Category Archives: Sentencing

Sentencing, Sixth Amendment, Standard of review

Case 001028

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term based on aggravating facts that were not stipulated to or submitted to a jury for proof beyond a reasonable doubt. Remanded for a full resentencing.

First Holding:

Effective January 1, 2022, SB 567 amended Penal Code section 1170(b)(2) to provide that, when a statute specifies three possible terms of imprisonment, the trial court cannot impose a sentence exceeding the middle term unless it finds that a longer sentence is justified by circumstances in aggravation of the crime and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt by the jury at trial.

Authority:

PEN 1170(b)(2)

Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 70

Second Holding:

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements. When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review.

Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1086-1087

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

Third Holding:

The determination that a defendant’s prior convictions are of increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. The defendant was entitled to have a jury determine whether his prior convictions were of increasing seriousness before the court could rely on this aggravating fact to find justification for an upper term sentence.

Applying the Chapman standard of review, we conclude that failure to afford the defendant a jury trial on whether his prior convictions were of increasing seriousness was prejudicial.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1085

People v. Lynch (2024) 16 Cal.5th 730, 776 [Because we cannot find the omission of a jury trial harmless beyond a reasonable doubt as to every aggravating fact relied upon by the trial court to impose an upper term, the defendant’s sentence must be reversed]

Appellate Principles, Discretion, Effective assistance of counsel, Sentencing, Sixth Amendment, Standard of review

Case 001027

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing the upper term on factors that were not submitted to a jury for proof beyond a reasonable doubt. The prosecution concedes the court prejudicially erred, but argues that the defendant forfeited the issue by failing to raise it below. Remanded for resentencing. On remand, the prosecution may choose to prove the necessary aggravating circumstances by any appropriate vehicle.

First Holding:

In order to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims, reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. This includes complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 351, 356

Second Holding:

Achane held that a defendant forfeited a claim that a low-term sentence was mandated under section 1170(b)(6), which requires a factual basis that triggers the low term. Presented with a similar issue, Frederickson that where there was a presumption of a particular term without any factual findings, a defendant did not forfeit the benefit of the presumption, which is not subject to forfeiture. Lopez-Tapia sided with Frederickson.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1044

People v. Frederickson (2023) 90 Cal.App.5th 984, 994 fn.8.

People v. Lopez-Tapia (2026) 120 Cal.App.5th 690, 697

Third Holding:

Here, unlike the cases involving a low term presumption when facts support it, the defendant needed make no argument nor offer any evidence to obtain the benefit of the middle-term presumption, nor to trigger the requirement that the trial court state the reasons for choosing a higher sentence. What he is arguing for was required by statute.

Authority:

PEN 1170(b)(2), (b)(5)

Fourth Holding:

In any event, neither forfeiture nor application of the forfeiture rule is automatic. An appellate court may choose to refrain from applying the forfeiture bar, under its discretion. Here, we decline to decide whether there was any forfeiture; even if there were, we would exercise our discretion to address the issue on the merits to forestall a claim of ineffective assistance of counsel.

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 593

People v. Lua (2017) 10 Cal.App.5th 1004, 1014

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

People v. Crittenden (1994) 9 Cal.4th 83, 146

Fifth Holding:

Under section 1170(b)(2) the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation 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.

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. The burden is on the prosecution to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence.

If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose. The court shall set forth on the record the facts and reasons for choosing the sentence imposed.

Authority:

PEN 1170(b)(2), (b)(5)

People v. Wiley (2025) 17 Cal.5th 1069, 1086

Sixth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute. As the prosecution concedes here, we cannot find the error to have been harmless beyond a reasonable doubt.

