Category Archives: Standard of review

Discretion, Standard of review, Statutory interpretation

Case 000981

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion by denying diversion after finding that the defendant is NOT likely to commit a super strike offense.

We reverse the judgment and direct the court to vacate its order denying mental health diversion and enter a new order granting the motion unless there is evidence of changed circumstances that provide a basis for denying the motion.

First Holding:

The defendant obtained a certificate of probable cause and appealed the denial of his motion for mental health diversion. Appeal lies from the judgment.

Authority:

PEN 1237.5 [appeal may be taken after a no contest plea if the court issues a certificate of probable cause]

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

Second Holding:

We review the diversion denial order for abuse of discretion, meaning the decision is arbitrary or capricious, applied the wrong legal standard, or is unsupported by substantial evidence.

Authority:

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

People v. Graham (2024) 102 Cal.App.5th 787, 795

Third Holding:

The diversion law promotes increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. The potentially ameliorative benefit for criminal defendants who suffer from a qualifying mental disorder is balanced against protecting public safety. The law is intended to apply as broadly as possible.

Authority:

PEN 1001.35(a)

People v. Frahs (2020) 9 Cal.5th 618, 630-631

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149

Fourth Holding:

A defendant charged with a felony may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources” for up to two years. If the defendant performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.

In other words, the arrest upon which the diversion was based shall be deemed never to have occurred. If the defendant performs unsatisfactorily in a treatment program or engages in criminal conduct, the court may reinstate criminal proceedings.

Authority:

PEN 1001.36(f)(1)(A)(ii) and (C)(i), (g), and (h)

People v. Frahs (2020) 9 Cal.5th 618, 631

Fifth Holding:

A defendant is eligible for diversion if a mental health expert diagnoses the defendant with a qualifying mental disorder that was a significant factor in commission of the charged offense. A defendant is suitable for diversion if

(1) the expert opines that the defendant would respond to treatment;

(2) the defendant consents to diversion and waives the right to a speedy trial;

(3) the defendant agrees to comply with treatment; and

(4) the defendant will not pose an unreasonable risk of danger to public safety.

Authority:

PEN 1001.36(b) and (c)

People v. Tourville (2026) 120 Cal.App.5th 439, 452

Sixth Holding:

The only disputed issue in this appeal is public safety. The Legislature defined “unreasonable risk of danger to public safety” by incorporating section 1170.18. Section 1170.18(c) defines “unreasonable risk of danger to public safety” as an unreasonable risk that the petitioner will commit a new violent felony listed in section 667. The relevant violent felonies in section 667 are super strikes. Burglary–the charge the defendant faced–is not a super strike.

Courts limit discretion to deny diversion on “public safety” grounds to instances where a defendant is likely to commit a super strike.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449–450

People v. Williams (2021) 63 Cal.App.5th 990, 1001

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1151

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896

People v. Brown (2024) 101 Cal.App.5th 113, 121

People v. Graham (2024) 102 Cal.App.5th 787, 798–799

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 690–691

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 83, 87–88

People v. Tourville (2026) 120 Cal.App.5th 439, 454–455

Seventh Holding:

The Legislature is presumed to know about existing case law when it amends a statute. The Legislature amended section 1001.36 seven times between 2022 and 2026 without eliminating the reference to section 1170.18, despite the decisions cited above, which require a finding that the defendant poses a risk of committing super strikes.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1062

People v. Mitchell (2026) 19 Cal.5th 729, 743

People v. Frahs (2020) 9 Cal.5th 618, 634

Eighth Holding:

Beginning in 2027, courts applying section 1001.36 will no longer use the old definition of “unreasonable risk of danger to public safety” from section 1170.18. Instead, they will apply a new standard: “substantial and undue risk to the physical safety of another person.” Regardless of the forthcoming changes to section 1001.36, the version of the law applying to this defendant required a super strike finding.

The trial court found he did not pose a risk of committing super strikes, only that he poses an unreasonable risk of committing further residential burglaries. The court could not deny diversion based on a risk the defendfant will commit burglaries, thereby discounting the need to find public safety is imperiled by likely super strike offenses. The Legislature has specifically defined what constitutes ‘an unreasonable risk of danger to public safety’ under the statute, limiting it to the danger the defendant will commit a super strike.

Authority:

People v. Tourville (2026) 120 Cal.App.5th 439, 455

Ninth Holding:

Courts recognize “residual discretion” to deny diversion. However, while it is clear a trial court retains residual discretion to deny diversion even if all the threshold requirements are met, that does not mean, as the court suggested here, that it could reject a request for diversion based on an alternative meaning of public safety inconsistent with the specific statutory definition in section 1001.36(c)(4). In the guise of exercising its residual discretion, a court is not permitted to redefine public safety in a manner inconsistent with the Legislature’s expressed intent.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896

Tenth Holding:

Reasons the court might exercise discretion to deny diversion include lack of a treatment program; a defendant’s history of failed treatment or misconduct in prior programs; or the availability of a better program for the defendant’s needs.

