Category Archives: Standard of review

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

Case: 000432

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the petition for recall of sentence for attempted murder under section 1172.6 because there was insufficient evidence of intent to kill. We reverse the order denying the petition and remand the matter with directions for the trial court to grant the resentencing petition, vacate the attempted murder conviction, and resentence on the remaining charges.

First Holding:

The Legislature enacted SB 1437 (2017–2018 Reg. Sess.) to eliminate the natural and probable consequences doctrine and to limit application of the felony murder rule. Except in cases of felony murder, a principal must act with malice aforethought to be convicted of murder, and malice shall not be imputed to a person based solely on his or her participation in a crime. A defendant convicted of murder or attempted murder under a now-invalid theory may petition the sentencing court to have his or her conviction vacated and to be resentenced on any remaining counts under section 1172.6.

Authority:

PEN 188(a)(3)

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

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

Second Holding:

At the evidentiary hearing, the prosecution bears the burden to prove beyond a reasonable doubt that the defendant is guilty of murder or attempted murder under a currently valid theory. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.

Authority:

PEN 1172.6(d)(3)

Third Holding:

We review the trial court’s factual findings following a section 1172.6(d) hearing for substantial evidence. We review the entire record in the light most favorable to the court’s order to determine whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt.

Authority:

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

People v. Manibusan (2013) 58 Cal.4th 40, 87

Fourth Holding:

To prove the crime of attempted murder, the prosecution must establish ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. A defendant cannot be convicted of attempting to kill someone if the defendant is not aware that person is present. Because direct evidence of a defendant’s intent is rare, intent to kill may be inferred from the defendant’s acts and the circumstances of the crime.

Authority:

People v. Canizales (2019) 7 Cal.5th 591, 602

People v. Mumin (2023) 15 Cal.5th 176, 191

People v. Ibarra (2024) 106 Cal.App.5th 1070, 1079

People v. Smith (2005) 37 Cal.4th 733, 741

Fifth Holding:

A defendant may be convicted of attempted murder as a direct aider and abettor. To be convicted under such a theory, the defendant must give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill.

Authority:

People v. Nguyen (2015) 61 Cal.4th 1015, 1054

Sixth Holding:

Without any evidence that someone inside the co-defendant’s car targeted or otherwise shot at another person when they fired the underlying shots, we can only speculate as to whether the defendant acted with the intent to kill. Speculation is not substantial evidence.

Authority:

People v. Waidla (2000) 22 Cal.4th 690, 735

Seventh Holding:

The trial court also improperly relied on its own experience as a former gang prosecutor when it denied the petition, noting that it had prosecuted several cases against members of a gang in the 1990’s in explaining why it found that the defendant acted with the intent to kill. The court’s personal experience is not evidence.

Authority:

Abatti v. Imperial Irrigation Dist. (2020) 52 Cal.App.5th 236, 286

Eighth Holding:

When admitting a sentencing enhancement, the defendant admits only the facts necessary to establish the enhancement’s elements.

Authority:

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

Immigration, Sentencing, Standard of review

Case: 000422

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s motion to vacate his guilty plea under section 1473.7. We reverse the judgment. The superior court shall enter an order vacating the defendant’s conviction pursuant to Penal Code section 1473.7(a)(1).

First Holding:

Penal Code section 1473.7 allows those no longer in custody to vacate a conviction if it is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of the conviction.

Authority:

PEN 1473(a)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 316

Second Holding:

The superior court denied the defendant’s motion. It concluded that the defendant’s prosecution had no adverse immigration consequences because the charge he pleaded to did not name cocaine as the controlled substance. It also concluded that because he had completed the Deferred Entry of Judgment (DEJ) arrangement and achieved a dismissal, there was no conviction left to vacate. The court erred. In fact, a DEJ disposition can result in adverse immigration consequences.

Authority:

PC 1203.43

Third Holding:

We apply independent review when the record indicates there was no evidentiary hearing.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319

Fourth Holding:

A conviction of Health and Safety Code section 11350 involving cocaine can have adverse immigration consequences. And in federal immigration tribunals and the Ninth Circuit, a police report forming the factual basis of a plea can furnish details, otherwise missing from charging documents, that allow the imposition of adverse immigration consequences.