Authority:

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

People v. Wiley (2025) 17 Cal.5th 1069, 1087

Due process, Duty of counsel, Duty of the court, Effective assistance of counsel, Jurisdiction, Sentencing, Standard of review

Case 001026

Posted on by Gary McCurdy

Error and/or relief

Twenty-one years after his conviction of murder committed when he was 20, the defendant filed a motion for a hearing under Franklin. The court (Judge A) appointed counsel and set a hearing date to determine whether the defendant was entitled to a full evidence preservation hearing. The defendant’s attorney ultimately filed a motion to be relieved as counsel, requesting that the matter be taken off the calendar, stating that the defendant was not entitled to a Franklin hearing under Hardin. There was no indication that counsel had discussed this with the defendant. The defendant was not present. The court (Judge B) relieved counsel and took the matter off calendar.

The order relieving defendant’s appointed counsel is reversed. Upon remand, the trial court shall issue an order reinstating counsel and set the request for a formal, noticed hearing in which defendant is given notice and an opportunity to respond.

To the extent defendant maintains upon remand that appointed counsel’s representation is inadequate or ineffective, the trial court is directed to consider any such claim under the principles set forth in People v. Marsden (1970) 2 Cal.3d 118

The trial court is further directed to set a new hearing for defendant’s Franklin motion if the defendant requests such relief upon remand.

First Holding:

Section 3051 offers youth offenders committed for long prison terms an opportunity for early release on parole. It requires the Board of Parole Hearings to conduct a youth offender parole eligibility hearing to determine if, based on certain criteria involving the controlling offense, the offender is eligible for parole. The hearing must provide for a meaningful opportunity to obtain release, and includes an assessment of the offender’s growth and maturity that takes into consideration the diminished culpability of youth as compared to that of adults and the hallmark features of youth.

Given these factors, the California Supreme Court held in Franklin that when a juvenile offender receives an indeterminate life sentence, the offender must be given adequate opportunity at sentencing to make a record of mitigating evidence tied to his youth.

Authority:

PEN 3051

People v. Williams (2024) 17 Cal.5th 99, 113

People v. Medrano (2019) 40 Cal.App.5th 961, 967

People v. Franklin (2016) 63 Cal.4th 261, 269

Second Holding:

In Cook, the California Supreme Court extended the availability of a Franklin hearing to a juvenile offender whose conviction and sentence have become final. Specifically, it held that an offender entitled to a youth offender parole hearing may seek the remedy of a Franklin proceeding even though the offender’s sentence is otherwise final. To initiate such a proceeding, an offender should file a motion requesting a hearing under the authority of section 1203.01.

Authority:

PEN 1203.01

People v. Ngo (2023) 89 Cal.App.5th 116, 127

In re Cook (2019) 7 Cal.5th 439, 451

People v. Howard (2021) 74 Cal.App.5th 141, 150

Third Holding:

The proper avenue to request a Franklin proceeding is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and Cook. The motion should establish the inmate’s entitlement to a youth offender parole hearing and indicate when such hearing is anticipated to take place, or if one or more hearings have already occurred. Nothing in Cook indicates the motion must describe with precision the evidence the offender seeks to introduce.

There are no mandatory pleading requirements for a Franklin motion, and the required showing to initiate the process for a Franklin proceeding is minimal: due to the limited resources generally available to inmates, the Cook court reasonably envisioned a simple pleading mechanism to get the process started.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 150

People v. Lipptrapp (2021) 59 Cal.App.5th 886, 896

Fourth Holding:

A legally sufficient Franklin motion does not automatically guarantee a defendant the right to do so. Rather, such a motion only initiates the process for a Franklin proceeding. Based solely on the motion, the trial court may immediately find a Franklin proceeding is warranted. The trial court may also exercise its discretion to conduct this process efficiently, ensuring that the information introduced is relevant, noncumulative, and otherwise in accord with the governing rules, statutes, and regulations.

The court may, for example, require an offer of proof regarding the evidence the offender seeks to present, so that it can determine whether such evidence is relevant to youth-related factors and meaningfully adds to the already available record. It may also determine whether testimony is appropriate, or if other types of evidentiary submissions will suffice. After allowing a defendant an opportunity of this nature, the court may deny further proceedings if it finds they are unlikely to produce fruitful evidence.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 152

In re Cook (2019) 7 Cal.5th 439, 149

Fifth Holding:

Courts have subsequently held that a Franklin motion may also be used to raise a challenge to section 3051’s limitations on the availability of youth offender parole hearings on equal protection grounds.