Authority:

People v. Tourville (2026) 120 Cal.App.5th 439, 457

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 889–890

Appellate Principles, Discretion, Sentencing, Standard of review

Case 000975

Posted on by Gary McCurdy

Error and/or relief

We vacate the defendant’s sentence and remand for resentencing because the trial court erroneously believed the law required it to impose consecutive sentences for every count.

First Holding:

Under section 667.61(i), consecutive sentences are mandatory only to offenses listed in section 667.61(c), paragraphs (1) through (7). The crime of which the jury found the defendant guilty is described in 667.61(c), paragraph (8).

Thus, consecutive sentencing was not mandatory.

Authority:

PEN 667.61(c)

Second Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court, and a court that is unaware of its discretionary authority cannot exercise its informed discretion.

When a sentencing court was not aware of the full scope of its discretionary powers at the time the defendant was sentenced, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion.

Authority:

People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8

People v. Salazar (2023) 15 Cal.5th 416, 419

Third Holding:

The Attorney General argues that the defendant forfeited his sentencing contention by failing to object below to the court’s error, and that the defendant cannot show his counsel was ineffective for failing to object because it was not reasonably likely the court would have imposed anything less than the 150-year sentence that it did.

We exercise our discretion to reach the question, notwithstanding forfeiture.

Authority:

People v. Leon (2016) 243 Cal.App.4th 1003 [the trial court’s erroneous understanding that it had no discretion to impose concurrent sentences may fall within a narrow class of sentencing issues that are reviewable in the absence of a timely objection, and in any event, we would exercise our discretion to resolve the claim in the interests of fairness and judicial economy and to forestall unnecessary ineffective assistance of counsel claims.]

People v. Williams (1998) 17 Cal.4th 148, 162, fn. 6 [An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

Fourth Holding:

The trial court’s repeated references to section 667.61(i)’s requirement that it impose consecutive sentences leaves no doubt that the court here did not know it retained the discretion to impose concurrent sentences per victim.

The court provided no other reason for imposing consecutive sentences, including no comment that the aggravating factor warranted a maximum sentence or any similar comment.

We therefore cannot conclude that the record clearly indicates the court would have imposed the same sentence if it had understood its full sentencing discretion. We accordingly remand the matter for resentencing.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 419

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

Case 000974

Posted on by Gary McCurdy

Error and/or relief

Punishment for the defendant’s conviction of the false imprisonment count must be stayed under section 654.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.

Section 654 does not prevent multiple convictions for the same conduct, only multiple punishments for a single, indivisible course of action. A defendant can be punished for multiple offenses where a course of conduct is divisible, giving rise to more than one act.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 551

People v. Corpening (2016) 2 Cal.5th 307, 311

Second Holding:

To determine whether a course of conduct involving more than a single act is divisible for purposes of section 654, we consider whether the course of conduct included multiple intents and objectives.

If the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.

If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

People v. Beamon (1973) 8 Cal.3d 625, 639

People v. Harrison (1989) 48 Cal.3d 321, 335

Third Holding:

However, even if there is but a single objective for a course of conduct, a temporal break between individual acts may subject them to multiple punishments. This is particularly so where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.

In assessing whether section 654 applies, the court may consider a number of factors, including whether the defendant had multiple sequential intents, as well as whether he had the opportunity to pause and reflect before continuing his course of action.

Authority:

People v. Andra (2007) 156 Cal.App.4th 638, 640

People v. Surdi (1995) 35 Cal.App.4th 685, 689

Fourth Holding:

The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them.

Thus, we review the record in the light most favorable to the judgment and uphold it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question.

Ultimately, if the trier of fact determines the crimes have different intents and motives, multiple punishments are appropriate.

Authority:

People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312

People v. Armstrong (2016) 1 Cal.5th 432, 450

People v. Saffle (1992) 4 Cal.App.4th 434, 439

Fifth Holding:

We agree that defendant cannot be subjected to multiple punishments for the false imprisonment conviction and the second domestic violence conviction. In closing argument, the prosecutor clarified that defendant was charged with false imprisonment for grabbing the victim by her hair as she ran toward the door and pulling her back toward the stairs, where he committed an additional act of domestic violence.

The false imprisonment and second domestic violence offenses were both committed to facilitate one assaultive objective.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

Sixth Holding:

As a result, the facts here are distinguishable from those in the cases relied upon by the Attorney General, where courts determined that section 654 did not require staying sentences for offenses committed after the other offense had already been completed.

