Category Archives: Sufficiency of and substantial evidence

Abstracts and Minutes, Appellate Principles, Effective assistance of counsel, Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000512

Posted on by Gary McCurdy

Error and/or relief

Though we find the evidence was sufficient and we affirm the jury trial convictions, there are errors in the indeterminate abstract of judgment insofar as it incorrectly reflects that two section 12022.53(b) personal use enhancements were found true. The jury found only one to be true. Also, the determinate abstract of judgment reflects the incorrect number of custody credits. There were other errors as well, but the matter must be remanded for further clarity on what should be included in the abstract of judgment.

First Holding:

This court’s role in reviewing a challenge to the sufficiency of evidence is limited. When considering a claim of insufficient evidence, we examine the entire record to assess whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, 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 trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. Additionally, when undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment.

Authority:

People v. Smith (2005) 37 Cal.4th 733, 738

People v. Zamudio (2008) 43 Cal.4th 327, 357

People v. Hill (1998) 17 Cal. 4th 800, 849

Second Holding:

Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot. A thing is in the immediate presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.

Authority:

PEN 211

People v. Cooper (1991) 53 Cal.3d 1158, 1165

People v. Hayes (1990) 52 Cal.3d 577, 626-627

Third Holding:

An act may be robbery even if the property had been taken after the victim died. While it may be true that one cannot rob a person who is already dead when one first arrives on the scene, one can certainly rob a living person by killing that person and then taking his or her property.

Authority:

People v. Navarette (2003) 30 Cal.4th 458, 499

Fourth Holding:

Defendant’s ineffective assistance claim is forfeited for failure to support his argument with analysis and citation to evidence in the appellate record.

Authority:

Rules of Court rule 8.204(a)(1)(B)(C)

People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument is forfeited if it is raised in a perfunctory fashion without any supporting analysis and authority]

Fifth Holding:

[GARY NOTE: The court cited no authority for its order directing correction of the abstract of judgment, likely because the need for correction of material errors is simply obvious. But the court could have cited a number of cases, a few of which I have laid out.]

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

Sentencing, Sufficiency of and substantial evidence

Case 000503

Posted on by Gary McCurdy

Error and/or relief

It was error to impose concurrent terms on two counts, because section 654 prohibited multiple punishment. The sentence for count 1 is modified from concurrent to stayed.

First Holding:

Section 654(a) provides, in part, 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 has been applied not only where there was but one act in the ordinary sense but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on 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.

Authority:

PEN 654

People v. Beamon (1973) 8 Cal.3d 625, 637

Second Holding:

We apply the substantial evidence standard of review. Substantial evidence does not support a finding of separate intents and objectives. The evidence that defendant pointed the gun at the victim when threatening her supports a finding that defendant used the gun to emphasize his threat and cause the victim mental anguish. Accordingly, defendant held a single intent and objective during the course of conduct—to cause the victim to fear for her life. We will modify defendant’s suspended prison sentence.

Authority:

PEN 654

People v. Leonard (2014) 228 Cal.App.4th 465, 499

AppellateAdvisor Updates, Due process, Elements of crime, Fifth Amendment, Jury instructions, Sufficiency of and substantial evidence

Case 000489

Posted on by Gary McCurdy

Error and/or relief

There is insufficient evidence to support the child pornography count. The court also impermissibly restricted cross-examination to the extent that it violated the defendant’s right to cross-examine the witness. After reconsideration following four days of testimony, the court changed its mind. Rather than allow the defense to rebut the evidence already before the jury or declare a mistrial, the court instructed the jury that it was striking that portion of the victim’s testimony over the last four days as to her feelings in response to defendant’s actions, statements and text messages, instructing the jury to disregard the stricken testimony.

On this record, the defendant was denied a fair trial, and the judgment is reversed.

First Holding:

There is insufficient evidence to support the child pornography count. The photograph on which it relies does not depict a minor personally engaging in or simulating sexual conduct, as defined in section 311.4(d). Exhibition of the breasts is not included in the statutory definition of sexual conduct. In the context of section 311.4, the rectal area is not equivalent to buttocks and, to the extent rectal area may include any portion of the buttocks, it is limited to a portion of the lower buttocks near the rectum or anus.