While the California Supreme Court has concluded that section 3051’s exclusion of offenders who are serving sentences of life in prison without the possibility of parole for a crime committed after the age of 18 from youth offender parole eligibility is not facially unconstitutional, it expressly left the door open to the potential validity of challenges to other exclusions set forth in section 3051 as well as as-applied challenges based on particular special circumstances or the factual circumstances of individual cases.

Authority:

People v. Sands (2021) 70 Cal.App.5th 193, 201-202

People v. Briscoe (2024) 105 Cal.App.5th 479, 486-489

People v. Hardin (2024) 15 Cal.5th 834, 864

Sixth Holding:

Generally, a trial court’s removal of appointed counsel for an indigent defendant is reviewed for abuse of discretion. Here, we have determined the trial court’s order granting appointed counsel’s request to be relieved constituted an abuse of discretion.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1119

People v. Cole (2004) 33 Cal.4th 1158, 1190

People v. Wright (2021) 12 Cal.5th 419, 440

Seventh Holding:

Generally, both the United States Constitution and California Constitution guarantee a basic right of due process, and the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.

The Supreme Court has held that a prisoner may derive a due process liberty interest from either the Constitution or state law. When the asserted interest is derived exclusively from state law, it will be recognized as within the scope of due process liberty if the state statute protects the interest by permitting its forfeiture only on the happening of specified conditions.

Authority:

U.S. Const., 14th Amend.

Cal. Const., art. I, secs. 7, 15

People v. Allen (2008) 44 Cal.4th 843, 869

People v. Ramirez (1979) 25 Cal.3d 260, 265

Eighth Holding:

Generally, having undertaken the defense of a criminal case an attorney must continue with his services until he is released by the client or by the court. He may apply to the court for release from further services and for good cause shown may be released, but he may not abandon his representation at will. In light of this principle, it is established that the procedural requirements of sections 284 and 285 of the Code of Civil Procedure govern a change of attorney in a criminal, as well as in a civil, proceeding.

These statutes specify that in order to withdraw from representation, an attorney must either obtain the consent of the client or bring a formal application in the trial court with notice to the client. The legislative purpose of these provisions is to provide certain safeguards to protect the accused.

Authority:

CCP 284

CCP 285

People v. Prince (1968) 268 Cal.App.2d 398, 404, 406

Smith v. Superior Court of Los Angeles County (1968) 68 Cal.2d 547, 558-559 [The sole statutory authority for the removal of counsel is Code of Civil Procedure section 284. That statute is applicable in criminal cases.]

In re Martinez (1959) 52 Cal.2d 808, 813

People v. Bouchard (1957) 49 Cal.2d 438, 440

People v. Kerfoot (1960) 184 Cal.App.2d 622, 636

Ninth Holding:

Here, the trial court granted appointed counsel’s request to be relieved without complying with the statutory safeguards intended to afford defendant notice and an opportunity to be heard. The trial court conducted a hearing and granted the request the day after it was filed.

There is nothing in the record to show that defendant received any notice of appointed counsel’s request to be relieved. Nor was defendant present at the hearing. Such a procedure clearly violated defendant’s right to due process. And an order made in violation of a party’s due process right to notice and an opportunity to be heard constitutes an abuse of discretion.

Authority:

People v. Kerfoot (1960) 184 Cal.App.2d 622, 636 [Adequacy of notice is an element of due process of law. There is no due process of law in the complete absence of any notice.]

People v. Williams (2021) 65 Cal.App.5th 828, 833 [Due process requires notice and an opportunity to be heard even where statutory procedures are unclear.]

People v. Johnson (1984) 157 Cal.App.3d Supp. 1, 5

Tenth Holding:

It is well established that a trial judge ordinarily may reconsider his or her own prejudgment rulings. There are limits, however, on the authority of one superior court judge to set aside the order of another judge of the same court. Under article VI, section 4, of the California Constitution, one judge or department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another judge or department of the superior court.

