Category Archives: Jury trial

Duty of the court, Jury trial, Pleading, Sentencing, Sixth Amendment, Standard of review

Case: 000263

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in not holding a hearing under Marsden when the defendant attempted to have substitute counsel. The trial court erred in imposing the upper term based on its own conclusion that the defendant’s prior convictions that are numerous and of increasing seriousness. The matter is remanded for the trial court to hold a proper Marsden hearing. If the court grants the motion, the court must appoint new counsel to represent her and conduct a new trial. If the court denies the motion, the court is to reinstate the convictions. The judgment is reversed, and the trial court is directed to give the People an opportunity to prove applicable aggravating circumstances beyond a reasonable doubt to a jury (or the court, if if the defendant waives her right to a jury trial on aggravating circumstances) and to resentence the defendant.

First Holding:

When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. Once the defendant clearly indicates to the trial court a request for the discharge and replacement of appointed counsel, the court must hold a hearing to allow the defendant to explain the basis for the request. A proper and formal’ Marsden motion is not required—the defendant need only clearly indicate to the trial court ‘in some manner’ that he or she is requesting the discharge and replacement of appointed counsel.

Authority:

People v. Johnson (2018) 6 Cal.5th 541, 572

People v. Wilson (2023) 14 Cal.5th 839, 863-864

People v. Armijo (2017) 10 Cal.App.5th 1171, 1179

People v. Marsden (1970) 2 Cal.3d 118

Second Holding:

The trial court erred in not holding a Marsden hearing when the defendant said she wanted to fire her court-appointed attorney. While stating a desire to fire one’s court-appointed attorney, without more, may not be sufficient to require a Marsden hearing, the trial court interrupted the defendant after she said “I feel like” and did not allow her to say more. And though the defendant never said she wanted to replace her current attorney with a different court-appointed attorney, that’s because, when the defendant began to explain why she did not want her current attorney to represent her, the court did not give her the chance to state her reasons.

Authority:

People v. Sanchez (2011) 53 Cal.4th 80, 90 [if at any time during criminal proceedings, a defendant requests substitute counsel, the trial court is obligated, pursuant to Marsden, to give the defendant an opportunity to state any grounds for dissatisfaction with the current appointed attorney]

People v. Chavez (1980) 26 Cal.3d 334, 346 [refusal by the trial court to afford a defendant an opportunity to set forth the reasons underlying his request for the substitution of appointed counsel constitutes an abuse of discretion]

Third Holding:

The trial court’s concern that the defendant’s request during jury selection was a delay tactic was legitimate, but it did not justify refusing to hold a Marsden hearing that would allow the court to hear her reasons and weigh them against the effects of delaying the trial.

Authority:

People v. Williams (2021) 61 Cal.App.5th 627, 652 [delay in resolving a Marsden motion is a significant factor that the court is obligated to consider in evaluating the timeliness of the defendant’s request to substitute counsel]

Fourth Holding:

The court also erred in ruling that the defendant’s only choices were to retain an attorney or represent herself. Those were not her only two choices. She also had the right to make a showing under Marsden, if she could, she was entitled to substitute counsel.

Authority:

People v. Johnson (2018) 6 Cal.5th 541, 573 [defendant may request substitute counsel at any time during criminal proceedings]

People v. Sanchez (2011) 53 Cal.4th 80, 90 [same]

Fifth Holding:

The standard for prejudice regarding a denied Marsden motion is under Chapman. Under the Chapman harmless error standard, the burden is on the People, not the defendant, to demonstrate that the violation of the defendant’s federal constitutional right was harmless beyond a reasonable doubt.

Authority:

People v. Loya (2016) 1 Cal.App.5th 932, 945

People v. Taylor (2010) 48 Cal.4th 574, 601

People v. Cutting (2019) 42 Cal.App.5th 344, 349

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

Sixth Holding:

The court imposed the upper term based on the court’s finding that the defendant’s prior convictions and adjudications were numerous and of increasing seriousness. 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. the aggravating circumstance the trial court relied on here in imposing the upper term, increasing seriousness of the defendant’s prior convictions, was not found true beyond a reasonable doubt by a jury (or by the court after a jury trial waiver).

Authority:

PEN 1170

People v. Wiley (2025) 17 Cal.5th 1069, 1078

People v. Lynch (2024) 16 Cal.5th 730, 742

Seventh Holding:

Such an error is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing.