Authority:

Lazo v. Wilkinson (9th Cir. 2021) 989 F.3d 705, 714

Matter of Milian-Dubon (B.I.A. 2010) 25 I. & N. Dec. 197, 201,

United States v. Almazan-Becerra (9th Cir. 2008) 537 F.3d 1094, 1097–1100

Suazo Perez v. Mukasey (9th Cir. 2008) 512 F.3d 1222, 1226

In re Sanudo (B.I.A. 2006) 23 I. & N. Dec. 968, 975,

Parrilla v. Gonzales (9th Cir. 2005) 414 F.3d 1038, 1044

United States v. Ramos-Medina (9th Cir. 2013) 706 F.3d 932, 939–940

Fifth Holding:

Under the totality of circumstances in this conceded case, we agree with the parties that the misinformation the defendant received regarding his plea was prejudicial and that reversal to ensure prompt relief under Penal Code section 1473.7(a)(1), rather than remand, is appropriate.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 321, 325–326

People v. Martinez (2013) 57 Cal.4th 555, 559

Immigration, Sentencing, Standard of review

Case: 000421

Posted on by Gary McCurdy

Error and/or relief

The superior court denied the defendant’s motion to vacate his conviction under section 1473.7 because he did not provide a declaration from his defense counsel at the time of his plea or his counsel’s case file, despite the defendant’s diligent efforts in attempting to contact his prior counsel, who had retired since representing him. After independent review, we conclude the defendant met his burden of establishing, by a preponderance of the evidence, error affecting his ability to meaningfully understand, defend against, or knowingly accept the immigration consequences of his plea and reverse the denial of his motion.

First Holding:

Under federal law, a noncitizen convicted of a crime of domestic violence is deportable. This includes an offense under section 273.5(a). A section 273.5 conviction is also a crime of violence under federal immigration law. If a defendant is sentenced to a term of imprisonment of at least 365 days for a crime of violence, the offense qualifies as an aggravated felony conviction. This designation carries even harsher consequences. A noncitizen who is convicted of an aggravated felony at any time after admission is conclusively presumed deportable and is subject to mandatory removal. An aggravated felony conviction renders a noncitizen ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country. Accordingly, removal is a virtual certainty for a noncitizen found to have an aggravated felony conviction, no matter how long he has previously resided here.

Authority:

8 U.S.C. sec. 1227(a)(2)(E)(i)

8 U.S.C. sec 1227(a)(2)(A)(iii)

8 U.S.C. sec. 1228(c)

8 U.S.C. sec.1229b(a)(3), (b)(1)(C)

18 U.S.C. sec. 16(a)

People v. Villalba (2023) 89 Cal.App.5th 659, 666-667

People v. Manzanilla (2022) 80 Cal.App.5th 891, 903-904

Banuelos-Ayon v. Holder (9th Cir. 2010) 611 F.3d 1080, 1083

Second Holding:

Penal Code section 1473.7 allows noncitizens who have served their sentences to vacate a conviction if they can establish by a preponderance of the evidence that their conviction is legally invalid due to prejudicial error damaging their ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. To establish a prejudicial error under section 1473.7, a person need only show by a preponderance of the evidence: 1) he did not meaningfully understand or knowingly accept the actual or potential adverse immigration consequences of the plea; and 2) had he understood the consequences, it is reasonably probable he would have instead attempted to defend against the charges.

Authority:

PEN 1473.7

People v. Espinoza (2023) 14 Cal.5th 311, 316

People v. Mejia (2019) 36 Cal.App.5th 859, 862

Third Holding:

The focus of the first prong of the inquiry is on the defendant’s own error in not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States. There is no additional need to establish the petitioner’s mistake was caused by some third party. A defendant may show, but is not required to show, that he received ineffective assistance of counsel. The error supporting section 1473.7 relief need not be one made by defense counsel or the court but may be one made by the moving party herself if supported by contemporaneous evidence.

Authority:

People v. Mejia (2019) 36 Cal.App.5th 859, 871

People v. Padron (2025) 109 Cal.App.5th 950, 958-959

People v. Lopez (2022) 83 Cal.App.5th 698, 713-714 [At the heart of the prejudicial error analysis is the mindset of the defendant and what he or she understood—or didn’t understand—at the time the plea was taken]

People v. Alatorre (2021) 70 Cal.App.5th 747, 769

People v. Carrillo (2024) 101 Cal.App.5th 1, 16

People v. Ruiz (2020) 49 Cal.App.5th 1061, 1067

People v. Camacho (2019) 32 Cal.App.5th 998, 1008 [ineffective assistance of counsel not required for relief]

People v. Rodriguez (2021) 68 Cal.App.5th 301, 311

Fourth Holding:

A party seeking relief under section 1473.7 is not required to provide the declaration of plea counsel or to submit contemporaneous documentation from the time of the plea. Rather, the inquiry under section 1473.7 requires consideration of the totality of the circumstances, which necessarily involves case-by-case examination of the record, and no specific kind of evidence is a prerequisite to relief. Even a court’s advisement that a guilty plea will result in immigration consequences does not preclude a petitioner from demonstrating that he did not meaningfully understand the immigration consequences of his plea. Depending on the surrounding circumstances, even a warning that deportation will result is not a categorical bar to relief. A general advisement under section 1016.5 does not establish meaningful understanding of immigration consequences.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 320, 325

