Category Archives: Standard of review

Abstracts and Minutes, Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case 000583

Posted on by Gary McCurdy

Error and/or relief

Though the trial court erred in failing to instruct that mere presence at the scene is insufficient to prove guilt, the error was harmless in light of the other evidence presented. The abstract of judgment is premature. The trial court suspended imposition of sentence and placed the defendant on probation for two years. The abstract of judgment, however, indicates that the defendant was sentenced to state prison for two years. It must be corrected.

First Holding:

The abstract of judgment is premature. The trial court suspended imposition of sentence and placed the defendant on probation for two years. The abstract of judgment, however, indicates that the defendant was sentenced to state prison for two years. it must be corrected.

(GARY note: The court cited no authority for its directive that the abstract of judgment be corrected. Likely because the error and cure seem so obvious. But there is plenty of authority for the court’s order, and I have set out some below.)

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Second Holding:

We review questions of instructional error de novo. In so doing, we consider the jury instructions as a whole, as well as the charges and entire record.

Authority:

People v. Posey (2004) 32 Cal.4th 193, 218

People v. Serrano (2022) 77 Cal.App.5th 902, 909

Third Holding:

In determining a sufficiency of the evidence challenge, we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on isolated bits of evidence.Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

In other words, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The standard is the same in cases in which the People rely primarily on circumstantial evidence. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.

Authority:

People v. Johnson (1980) 26 Cal.3d 557, 578

People v. Cuevas (1995) 12 Cal.4th 252, 261

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

People v. Nguyen (2015) 61 Cal.4th 1015, 1055

People v. Bean (1988) 46 Cal.3d 919, 932

Fourth Holding:

A person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, and (3) by act or advice aids, promotes, encourages or instigates the commission of the crime. Whether a person has aided and abetted a crime is a question of fact for which the trier of fact may consider presence at the scene of the crime, companionship, and conduct before and after the offense. The requisite state of mind may be proven with circumstantial evidence.

Authority:

People v. Nguyen (2015) 61 Cal.4th 1015, 1054-1055

Fifth Holding:

Although defendant’s mere presence at the scene cannot alone establish aiding and abetting, her presence may be considered along with other evidence to establish that she aided and abetted the burglary. Further, possession of recently stolen property cannot alone establish burglary, but such possession is highly incriminating and need only be slightly corroborated.

Authority:

People v. Pettie (2017) 16 Cal.App.5th 23, 57

People v. Nguyen (2015) 61 Cal.4th 1015, 1055

People v. Mendoza (2000) 24 Cal.4th 130, 176

People v. McFarland (1962) 58 Cal.2d 748, 754-755

Sixth 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 trial court has a sua sponte duty to give the mere presence portion of the aiding and abetting instructions where there is substantial evidence supporting its consideration.

Authority:

People v. Ochoa (1998) 19 Cal.4th 353, 422

People v. Boyd (1990) 222 Cal.App.3d 541, 557

Seventh Holding:

We conclude that the defendant’s testimony was sufficient to trigger the trial court’s sua sponte duty to give the mere presence portion of the aiding and abetting instruction. However, whether prejudice is to be measured under the Watson standard or the more rigorous Chapman standard, we find beyond a reasonable doubt that the failure to instruct was harmless, in light of our review of the entire record, including the arguments of the parties.

Authority:

People v. Boyd (1990) 222 Cal.App.3d 541, 557

People v. Perry (1979) 100 Cal.App.3d 251, 260

People v. Powell (2021) 63 Cal.App.5th 689, 715

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

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

Discretion, Standard of review, Sufficiency of and substantial evidence

Case 000578

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the trial court’s finding that placing the defendant on mental health diversion would present an unreasonable risk of danger to public safety. The denial of the request for diversion under section 1001.36 is reversed and remanded for further proceedings.

First Holding:

Section 1001.36 gives trial courts the discretion to grant pretrial diversion for individuals suffering from certain mental health disorders. The statute defines pretrial diversion as the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment.

The maximum period of diversion is two years. If the defendant performs satisfactorily in diversion, then 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, and the arrest upon which the diversion was based shall be deemed never to have occurred.

Authority:

PEN 1001.36

People v. Frahs (2020) 9 Cal.5th 618, 626

Second Holding:

Mental health diversion requires trial court findings that the defendant is both eligible for diversion and suitable for the program. The criteria for each are specified in the statute. Defendants are eligible if they have been diagnosed with a recognized mental disorder that was a significant factor in the commission of the criminal offense with which they are charged.

They are suitable if:

(1) in the opinion of a qualified mental health expert, the defendant’s mental disorder would respond to treatment; (

2) the defendant agrees to waive their speedy trial rights;

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

(4) the defendant will not pose an unreasonable risk of danger to public safety as defined in sections 1170.18 and 667(e)(2)(C)(iv).

Only the public safety suitability requirement necessitates a trial court finding.

Authority:

PEN 1001.36(b) and (c)

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891-892

Third Holding:

As used throughout the Penal Code, “unreasonable risk of danger to public safety” means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv), which numerates particularly serious or violent felonies, known colloquially as “super strikes.”