Authority:

People v. Coleman (1989) 48 Cal.3d 112, 162-163 [the defendant had essentially completed the robbery before committing assault; court could reasonably conclude that the defendant committed the assault with the intent and objective of preventing the victim from sounding the alarm about the murder]

People v. Foster (1988) 201 Cal.App.3d 20, 27 [false imprisonment not necessary or incidental to commission of robbery because the act of locking the victims in a store cooler occurred only after the robbers had obtained all the money]

Seventh Holding:

Therefore, we shall vacate the sentence and remand the matter for a full resentencing.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379 [sec. 654 previously required court to impose sentence that provided for longest term of imprisonment, but now provides the trial court with discretion to impose sentence of either term]

People v. Buycks (2018) 5 Cal.5th 857, 893 [full resentencing as to all counts is appropriate to allow court to exercise its discretion in light of changed circumstances]

Sentencing, Sixth Amendment, Standard of review

Case 000969

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded for resentencing or for the trial court to obtain a personal waiver of the defendant’s right to a jury trial on the aggravating circumstances.

First Holding:

The court indicated that the defendant was not entitled to a jury trial on certain aggravating factors that are to be decided by the court. It did not elicit an express jury trial waiver personally from the defendant.

Defense counsel did not object or demand a jury trial on the aggravating factors, and declined to present any evidence on the factors in aggravation.

The court found that the factors in aggravation include that the defendant has engaged in violent conduct and indicates a serious danger to society. His prior convictions as an adult are numerous. He has served a prior prison term not used to enhance this case. His prior performance on probation, both misdemeanor and felony, as well as state parole, was unsatisfactory, in that he violated terms and/or reoffended.

Under Wiley, the defendant was entitled to a jury trial on those factors in aggravation.

Authority:

U.S. Const., 6th Amend.

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

Second Holding:

Section 1170(b) provides that a trial court may not impose the upper term when a criminal statute specifies three possible terms of confinement unless circumstances in aggravation justify doing so 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.

Authority:

PEN 1170(b)

Third Holding:

A fact constituting an element of the offense cannot be relied upon by a trial court to aggravate or enhance a sentence on that offense.

Authority:

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

People v. Marshall (1987) 196 Cal.App.3d 1253, 1259

People v. Falcon (2023) 92 Cal.App.5th 911, 952–953, disapproved on other grounds in People v. Lynch (2024) 16 Cal.5th 730, 751, 768–769

Fourth Holding:

Notwithstanding the right to a jury trial on the aggravating factors relied on to impose the upper term, the court may consider the defendant’s prior convictions based on a certified record of conviction without submitting the prior convictions to a jury.

However, the court’s consideration is limited to the bare fact of a prior conviction and its elements.

Authority:

PEN 1170(b)(3)

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

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

Almendarez-Torrez v. United States (1998) 523 U.S. 224

Erlinger v. United States (2024) 602 U.S. 82

Fifth Holding:

Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, except for the fact of a prior conviction.

Authority:

Apprendi v. New Jersey (2000) 530 U.S. 466

Erlinger v. United States (2024) 602 U.S. 821

Sixth Holding:

The Wiley court, relying on Erlinger, found that the trial court erred because the federal Constitution’s jury trial right requires that a jury determine whether the particular details of a defendant’s criminal history establish an unsatisfactory probation performance or demonstrate convictions of increasing seriousness, before a trial court can rely on those facts to justify an upper term sentence.

Authority:

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

Seventh Holding:

The failure to afford the defendant a jury trial on the aggravating factors was prejudicial and a federal constitutional error subject to review under Chapman.

Authority:

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

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

Eighth Holding:

The Sixth Amendment is violated when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

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

Ninth Holding:

A defendant must express the right to a jury trial in words. Waiver must be expressed in words and will not be implied from a defendant’s conduct.

Moreover, a court may not accept a defendant’s waiver of a jury trial unless the waiver is knowing and intelligent, that is, made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it, as well as voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.

Authority:

People v. Daniels (2017) 3 Cal.5th 961, 990

People v. French (2008) 43 Cal.4th 36, 47 [When the constitutional right to jury trial is involved, we have required an express waiver even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed that the defendant had waived or intended to waive the right]

Tenth Holding:

Constitutional issues, even in cases involving mixed questions of law and fact, are reviewed de novo on appeal.

Authority:

People v. Cromer (2001) 24 Cal.4th 889, 894

Eleventh Holding:

Whether a defendant’s convictions were numerous is a matter of fact for the jury to decide, as making that determination involves more than simply counting the convictions, which cannot be established by the bare fact of a defendant’s prior convictions.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 847–848

Discretion, Standard of review

Case 000958

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion by denying diversion because its finding that the defendant is ineligible for diversion is not supported by substantial evidence. Accordingly, we conditionally reverse and remand with instructions for the trial court to reconsider defendant’s application for mental health diversion.