People v. Curiel (2023) 92 Cal.App.5th 1160, 1175

People v. Lopez (2021) 66 Cal.App.5th 561, 577

People v. Padron (2025) 109 Cal.App.5th 950, 962

People v. Camacho (2019) 32 Cal.App.5th 998, 1011 [petitioner may present sufficient evidence of his lack of understanding such that the court’s advisement cannot be taken as irrebuttable proof that defendant likely would have entered his plea notwithstanding adverse immigration consequences]

Fifth Holding:

As to the prejudice prong, a defendant must demonstrate a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences and must corroborate any assertions with objective evidence. A reasonable probability does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311,

People v. Vivar (2021) 11 Cal.5th 510, 530

People v. Lopez (2022) 83 Cal.App.5th 698, 714

People v. Padron (2025) 109 Cal.App.5th 950, 959

People v. Soto (2022) 79 Cal.App.5th 602, 610

Sixth Holding:

We independently review the denial of a section 1473.7 motion. Under independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. If the superior court heard testimony, we give particular deference to any factual findings based on the trial court’s personal observations of witnesses. But where, as here, the facts derive entirely from written declarations and other documents, there is no reason to conclude the trial court has the same special purchase on the question at issue; as a practical matter, the trial court and this court are in the same position in interpreting written declarations when reviewing a cold record in a section 1473.7 proceeding. Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 527-528

People v. Padron (2025) 109 Cal.App.5th 950, 959

Discretion, Duty of the court, Juveniles, Standard of review

Case: 000415

Posted on by Gary McCurdy

Error and/or relief

The court failed to show it recognized and exercised its discretion to designate second degree burglary as a felony or a misdemeanor, and the program condition of probation delegated impermissibly broad discretion to the probation officer

First Holding:

Second degree burglary is a “wobbler,” that is, an offense that may be punished as either a felony or a misdemeanor. This determination is important not only because felonies are subject to longer periods of confinement, but also because felony convictions have additional adverse consequences, including use without limitation for impeachment under Proposition 8 in subsequent criminal proceedings, enhancement of sentences, and the general blight upon the character of persons convicted of felonies. To ensure that juvenile courts are aware of their discretion to charge wobblers as misdemeanors and that they consciously choose to treat wobblers committed by juveniles as felonies, juvenile courts are required to expressly declare how they are treating such offenses. If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.

Authority:

WIC 707

People v. Williams (2010) 49 Cal.4th 405, 461, fn. 6

In re Manzy W. (1997) 14 Cal.4th 1199, 1207, 1209

In re Kenneth H. (1983) 33 Cal.3d 616, 619, fn. 3

Second Holding:

Although remand is not automatically required when a juvenile court fails to expressly declare that a wobbler is a felony or misdemeanor, to establish prejudice a juvenile need not show a reasonable probability of a more favorable outcome. Also, challenges under Welfare and Institutions Code section 702 are not forfeited by failure to object at trial. Instead, in this context, the key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit. The record in this case does not reflect that the court was aware of its discretion to properly exercise it. A minute order may not substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or a felony.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 704, 711-714, 717

In re Manzy W. (1997) 14 Cal.4th 1199, 1209

Third Holding:

We review juvenile placement decisions for abuse of discretion. It was not an abuse of discretion to order the minor to be placed in a secure facility.

Authority:

In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154

Fourth Holding:

In placing the minor in a secure facility, the juvenile court imposed a number of terms and conditions, including a requirement that he participate in and complete any appropriate programs as directed by [his] Probation Officer. We review orders of this nature de novo. This condition is an improper delegation of judicial authority. Probation conditions may be challenged for the first time on appeal if they are challenged as unconstitutional on their face and the challenge therefore presents a pure question of law.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 888

Fifth Holding:

Although juvenile courts have greater discretion to formulate probation terms than adult criminal courts, their discretion to delegate authority is restricted by the separation-of-powers doctrine. Under the California Constitution, separation of powers does not mean an entire or complete separation of powers or functions, which would be impracticable, if not impossible. Thus, a court may delegate to a probation officer authority to specify the details necessary to effectuate the court’s probation conditions. However, the separation-of-powers doctrine limits the delegation of judicial authority to nonjudicial officers, especially in the absence of judicial supervision and review of the exercise of that authority. Consequently, a court may not delegate complete discretion over a significant aspect of the court’s legal control. To satisfy the separation-of-powers doctrine, a court delegating judicial authority to a probation officer must dictate the basic policy of a condition of probation.

