Category Archives: Sufficiency of and substantial evidence

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

Case 000771

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it failed to instruct the jury regarding specific intent for count 2, and the trial court abused its discretion when it imposed the registration requirement, We reverse count 2 and strike the registration requirement, and in all other respects affirm.

First Holding:

Trial courts have a sua sponte duty to instruct on every element of charged offenses. Instructions completely removing the issue of intent from the jury’s consideration may constitute a denial of federal due process principles. We review independently the legal adequacy of a jury instruction.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 409

People v. Lee (1987) 43 Cal.3d 666, 673,

People v. Cole (2004) 33 Cal.4th 1158, 1211

Second Holding:

The court instructed the jury that count 2 required “general criminal intent,” which is established when the defendant intentionally does a prohibited act.

This instruction was erroneous. The crime in count 2 is a specific intent crime because it requires the act to be done with the intent to accomplish a separate objective.

In addition, the instruction given on the crime was incomplete, because it included the statutory language for the prohibited conduct, but it omitted the requirement that the physical act be performed for a separate reason.

Specific intent is not presumed from the doing of the unlawful act.

Authority:

EVID 668

People v. ZarateCastillo (2016) 244 Cal.App.4th 1161, 1167 [construing equivalent language of a similar section]

Third Holding:

We assess the prejudicial effect of the failure to instruct regarding the required element of mental state pursuant to Chapman. We must reverse unless it appears beyond a reasonable doubt that the error did not contribute to the jury’s verdict.

Instructional error is harmless where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, but not where the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

In our view, the instructional error is not harmless because the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

Authority:

Chapman v. California (1967) 386 U.S. 18, 24

People v. Mil (2012) 53 Cal.4th 400, 409

Neder v. United States (1999) 527 U.S. 1, 19

Fourth Holding:

Substantial evidence did not support the trial court’s order that the defendant register as a sex offender. Section 290.006 requires a defendant to register as a sex offender if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. Section 290.006 does not include sexual abuse as a basis for registration.

Authority:

PEN 290.006

Fifth Holding:

We review imposition of a registration requirement pursuant to section 290.006 for abuse of discretion. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

A trial court abuses its discretion when its factual findings are not supported by the evidence. Here, there was no evidence that the murder (count 1) was committed for sexual gratification. The registration requirement must be stricken.

If the defendant is retried on the reversed count by a properly instructed jury, the court may reconsider the registration requirement based on the evidence presented at that trial.

Authority:

People v. Picklesimer (2010) 48 Cal.4th 330, 335

People v. Thai (2023) 90 Cal.App.5th 427, 433

Sixth Holding:

Because sufficient evidence was presented that could support a guilty verdict if the jury were properly instructed, the People may retry the defendant for count 2 on remand.

Authority:

People v. Hatch (2000) 22 Cal.4th 260, 271–272

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

Case 000768

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the allegation that the minor received stolen property in violation of section 496d(a) (pertaining to the vehicle in which he was a passenger).

First Holding:

The same standard governs review of the sufficiency of the evidence in adult criminal cases and juvenile cases. We examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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.

While substantial evidence includes circumstantial evidence and reasonable inferences drawn therefrom, such inferences may not be based on suspicion alone, or on imagination, or speculation.

Authority:

In re Amanda A. (2015) 242 Cal.App.4th 537, 545-546

In re Matthew A. (2008) 165 Cal.App.4th 537, 540

People v. Grant (2020) 57 Cal.App.5th 323, 330

Second Holding:

To sustain the petition on the receiving a stolen vehicle count, the People had to prove: (1) the motor vehicle was stolen; (2) the minor knew it was stolen; and (3) the minor received, concealed, or withheld the stolen vehicle from its owner.

Authority:

People v. Land (1994) 30 Cal.App.4th 220, 223-224

In re Anthony J. (2004) 117 Cal.App.4th 718, 728

Third Holding:

Receipt, or possession of stolen property, may be actual or constructive and need not be exclusive. Physical possession is also not a requirement. It is sufficient if the defendant acquires a measure of control or dominion over the stolen property.

