Category Archives: Evidence

Appellate Principles, Duty of the court, Evidence, Racial Justice Act, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case 001094

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the defendant’s oral motion for relief under the Racial Justice Act (RJA).

First Holding:

It is a violation of the RJA for the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or a juror to exhibit bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin or, during the defendant’s trial, in court and during the proceedings, to use racially discriminatory language about the defendant’s race, ethnicity, or national origin, or otherwise exhibit bias or animus toward the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.

A defendant may file a motion alleging a violation of subdivision (a). If a motion is filed in the trial court and the defendant makes a prima facie showing of a violation of subdivision (a), the trial court shall hold a hearing, at which the defendant bears the burden of proving an RJA violation by a preponderance of the evidence.

Subject to exceptions inapplicable in this case, if the court finds an RJA violation by a preponderance of evidence, the court shall impose an enumerated remedy specific to the violation. If judgment has yet to be entered, one remedy is to reduce one or more charges. After judgment has been entered, the court shall vacate the conviction and sentence, find that it is legally invalid, and order new proceedings consistent with subdivision (a).

Authority:

PEN 745

Second Holding:

The defendant argues that the trial court erred to the extent it denied his RJA motion because it was brought orally rather than by written, noticed motion. Addressing this issue of statutory interpretation de novo, we conclude the RJA does not preclude the possibility of making an oral motion. Accordingly, the court erred to the extent it denied the motion for being brought orally.

Authority:

McIntosh v. Superior Court (2025) 110 Cal.App.5th 33, 41

Third Holding:

In interpreting a statute, our goal is to ascertain the Legislature’s intent to effectuate the statute’s purpose. We begin by examining the statute’s words, giving them a plain and commonsense meaning. If the language is unambiguous, the plain meaning controls. The words, however, must be construed in context, so we look to the entire section as well as the statutory framework as a whole in deciding what a word or provision means, and we attempt to harmonize terms where possible. We may reject a literal construction that is contrary to the legislative intent apparent in the statute or that would lead to absurd results.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 961

People v. Murphy (2001) 25 Cal.4th 136, 142

Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 519

Moyer v. Workmen’s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230

Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 27

Fourth Holding:

The statutory language here is ambiguous. Section 745 does not say a defendant “must file” a motion; instead, it is permissive. But nor does the statute say that a defendant “may make” an oral motion. We therefore look to legislative findings made in support of the RJA to discern the Legislature’s intent.

When statutory language is ambiguous, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, and contemporaneous administrative construction. Because uncodified findings of legislative intent are voted upon by the entire legislative body, enrolled and signed by the Governor, they may be entitled to somewhat greater weight than traditional legislative history materials.

(Gary note: Regarding the reference to “uncodified findings” in the last sentence above, Assembly Bill 2542 (2019-2020 legislative session), which enacted the Racial Justice Act, contains a few sections in the bill that were not codified, meaning they do not appear in any of California’s codes, such as the Penal Code.

(Depending on the wording, the uncodified language may or may not have the force of law. For example, section 7 of the bill directs that certain portions of the bill are effective only if a different specified bill is enacted and becomes effective by a specified date. Section 7 thus carries the force of law.

(But section 2 of the bill contains 10 findings made by the Legislature that led to its passage of the RJA. In roughly 1,329 words. Some of the findings relate the existence and effects of racism–intentional or otherwise–and others state something like “It is the intent of the Legislature that ….” Those findings and statements of intent probably do not technically carry the force of law, but may be considered by the courts in interpreting the statutes that were enacted.

(The trial court then discussed the various aspects of the findings that led it to conclude that “Given the expansiveness of the Legislature’s purpose in enacting the RJA, it is appropriate to construe the legislation liberally in favor of affording defendants an opportunity to raise potential RJA violations through an oral motion.” It cautioned, however, that it may not be the best practice to raise the motion orally, as it may create confusion over what, exactly, is being asserted.)