Authority:

PEN 311.4(d)

PEN 311.11(a)(1)

PEN 311.4(d)

People v. Wallace (1992) 11 Cal.App.4th 568, 582 ([exposure of breasts does not constitute the prohibited exhibition under section 311.4], disapproved on another ground in People v. Martinez (1995) 11 Cal.4th 434, 452)

People v. Cantrell (1992) 7 Cal.App.4th 523, 545

Second Holding:

The Kongs factors are not included in the standard CALCRIM No. 1145 instruction. The factors are derived from People v. Kongs, where the Court of Appeal applied a list of six factors adopted by the federal courts for a trier of fact to consider when determining what constitutes a lascivious exhibition of specified private parts in assessing a sufficiency of the evidence claim under section 311.4 (using a minor to pose for sex acts) and section 311.11(a) (possession of child pornography).

[GARY NOTE: While it would be perfectly proper to provide the specific language and factors recited in the opinion, I’ve exercised my “G-Rating”-censorship-reserved-right to modify the actual language used and to go no further than I’ve recited. If the factors may have a bearing in your case, you should be reading Kongs for yourself.]

Authority:

People v. Kongs (1994) 30 Cal.App.4th 1741, 1753–1755

Third Holding:

We conclude no reasonable jury could determine, based on the overall content of the photograph, that it depicts an exhibition of the rectal area for the viewer’s sexual stimulation. We thus conclude the subject photograph does not, as a matter of law, depict the minor engaging in or simulating sexual conduct. Consequently, the evidence was insufficient to support the defendant’s conviction for possession of child pornography in count 26. The Double Jeopardy Clause bars retrial on this charge.

Authority:

People v. Spurlock (2003) 114 Cal.App.4th 1122, 1133

People v. Hin (2025) 17 Cal.5th 401, 468

Fourth Holding:

The admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must be of such quality as necessarily prevents a fair trial.

Authority:

People v. Partida (2005) 37 Cal.4th 428, 439

Estelle v. McGuire (1991) 502 U.S. 62, 70

People v. Albarran (2007) 149 Cal.App.4th 214, 229

Fifth Holding:

At trial, the prosecutor extensively questioned the minor about how the defendant made her feel through his statements and actions. The defendant’s defense counsel objected to the prosecutor’s line of questioning on relevance grounds, but the trial court overruled the objection, finding the testimony relevant to the minor’s credibility. As a result, over the course of four days, the minor was permitted to testify extensively on direct examination on how the defendant’s encouraging words made her feel.

When the defense proffered evidence that portrayed an opposite picture of the minor, the trial court conceded that it should have sustained the defense objection on relevancy grounds, denied the defendant’s request to introducing the contrasting evidence, and purported to strike the offending portions of the minor’s direct testimony, instructing the jury to disregard the minor’s testimony over the four days as to her feelings regarding the defendant’s statements. This presentation of extensive inadmissible evidence, combined with the exclusion of defense evidence that would have rebutted the inadmissible testimony, denied the defendant of his due process right to a fair trial.

Authority:

People v. Albarran (2007) 149 Cal.App.4th 214

Sixth Holding:

Constitutional errors in admitting or excluding evidence are both subject to harmless error review. Federal constitutional errors subject to harmless error review are reviewed under Chapman, which requires us to reverse the conviction unless the People can demonstrate that the error was harmless beyond a reasonable doubt. To determine whether the People have carried their burden, we examine the entire record and must reverse if there is a reasonable possibility that the error contributed to the verdict.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 412

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

People v. Reese (2017) 2 Cal.5th 660, 671

Seventh Holding:

Even thoughtfully phrased limiting instructions may be insufficient to mitigate the harm resulting from prejudicial evidence.

Authority:

People v. Guerrero (1976) 16 Cal.3d 719, 730 [No limiting instruction, however thoughtfully phrased or often repeated, could erase from the jurors’ minds the prejudicial evidence]

Eighth Holding:

Ordinarily, a party’s failure to object to certain testimony at all, or failure to object on the specific grounds asserted on appeal, would render a challenge to the admission of the testimony forfeited.