Constructive possession occurs when the defendant maintains control or a right to control the property; possession may be imputed when the property is found in a place that is immediately and exclusively accessible to the defendant and subject to his or her dominion and control, or to the joint dominion and control of the defendant and another.

Authority:

People v. Land (1994) 30 Cal.App.4th 220, 223-224 [construing similar language in context of sec. 496, general receiving stolen property statute]

People v. Rushing (1989) 209 Cal.App.3d 618, 621-622

Fourth Holding:

Possession may be established through circumstantial evidence and resulting reasonable inferences. However, mere presence near the stolen property, or access to the location where the stolen property is found is not sufficient evidence of possession, standing alone, to sustain a conviction for receiving stolen property. Something more must be shown to support inferring of dominion and control. The necessary additional circumstances may, in some fact contexts, be rather slight.

Authority:

People v. Land (1994) 30 Cal.App.4th 220, 224

People v. Myles (1975) 50 Cal.App.3d 423, 429 [evidence the defendant was passenger in car and found standing close to car trunk containing stolen goods insufficient to infer possession for conviction of receiving stolen property]

People v. Zyduck (1969) 270 Cal.App.2d 334, 336 [evidence defendant was passenger in car with stolen chain saw in rear seat insufficient evidence to infer his possession of stolen item]

Fifth Holding:

The car was stolen and the minor knew the car was stolen, but there is no substantial evidence that the minor possessed or aided in withholding the car from its owner.

While it is true that conscious possession of recently stolen property itself raises a strong inference that the possessor knew the property was stolen, the issue here is whether, as a mere passenger, he actually or constructively possessed the stolen car as a section 496d conviction requires.

Aiding and abetting the commission of a crime requires some affirmative action. Mere presence at the scene of a crime which does not itself assist its commission or mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.

There was no evidence to show the minor directed the driver to speed away from the pursuing officers or otherwise directed any movement of the Infiniti as a passenger. There was no evidence that the minor had an opportunity to get out of the car before the traffic stop, or once the driver sped away from the officers.

The record is also devoid of any evidence regarding the minor’s relationship to any of the other occupants of the car, and the gang expert conceded the minor had no documented gang-related contacts apart from this one incident.

Absent evidence showing the nature and extent of the relationship between the minor and the other occupants, or the circumstances of the minor’s affirmative actions beyond simply running from the Infiniti, we conclude the evidence established nothing more than that the minor was a passenger in the stolen car, but not that he aided and abetted in the vehicle theft or in withholding the stolen vehicle from its rightful owner.

Authority:

People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574

People v. Anderson (1989) 210 Cal.App.3d 414, 420-421

People v. Partee (2020) 8 Cal.5th 860, 868

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

People v. Sedillo (2015) 235 Cal.App.4th 1037, 1039 [presence at crime scene, by itself, is insufficient to establish aiding and abetting; relevant factors for determining aider and abettor liability may include presence, companionship, and conduct before and after offense]

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

Case 000767

Posted on by Gary McCurdy

Error and/or relief

We find that the evidence was sufficient to support the conviction for discharging a firearm for the benefit of a criminal street gang.

However, the defendant cannot be convicted of both discharging a firearm at a motor vehicle and grossly negligent discharge of a firearm at a motor vehicle, and the abstract of judgment must be corrected to list the enhancements found true.

First Holding:

In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether it discloses substantial credible evidence from which 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. Resolving conflicts and inconsistencies in the testimony is the jury’s exclusive province.

We do not redetermine the weight of the evidence or the credibility of witnesses. Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.

Authority:

People v. Brooks (2017) 3 Cal.5th 1, 57

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

People v. Young (2005) 34 Cal.4th 1149, 1181

People v. Albillar (2010) 51 Cal.4th 47, 60

Second Holding:

We must accept logical inferences that the trier of fact might have drawn from the evidence even if we would have concluded otherwise. If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

The reviewing court need not address assertions of conflicts in the evidence or alternative theories regarding the inferences that should have been drawn from the 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. This is true for both direct and circumstantial evidence.