Authority:

In re Victor L. (2010) 182 Cal.App.4th 902, 910, 919

In re D.N. (2022) 14 Cal.5th 202, 208-209, 212

People v. Smith (2022) 79 Cal.App.5th 897, 902, 903 [holding impermissible delegation of authority permitting probation officer to choose between residential and outpatient substance abuse programs]

People v. O’Neal (2008) 165 Cal.App.4th 1351, 1359 [the court’s order cannot be entirely open-ended]

People v. Leon (2010) 181 Cal.App.4th 943, 952 [holding impermissible delegation of authority permitting probation officer to authorize probationer to attend court proceedings and otherwise barring probationer from attending court proceedings unless a party or witness]

Equal protection, Juveniles, Sentencing, Standard of review

Case: 000404

Posted on by Gary McCurdy

Error and/or relief

For criminal conduct committed when he was 17, the imposition of a sentence of a determinate term of nine years plus and indeterminate term of more than 150 years to life was the functional equivalent of a sentence of life without the possibility of parole (LWOP), and as a matter of equal protection, the defendant must be considered eligible to petition for recall and resentencing under section 1170(d)(1).

First Holding:

Statutory interpretation and the application of undisputed facts to a statute are questions of law we review de novo.

Authority:

People v. Salcido (2008) 166 Cal.App.4th 1303, 1311

Second Holding:

A juvenile defendant who was sentenced to imprisonment for life without the possibility of parole is eligible to seek resentencing under section 1170(d). Although the defendant’s sentence does not fall within the statute’s plain language, the constitutional right of equal protection extends section 1170(d) eligibility to juvenile offenders who were sentenced to the functional equivalent of LWOP.

Authority:

PEN 1170(d)(1)(A)

People v. Heard (2022) 83 Cal.App.5th 608, 633–634

Third Holding:

The defendant’s sentence exceeds the sentence in Heard, and the People concede it unquestionably exceeds the juvenile offender’s natural lifespan.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 440, 450–451 [10 years plus 130 years to life constituted functional equivalent of LWOP]

People v. Caballero (2012) 55 Cal.4th 262, 265, 267–268 [40 years plus 70 years to life]

Fourth Holding:

The defendant’s youth offender parole eligibility under section 3051 does not affect his eligibility to seek section 1170(d) resentencing because section 3051 relief became available only after his sentence was imposed. As relevant here, under section 3051, a youth offender sentenced to a life term of 25 years to life or more is eligible for parole after 25 years of incarceration. (PC 3051(b)(3).) Because section 1170(d)(1) refers to what the defendant was sentenced to, what matters is the defendant’s original sentence. We acknowledge that other courts have parted ways with Heard, but we do not.

Authority:

People v. Heard (2022) 83 Cal.App.5th 608, 629

Immigration, Standard of review

Case: 000398

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his motion under Penal Code section 1473.7 to vacate his 1991 drug conviction. We conclude the trial court improperly denied his motion as successive. We will reverse and remand with instructions.

First Holding:

Section 1473.7(a)(1) authorizes a person no longer in criminal custody to file a motion to vacate a conviction or sentence that is legally invalid due to prejudicial error damaging person’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A successful section 1473.7 motion requires a showing, by a preponderance of the evidence, of a prejudicial error that affected the defendant’s ability to meaningfully understand the actual or potential immigration consequences of a plea. Prejudicial error means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 517

People v. Espinoza (2023) 14 Cal.5th 311, 319

Second Holding:

We apply independent review to evaluate whether a defendant has demonstrated a reasonable probability that he would have rejected the plea offer had he understood its immigration consequences. Under that standard, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. When the trial court’s findings derive entirely from written declarations and other documents, the trial court and the reviewing court are in the same position, and no deference is owed.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

Third Holding:

Given intervening amendments to section 1473.7 between the defendant’s first and second motions, we agree with the parties that the section motion was not successive of his first. Effective January 1, 2019, Assembly Bill No. 2867 (2017-2018 Reg. Sess.) made it easier to retroactively challenge convictions based on an inadequate immigration advisement. Significantly, the new law eliminated the need to meet the requirements of Strickland v. Washington (1984) 466 U.S. 668 (on ineffective assistance of counsel). Section 1473.7 states that a finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. Because the new law provides a different standard for challenging and prevailing based on immigration advisement errors, the earlier motion did not bar appellant’s later motion.

Authority:

People v. Ruiz (2020) 49 Cal.App.5th 1061, 1066

Fourth Holding:

Although the trial court erred in denying appellant’s motion as successive, mere judicial error does not establish bias and normally is not a proper ground for disqualification. We find nothing in the record that demonstrates actual bias or the appearance of bias. Thus, we deny the request to appoint a different judicial officer on remand.