Authority:

People v. Oyler (2025) 17 Cal.5th 756, 831

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000483

Posted on by Gary McCurdy

Error and/or relief

We find insufficient evidence to support the defendant’s conviction for sexual penetration and remand for resentencing on the remaining counts.

First Holding:

Even considering the evidence in the light most favorable to the judgment, we find no evidence to support the defendant’s unlawful sexual penetration conviction. During the victim’s police interview, she made general statements describing the defendant’s conduct, but they constituted vague, euphemistic language requiring followup questions to prove the required penetration. But the officers did not ask any. The officer’s trial testimony regarding what the victim meant, based on the officer’s experience and training, did not clarify the statements. Nothing indicates that the victim ascribed the same meaning and the officer’s testimony asserted. Nor did the victim clarify the acts in her testimony. Taken together, this evidence does not constitute precise and specific testimony to prove the required penetration beyond a reasonable doubt.

Authority:

People v. Haynes (1998) 61 Cal.App.4th 1282, 1291

People v. Paz (2017) 10 Cal.App.5th 1023, 1038

People v. Jones (1990) 51 Cal.3d 294, 316 [though a child sexual crime victim need not specify precise dates, times and circumstances, she must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct]

People v. Quintana (2001) 89 Cal.App.4th 1362, 1371

Second Holding:

On this record, we must reverse the sexual penetration conviction. We strike his sentence for that count and remand for a full resentencing as to all counts so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [trial courts have jurisdiction to modify every aspect of sentence on the counts that were affirmed, including the term imposed as the principal term]

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

Case 000482

Posted on by Gary McCurdy

Error and/or relief

No substantial evidence supports the juvenile court’s order sustaining allegations relating to property theft. The minor came into the store with two adult males. One of the adults asked the clerk to bring him clothes that matched shoes he had previously purchased. The group took six items into a fitting room. Subsequently, one of the adults asked the clerk for different sizes and she went to the back of the store to get them. When she returned to the fitting room, only the two adults were there. The clerk did not see the minor leave. Security camera footage showed the minor leaving the store about five minutes after the group had entered the fitting room. Shortly thereafter, the two adults came out of the fitting room, returned five items to the clerk, and left. The sixth item, a green sweater, was missing from the store.

The possibility that the minor stole the sweater or otherwise aided and abetted the theft is insufficient. Accordingly, no substantial evidence supports the true findings.

First Holding:

Our review of the minors’ substantial evidence claim is governed by the same standard applicable to adult criminal cases. In reviewing the sufficiency of the evidence, we must 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.

Evidence that merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence, it merely raises a possibility, and this is not a sufficient basis for an inference of fact. The substantial evidence rule mandates consideration of the weight of the evidence before deferring to the conclusions drawn from the evidence by the trier of fact.

In determining whether the record is sufficient the appellate court can give credit only to substantial evidence, i.e., evidence that reasonably inspires confidence and is of solid value. Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and does not constitute proof.

Authority:

In re V.V. (2011) 51 Cal.4th 1020, 1026

People v. Collins (2025) 17 Cal.5th 293, 307-308

Second Holding:

An aider and abettor is one who acts with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.

Authority:

People v. Smith (2014) 60 Cal.4th 603, 611

Third Holding:

The possibility that the minor stole the sweater or otherwise aided and abetted the theft is insufficient. Accordingly, no substantial evidence supports the true findings.

Authority:

People v. Collins (2025) 17 Cal.5th 293, 307

In re Leanna W. (2004) 120 Cal.App.4th 735, 741, 744 [where liquor was missing and property was damaged after the minor hosted a party at her grandmother’s home while her grandmother was away, no substantial evidence supported burglary and vandalism findings because the fact that the minor was present when the liquor was used does not show that she actually consumed it, much less that she had the specific intent to take it when she entered the house and there is no evidence that the minor was the person who damaged or destroyed the property]