Here, the court relied on only one aggravating circumstance: prior convictions that are numerous and of increasing seriousness. Determining whether that allegation is true, however, requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. While the evidence may have been sufficient to support a finding of increasing seriousness, a rational juror could have reached the opposite conclusion based on the totality of the defendant’s criminal conduct and the applicable sentences for those transgressions. Because a rational juror could find the defendant’s convictions were not of increasing seriousness, the error is not harmless under Chapman.

Authority:

AD

People v. Lynch (2024) 16 Cal.5th 730, 768

People v. Wiley (2025) 17 Cal.5th 1069, 1090

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

Abstracts and Minutes, Due process, Equal protection, Jury trial, Racial Justice Act, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case: 000262

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by permitting the prosecution’s peremptory challenge to a juror, within the meaning of Code of Civil Procedure section 231.7 (CCP 231.7), which requires reversal. The court also erred in denying the defendant’s motion for discovery under the Racial Justice Act (RJA) to support his claim that racial bias infected his case. We conclude the trial court misapplied the applicable legal standards. We conclude that the trial court erroneously applied the law in denying the defendant’s motion for discovery. The defendant also contends that the abstract of judgment should be corrected because it does not reflect the trial court’s ruling regarding his fees and fines. Because we reverse the conviction, we need not reach this issue.

First Holding:

Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. Excluding by peremptory challenge even a single juror on the basis of race or ethnicity is an error of constitutional magnitude.

Authority:

People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 759–760

People v. Gutierrez (2017) 2 Cal.5th 1150, 1157

Second Holding:

After studies showed that the existing analysis under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258 was inadequate to prevent racial discrimination, the Legislature enacted CCP 231.7, effective in criminal trials beginning January 1, 2022, to establish a new process for identifying unlawful bias in the use of peremptory challenges during jury selection.

Authority:

People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540

Third Holding:

In contrast to the three-step Batson/Wheeler procedure, under CCP 231.7, there is no requirement that the objecting party first make a showing of purposeful discrimination. Rather, upon objection, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised. The trial court shall evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances. In doing so, the court shall consider only the reasons actually given and shall not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge.

Authority:

CCP 231.7

People v. Jaime (2023) 91 Cal.App.5th 941, 943

People v. Hinojos (2025) 110 Cal.App.5th 524, 540–541

Fourth Holding:

Unlike in the Batson/Wheeler analysis, the ultimate question for the trial court is not whether the party exercising the peremptory challenge engaged in purposeful discrimination. The statute expressly recognizes that discrimination in violation of this section need not be purposeful, but may involve unconscious bias, which includes implicit and institutional biases. The trial court shall sustain the objection to the use of the peremptory challenge if the court determines there is a substantial likelihood that an objectively reasonable person [aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California], would view race as a factor in the use of the peremptory challenge. The statute defines “substantial likelihood” as more than a mere possibility but less than a standard of more likely than not.

Authority:

CCP 231.7

People v. Hinojos (2025) 110 Cal.App.5th 524, 541

Fifth Holding:

CCP 231.7, subdivisions (e) and (g) provide two separate lists of presumptively invalid reasons for exercising a peremptory challenge. Each of these subdivisions sets out a distinct process by which a court determines whether a presumptively invalid reason can be absolved of that presumption.

Authority:

CCP 231.7(e),(g)

People v. Ortiz (2023) 96 Cal.App.5th 768, 793

Sixth Holding:

The denial of an objection shall be reviewed de novo, with the trial court’s express factual findings reviewed for substantial evidence. Erroneous denial of a challenge is deemed prejudicial and requires reversal of the judgment and remand for a new trial.

Authority:

CCP 231.7

Seventh Holding:

We review the factual underpinnings of a discovery order for substantial evidence, but where such a determination rests on incorrect legal premises, our review is de novo.

Authority:

Young v. Superior Court of Solano County (2022) 79 Cal.App.5th 138, 156

Gonzales v. Superior Court (2024) 108 Cal.App.5th pp. Supp. 36, 55

Eighth Holding:

Penal Code section 745 authorizes a defendant to file a discovery motion at trial as soon as practicable upon the defendant learning of an alleged violation, and requires the trial court to hold an evidentiary hearing if the defendant makes a prima facie showing of the violation.

