979) 443 U.S. 307, 314

Cole v. Arkansas (1948) 333 U.S. 196, 202

People v. Kunkin (1973) 9 Cal.3d 245, 251

People v. Zemek (2023) 93 Cal.App.5th 313, 340

People v. Garcia (2014) 224 Cal.App.4th 519, 525

Seventh Holding:

Substantial evidence does not support the defendant’s conviction for felon in possession of ammunition. His prior felony under section 11359 was reduced to a misdemeanor and sealed. As a result of the resentencing and sealing, the prior felony is no longer a felony and cannot be used to support the defendant’s conviction. Because he has no other prior felony convictions, conviction on that count is unsupported and must be reversed.

In 2016, voters approved Proposition 64, which, among other things, generally reduced marijuana-related crimes from felonies to misdemeanors, including the offense of possession under section 11359. Proposition 64 also added section 11361.8, which provides a mechanism to obtain relief for those currently serving a sentence, or for those who had completed a sentence, for a marijuana offense affected by Proposition 64. For those qualifying defendants who have completed a sentence, the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid.

Further, the Legislature has provided that a conviction that has been ordered sealed pursuant to section 11361.8 is deemed never to have occurred, and the person may reply accordingly to any inquiry about the events. The parties agree that, because the defendant had his prior felony conviction reduced to a misdemeanor under Proposition 64 and sealed, he was no longer a felon in possession of ammunition, and the count must be reversed.

Authority:

HSC 11361.8

HSC 11361.9

People v. Smit (2018) 24 Cal.App.5th 596, 599, 600

People v. Jessup (2020) 50 Cal.App.5th 83, 88

People v. Saelee (2018) 28 Cal.App.5th 744, 751

People v. Taylor (2021) 60 Cal.App.5th 115, 120, fn. 3.

Eighth Holding:

Penal Code section 654 provides in part 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 may apply to an indivisible course of criminal conduct involving violations of different statutes, where the defendant commits the violations with a single intent and objective. It has been held that section 654 applies to prevent a defendant from being punished for both possession of marijuana and cultivation of marijuana where the possession was merely incidental to the cultivation.

A court’s implicit or express finding that a defendant harbored different intents and objectives for purposes of section 654 is reviewed for substantial evidence. The parties agree, and we concur, that substantial evidence does not support the trial court’s implicit finding that the defendant harbored different intents and objectives with respect to counts 6 and 7, cultivation of marijuana and possession of marijuana. The court must stay the sentence on one of the two counts.

Authority:

PEN 654

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

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

People v. Vasquez (2020) 44 Cal.App.5th 732, 736–737

People v. McDaniel (1957) 154 Cal.App.2d 475, 485–486

People v. Richardson (2025) 108 Cal.App.5th 1203, 1214

Ninth Holding:

Health and Safety Code section 11372.7–which imposes a drug program fee for violation of its chapter–expressly excludes section 11357(b), possession of more than an ounce of marijuna, from its application. Thus, the trial court erred in imposing the fee under that that section, and it must be stricken, along with other fees that came into play based on that improperly imposed assessment.

Authority:

HSC 11372.7(e)

Tenth Holding:

The minute order contains several errors that must be corrected: (1) with respect to count 2 at page 3, the minute order lists the basis for fines and penalties as section 11372.5 instead of 11372.7; (2) with respect to count 2 at page 4, the minute order identifies the amount of penalty assessments as $3,210 instead of $310; (3) with respect to count 1 at page 5, the minute order lists the basis for fines and penalties as section 11372.5 instead of 11372.7; (4) with respect to count 5 at pages 5 and 6, all fees and penalties are improper because they were not imposed as part of the oral pronouncement of sentence.

A trial court’s oral pronouncement of sentence constitutes the judgment in a criminal case, and to the extent there is a discrepancy between the oral pronouncement and a minute order or abstract of judgment, the oral pronouncement will control. Reviewing courts on appeal may correct any discrepancy that exists between a trial court’s oral pronouncement of sentence and a minute order or abstract of judgment.