First Holding:

The Legislature enacted Penal Code sections 1001.35 and 1001.36 to authorize trial courts to grant pretrial mental health diversion to defendants diagnosed with qualifying mental disorders. To be eligible for mental health diversion, a defendant must meet two requirements.

One, the defendant must have been diagnosed within the past five years with a mental disorder identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.

And two, the defendant’s mental disorder must be a significant factor in the commission of the offense.

Authority:

PEN 1001.36(b)(1) and (b)(2)

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 677

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400

Second Holding:

Among the express purposes of the diversion program is to increase diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.

The court must find a causal connection unless there is clear and convincing evidence that the mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

Eligibility no longer turned on findings to the court’s satisfaction. The statute requires the court to find that the defendant’s mental disorder was a significant factor unless clear and convincing evidence demonstrates otherwise.

And it is the prosecution’s burden to provide clear and convincing evidence to overcome the presumption.

Authority:

PEN 1001.35(a)

PEN 1001.36(b)

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 80

People v. Harlow (2025) 113 Cal.App.5th 485, 490

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

People v. Cabalar (2025) 117 Cal.App.5th 41, 52

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 688

Third Holding:

Once a defendant meets the eligibility requirements, the trial court must then determine whether a defendant is suitable for diversion using the four criteria outlined in section 1001.36(c): (1) A qualified mental health expert has determined the defendant’s symptoms would respond to mental health treatment; (2) the defendant has consented to diversion and waived the right to a speedy trial; (3) the defendant has agreed to comply with treatment as a condition of diversion, and (4) the court has determined the defendant will not pose an unreasonable risk of danger to public safety if treated in the community.

Authority:

PEN 1001.36(c)

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 400-401

Fourth Holding:

We review a trial court’s ruling on an application for mental health diversion for abuse of discretion and its factual findings for substantial evidence. A court abuses its discretion when it applies the wrong legal standard or bases its decision on express or implied factual findings that are not supported by substantial evidence. By definition, substantial evidence requires evidence and not mere speculation.

Authority:

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

People v. Ramon (2009) 175 Cal.App.4th 843, 851

Fifth Holding:

In reviewing a trial court’s finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true.

In this context, we must determine whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

To answer that question, we review the record in the light most favorable to the prevailing party and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.

(Gary note: The opinion goes on to recite details specific to this case on the question whether the mental disorder contributed to the offense, and concluded that there was not clear and convincing evidence to overcome the presumption that it did. The details are fact-specific and of no value in the context of these summaries, because unpublished decisions cannot be cited for comparison or authority or any other purpose.)

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401-402

Appellate Principles, Due process, Duty of the court, Standard of review

Case 000954

Posted on by Gary McCurdy

Error and/or relief

The court erred in by using the wrong standard in ruling on the defendant’s motion to modify the verdict pursuant to Penal Code section 1181(6). We reverse the judgment of the trial court and remand this matter for reconsideration of appellant’s motion to modify the verdict.

First Holding:

The defendant’s claim that the prosecution engaged in misconduct during oral argument is forfeited because there was no objection. Generally, a defendant must make a timely objection and a request that the jury be admonished to disregard the impropriety, unless the objection would have been futile or the error could not be cured by an admonition.

Authority:

People v. Aguirre (2025) 18 Cal.5th 629, 705

Second Holding:

It is true that a prosecutor may violate a defendant’s constitutional rights when the prosecutor engages in a course of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. The claimed misconduct here was not so egregious as to result in a denial of due process.

Authority:

Miller v. Pate (1967) 386 U.S. 1, 7 [multiple misrepresentations of fact]

Brady v. Maryland (1963) 373 U.S. 83 [withholding of exculpatory evidence]

Griffin v. California (1965) 380 U.S. 609 [the prosecutor’s argument prejudices a specific right, such as the privilege against compulsory self-incrimination]

Third Holding:

After the jury returned the verdict, the defendant brought a motion to modify the verdict pursuant to section 1181(6) on the grounds that the evidence was insufficient as a matter of law to sustain a conviction for first degree murder. The defendant asked the court to review and reweigh the evidence presented at trial and modify the verdict to a finding of second-degree murder or manslaughter. The court applied the wrong standard in considering and denying the motion. It stated that had the judge been on the jury, he likely wuold have had a different decision, but he was not the jury, and he was required to honor the sanctity of the jury.

This is an inaccurate statement of the correct standard. The court conflated a sufficiency of the evidence review, in which the verdict is upheld if there is any evidence to support it, with its duty to independently determine whether the element of premeditation had been proven. Under the correct standard, in considering a motion under section 1181(6), the trial judge independently weighs the evidence, rather than applying the substantial evidence rule and determining legal sufficiency.