Authority:

PEN 745

Ninth Holding:

To establish good cause for discovery under the RJA, a defendant is required to advance a plausible factual foundation, based on specific facts, that a violation of the RJA could or might have occurred in his case. This is a notably less demanding standard than the prima facie requirement set forth in the statute for granting an evidentiary hearing, and a standard that should not be difficult to meet.

Authority:

Young v. Superior Court of Solano County (2022) 79 Cal.App.5th 138, 159

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 244 [trial court should consider the relevance of the proffered facts to the claims of racial bias to determine whether a minimally plausible basis exists to grant discovery—a low threshold]

Gonzales v. Superior Court (2024) 108 Cal.App.5th pp. Supp. 36, 44 [reversing denial of discovery motion where defendant had minimally proffered a plausible factual foundation for a potential violation of the RJA]

Tenth Holding:

[Gary note: The abstract of judgment apparently did not reflect the court’s order regarding fines and fees. The opinion gave no further information, because the issue would be addressed on remand for other reasons. But the law is clear that the court could have ordered correction of the abstract of judgment and minute orders. I have set forth some cases it could have relied on had it addressed the issue.]

Authority:

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

Appellate Principles, Jury trial

Case: 000118

Posted on by Gary McCurdy

Error and/or relief

The judgment must be reversed because the trial court deprived the defendant of his statutory rights under Code of Civil Procedure section 231.7 when it failed to sustain defense counsel’s objections to the prosecutor’s use of peremptory challenges to two prospective jurors. We reverse the judgment and remand the matter for a new trial.

First Holding:

At its core, Code of Civil Procedure section 231.7 precludes either party from using a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.

Once the objection is made, the trial court must evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances. It must consider only the reasons actually given and not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge. If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained.

The court need not find purposeful discrimination to sustain the objection. The court shall explain the reasons for its ruling on the record.

Authority:

CCP 231.7(d)(1)

Second Holding:

The statute acknowledges that unconscious bias, in addition to purposeful discrimination, has resulted in the unfair exclusion of potential jurors in the State of California. It defines ‘unconscious bias’ to include both implicit and institutional biases.

Authority:

CCP 231.7(d)(2)(C)

Third Holding:

A peremptory challenge for any of certain enumerated reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case.

Authority:

CCP 231.7(e)

Fourth Holding:

The term “clear and convincing” refers to the degree of certainty the factfinder must have in determining whether the reasons given for the exercise of a peremptory challenge are unrelated to the prospective juror’s cognizable group membership, bearing in mind conscious and unconscious bias. To determine that a presumption of invalidity has been overcome, the factfinder shall determine that it is highly probable that the reasons given for the exercise of a peremptory challenge are unrelated to conscious or unconscious bias and are instead specific to the juror and bear on that juror’s ability to be fair and impartial in the case.

Authority:

CCP 231.7(f)

Fifth Holding:

Section 231.7(g) provides a list of reasons for peremptory challenges that have historically been associated with improper discrimination.

Authority:

CCP 231.7(g)(1)(A) and (B)

Sixth Holding:

he denial of an objection made under section 231.7 shall be reviewed by the appellate court de novo, with the trial court’s express factual findings reviewed for substantial evidence.

The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court.

Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Seventh Holding:

[GARY NOTE: The opinion examined the details of the voir dire and procedures followed, and cited several published opinions as examples of resolutions of the problem. Rather than write a full tome, I have chosen simply to list the published cases, which you may want to read if you have a similar issue in your case(s).]

Authority:

People v. Caparrotta (2024) 103 Cal.App.5th 874, 892 [the role of the two-step procedure set forth in section 231.7, subdivision (g)(2) is to determine whether the presumption of invalidity has been rebutted]

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 243 [discussing racial disparities in charging decisions]

People v. Aranda (2012) 55 Cal.4th 342, 364 [the high court has identified as structural error constitutional violations such as racial discrimination in jury selection]

People v. Cahill (1993) 5 Cal.4th 478 [certain structural errors require reversal notwithstanding the strength of evidence in a particular case]

Eighth Holding:

[GARY NOTE: Amicus curiae filed a brief that, in essence, challenged the legality of section 231.7, an issue not raised by either party in the appeal.] The second issue regarding the Legislature’s ability to require reversal was not raised by either party, either before the trial court or in this appeal. Amicus curiae must accept the issues made and propositions urged by the appealing parties, and any additional questions presented in a brief filed by an amicus curie will not be considered.