Authority:

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

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

Amelioration, Elements of crime, Sentencing, Standard of review

Case 000604

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s motion under section 1172.6 to recall his sentence on his 1999 murder convictions (he had hired someone to kill his father, and that person also killed the defendant’s mother in the process, all while the defendant was away from the home in which they were killed). We conclude the defendant’s acquittal on first degree murder of his mother precluded a finding that he had intended to kill her. We remand for the court to consider whether he remains guilty of his mother’s murder under a theory of implied malice. In doing so, the court should consider his youth at the time of the offense.

First Holding:

The defendant hired a person to kill the defendant’s father. The hiree did so, but also killed the defendant’s mother. The jury convicted the defendant of first degree murder of the father, but of only second degree murder of his mother. In our view, the defendant’s acquittal of first degree murder as to the mother precluded a finding that he intended to kill her. First degree murder generally requires a premeditated and deliberate intent to kill. Second degree murder requires either an intent to kill without premeditation and deliberation or implied malice—conscious disregard for human life.

Authority:

People v. Whisenhunt (2008) 44 Cal.4th 174, 201

People v. Knoller (2007) 41 Cal.4th 139, 151–152

Second Holding:

After the defendant’s trial, the Legislature amended the law of murder to eliminate liability based on imputed malice, including the natural and probable consequences doctrine. Section 1172.6 provides retroactive relief to defendants convicted under those now-invalid theories. Under principles of collateral estoppel, a jury’s finding at trial precludes a contrary finding in a section 1172.6 hearing.

Authority:

People v. Antonelli (2025) 17 Cal.5th 719, 723–724

People v. Arnold (2023) 93 Cal.App.5th 376, 385-386 [discussing collateral estoppel]

Third Holding:

We review the trial court’s factual findings in denying a section 1172.6 petition for substantial evidence. But the preclusive effect of a defendant’s partial acquittal is a legal issue we review de novo.

Authority:

People v. Arnold (2023) 93 Cal.App.5th 376, 383

Fourth Holding:

We presume the jury meticulously followed the trial court’s instructions. We thus conclude the jury found that that the defendant lacked an intent to kill the mother, precluding the trial court’s contrary finding.

Authority:

People v. Cruz (2001) 93 Cal.App.4th 69, 73

Fifth Holding:

The erroneous finding was not harmless. Although the record could have supported liability under a theory of implied malice, the trial court did not evaluate that theory and we cannot conclude it would have reached the same result if it had. The defendant was 19 years old at the time of the crimes—still on the lower end of the young adult age range. Recent decisions have emphasized that youths may be less able to appreciate risks and consequences and thus that courts must consider defendants’ youth in deciding if they acted with implied malice or reckless indifference.

Authority:

People v. Jimenez (2024) 103 Cal.App.5th 994, 1001-1004, 1007

People v. Pittman (2023) 96 Cal.App.5th 400, 416–418

Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case 000595

Posted on by Gary McCurdy

Error and/or relief

Defendant was convicted of multiple counts of a sexual nature against children. There was insufficient evidence to support one of the counts. Six other counts are reversed because of a prejudicial error on their verdict forms for those counts (listing the descriptions of the crimes but incorrectly identifying the section number, thus possibly confusing the jury because there was another count that correctly bore that section number and the jury was instructed on its elements, which it may have incorrectly relied on for its verdicts in the erroneous verdict forms).

First Holding:

A conviction must be supported by substantial evidence that is reasonable, credible, and of solid value such that a reasonable jury could find the defendant guilty beyond a reasonable doubt.

Authority:

People v. Medina (2009) 46 Cal.4th 913, 919

Second Holding:

We review the trial court’s denial of the new trial motion for abuse of discretion. The California Constitution provides that no judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. The effect of this provision is to eliminate any presumption of injury from error and to require that the appellate court examine the evidence to determine whether the error did in fact prejudice the defendant.

Authority:

Cal. Const., art. VI, sec. 13

People v. Delgado (1993) 5 Cal.4th 312, 328

People v. Jacobs (1991) 230 Cal.App.3d 1337, 1346

Third Holding:

Under the applicable prejudice standard, an erroneous verdict form is harmless if it is unmistakably clear under the totality of the circumstances that the jury intended to convict the defendant of the crime charged.

Authority:

People v. Camacho (2009) 171 Cal.App.4th 1269, 1272

Fourth Holding:

A prosecutor’s statement of facts not in evidence constitutes misconduct.

Authority:

People v. Bolton (1979) 23 Cal.3d 208, 212