Super strikes include any homicide offense, solicitation to commit murder, assault with a machine gun on a police officer or firefighter, possession of a weapon of mass destruction, or any serious or violent felony punishable by life imprisonment or death.

Authority:

PEN 1172.18

People v. Valencia (2017) 3 Cal.5th 347, 351

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892, fn. 4

Fourth Holding:

Assuming the defendant is both eligible and suitable, the trial court must also be satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant. This is not an additional eligibility or suitability requirement the defendant must meet. Rather, section 1001.36(f)(1) read as a whole appears to contemplate an ongoing assessment to assure that defendants will receive appropriate treatment for their particular conditions as part of the diversion program.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

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

Fifth Holding:

Even where defendants make a prima facie showing that they meet all the express statutory requirements, the court may still exercise its discretion to deny diversion. But this residual discretion must be exercised consistent with the principles and purpose of the governing law.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1079

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 888, 891

Wade v. Superior Court (2019) 33 Cal.App.5th 694, 710

People v. Williams (2021) 63 Cal.App.5th 990, 1001 [scope of discretion always resides in the particular law being applied]

Sixth Holding:

A trial court’s ruling on a motion for mental health diversion is reviewed for an abuse of discretion, and factual findings are reviewed for substantial evidence. A trial court has broad discretion to determine whether a given defendant is a good candidate for mental health diversion. 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.

Authority:

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

People v. Oneal (2021) 64 Cal.App.5th 581, 588

People v. Curry (2021) 62 Cal.App.5th 314, 324

People v. Bunas (2022) 79 Cal.App.5th 840, 848–849

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

Seventh Holding:

Section 1001.36(e) provides that the hearing on a defendant’s eligibility and suitability shall be informal and may proceed on offers of proof, reliable hearsay, and argument of counsel. In general, the court will find hearsay evidence trustworthy when there are sufficient indicia of reliability. The court, however, may not rely on unsubstantiated or unreliable evidence.

Authority:

People v. Buell (2017) 16 Cal.App.5th 682, 689 [hearsay that bears a substantial guarantee of trustworthiness is admissible in probation revocation proceedings]

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

Case 000577

Posted on by Gary McCurdy

Error and/or relief

The conviction of section 270 must be reduced from a felony to a misdemeanor.

First Holding:

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence — that is, evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This determination presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. In considering a sufficiency challenge, we do not reweigh evidence or reevaluate a witness’s credibility.

Authority:

People v. Cardenas (2025) 18 Cal.5th 797, 821

People v. Oyler (2025) 17 Cal.5th 756, 820

Second Holding:

Section 270 (failure to provide necessities to a minor child) states that violation is a misdemeanor unless a court of competent jurisdiction has made a final adjudication in either a civil or a criminal action that a person is the parent of a minor child and the person has notice of such adjudication. While felony punishment can be imposed constitutionally on persons previously found guilty of a violation of section 270, the statute violates equal protection to the extent felony punishment is grounded solely on an earlier legal determination of paternity.

Authority:

PEN 270

People v. Gregori (1983) 144 Cal.App.3d 353, 356

Abstracts and Minutes, Elements of crime, Standard of review, Statutory interpretation, Sufficiency of and substantial evidence

Case 000576

Posted on by Gary McCurdy

Error and/or relief

Though we find sufficient evidence to support the jury’s verdict, the abstract of judgment contains errors that must be corrected to conform to the oral pronouncement of judgment. The search condition should be modified to delete the requirement that the defendant subject her computers and recordable media to searches; (2) the alcohol conditions should be deleted; and (3) the total fines should be reduced from $1,260 to $740.

[Gary note: there was no legal analysis presented on the probation conditions issues, because the People agreed they were improper, and the court accepted the concession without further discussion or citation to authority.]

First Holding:

The abstract of judgment contains errors that must be corrected to conform to the oral pronouncement of judgment. The search condition should be modified to delete the requirement that the defendant subject her computers and recordable media to searches; (2) the alcohol conditions should be deleted; and (3) the total fines should be reduced from $1,260 to $740.

[GARY note: the appellate court did not cite authority for its order to correct the abstract of judgment, but there is considerable authority that the court could have relied on, which I set forth below:]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Second Holding:

In reviewing a challenge to the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In evaluating whether the evidence was sufficient to support a guilty verdict, we consider only the evidence presented and we disregard the jury’s not guilty or not true findings on other counts or enhancements.

Authority:

Jackson v. Virginia (1979) 443 U.S. 307, 319

People v. Johnson (1980) 26 Cal.3d 557, 578

People v. Price (2017) 8 Cal.App.5th 409, 452–453

People v. Miranda (2011) 192 Cal.App.4th 398, 405–406

Third Holding:

Great bodily injury under section 245 is defined as an injury that is greater than minor or moderate harm. A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description. Where to draw that line is for the jury to decide. Great bodily injury can include contusions, abrasions, lacerations, and bruising.

The use of hands or fist alone has been held sufficient to support a conviction of assault by means of force likely to produce great bodily injury. Whether a fist used in striking a person would be likely to cause great bodily injury is to be determined by the force of the impact, the manner in which it was used and the circumstances under which force was applied.