Authority:

In re Tuilaepa (2025) 108 Cal.App.5th 1262, 1283

People v. LaBlanc (2015) 238 Cal.App.4th 1059, 108

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

Case: 000396

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition for recall under section 1172.6 because it applied an incorrect definition of reckless indifference to human life.

First Holding:

The trial court erred in defining reckless indifference as meaning there is a foreseeable risk of death. Reckless indifference requires there be a grave or significant risk of death.

Authority:

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

Second Holding:

In criminal cases an appellate court may take into consideration the judge’s statements as a whole when they disclose an incorrect rather than a correct concept of the relevant law, embodied not merely in secondary remarks but in the court’s basic ruling. In the instant case, the trial court’s understanding of the law is set forth in the trial court’s ruling, as opposed to stray remarks. Accordingly, we will review the trial court’s presentation and application of the law of reckless indifference. Because this is a purely legal issue, we will utilize the independent standard of review.

Authority:

People v. Tessman (2014) 223 Cal.App.4th 1293, 1303

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

Third Holding:

Reckless indifference means knowingly engaging in criminal activities known to carry a grave risk of death. The degree of risk to human life is crucial to the analysis. There must be a significant risk of death. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient. Only knowingly creating a grave risk of death satisfies the statutory requirement. Participation in a garden-variety armed robbery, i.e., one in which the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 883, 884

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

Fourth Holding:

In its ruling, the trial court asserted that recklessness is also determined by an objective standard, namely what a law-abiding person would observe in the actor’s situation. The trial court’s presentation of the law of recklessness failed to include the requirement that there be a significant risk of death, which is a crucial part of the reckless indifference analysis. By omitting a critical part of the law, one can infer that the trial court did not have a full understanding of the meaning of reckless indifference.

Authority:

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

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

Case: 000393

Posted on by Gary McCurdy

Error and/or relief

The evidence presented at trial was insufficient to support a finding that the open beer can in this case was a deadly weapon. The conviction for assault with a deadly weapon is reversed.

First Holding:

We review a claim of insufficient evidence under the substantial evidence standard of review. The test is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. Substantial evidence is evidence that is reasonable, credible and of solid value. We presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. It must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict.

Authority:

In re Ryan N. (2001) 92 Cal.App.4th 1359, 1372

People v. Kraft (2000) 23 Cal.4th 978, 1053

In re I.C. (2018) 4 Cal.5th 869, 892

People v. Manibusan (2013) 58 Cal.4th 40, 87

People v. Conners (2008) 168 Cal.App.4th 443, 453

Second Holding:

Objects may be deadly weapons as a matter of law, such as dirks and blackjacks, because the ordinary use for which they are designed establishes their character as such. On the other hand, pocket knives, canes, hammers and hatchets are not deemed deadly weapons per se.

Authority:

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

People v. Graham (1969) 71 Cal.2d 303, 327, disapproved on other grounds by People v. Ray (1970) 14 Cal.3d 20

Third Holding:

Objects may be determined to be deadly weapons when used in a manner capable of producing and likely to produce great bodily injury. “Likely” means a high probability of occurring with a great probability of serious injury. Rolls of coins, batteries, and bicycle footrests have been determined to be deadly weapons when used in a manner capable of producing and likely to produce great bodily injury. No injury or even physical contact is required to support a conviction of assault with a deadly weapon because the focus is on the use of the weapon in a manner likely to produce great bodily injury.

Authority:

In re B.M. (2018) 6 Cal.5th 528, 533 [the manner of use must by capable of and likely to produce death or great bodily injury – two different concepts]

In re David V. (2010) 48 Cal.4th 23, 30 and fn. 5

People v. Aguilar (1997) 16 Cal.4th 1023, 1028

Fourth Holding:

The use of an object in a manner likely to produce death or great bodily injury requires more than a mere possibility that serious injury could have resulted from the way the object was used. Conjecture as to how the object could have been used is not permitted in the analysis. Rather, the determination of whether an object is a deadly weapon under section 245(a)(1) must rest on evidence of how the defendant actually used the object.

Authority:

In re B.M. (2018) 6 Cal.5th 528, 534

Fifth Holding:

If injury does occur, such injuries and their location are relevant in determining whether the object was used in a manner likely to produce great bodily injury. Great bodily injury means significant or substantial injury. Insignificant, trivial or moderate injury is not significant or substantial. Our inquiry is limited to whether substantial evidence supports the jury’s finding that the defendant used the open beer can as a deadly weapon, that is, in a manner capable of producing and likely to produce great bodily injury.