Authority:

People v. Hannon (2016) 5 Cal.App.5th 94, 105

Abstracts and Minutes, Jury trial, Sufficiency of and substantial evidence, Vicarious liability

Case: 000111

Posted on by Gary McCurdy

Error and/or relief

We affirm the judgment of conviction as to defendant A. We reverse defendant B’s count 1 felony murder conviction, and otherwise affirm his judgment. The People concede both abstracts of judgment must be amended; we agree and remand with directions. The People concede and we agree the abstracts of judgment erroneously state that the convictions in counts 2, 4, and 6 are for first degree robbery. Both defendants were charged with second degree robbery, and the juries were instructed only on that theory. There are several other errors in the abstracts of judgment that must be corrected.

First Holding:

When reviewing a challenge to the sufficiency of the evidence, we ask 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. Because the sufficiency of the evidence is ultimately a legal question, we must examine the record independently for substantial evidence—that is, evidence which is reasonable, credible, and of solid value that would support a finding beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Authority:

People v. Navarro (2021) 12 Cal.5th 285, 302

People v. Albillar (2010) 51 Cal.4th 47, 60

Second Holding:

Defendant A [the actual killer] contends there was no evidence he aided and abetted Defendant B in the count 6 robbery and count 7 assault. A person who aids and abets a crime is guilty of that crime even if someone else committed some or all of the criminal acts. A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. Mere presence at the scene of a crime or knowledge of, but failure to prevent the crime, are not sufficient to establish aiding and abetting its commission. However, factors which may be considered to determine aiding and abetting include presence at the scene of the crime, companionship, and conduct before and after the offense.

Authority:

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

People v. Hill (1998) 17 Cal.4th 800, 851

People v. Campbell (1994) 25 Cal.App.4th 402, 409

Third Holding:

Section 189(e) provides that a participant in a specified felony is liable for murder for a death during the commission of the offense only if one of the following is proven: (1) The person was the actual killer. (2) The person, with the intent to kill, aided, abetted, or assisted the actual killer. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 189(e)

Fourth Holding:

There are several factors courts should consider in determining whether, under the totality of the circumstances, a defendant was a major participant in the underlying felony who acted with reckless indifference to human life: What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used? Reckless indifference and the element of major participant significantly overlap, for the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 803

People v. Clark (2016) 63 Cal.4th 522, 615

Fifth Holding:

Defendant B was not the actual killer, but was convicted on the basis of felony murder (item (3)). We need not decide whether, under the circumstances of this case, defendant was a major participant because we conclude that the evidence was insufficient to support that he exhibited reckless indifference to human life. The actus reus for the felony-murder aider and abettor special circumstance requires more than simply being an aider and abettor of the underlying felony under section 31. The special circumstance requires that the defendant be a major participant in the underlying felony.

Likewise, the mens rea requirement for the felony-murder aider and abettor special circumstance is different from that required for first degree felony murder. The special circumstance requires that the defendant have reckless indifference to human life. A defendant’s knowing participation in a robbery with others who are armed is insufficient, without more, to prove the defendant acted with reckless indifference to human life. Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient, because a defendant must knowingly create a grave risk of death through the defendant’s own actions. Reckless indifference encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of the defendant’s actions. Reckless indifference to human life has both a subjective and an objective element.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 615-617

People v. Banks (2015) 61 Cal.4th 788, 794, 807-810

People v. Strong (2022) 13 Cal.5th 698, 706

In re Scoggins (2020) 9 Cal.5th 667, 677

Sixth Holding:

In committing the count 1 felony robbery, Defendant A entered the convenience store alone, and therefore Defendant B had no opportunity to restrain him, or to aid the victim. The evidence does not prove beyond a reasonable doubt that Defendant B was aware, when they left the third convenience store, that Defendant A had killed the victim. This factor weighs against a finding of reckless indifference. Defendant B had no meaningful opportunity to aid the victim before the shooting.

