Category Archives: Sufficiency of and substantial evidence

Appellate Principles, Discretion, Duty of the court, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000556

Posted on by Gary McCurdy

Error and/or relief

The court erred by imposing consecutive terms on counts 1 through 3 because the underlying offenses did not occur on separate occasions under Penal Code section 667.6(d), and the court did not make findings on whether it was exercising its discretion to impose a consecutive sentence. We reverse and remand for resentencing.

First Holding:

Section 669(a) provides that when a person is convicted of two or more crimes, the trial court must determine whether the terms of imprisonment shall run concurrently or consecutively. For certain sex offenses the Penal Code establishes alternative sentencing frameworks, including section 667.6.

Authority:

People v. Catarino (2023) 14 Cal.5th 748, 752

Second Holding:

Under section 667.6(c), a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. Section 667.6(d)(1) provides a full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. Although section 269 is not listed in section 667.6(e), section 269(c) provides that the court shall impose a consecutive sentence for each offense that results in a conviction on this section if the crimes involve the same victim on separate occasions as defined in section 667.6(d).

Authority:

PEN 667.6(c)

PEN 667.6(d)

PEN 269

Third Holding:

The One Strike law in section 667.61 provides an alternative sentencing scheme for certain forcible sex offenses and mandates an indeterminate sentence of 15 or 25 years to life in prison when the jury has convicted the defendant of a specified felony sex crime and has also found certain factual allegations to be true.

Authority:

People v. Carbajal (2013) 56 Cal.4th 521, 534

Fourth Holding:

In determining whether crimes against a single victim were committed on separate occasions under section 667.6(d), the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon the defendant’s actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned the opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.

Further, a finding that a defendant committed sex crimes on separate occasions does not require there be a break of any specific duration or any change in physical location. In applying this standard, courts have held the offenses of placing a finger in the victim’s private area, kissing her private area and then placing his private part in her private area were but a single occasion. In contrast, where the offenses are interrupted by the defendant’s nonsexual activity, courts have found they occur on a separate occasion.

Authority:

PEN 667.6(d)(2)

People v. Jones (2001) 25 Cal.4th 98, 104

People v. King (2010) 183 Cal.App.4th 1281, 1325

People v. Dearborne (2019) 34 Cal.App.5th 250, 265-266

People v. Corona (1988) 206 Cal.App.3d 13, 15-16, 17-18

Fifth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. In such circumstances, we have held that 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. Salazar (2023) 15 Cal.5th 416, 419, 424

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Sixth Holding:

The trial court was aware of its discretion. The general rule is that a trial court is presumed to have been aware of and followed the applicable law.

Authority:

People v. Shiga (2016) 6 Cal.App.5th 22, 40

People v. Brown (2007) 147 Cal.App.4th 1213, 1229

Seventh Holding:

When a trial court imposes consecutive sentences based on a finding under section 667.6(d), we may reverse only if there is no substantial evidence that the offenses were committed on separate occasions, that is, only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior.

Authority:

People v. King (2010) 183 Cal.App.4th 1281, 1325

People v. Garza (2003) 107 Cal.App.4th 1081, 1092

Eighth Holding:

Regardless of whether section 667.6(c), applies to sentencing for a one strike offense under section 667.61 (which is not clear), under section 669, a trial court has discretion to impose concurrent or consecutive sentences when a defendant is convicted of multiple crimes with indeterminate sentences.

Authority:

PEN 669(a)

People v. Midell (2025) 113 Cal.App.5th 1060, 1085

People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262

Ninth Holding:

It is well settled that in making sentencing choices pursuant to section 667.6(c), the trial court must state a reason for imposing a consecutive sentence in deciding whether to impose a consecutive or concurrent sentence.

Authority:

People v. Osband (1996) 13 Cal.4th 622, 729

Elements of crime, Evidence, Fifth Amendment, Fines and fees, Sufficiency of and substantial evidence

Case 000546

Posted on by Gary McCurdy

Error and/or relief

In this trial that resulted in a conviction of two counts of felony vandalism, the trial court erred under state law by admitting the victim’s hearsay testimony about the costs to repair her vehicle. The admission of the hearsay testimony was prejudicial under state law. We reverse the vandalism convictions and remand for the People to elect whether to retry them as felonies or accept their reduction to misdemeanors.

First Holding:

Other than the deductible, an insurance company paid for the repair of the damages. The victims testified to what she was told was the cost of the repairs. No repair bill was introduced into evidence. The trial court erroneously overruled defendant’s objections to the victim’s hearsay statements regarding the cost of repairs. State-law errors are reviewed for harmlessness under Watson. Under Watson, reversal is required if there is a reasonable probability that the defendant would have achieved a more favorable result absent the out-of-court statements.