On this record, the defendant’s use of the beer can, tossed from six feet away in a slight overhand manner or with a slinging or flicking motion was not likely to cause serious bodily injury or death. The victim did not sustain great bodily injury, significant or substantial injury, or even anything greater than minor or moderate harm. There was little or no objective description of the can or its weight, and it was not introduced into evidence. There was no evidence of sharp or jagged edges on the can, other data points that would have been relevant to determining the likelihood of producing great bodily injury.

Without more details, it is speculation that the open beer can, used as it was, was capable of producing and likely to produce great bodily injury. Perhaps the beer can, if wielded differently, may have been likely to cause great bodily injury, but our inquiry is limited to how the beer can was actually used.

Authority:

In re Brandon T. (2011) 191 Cal.App.4th 1491, 1497

People v. Brown (2012) 210 Cal.App.4th 1, 7

People v. Quinonez (2020) 46 Cal.App.5th 457, 464

In re Manuel G. (1997) 16 Cal.4th 805, 822–825

People v. Hahn (1956) 147 Cal.App.2d 308, 309–310 [assault with a deadly weapon occurred when robbery victim driving a car was struck on the head four times with a beer can by passenger sitting behind him]

People v. Beasley (2003) 105 Cal.App.4th 1078, 1087, 1088 [bruises on arms and shoulders, without further injury, not great bodily injury]

In re Brandon T. (2011) 191 Cal.App.4th 1491, 1497 [small scratch on cheek not great bodily injury]

In re D.T. (2015) 237 Cal.App.4th 693, 696–697 [sharp pocketknife poked into the victim’s back likely to produce great bodily injury]

People v. Page (2004) 123 Cal.App.4th 1466, 1469, 1474 [sharp pencil held to the victim’s neck likely to produce great bodily injury]

People v. Duke (1985) 174 Cal.App.3d 296, 303

Discretion, Duty of the court, Standard of review

Case: 000392

Posted on by Gary McCurdy

Error and/or relief

The trial court applied an incorrect legal standard in ruling on the defendant’s petition seeking mental health diversion. We thus conditionally vacate defendant’s no contest plea, conditionally reverse the judgment, and remand the matter for further proceedings consistent with section 1001.36.

First Holding:

We review a trial court’s order denying mental health diversion for abuse of discretion and its factual findings for substantial evidence. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence. We presume a trial court’s order is correct and indulge all intendments and reasonable inferences to support it. Absent evidence to the contrary, we presume a trial court knew the law and followed it. But where a court’s ruling clearly expresses the legal and factual basis for its resolution of controverted issues, an appellate court will not imply findings the trial court did not make.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 448–449

People v. Giordano (2007) 42 Cal.4th 644, 666

People v. Ramirez (2021) 10 Cal.5th 983, 1042

Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384

Second Holding:

Section 1001.36(b)(1)(2) provides that a defendant is eligible for mental health diversion if (1) they present evidence that in the last five years they have been diagnosed by a qualified mental health expert with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, and (2) their mental disorder was a significant factor in the commission of the charged offense.

Authority:

PEN 1001.36(b)

Third Holding:

If a defendant satisfies the eligibility requirements in section 1001.36(b), the court then must consider whether the defendant is suitable for diversion based on the following criteria set forth in section 1001.36(c): (1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder that caused, contributed to, or motivated the defendant’s criminal behavior would respond to mental health treatment; (2) The defendant consents to diversion and waives their right to a speedy trial; (3) The defendant agrees to comply with treatment as a condition of diversion; and (4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community.

Authority:

PEN 1001.36(c)

Fourth Holding:

A diversion order is expressly discretionary with the court, even when all of the criteria are met. However, this residual discretion must be exercised consistent with the principles and purpose of the governing law. The stated purpose of mental health diversion is to keep people with mental disorders from entering and reentering the criminal justice system while protecting public safety, to give counties discretion in developing and implementing diversion across a continuum of care settings, and to provide mental health rehabilitative services. Legislative history confirms there is a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 691

Fifth Holding:

The record shows that the trial court’s ruling failed to apply the correct legal standards to defendant’s diversion request. After finding defendant eligible, the court denied him diversion because he was unsuitable based on the determination that he targeted vulnerable people. This ruling rests on a legal error because the court did not apply the four statutory suitability criteria found in section 1001.36(c). Additionally, denial of mental health diversion using a court’s residual discretion should be limited to those situations where the purposes of the statute would not be achieved.

Here, the trial court relied on its observation that defendant targeted vulnerable victims but failed to tie that observation to achieving the purposes of the statute, and the strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community. By applying the wrong legal standard, the trial court abused its discretion in denying defendant’s motion for mental health diversion.