However contemptible the court may find a defendant’s conduct following a killing, the governing standard is not satisfied by evidence that the defendant was generally indifferent to the fact that someone has been killed. It requires evidence that, at the time of the shooting, the defendant acted with indifference toward the grave risk that someone could be killed. Though the former may be evidence of the latter, it is insufficient, standing alone, to support murder liability. While it is true a defendant’s willingness to engage in an armed robbery with individuals known to him to use lethal force may give rise to the inference that the defendant disregarded a grave risk of death, no evidence was presented at trial that Defendant A was known to have a propensity for violence, let alone evidence indicating that Defendant B was aware of such a propensity.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 894-895

Tison v. Arizona (1987) 481 U.S. 137, 157

Seventh Holding:

The abstracts of judgment contain several errors that must be corrected. The abstracts of judgment erroneously state that the convictions in three counts are for first degree robbery. The verdict forms do not specify the degree of the robberies. But under California law, upon the failure of the jury or the court to determine the degree of the crime of which the defendant is guilty, it shall be deemed to be of the lesser degree. Therefore, we conclude that the robberies in the three counts are in the second degree.

The jury convicted both defendants of being a felon in possession of a firearm and not a “convicted felon and narcotic” as stated in the abstracts of judgment. As to Defendant A, the abstract of judgment shows the court imposed a consecutive full term of three years for one of the counts. However, the court orally stated, “Under [that count], the court is going to use one-third the midterm for that charge of one year, and that will run consecutive to the determinate terms under [two other counts].” Given this discrepancy, the oral pronouncement of judgment controls.

Authority:

PEN 1157

People v. Myles (2012) 53 Cal.4th 1181, 1222, fn. 14.

Appellate Principles, Elements of crime, Jury trial, Sufficiency of and substantial evidence

Case: 000094

Posted on by Gary McCurdy

Error and/or relief

We reverse the defendant’s convictions for kidnapping to commit robbery in counts 11 and 12, and we reduce the convictions in counts 11 and 12 to the lesser included offense of felony false imprisonment by violence or menace.   We remand the matter for a full resentencing as to all counts, so that the trial court can exercise its sentencing discretion in light of the changed circumstances.

First Holding:

Kidnapping for robbery requires a simple kidnapping in which the movement increased the risk of harm to the victim over and above that necessarily present in the intended underlying offense. The increased risk may be of either physical or psychological harm.

Authority:

PEN 209(b)(1)–(2)

People v. Rayford (1994) 9 Cal.4th 1, 11–12

People v. Waqa (2023) 92 Cal.App.5th 565, 577

People v. Nguyen (2000) 22 Cal.4th 872, 886

Second Holding:

In a simple kidnapping or kidnap for robbery involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality. Such consideration is relevant to determining whether more than one crime has been committed, and is amply supported by the case law. An associated crime for the purposes of simple kidnapping is any criminal act the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will.

Authority:

People v. Williams (2017) 7 Cal.App.5th 644, 671

Third Holding:

Whether movement is incidental and whether it increased the risk to the victim are not mutually exclusive, but interrelated.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 470

Fourth Holding:

If in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him or her—whether it be a residence or a place of business or other enclosure—his conduct generally will not be deemed to constitute the offense proscribed by section 209. Indeed, most movements that have been found to be insubstantial or merely incidental to the underlying crime have been within a building, or within the premises of a business. It is not unusual in the course of a robbery for a robber to move the victims to one spot to make it easier for the robber to search for valuables and flee undetected. Although measured distance is relevant, no minimum distance is required to satisfy the asportation requirement so long as the movement is substantial. Each case must be considered in the context of the totality of its circumstances.

Authority:

People v. Daniels (1969) 71 Cal.2d 1119, 1140

People v. Power (2008) 159 Cal.App.4th 126, 139

People v. Leavel (2012) 203 Cal.App.4th 823, 834

People v. Dominguez (2006) 39 Cal.4th 1141, 1152

People v. Corcoran (2006) 143 Cal.App.4th 272, 279 [holding that movement of 10 feet was a substantial distance in connection with a robbery]

Fifth Holding:

In general, to prove the crime of simple kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance.

Authority:

People v. Hartland (2020) 54 Cal.App.5th 71, 77

Sixth Holding:

Where, as here, the appellate court finds there is insufficient evidence to support a conviction for a greater offense, we may modify the judgment of conviction to reflect a conviction for a lesser included offense. We remand the matter for a full resentencing as to all counts, so that the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

PEN 1181, subd. 6

PEN 1260

People v. Bailey (2012) 54 Cal.4th 740, 748

People v. Ellis (2025) 108 Cal.App.5th 590, 601

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

Seventh Holding:

Our Supreme Court has long recognized that under sections 1181, subdivision 6, and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense.

Authority:

People v. Navarro (2007) 40 Cal.4th 668, 671