Authority:

People v. Veitch (1982) 128 Cal.App.3d 460, 468

Fourth Holding:

Section 1181(6) provides in relevant part that the court may grant a new trial when the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, the court may modify the verdict or judgment accordingly without granting or ordering a new trial.

Authority:

PEN 1181(6)

Fifth Holding:

In considering a motion under section 1181(6), the court extends no evidentiary deference in ruling on the motion. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a 13th juror. It is the trial court’s function to determine independently whether it is satisfied that there is sufficient credible evidence to sustain the verdict.

Authority:

Porter v. Superior Court (2009) 47 Cal.4th 125, 133

People v. Dickens (2005) 130 Cal.App.4th 1245, 1254

Amelioration, Appellate Principles, Sentencing, Standard of review, Vicarious liability

Case 000951

Posted on by Gary McCurdy

Error and/or relief

On remand from the Supreme Court, we reconsider our earlier decision denying relief on the defendant’s appeal from the denial of his petition for recall of sentence under section 1172.6. We reverse the lower court’s denial and remand for the court to conduct a full evidentiary hearing under section 1172.6.

(Gary note: The Court of Appeal earlier had concluded that the defendant is not eligible to petition for relief under section 1172.6, because he could have raised the issue on direct appeal. The Supreme Court granted review and held it pending its opinion in People v. Lopez. Once that was decided–holding in a case with a similar procedural posture that Lopez was not ineligible despite not raising the issue on his direct appeal–it returned this case to the Court of Appeal for further proceedings consistent with the Lopez decision.)

First Holding:

In 2018, the Legislature passed SB 1437, effective January 1, 2019, which among other things amended the definition of felony murder in section 189. This amended felony-murder rule restricted culpability for murder to actual killers, aiders and abettors, and anyone who was a major participant in the underlying felony and acted with reckless indifference to human life unless the victim was a peace officer.

SB 1437 also added section 1170.95, later renumbered to section 1172.6, which allows a person convicted of felony murder or murder under the natural and probable consequences doctrine to file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts, if, among other things, the petitioner could not presently be convicted of murder because of the changes to the law wrought by SB 1437.

SB 775 (2021–2022 Reg. Sess.) amended section 1172.6 further to expand eligibility for resentencing to persons convicted of murder pursuant to a theory under which malice is imputed to a person based solely on that person’s participation in a crime.

Authority:

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

Second Holding:

We review the trial court’s decision at the prima facie stage de novo.

Authority:

People v. Bodely (2023) 95 Cal.App.5th 1193, 1200

Third Holding:

The jury instructions permitted the jury to find the defendant guilty by imputing malice to him as an accomplice rather than finding that he shared the principal’s intent and therefore independently harbored malice. The ambiguous instruction couches direct aiding and abetting liability in terms of the aider and abettor knowing the perpetrator intended to commit the crime, and the aider and abettor of implied malice murder need not intend the commission of the crime of murder. It conveyed that the defendant need only intend the commission of the perpetrator’s act, the natural and probable consequences of which are dangerous to human life, intentionally aid in the commission of that act and do so with conscious disregard for human life.

(Gary note: Presumably because the appellate court had gone through the review of the case law in the proceedings before it went up to the Supreme Court and came back down, there was little full discussion of the problem with the instruction. Powell, relied on by the court, does address the aiding and abetting issue, and Reyes (whose citation I listed below but was not cited in this opinion) approved the reasoning of Powell that, for aiding and abetting murder liability, the relevant act is the act that proximately causes death.

(The court remanded to the lower court to hold an evidentiary hearing, at which it will be determined whether the defendant can be found guilty under current law.)

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 714

People v. Lopez (2026) 19 Cal.5th 639, 658-668

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

Elements of crime, Sentencing, Sixth Amendment, Standard of review

Case 000947

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of kidnapping, attempting kidnapping, and false imprisonment, and was sentenced on all three. We vacate the false imprisonment conviction and stay the sentence on the attempted kidnapping under section 654.

First Holding:

The defendant contends that (1) his conviction for the attempted kidnapping must be reversed because the completed kidnapping conviction covers the same conduct; and (2) his conviction for false imprisonment must be reversed because it is a lesser-included offense of the completed kidnapping crime of which he was convicted.

We review de novo these legal questions of whether convictions merge.

Authority:

People v. Chun (2009) 45 Cal.4th 1172

Second Holding:

The crime of kidnapping is a continuing offense that begins once the victim is forcibly moved and continues until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety. Thus, defendant could not stand convicted of two counts of kidnapping based on the uninterrupted, several-hour period where the defendant remained under defendant’s control.