This rule prevents a trial court judge from acting as a one-judge appellate court over another judge. This is true even if the first judge committed legal error in ruling on the matter. The rule also bars a second judge from reconsidering another judge’s discretionary appointment of counsel.

Here, the order relieving counsel was made by a different judge than the one who previously appointed counsel and set the Franklin motion for a hearing.

The record shows that the first judge reviewed defendant’s Franklin motion and, based upon that review, appointed counsel and set the matter for a hearing. Thus, the question of whether defendant had established a prima facie showing sufficient to entitle him to appointment of counsel was already considered and decided by the first judge.

Even if that determination was erroneous, the second judge could not relieve counsel by purportedly reviewing the sufficiency of defendant’s prima facie showing anew and determining that it was inadequate to warrant appointment of counsel. Doing so would have constituted an impermissible reconsideration.

To be clear, a motion to be relieved may be heard by a judge other than the one who initially appointed counsel. However, the motion must be determined on its own merits based upon the showing and arguments presented in conjunction with that request.

Authority:

Calif. Const. art VI, sec. 4

People v. Waldon (2023) 14 Cal.5th 288, 306

In re Alberto (2002) 102 Cal.App.4th 421, 426-431 [second judge could not reconsider bail set by first judge even if first judge failed to correctly apply statutes in setting bail]

People v. Goodwillie (2007) 147 Cal.App.4th 695, 712-713 [trial judge erred by relieving advisory counsel previously appointed by another judge]

Eleventh Holding:

In our view, the error in this case is akin to structural error requiring reversal. Typically, a defendant who has established error under state law must demonstrate there is a reasonable probability that in the absence of the error he or she would have obtained a more favorable result. However, under the California constitutional harmless-error provision some errors are not susceptible to the ordinary or generally applicable harmless-error analysis.

The kinds of errors that, regardless of the evidence, may result in a miscarriage of justice because they operate to deny a criminal defendant the constitutionally required orderly legal procedure all involve fundamental structural defects in the judicial proceedings.

Most errors are amenable to harmless error review because they can be quantitatively assessed in the context of other evidence presented.

Structural defects, on the other hand, defy analysis by harmless-error standards because they are not simply an error in the trial process, but rather an error affecting the framework within which the trial proceeds. A structural error requires per se reversal because it cannot be fairly determined how a trial would have been resolved if the grave error had not occurred.

Authority:

People v. Anzalone (2013) 56 Cal.4th 545, 553

People v. Lewis (2025) 111 Cal.App.5th 1078, 1111

Abstracts and Minutes, Sentencing

Case 001025

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the court failed to update the credit for time served. The abstract of judgment contains errors that must be corrected.

First Holding:

A trial court’s erroneous failure to award presentence custody credits is not waived by failure to object at trial because “the calculation of credits is not discretionary and there are no ‘choices. An incorrect award of presentence custody credits is an unauthorized sentence which may be corrected at any time.

Authority:

People v. Aguirre (1997) 56 Cal.App.4th 1135, 1138

People v. Gisbert (2012) 205 Cal.App.4th 277, 282

Second Holding:

Section 1237.1 provides that no appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court.

Section 1237.1, however, does not require a motion be filed in the trial court as a precondition to litigating the amount of presentence credits when there are other issues raised on direct appeal. There may be situations, like this case, where an appellate court may simply resolve the custody credits issue in the interests of economy.

Authority:

PEN 1237.1

People v. Acosta (1996) 48 Cal.App.4th 411, 420

People v. Mendez (1999) 19 Cal.4th 1084, 1101

People v. Jones (2000) 82 Cal.App.4th 485, 493

People v. Sylvester (1997) 58 Cal.App.4th 1493, 1496, fn 3

Third Holding:

The abstract of judgment reflects that the defendant was convicted of first degree burglary, but in fact he was convicted of second degree burglary. Further, the abstract of judgment reflects the sentence for count 5 as one-third the middle term, instead of the actual two years middle term. The abstract must be corrected.