Authority:

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

People v. Seumanu (2015) 61 Cal.4th 1293, 1308

People v. Lozano (2024) 101 Cal.App.5th 366, 381–382

Second Holding:

The vandalism convictions must be reduced to misdemeanors because of the error in admitting the victim’s hearsay testimony. The only further relief the defendant could obtain from prevailing on his substantial-evidence claim is a bar to retrying him on the damage-value element. To resolve this claim, we consider whether the record contains substantial evidence to support the verdict—i.e., 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. In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

Authority:

People v. Eroshevich (2014) 60 Cal.4th 583, 591

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

Third Holding:

Evidence erroneously admitted is properly considered in weighing the sufficiency of evidence to support a conviction, notwithstanding its erroneous admission. The reason for this is that a reversal based solely on evidentiary insufficiency has fundamentally different implications, for double jeopardy purposes, than a reversal based on such ordinary trial errors as the incorrect receipt or rejection of evidence. While the former is in effect a finding that the government has failed to prove its case against the defendant, the latter implies nothing with respect to the guilt or innocence of the defendant, but is simply a determination that the defendant has been convicted through a judicial process that is defective in some fundamental respect.

Authority:

People v. Jasso (2025) 17 Cal.5th 646, 684

Discretion, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000541

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of assault with a deadly weapon and evading an officer with reckless driving. There was insufficient evidence to support a finding that the two crimes had separate objectives and remand the matter to the trial court with instructions to exercise its discretion under section 654 to stay the sentence on either count.

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. A defendant may be charged with—and in some cases convicted of—multiple crimes arising out of the same conduct but cannot receive multiple punishments for the same act or omission. When section 954 permits multiple conviction[s], but section 654 prohibits multiple punishment[s], the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited.

Authority:

PEN 654

PEN 954

People v. Reed (2006) 38 Cal.4th 1224, 1226−1227

Second Holding:

Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. If we conclude that the case involves more than a single act—i.e., a course of conduct we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives.

Authority:

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

Third Holding:

The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.

Authority:

People v. Saffle (1992) 4 Cal.App.4th 434, 438

People v. Vang (2010) 184 Cal.App.4th 912, 916

Fourth Holding:

Because the trial court sentenced the defendant on both counts, we presume the trial court made an implied finding that section 654 did not apply, and that the two crimes had separate objectives.

Authority:

People v. Kelly (2018) 28 Cal.App.5th 886, 904 [When there is no explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed.]

Fifth Holding:

We conclude there was insufficient evidence to support a conclusion that the two crimes had separate objectives.

Authority:

In re L.J. (2021) 72 Cal.App.5th 37 [The evidence does not support a finding that the minor’s assaults on the officers were based on different intents and objectives than the minor’s overall purpose of trying to evade the police officers.]

People v. Jimenez (2019) 32 Cal.App.5th 409, 426 [defendant had a different intent and objection when driving “head on” towards an officer]

Duty of the court, Elements of crime, Jury instructions, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000540

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of five offenses arising from a violent, domestic-violence-related altercation. The trial court erred when it failed to instruct the jury on a lesser included offense. The court issued a protective order outside of its jurisdiction under Penal Code section 136.2. The court miscalculated the total assessment due from the defendant pursuant to Government Code section 70373(a). We vacate the protective order and reverse the judgment, remanding for a possible retrial on one conviction and for a full resentencing.

First Holding:

We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law.

Authority:

People v. Lueth (2012) 206 Cal.App.4th 189, 195

Second Holding:

In a criminal case, a jury verdict must be unanimous. When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. The unanimity instruction requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. If required, the instruction must be given sua sponte.

Authority:

People v. Russo (2001) 25 Cal.4th 1124, 1132

People v. Melhado (1998) 60 Cal.App.4th 1529, 1534

People v. Riel (2000) 22 Cal.4th 1153, 1199

Third Holding:

If a prosecutor elects to rely upon a specific act to prove a charged crime, then the trial court has no duty to give the jury an instruction that it must unanimously agree on the act that constituted the crime charged.

Authority:

People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455

Fourth Holding:

The trial court instructed the jury with the elements of assault with a deadly weapon, but did not instruct them with the elements of simple assault. We conduct an independent review of the question of whether this was error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

Fifth Holding:

We conclude that it was error for the to not instruct the jury with the elements of simple assault. A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. Simple assault is a lesser included offense of aggravated assault The trial court, accordingly, was required to instruct the jury on the lesser included offense of simple assault if a reasonable jury could have found that the defendant committed only a simple assault and not an assault with a deadly weapon.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 645

People v. McDaniel (2008) 159 Cal.App.4th 736, 747

Sixth Holding:

Under section 245 (assault with a deadly weapon), an object may be a deadly weapon in two ways. First, objects are considered deadly weapons as a matter of law, or deadly per se, when the ordinary use for which they are designed establishes their character as such. Typical examples include dirks and blackjacks. Second, if an object is not inherently deadly, the prosecution must prove to the trier of fact that the object was used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. Objects which have been found to be a deadly weapon based on the way they were used include a pillow, an automobile, a large rock, a razor blade, and a fingernail file. A wrench is not inherently deadly as a matter of law. It is designed and typically used for innocent purposes.