Authority:

People v. Barnett (1998) 17 Cal.4th 1044, 1159

People v. Thomas (1994) 26 Cal.App.4th 1328, 1334-1335

Third Holding:

But the defendant stands convicted of kidnapping and attempted kidnapping.

Attempted kidnapping is no longer viewed as a lesser-included offense to the completed crime of kidnapping because the former requires proof of specific intent and the latter requires proof of asportation.

As a result, the rule that merges a completed crime with its lesser-included offense does not apply to the crimes of kidnapping and attempted kidnapping, and defendant is properly convicted of both crimes—but he cannot be sentenced on both crimes under section 654 given the uninterrupted kidnapping in this case.

Authority:

PEN 654

PEN 663

People v. Fontenot (2019) 8 Cal.5th 57, 76

People v. Medina (2007) 41 Cal.4th 685, 702

People v. Sanders (2012) 55 Cal.4th 731, 7

Fourth Holding:

Courts must determine the proper unit of prosecution for each crime based on whether the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. This doctrine explains why there could only be a single count of kidnapping, but does not account for the fact that attempted kidnapping and completed kidnapping are separate crimes, and that it is possible for defendant to stand convicted of both crimes.

Authority:

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

Fifth Holding:

Unlike attempted kidnapping, the crime of false imprisonment is a lesser included offense of kidnapping. As a result, the lesser-included crime merges upon conviction of the greater offense, and defendant’s false imprisonment conviction based on the same underlying conduct must be vacated.

Authority:

People v. Delacerda (2015) 236 Cal.App.4th 282, 296

People v. Chacon (1995) 37 Cal.App.4th 52, 65

People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820 [if both the false imprisonment count and kidnap[p]ing count relate to the same act, double conviction is prohibited]

People v. Jandres (2014) 226 Cal.App.4th 340, 362 [a defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act]

People v. Milward (2011) 52 Cal.4th 580, 589 [when the jury expressly finds defendant guilty of both the greater and lesser offense the conviction of [the greater offense is controlling, and the conviction of the lesser offense must be reversed]

Appellate Principles, Juveniles, Probation Parole PRCS, Sentencing, Standard of review

Case 000941

Posted on by Gary McCurdy

Error and/or relief

The minor challenges several conditions of probation. We modify two of them.

First Holding:

The juvenile court has wide discretion to select appropriate probation conditions and may impose any reasonable condition that is fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. The juvenile court’s discretion, while broad, is not unlimited.

A probation condition is invalid if it: (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.

In order to invalidate a condition of probation under this Lent test, all three factors must be found to be present. A condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 889

In re J.B. (2015) 242 Cal.App.4th 749, 754

People v. Lent (1975) 15 Cal.3d 481, 486

Second Holding:

We review a juvenile court’s imposition of a probation condition for an abuse of discretion.

Authority:

In re Daniel R. (2006) 144 Cal.App.4th 1, 6

Third Holding:

Hearsay can at least sometimes be considered at dispositional hearings, and courts may base probation conditions upon information in probation reports.

Authority:

In re Vincent G. (2008) 162 Cal.App.4th 238, 243–244

In re Ricardo P. (2019) 7 Cal.5th 1113, 1122

Fourth Holding:

Probation conditions are to be given the meaning that would appear to a reasonable reader. We modify the probation condition that the minor not be around anyone known to him to be in possession of any dangerous or deadly weapons by inserting “known to him to be unlawfully in possession of the same.”

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 382

(Gary note: Olguin supports the first sentence of that summary of the holding. The court did not cite any specific authority in the paragraphs in which it modified the language of that condition itself. However, In re Sheena K. (2007) 40 Cal.4th 875, 889, authorizes an appellate court to modify conditions of probation to render them constitutional.)

Fifth Holding:

A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights.

People have a constitutional right to self-defense. The condition that “The minor shall not commit any act of violence against anyone” must be tailored to, “The minor shall not commit any act of violence against anyone, except for acts of lawful self-defense.”

Authority:

Cal. Const., art. I, sec. 1

In re Carlos C. (2018) 19 Cal.App.5th 997, 1002, 1004

People v. McDonnell (1917) 32 Cal.App. 694, 704

Amelioration, Retroactivity, Sentencing, Standard of review

Case 000937

Posted on by Gary McCurdy

Error and/or relief

In this appeal by the People following the resentencing of the defendant under section 1172.75, we affirm the lower court’s granting of a new trial on the gang-related special circumstances and gang enhancement allegations in light of AB 333.

First Holding:

The People contend the trial court erred in granting respondent’s motion for new trial because the evidence at trial demonstrated, beyond a reasonable doubt, that the jury would have rendered the same verdict absent the instructional error created by the passage of AB 333.