Authority:

Grossmont Union High School Dist. v. Diego Plus Education Corp. (2023) 98 Cal.App.5th 552, 584 [trial court applied an incorrect legal standard when it did not apply one of the essential components for deciding whether fees should be awarded under the applicable fee statute]

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 138

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 691

People v. Moine (2021) 62 Cal.App.5th 440, 449

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

Case: 000389

Posted on by Gary McCurdy

Error and/or relief

Consolidation and cross-admission of unrelated charges was improper and prejudicial under the circumstances of this case, and we will therefore reverse the judgment for possible retrial. Due to insufficient evidence of defendant’s guilt under certain murder theories presented to the jury, we will bar the prosecution from pursuing those theories in any retrial.

First Holding:

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We presume the existence of every fact that the trier of fact could reasonably deduce from the evidence to support the judgment. To overturn a jury’s finding, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.

Authority:

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

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

People v. Redmond (1969) 71 Cal.2d 745, 755

Second Holding:

First degree willful, deliberate, and premeditated murder must be committed with express malice—i.e., willfully. The remaining elements of premeditation and deliberation are generally established through the following types of evidence: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as planning activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a motive to kill the victim, and (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design to take his victim’s life in a particular way for a reason which the jury can reasonably infer from facts of type (1) or (2).

The evidence of premeditation and deliberation is generally sufficient when there is evidence of all three types or at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3). These factors discussed in Anderson, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.

Authority:

PEN 188(a)(1)

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

People v. Anderson (1968) 70 Cal.2d 15, 26–27

People v. Perez (1992) 2 Cal.4th 1117, 1125

Third Holding:

Where, as here, offenses in separate cases meet a statutory basis for consolidation, a defendant bears the burden to make a clear showing of prejudice to establish that the trial court abused its discretion in consolidating the cases. In our review, we examine the record before the trial court when it denied defendant’s severance motion and consider: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.

Authority:

PEN 954

People v. Mendoza (2000) 24 Cal.4th 130, 160-161

Fourth Holding:

We first address the charges’ cross-admissibility, because a finding of cross-admissibility generally negates the possibility of prejudice. Evidence of other crimes can be admitted to prove the offender acted according to a certain plan, or acted with a particular motive, if a degree of similarity exists between the past and present crimes so as to permit a reasonable inference that the offender must have entertained the same intent in both instances

Authority:

People v. Merriman (2014) 60 Cal.4th 1, 38

People v. Jones (2013) 57 Cal.4th 899, 926

Fifth Holding:

There exists a hierarchy, or continuum, with respect to the degree of similarity that is needed for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought. To be admissible to demonstrate a distinctive modus operandi, the evidence must disclose common marks or identifiers, that, considered singly or in combination, support a strong inference that the defendant committed the crimes. To be admissible to show intent, however, the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance. To be cross-admissible to establish motive, the offenses need not necessarily be factually similar but must share a direct logical nexus.

Authority:

Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1222

People v. Maury (2003) 30 Cal.4th 342, 392

People v. Yeoman (2003) 31 Cal.4th 93, 121

People v. Demetrulias (2006) 39 Cal.4th 1, 15

People v. Scheer (1998) 68 Cal.App.4th 1009, 1018 [the motive for the charged crime arises simply from the commission of the prior offense]

Sixth Holding:

Disputed identity is a factor to be considered in weighing the probative value of allegedly cross-admissible evidence of intent against the likelihood of undue prejudice due to its admission.

Authority:

People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2

People v. Earle (2009) 172 Cal.App.4th 372, 390–391

People v. King (2010) 183 Cal.App.4th 1281, 1301–1303

People v. Thompson (1988) 45 Cal.3d 86, 109 [to be admitted, evidence of other crimes must not contravene other policies limiting admission, such as those contained in Evidence Code section 352]

Due process, Duty of the court, Standard of review

Case: 000380

Posted on by Gary McCurdy

Error and/or relief

We review an order denying the defendants motion to vacate his conviction based on newly discovered evidence of factual innocence, pursuant to Penal Code section 1473.7(a)(2). We reverse the order because the defendant was entitled to a hearing in the trial court to consider his eligibility for relief under section 1473.7(d).

First Holding:

The construction and interpretation of a statute is a question of law that we consider de novo on appeal.

Authority:

People v. Fryhaat (2019) 35 Cal.App.5th 969, 975

Second Holding:

Section 1473.7 expressly provides that a person who is no longer in criminal custody may file a motion to vacate a conviction or sentence based on newly discovered evidence of actual innocence that requires vacation of the conviction or sentence as a matter of law or in the interests of justice. Persons who file a section 1473.7 motion are entitled to a hearing on the merits of the motion, per subdivision (d): “All motions shall be entitled to a hearing.” The plain language of section 1473.7 also entitles the moving party to be personally present at the hearing. However, upon the request of the moving party, the court may hold the hearing without the personal presence of the moving party provided that it finds good cause as to why the moving party cannot be present.