Authority:

People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029

People v. Montes (1999) 74 Cal.App.4th 1050, 1054

People v. Aledamat (2019) 8 Cal.5th 1, 6

Seventh Holding:

Based on the evidence, we conclude reasonable jurors could have decided the evidence was sufficient to prove the defendant assaulted the victim with the wrench but was insufficient to prove he did so in a manner likely to cause death or great bodily injury. And so we must reverse the judgment and conviction for assault with a deadly weapon. Under settled law, the judgment will be modified unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Eighth Holding:

Whether section 136.2(i)(1) authorized the court to issue a protective order against a defendant is an issue of statutory interpretation we review de novo.

Authority:

People v. Pena (2025) 113 Cal.App.5th 640, 645

Ninth Holding:

Under section 136.2(i)(2), trial courts, generally speaking, are authorized to issue postconviction orders restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a percipient witness to the crime who has been harassed by the defendant. It was improper to issue a protective order under section 136.2(i) where the person was not a percipient witness. The broader protective orders under section 136.2 are limited to the time frame during the pendency of the criminal action. It does not apply to postconviction orders.

Authority:

PEN 136.2

People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465 and fn. 4, 466

People v. Walts (2025) 112 Cal.App.5th 127, 140–144

Tenth Holding:

The court imposed $180 as the court facilities funding assessment for the five counts. However, at $30 for each count, the assessment should have been $150, not $180.

Authority:

GOV 70373(a)

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

Case 000516

Posted on by Gary McCurdy

Error and/or relief

For section 136.1 (dissuasion of witness) to apply [prior to its amendment effective 1/1/26], the attempt at dissuading must be performed prior to the commencement of the parole revocation proceedings. There was insufficient evidence to prove that parole revocation proceedings had commenced after the alleged attempt to dissuage.

(GARY NOTE: Effective 1/1/2026, section 136.1 was amended to eliminate the ambiguity under which Reynoza concluded that section 136.1 applies only if the alleging document has not yet been filed. The original language (by the use of the word “and”) ambiguously implied that, to constitute a violation, the defendant had to attempt to dissuade not only the filing of the charges, but also assistance in the prosecution once filed.

(Under that interpretation, if the only attempt at dissuasion took place after charges were filed, then the evidence was not sufficient to show that there was an attempt to dissuade from the filing of the charges. In direct response to Reynoza, section 136.1 now has changed the “and” to an “or,” the effect of which makes section 136.1 applicable to attempted dissuasion occurring on or after 1/1/2026, whether the attempt at dissuasion took place before or after charges were filed. I have included this summary because there may still be some defendants whose alleged misconduct occurred prior to 1/1/26 and must be prosecuted under the law in effect at the time of the crime.)

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. A reviewing court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Reversal is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Authority:

People v. Powell (2018) 5 Cal.5th 921, 944

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

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

Second Holding:

Under Reynoza, where criminal charges have already been filed, postcharging dissuasion alone does not constitute an offense under section 136.1(b)(2). In Reynoza, all evidence of the defendant’s dissuasive conduct occurred after the underlying charging document had been filed. Therefore, since there was no substantial evidence that the dissuasive conduct occurred before charges were filed, the court affirmed the Court of Appeal’s reversal of the conviction.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 1013

Third Holding:

There is no substantial evidence that satisfies the required element that defendant’s dissuading conduct occurred before proceedings were initiated in order to support defendant’s section 136.1(b)(2) convictions. Absent substantial evidence to support the convictions, the judgment must be reversed. A reversal based on insufficient evidence shields defendant from retrial because it means that no rational factfinder could have voted to convict the defendant. As such, defendant cannot be retried on counts 2 and 3

Authority:

People v. Tripp (2007) 151 Cal.App.4th 951, 959

Tibbs v. Florida (1982) 457 U.S. 31, 41

[Gary Reminder:

[Reread what I wrote as a Gary note  in the Error and/or relief secrion above about the law having changed effective 1/1/26 for those whose crimes occurred on or after that date.  It demonstrates how critical it is for you to always check on exactly WHAT the language was for the crime on the date your client was alleged to have committed it.]