Authority:

People v. Woodhead (1987) 43 Cal.3d 1002, 1008

Young v. Superior Court (2022) 79 Cal.App.5th 138, 157

Fifth Holding:

In the course of the hearing, counsel appeared to concur that the proper standard was proof by preponderance of the evidence, rather than the much lower standard at the prima facie stage. Though it is not clear what standard the court applied, it erred in excluding hearsay evidence. Hearsay is not per se excludable under the RJA. The court should have considered whether the proffered hearsay “trustworthy and reliable” before excluding it.

By concluding the evidence before it was double hearsay, the court failed to consider the totality of the proffered facts in assessing whether the defendant made a prima facie showing. On this record, we conclude the defendant made such a sufficient showing at the prima facie stage. We thus reverse and remand with instructions to hold an evidentiary hearing under the RJA.

Authority:

PEN 745(c)(1)

Hernandez v. Superior Court (2025) 115 Cal.App.5th 1120, 1130

Sixth Holding:

The people argue that application of the higher standard was invited error, as counsel concurred. The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at defense counsel’s behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.

But for the doctrine to apply, it also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake. In cases involving an action affirmatively taken by defense counsel, courts have found a clearly implied tactical purpose to be sufficient to invoke the doctrine.

It is not sufficiently clear on this record that counsel had a tactical purpose. It supports the conclusion that counsel simply misunderstood certain details of the RJA when he brought the oral motion. For example, he characterized the motion as a post-judgment motion. But it was prejudgment, though it was presented after the jury verdict. In a criminal case, judgment is rendered when the trial court orally pronounces sentence. Here, the sentencing had not yet happened when the RJA motion was made, so no judgment had been entered.

In light of counsel’s apparent misunderstandings, we conclude that the invited error doctrine is inapplicable. In any event, its application is discretionary, not automatic.

Authority:

People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49

People v. Karaman (1992) 4 Cal.4th 335, 344, fn. 9

Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2025) para. 8:248.13

Seventh Holding:

We review de novo a determination that an RJA movant has failed to make a prima facie showing. A defendant makes a prima facie showing if the defendant produces facts that, if true, establish that there is a substantial likelihood that an RJA violation] occurred.

A substantial likelihood requires more than a mere possibility, but less than a standard of more likely than not. The court should should not make credibility determinations at the prima facie stage. It should accept the truth of the defendant’s allegations unless they are conclusory, unsupported by the evidence presented in support of the claim, or demonstrably contradicted by the court’s own records.

On this record—with these principles in mind and considering the totality of the proffered facts—we conclude that there is more than a mere possibility that an RJA violation occurred. The defendant has therefore made a prima facie showing of one or more RJA violations and is entitled to an evidentiary hearing.

Authority:

PEN 745(h)(2)

PEN 745(c)

People v. Howard (2024) 104 Cal.App.5th 625, 650

Finley v. Superior Court (2023) 95 Cal.App.5th 12, 23

Hernandez v. Superior Court (2025) 115 Cal.App.5th 1120, 1130

Duty of the court, Evidence, Sentencing

Case 000933

Posted on by Gary McCurdy

Error and/or relief

At the hearing under section 1172.75, it was error to deny the defendant’s motion for discovery of Brady materials that he sought to prepare his case for the recall hearing.

We remand the case for the trial court to review the sought Brady materials to determine whether anything exists that must be provided to the defendant. If so, then it should conduct a new resentencing hearing. If it determines that there is nothing of Brady material nature to be disclosed, it may deny the request, state its reasons, and reinstate the judgment.

Also, the trial court erroneously concluded that a Pitchess motion cannot be made in section 1172.75 proceedings, and denied the motion.

First Holding:

In the course of the proceedings, the district attorney’s office notified the defendant’s attorney that it had requested Brady information from the law enforcement agency involved in the original investigation of the crimes leading to the defendant’s conviction. The officer’s personnel file may contain information that is potentially exculpatory or may be used for impeachment. The defendant then filed a Pitchess motion to obtain the Brady material. The trial court erroneously concluded that a Pitchess motion cannot be made in section 1172.75 proceedings, and denied the motion.

Under Brady and its progeny, the prosecution has a constitutional duty to disclose to the defense material exculpatory evidence, including potential impeaching evidence. Although Brady is essentially a trial right, courts have acknowledged that the People’s obligations under Brady are ongoing, even postjudgment.