Whether the force used by the defendant was likely to produce great bodily injury is a question for the trier of fact to decide. In this context, likely to produce great bodily injury means more than a mere possibility. The evidence must prove more than a mere possibility that the force actually used would result in greater than moderate harm.

Authority:

People v. Wyatt (2012) 55 Cal.4th 694, 702

People v. Sandoval (2020) 50 Cal.App.5th 357, 361 [noting that great bodily injury is significant or substantial physical injury that is more than minor or moderate]

People v. Cross (2008) 45 Cal.4th 58, 64

People v. Escobar (1992) 3 Cal.4th 740, 752

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

People v. Wingo (1975) 14 Cal.3d 169, 176

People v. Medellin (2020) 45 Cal.App.5th 519, 527-528

People v. Thiel (2016) 5 Cal.App.5th 1201, 1213

In re Nirran W. (1989) 207 Cal.App.3d 1157, 1161–1162 [rejecting defendant’s argument that one blow to the face of the victim could not have been likely to cause great bodily injury]

People v. Aguilar (1997) 16 Cal.4th 1023, 1028 [the statute focuses on force likely to produce great bodily injury; whether the victim in fact suffers any harm is immaterial]

Amelioration, Discretion, Eighth Amendment, Juveniles, Sentencing, Standard of review, Statutory interpretation

Case 000574

Posted on by Gary McCurdy

Error and/or relief

The defendant filed a petition under section 1170(d) for recall of his sentence. The trial court did not appoint counsel and summarily denied appellant’s petition to recall because it found he had not been incarcerated in the Department of Corrections and Rehabilitation for at least 15 years as required by section 1170(d)(1)(A). We find the trial court’s ruling on the calculation of appellant’s period of incarceration was erroneous as a matter of law, and appellant’s preconviction custody must be included to calculate he had been incarcerated for 15 years when he filed his section 1170(d) petition.

The matter is remanded for the superior court to appoint counsel and conduct the hearing as provided in section 1170(d).

First Holding:

When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing, if the defendant meets additional statutory requirements.

Authority:

PEN 1170(d)

Second Holding:

When a trial court is not aware of the full scope of its sentencing discretion, a defendant is entitled to a 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. Salazar (2023) 15 Cal.5th 416, 425

People v. Lynch (2024) 16 Cal.5th 730, 771-772

Third Holding:

The empanelment of separate juries at the defendant’s original trial in 2010 was likely based on Aranda and Bruton. Broadly stated, the Aranda/Bruton rule declares that a defendant is deprived of his or her Sixth Amendment right to confront witnesses when a facially incriminating statement of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the statement only against the declarant. The problem addressed in Bruton and Aranda may be solved by the use of separate juries for codefendants, with each jury to be excused at appropriate times to avoid exposure to inadmissible evidence.

Authority:

People v. Aranda (1965) 63 Cal.2d 518

Bruton v. United States (1968) 391 U.S. 123

People v. Gallardo (2017) 18 Cal.App.5th 51, 68

People v. Jackson (1996) 13 Cal.4th 1164, 1208

People v. Washington (2017) 15 Cal.App.5th 19, 27

Fourth Holding:

Appellant filed his petition based on the recall and resentencing provisions of section 1170(d), effective January 1, 2013. Under Graham, the Eighth Amendment prohibits LWOP sentences for juvenile offenders who committed non-homicide offenses. In response to Graham, the Legislature enacted section 1170(d), creating a recall and resentencing procedure for certain juvenile offenders sentenced to LWOP terms.

Authority:

In re Kirchner (2017) 2 Cal.5th 1040, 1049

People v. Gibson (2016) 2 Cal.App.5th 315, 322–323

Graham v. Florida (2010) 560 U.S. 48

People v. Sorto (2024) 104 Cal.App.5th 435, 442

Fifth Holding:

On appeal, we review statutory interpretations de novo. We review the trial court’s factual findings to determine whether they are supported by substantial evidence, and do not reweigh or reinterpret the evidence.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1032

People v. Millard (2009) 175 Cal.App.4th 7, 26

Sixth Holding:

Absent a specific statutory definition of “has been incarcerated for at least 15 years” we may look to its plain meaning as understood by the ordinary person, which would typically be a dictionary definition. The Legislature did not use the word sentenced in section 1170(d)(1)(A). Instead, it used the word “incarcerated.”

Based on the plain meaning of “incarcerated,” the defendant’s period of incarceration for purposes of a section 1170,(d)(1)(A) began to run on the date the defendant was placed in jail, i.e., incarcerated, for the relevant charges.

Authority:

People v. Ruiz (2024) 104 Cal.App.5th 1027, 1031, 1032

Seventh Holding:

Section 1171 expressly addresses the trial court’s procedures in postconviction proceedings to modify a sentence or conviction pursuant to an ameliorative statute. It defines a postconviction proceeding to mean a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75. Section 1171(c)(1) states that upon receiving a request to begin a postconviction proceeding that is authorized in law, the court shall consider whether to appoint counsel to represent the defendant. This section does not prevent the court from assigning counsel at a later time.

Authority:

PEN 1171