Authority:

PEN 1473.7

Third Holding:

As to appointment of counsel on the defendant’s behalf, the trial court was required to determine whether his petition stated a prima facie case for relief. If a prima facie case has been made, appointment of counsel is demanded by due process concerns. Here, the trial court summarily denied the petition without addressing entitlement to counsel and whether the defendant had presented a prima facie case for relief. The court reviewed only a handwritten one-page motion that it determined fails to cite to a basis for the relief without reviewing the entirety of the defendant’s 42-page motion.

Authority:

People v. Fryhaat (2019) 35 Cal.App.5th 969, 981, 983

Amelioration, Elements of crime, Sentencing, Standard of review, Vicarious liability

Case: 000374

Posted on by Gary McCurdy

Error and/or relief

The defendant was not the actual killer in the 1995 crime, but the trial court denied his 1172.6 petition based on finding that he was a substantial participant in the underlying felony and thus could be convicted of felony murder even under current law. We do not find substantial evidence to support a finding that the defendant subjectively appreciated (knew) that his actions would likely result in the victim’s death death (i.e., reckless indifference to human life). Thus, we reverse the order of the trial court denying the defendant’s section 1172.6 petition. On remand, the trial court is directed to grant the petition, vacate the murder conviction, and resentence the defendant.

First Holding:

A person who did not kill or act with the intent to kill cannot be liable under a first degree felony-murder theory unless there is substantial evidence that the person was a major participant in the underlying felony and that they subjectively appreciated that their acts were likely to result in the taking of innocent life.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 893

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.

Authority:

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

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

 

Third 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. As to murder, the actus reus is the perpetrator’s act causing death, and the mens rea is malice aforethought. 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. The legislation also created a procedure by which a defendant previously convicted of murder under either of those former theories could file a petition for resentencing.

The Legislature’s current version of the felony-murder rule now provides that a participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer; (2) the person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 189

PEN 1172.6.

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

Fourth Holding:

For felony-murder, the required act is being a major participant in the underlying felony, and the required mental state is a reckless indifference to human life.

Authority:

PEN 189

Fifth Holding:

Ordinarily, the United States Supreme Court has held that the prohibition against cruel and unusual punishments requires a defendant to have either an express or implied intent to kill in order for the death penalty to apply. But as an exception, the Court held that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.

Authority:

Enmund v. Florida (1982) 458 U.S. 782, 797 [wheelman who did not participate in killing during armed robbery could not receive the death penalty]

Tison v. Arizona (1987) 481 U.S. 137, 158

Sixth Holding:

In Banks, the California Supreme Court later identified a nonexclusive list of factors that are relevant in deciding whether a person was a major participant under the felony-murder special circumstance. The major participant factors identified in Banks are these: 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?

No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant’s participation in criminal activities known to carry a grave risk of death was sufficiently significant to be considered major.

Authority:

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

Seventh Holding:

In Clark, the Court identified a nonexclusive list of factors that are relevant in deciding whether a person acted with reckless indifference to human life: the defendant’s knowledge, and the use and number of weapons; the defendant’s proximity to the crime and opportunity to stop the killing or aid the victim; the duration of the conduct, that is, whether a murder came at the end of a prolonged period of restraint of the victims by defendant; the defendant’s awareness his or her confederate was likely to kill; and the defendant’s efforts to minimize the possibility of violence during the crime.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618-623

Eighth Holding:

Reckless indifference encompasses both subjective and objective elements. 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:

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

Ninth Holding:

The degree of risk to human life is crucial to the analysis. The possibility of bloodshed is inherent in the commission of any violent felony, such that one who perpetrates or attempts to perpetrate such a crime may well anticipate the use of lethal force as a possibility. Were that degree of culpability sufficient, however, it would amount to little more than a restatement of the former felony-murder rule that the Legislature retired. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient to establish reckless indifference to human life; only knowingly creating a grave risk of death satisfies the statutory requirement.

Authority:

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

Tenth Holding:

Participation in a “garden-variety armed robbery,” i.e., one in which the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference. Although any person who plans or participates in an armed robbery can be said to anticipate that lethal force might be used, only about 1 in 200 armed robberies result in death.

Authority:

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

Eleventh Holding:

Courts must conduct a fact-intensive, individualized inquiry into where a defendant’s conduct falls on the spectrum of culpability between Enmund (the wheelman who merely participated in the underlying felony) and Tison (the defendants who armed escaped convicts and whose actions over a prolonged period demonstrated that they knew that the escapees were likely to kill).

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 882-883