Authority:

Brady v. Maryland (1963) 373 U.S. 83

In re Jenkins (2023) 14 Cal.5th 493, 504

People v. Nuno (2024) 105 Cal.App.5th 1030, 1058–1059

In re Lawley (2008) 42 Cal.4th 1231, 1246 [Even after a conviction, the prosecutor is bound by the ethics of his office to inform the appropriate authority of information that casts doubt upon the correctness of the conviction]

Canion v. Cole (2005) 210 Ariz. 598, 599 [the state has a continuing Brady duty to disclose evidence that comes to its attention after sentencing] cited with approval in Jenkins, at p. 505

Pitchess v. Superior Court (1974) 11 Cal.3d 531

Second Holding:

In Pitchess, the California Supreme Court recognized that a criminal defendant may, in some circumstances, compel the discovery of evidence in the arresting law enforcement officer’s personnel file that is relevant to the defendant’s ability to defend against a criminal charge. In 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as ‘Pitchess motions’ through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code sections 1043 through 1045.

Authority:

PEN 832.7

PEN 832.8

EVID 1043-1045

Pitchess v. Superior Court (1974) 11 Cal.3d 531

People v. Nuno (2024) 105 Cal.App.5th 1030, 1052

Third Holding:

A Pitchess motion may be used to obtain Brady material contained in a peace officer’s confidential personnel file.

However, because the Pitchess process operates in parallel with Brady and does not prohibit the disclosure of Brady information, all information that the trial court finds to be exculpatory and material under Brady must be disclosed, notwithstanding the limitations of the Pitchess process.

Authority:

People v. Nuno (2024) 105 Cal.App.5th 1030, 1055

People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 720

Fourth Holding:

Although the proceeding below was a resentencing hearing, Brady material may have some relevance. Where, as here, section 1172.75 applies, it requires full resentencing, not simply striking the now-invalidated priors. This entails applying 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.

Authority:

PEN 1172.75(d)(2)

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3

Fifth Holding:

Under the resentencing procedures set forth in section 1172.1(a)(5), the trial court must consider evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice, which may include evidence that the defendant’s constitutional rights were violated in the proceedings related to the conviction or sentence at issue, and any other evidence that undermines the integrity of the underlying conviction or sentence.

Authority:

PEN 1172.1(a)(5)

Sixth Holding:

Further, at a resentencing hearing under section 1172.75, the trial court may exercise its power under section 1385 and Romero to dismiss a prior strike conviction in furtherance of justice. When exercising this power, the court may consider, among other things, the nature and circumstances of a defendant’s conviction.

Authority:

People v. Rogers (2025) 108 Cal.App.5th 340, 361–364

People v. Shaw (2020) 56 Cal.App.5th 582, 586

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

Evidence, Fifth Amendment, Jury trial, Standard of review

Case 000780

Posted on by Gary McCurdy

Error and/or relief

We conclude the detectives subjected defendant to a custodial interrogation. Their failure to advise him of his Miranda rights therefore required the suppression of his confession.

First Holding:

Under Miranda, suspects questioned by law enforcement after being taken into custody must first be informed that they have the right to remain silent, that any statements they make may be used against them, and that they have a right to the presence of an attorney. If police interrogate a suspect in custody without providing these advisements, the suspect’s responses cannot be admitted to establish their guilt.

Authority:

Miranda v. Arizona (1966) 384 U.S. 436

People v. NavaAdame (2025) 116 Cal.App.5th 1, 16

Second Holding:

The duty to advise suspects of their Miranda rights applies only if they are in custody. Custody is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In deciding if a person is in custody for Miranda purposes, the question is whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. To answer this question, the court must examine all the circumstances surrounding the interrogation

Authority:

People v. NavaAdame (2025) 116 Cal.App.5th 1, 16

Third Holding:

Relevant considerations include (1) who initiated the contact; (2) whether the person agreed to the interview; (3) whether the person was questioned as a witness or suspect; (4) the interview’s location; (5) whether police said the person was under arrest or in custody (6) conversely, whether they said the person was free to leave at any time; (7) whether the person’s movement was restrained; (7) the length of questioning; (8) the number of officers; (9) the degree of police control over the interrogation; (10) whether officers conveyed a belief in the person’s guilt and suggested they had incriminating evidence; (11) whether the tone was aggressive or accusatory; (12) whether police used interrogation tactics designed to pressure the person; and (13) whether the person was arrested at the end of the interrogation.