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. An appellate court has the authority to correct clerical errors.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185-187 [appellate court may correct clerical errors on its own motion or upon application of the parties]

People v. Zackery (2007) 147 Cal.App.4th 380, 394 [same]

People v. Mesa (1975) 14 Cal.3d 466, 471

Amelioration, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 001024

Posted on by Gary McCurdy

Error and/or relief

In light of Emanuel, we reverse the denial of the defendant’s motion for resentencing filed under section 1172.6.

First Holding:

The trial court denied the defendant’s petition for resentencing, finding that he was a major participant who acted with reckless indifference to for human life during the commission of the offenses. there is insufficient evidence to support the trial court’s finding that the defendant acted with reckless indifference to human life. For that reason alone, he is entitled to resentencing relief under section 1172.6.

Authority:

People v. Guiffreda (2023) 87 Cal.App.5th 112, 117

Second Holding:

Effective January 1, 2019, the Legislature passed SB 1437 to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were ‘major participants in the underlying felony and acted with reckless indifference to human life.

When the felony-murder rule does not apply, a principal in the crime of murder can only be convicted where he acted with malice aforethought, and malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

PEN 188

PEN 189

People v. Gentile (2020) 10 Cal.5th 830, 842-843, 846-847

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

Third Holding:

SB 1437 also created a procedure for offenders previously convicted of felony murder or murder under the natural and probable consequences doctrine to seek retroactive relief if they could no longer be convicted of murder under the new law.

The process begins with the filing of a petition containing a declaration that all requirements for eligibility are met, including that the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019.

When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition to determine whether the petitioner has made a prima facie case for relief. If the defendant makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing to determine whether relief should be granted.

Authority:

PEN 1172.6

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

People v. Lewis (2021) 11 Cal.5th 952, 959

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

Fourth Holding:

Because the standard under section 189(e)(3) for holding a defendant liable for felony murder is the same as the standard for finding a special circumstance under section 190.2(d), death penalty cases interpreting section 190.2(d), including Banks and Clark, are controlling here.

Authority:

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

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

People v. Guiffreda (2023) 87 Cal.App.5th 112, 123

Fifth Holding:

To determine whether a defendant exhibited reckless indifference to human life under section 190.2(d), courts consider a list of considerations, including use of or awareness of the presence of a weapon or weapons, physical presence at the scene and opportunity to restrain confederates or aid victims, the duration of the crime, knowledge of any threat the confederates might represent, and efforts taken to minimize risks.

This list of factors is nonexhaustive. None of them is necessary, nor is anyone one of them necessarily sufficient. Instead, the totality of the circumstances must be analyzed to determine whether the defendant acted with reckless indifference.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

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

People v. Clark (2016) 63 Cal.4th 522, 618

Sixth Holding:

Reckless indifference to human life has a subjective and an objective element. As to the subjective element, the defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, and he or she must consciously disregard the significant risk of death his or her actions create.

As to the objective element, the risk of death must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him or her, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

Authority:

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

Seventh Holding:

On appeal from an order denying a petition under section 1172.6, we review the trial court’s factual findings for substantial evidence. We examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding the defendant guilty beyond a reasonable doubt.

Our job on review is different from the trial judge’s job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder’s findings beyond a reasonable doubt. Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.

Authority:

People v. Richardson (2022) 79 Cal.App.5th 1085, 1090

People v. Clements (2022) 75 Cal.App.5th 276, 298

People v. Guiffreda (2023) 87 Cal.App.5th 112, 1225

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

Eighth Holding:

As the passenger in the car driven by another who drove dangerously and recklessly in an effort to evade capture, the defendant had no meaningful opportunity to interfere with the driving. The driving resulted in a collision with the victim’s car, killing her. There is insufficient evidence that the defendant knowingly created a grave risk to the life of that person.

Instead, the record shows that the defendant was, at worst, a passive passenger as the codefendant drove recklessly, which is insufficient to support a finding that the defendant acted with reckless indifference to the victim’s life.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 896