The trial court has broad discretion in ruling on a new trial motion, and its decision will be disturbed only for clear abuse of that discretion. The People recognize this general rule, but contend independent review is more fitting given that the court below was not the original trial judge and based its review on a cold transcript and exhibits.

Authority:

People v. Ault (2004) 33 Cal.4th 1250, 1260

Second Holding:

Presumptions on appeal are in favor of the order, and the appellate court does not independently redetermine the question whether an error was prejudicial. As our Supreme Court explained in Ault, the trial court’s order granting a new trial will not be disturbed if fairly debatable, even if a reviewing court itself, addressing the issues de novo, would not have found a basis for reversal. We will review the trial court’s order for abuse of discretion.

Authority:

People v. Ault (2004) 33 Cal.4th 1250, 1262-1263

Third Holding:

In 2021, the Legislature passed AB 333, which became effective January 1, 2022. The new legislation made several changes to the definition of section 186.22 gang enhancements.

First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang. (

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be ‘more than reputational.

Authority:

PEN 186.22

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

Fourth Holding:

Although AB 333 does not expressly address the gang-murder special circumstance set forth in section 190.2(a)(22), the latter statute defines criminal street gang by express cross-reference to section 186.22(f). The same is true for a firearm enhancement alleged pursuant to section 12022.53(e)(1).

Authority:

People v. Hin (2025) 17 Cal.5th 401, 461

People v. Cooper (2023) 14 Cal.5th 735, 746

Fifth Holding:

When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant’s right to a jury trial under the Sixth Amendment, and reversal is required unless it appears beyond a reasonable doubt that the jury verdict would have been the same in the absence of the error. To prove harmless error under the Chapman standard, it is not enough to show that substantial or strong evidence existed to support a conviction under the correct instructions. Rather, the question is whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

(Gary note: The court then proceeded to examine the written opinion of the trial judge, and discussed the judge’s reasoning and statements of findings that led the trial court to the conclusion that a new trial was warranted. Those facts and that analysis are beyond what these summaries are designed to present, because the facts relied on in an unpublished opinion cannot be related to control a result in another case, and neither can the trial court’s reasoning be cited as authority, persuasitive or otherwise.)

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1207

People v. Flood (1998) 18 Cal.4th 470, 504

People v. Sek (2022) 74 Cal.App.5th 657, 668

People v. Lamb (2024) 16 Cal.5th 400, 449

People v. Mil (2012) 53 Cal.4th 400, 417

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

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000936

Posted on by Gary McCurdy

Error and/or relief

The court should have stayed the defendant’s eight-month sentence for count 4 under section 654. The sole objective in possessing the firearm (count 3) and the ammunition (count 4) was to have an operable firearm. Accordingly, the possession offenses were part of an indivisible course of conduct and cannot be separately punished. We otherwise affirm the judgment.

First Holding:

During the defendant’s sentencing hearing, the court concluded that because the .22-caliber ammunition was not loaded into the .22 rifle, section 654 does not prohibit a separate punishment. And because possession of ammunition increases the ability to use the firearms and the danger, the court imposed sentences of one-third the middle term, or eight months, for each of counts 3 and 4.

Section 654(a) protects against multiple punishment where the crimes arise from either (1) the same act or omission or (2) an indivisible course of conduct united by a single intent and objective. Whether a course of conduct is indivisible depends upon the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.

A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Perez (1979) 23 Cal.3d 545, 551

People v. Blake (1998) 68 Cal.App.4th 509, 512

Second Holding:

Courts have found section 654 prohibits punishing a defendant for both being a felon in possession of a firearm and unlawful possession of ammunition when all of the ammunition in question was loaded into the firearm or had been fired from it.

Authority:

People v. Broadbent (2020) 47 Cal.App.5th 917, 922

Third Holding:

Here, the .22-caliber rifle giving rise to count 3 and the same-caliber ammunition giving rise to count 4 were found in close proximity to each other. The defendant argues the only difference between this case and Broadbent and similar cases is that he safely stored the firearm separately, but in the same room as the ammunition. He contends that this difference is immaterial and does not demonstrate separate intents and objectives. We agree that drawing a distinction on this basis parses the objectives too finely.

Authority:

People v. Lopez (2004) 119 Cal.App.4th 132, 138

Fourth Holding:

Because the record is devoid of evidence to support the court’s implicit finding that the defendant harbored two different objectives in possessing both a rifle and nearby compatible ammunition, we conclude on this record that section 654 precludes multiple punishment for the defendant’s possession of a firearm as well as several rounds of ammunition just feet away.

Although not raised by the parties, section 1170.1(a)’s one-third the middle term rule does not apply to a sentence stayed under section 654. We therefore modify the stayed 8-month consecutive sentence to a stayed middle term of two years.