Authority:

People v. NavaAdame (2025) 116 Cal.App.5th 1, 16-17

Fourth Holding:

The prosecution has the burden of proving a defendant was not in custody. We review the trial court’s factual findings for substantial evidence but independently decide if the interrogation was custodial.

(GARY Note: the court then described the events in detail that led the court to declare “Based on the totality of the circumstances, we conclude defendant was subjected to a custodial interrogation long before he received Miranda advisements.” Because the opinion is unpublished, it is not useful to recite the circumstances, because you cannot cite this case as an example of a finding that Miranda rights should have been given earlier. If an attorney wants to read the full opinion, I can provide it on request.)

Authority:

In re Anthony L. (2019) 43 Cal.App.5th 438, 445

Fifth Holding:

A confession held inadmissible by reason of having been obtained in violation of the prophylactic Miranda requirements is subject to a harmless-error standard of review specified in Chapman. Under that standard, we ask whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. To say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the jury considered on the issue in question.

Authority:

People v. NavaAdame (2025) 116 Cal.App.5th 1, 21-22

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

Sixth Holding:

The erroneous admission of defendant’s confession cannot be regarded as unimportant. A confession is like no other evidence. Indeed, the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. Confessions often operate as a kind of evidentiary bombshell which shatters the defense and are thus much more likely to be prejudicial.

Authority:

Arizona v. Fulminante (1991) 499 U.S. 279, 296

People v. Neal (2003) 31 Cal.4th 63, 86

Seventh Holding:

We decline to consider defendant’s testimony at trial in assessing harmlessness. When an illegally obtained confession is erroneously admitted, the defendant’s testimony will not render the error harmless unless it is shown beyond a reasonable doubt that the defendant did not take the stand in an attempt to mitigate the explosive impact of a confession which had left his case in ruin.

Authority:

People v. Marlow (2004) 34 Cal.4th 131, 151

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

Evidence

Case 000677

Posted on by Gary McCurdy

Error and/or relief

We agree with the defendant the exhibit was implied hearsay offered to prove the truth of what it implicitly asserted—that the defendant was a member of the social group. Because the exhibit was the only evidence directly tying the defendant to the social group that carried out the crimes, there is a reasonable probability he would have obtained a more favorable result had the exhibit been excluded. We reverse and remand.

First Holding:

Evidence of an express statement of a declarant is hearsay evidence if such evidence is offered to prove—not the truth of the matter that is stated in such statement expressly—but the truth of a matter that is stated in such statement by implication.

An implied statement may be inferred from an express statement whenever it is reasonable to conclude: (1) that declarant in fact intended to make such implied statement, or (2) that a recipient of declarant’s express statement would reasonably believe that declarant intended by his express statement to make the implied statement.

Authority:

People v. Garcia (2008) 168 Cal.App.4th 261, 289

Second Holding:

The exhibit was not offered as circumstantial evidence as the Attorney General contends. It is not capable of serving its nonhearsay purpose regardless of whether the jury believes the matters asserted to be true. It is not akin to a receipt or fishing license that, by its mere presence in a particular location, tends to show someone’s association with that location. The exhibit was found in the cell of others who had no demonstrated tie to the defendant other than through the truth asserted by the exhibit itself.

Authority:

Hart v. Keenan Properties, Inc. (2020) 9 Cal.5th 442, 447

Third Holding:

Because the exhibit was inadmissible hearsay, the expert committed Sanchez error when he recounted its contents to the jury. The undisputed circumstances show that the exhibit was not made with a primary purpose of creating an out-of-court substitute for trial testimony.

Authority:

People v. Sanchez (2016) 63 Cal.4th 665, 686, 688

Fourth Holding:

The state law prejudice standard applies because the exhibit was not testimonial.

Authority:

People v. Valencia (2021) 11 Cal.5th 818, 840

People v. Watson (1956) 46 Cal.2d 818, 836–837