Authority:

People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198

Defenses, Jury instructions, Jury trial, Standard of review

Case 000935

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by instructing the jury that a person may lose the right to self-defense if he was the initial aggressor or a mutual combatant (CALCRIM No. 3471), or if he contrived the claim as a pretext to assault the victim (CALCRIM No. 3472). Given the evidence in this case, no reasonable jury could find these instructions applicable.

Although the error was harmless as to the instructions on mutual combat and contrived self-defense—as the jury was readily able to see the irrelevance of these instructions—the record reveals a reasonable likelihood that the jury was misled by the initial aggressor instruction. We therefore reverse the defendant’s murder conviction and remand for retrial.

First Holding:

The prosecution argues that the claim was forfeited by lack of objection. The defendant argues the issue is reviewable insofar as the challenged instructions directly undermined his self-defense claim and thus impaired his substantial rights.

Alternatively, he claims defense counsel rendered ineffective assistance in failing to fully object to both instructions.

We must address the defendant’s contention on its merits to determine whether there was an impairment of his substantial rights or ineffective assistance of counsel.

Authority:

PEN 1259

People v. Anderson (2007) 152 Cal.App.4th 919, 927

Second Holding:

It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.

The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.

The corollary to this mandate is equally well-established: a trial court is not obligated to give an instruction if the evidence presented at trial is such as to preclude a reasonable jury from finding the instruction applicable. Indeed, it is error to give a jury instruction that is legally correct but has no application to the facts of the case.

Authority:

People v. St. Martin (1970) 1 Cal.3d 524, 531

People v. Schultz (1987) 192 Cal.App.3d 535, 539

People v. Guiton (1993) 4 Cal.4th 1116, 1129

Third Holding:

Giving an inapplicable instruction is subject to the traditional Watson test for prejudice, under which reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred.

Such an error is generally only a technical error that does not constitute ground for reversal because juries are fully capable of analyzing the evidence, determining the facts, and realizing that an instruction does not apply. Juries are routinely told that some of the instructions may not apply, depending on their findings about the facts of the case and are directed to follow the instructions that do apply to the facts as they find them.

That being said, in some cases, the presence of an extraneous instruction may be confusing enough to become prejudicial.

Authority:

People v. Guiton (1993) 4 Cal.4th 1116, 1130

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

People v. Cross (2008) 45 Cal.4th 58, 67

People v. Schultz (1987) 192 Cal.App.3d 535, 539-540

Fourth Holding:

Regarding the instruction on initial aggressor, there are two problems. First, the paragraph the jury received on sudden escalation was written in terms of a defendant initiating an altercation with nondeadly force, the victim responding with deadly force, and then the defendant using deadly force in return.

But the evidence here suggested a different scenario, in which (arguably) the victim initiated with nondeadly force, the defendant responded with deadly force, the victim subsequently used deadly force, and then the defendant used deadly force in return. In other words, the standard language did not quite fit the facts here.

Second, and more to the point, we agree with the defendant that no reasonable jury could find the initial aggressor concept applicable—even with tailored sudden escalation language—given the timelapse between the two encounters. The reason that a defendant forfeits his claim to self-defense when he initiates a deadly attack is because the victim is then legally justified in using deadly force against the defendant. But no one is justified in using deadly force absent fear of imminent death or great bodily injury. 

(Gary note: The appellate court describes the facts as the defendant initially pointing a gun, then the altercation is over, but an hour later the victim shows up and starts throwing rocks at the defendant, who responds with deadly force. “Accordingly, the defendant’s conduct during the first encounter did not limit his self-defense claim; he did not have a duty to withdraw during the second encounter.”)

On this record, we discern a reasonable likelihood that at least one juror would have accepted that the defendant actually believed he needed to defend himself from imminent death or great bodily injury, but was misled into thinking the defendant lost his right to make that claim since he pulled the gun on the victim an hour earlier, and he did not communicate an intent to stop fighting during the second, fatal encounter.

We therefore conclude that giving the initial aggressor instruction was prejudicial, and accordingly reverse the murder conviction.

Authority:

In re Christian S. (2015) 7 Cal.4th 768, 773, fn. 1 [self-defense and imperfect self-defense may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified]

People v. Vasquez (2005) 136 Cal.App.4th 1176, 1179–1180 [imperfect self-defense is available when the victim’s use of force against the defendant is unlawful, even when the defendant set in motion the chain of events that led the victim to attack the defendant]

People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [for either perfect or imperfect self-defense, the fear must be of imminent harm]

Fifth Holding:

To the extent the prosecution contends that any error in instructing the jury on the limits of self-defense was harmless since the jury found the defendant guilty of first degree murder, we note that killing in self-defense is not necessarily inconsistent with premeditation and deliberation.

Authority:

People v. Schuller (2023) 15 Cal.5th 237, 265 (conc. opn. of Liu, J.)