In this case, a reasonable jury could have found that the actions of the defendant were gang related and for the benefit of a gang.

Authority:

People v. Streeter (2012) 54 Cal.4th 205, 241, overruled on other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834

People v. Albillar (2010) 51 Cal.4th 47, 60

People v. Letner and Tobin (2010) 50 Cal.4th 99, 162

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

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

People v. Thompson (2010) 49 Cal.4th 79, 113

Third Holding:

The crime of grossly negligent discharge of a firearm which could result in injury or death (sec. 246.3(a)) is a lesser included offense of discharging a firearm at a motor vehicle (sec. 246).

Although section 954 provides that a single act or course of conduct can lead to convictions of any number of the offenses charged, the courts have created an exception to this rule where multiple convictions are based on necessarily included offenses.

In Ramirez, our Supreme Court reviewed the elements of both offenses and concluded that the only difference between the two crimes, and the basis for the more serious treatment of a section 246 offense, is that the greater offense requires that an inhabited dwelling or other specified object be within the defendant’s firing range.

All the elements of section 246.3(a) are necessarily included in the more stringent requirements of section 246. Therefore, we shall reverse defendant’s conviction on the count alleging grossly negligent discharge of a firearm.

Authority:

PEN 954

People v. Ramirez (2009) 45 Cal.4th 980, 984–985

Fourth Holding:

The abstract of judgment fails to accurately reflect the sentence orally pronounced by the trial court. Courts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.

Authority:

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

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

Case 000760

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction on count 2, and there are errors in the abstract of judgment that must be corrected.

First Holding:

The defendant was charged with taking a vehicle in violation of Vehicle Code section 10851 and with receiving stolen property (the same vehicle) under Penal Code section 496d(a). He was convicted of both counts. Though there was sufficient evidence that he took the vehicle, there was no evidence on what he did with it before its discovery. The evidence supports the theory that defendant was on one continuous journey away from the locus of the theft’ with the golf cart after taking it from the company premises until it was placed at the location from which the victim later retrieved it.

Authority:

People v. Strong (1994) 30 Cal.App.4th 366, 375

Second Holding:

Where a defendant challenges the sufficiency of the evidence supporting a criminal conviction, we apply the substantial evidence standard of review. Accordingly, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, 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.

While substantial evidence may consist of inferences, such inferences must be a product of logic and reason and must rest on the evidence; inferences that are the result of mere speculation or conjecture cannot support a finding.

Authority:

People v. Rangel (2016) 62 Cal.4th 1192, 1212

People v. Shively (2025) 111 Cal.App.5th 460, 468

Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633

Third Holding:

Vehicle Code section 10851(a) proscribes a wide range of conduct. A person can violate Vehicle Code section 10851(a) either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding). A taking is complete when the driving is not part of the escape from the scene of the theft.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

People v. Calistro (2017) 12 Cal.App.5th 387, 395

Fourth Holding:

A person who violates section 10851(a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. If, on the other hand, a section 10851(a) conviction is based on posttheft driving, a separate conviction under section 496(a) for receiving the same vehicle as stolen property is not precluded.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

Fifth Holding:

When a defendant is improperly convicted of both stealing and receiving the same stolen property, the theft conviction should be upheld and the receiving conviction reversed.

Authority:

People v. Ceja (2010) 49 Cal.4th 1, 10

Sixth Holding:

There were numerous errors in the abstract of judgment, in which the recitation of prison terms imposed were quite different than orally pronounced. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The abstract must be corrected.

Authority:

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

Appellate Principles, Discretion, Jury trial, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case 000746

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by discharging Juror No. 1 without good cause in violation of his rights under the Sixth Amendment. Our review of the record does not reveal it was a demonstrable reality that the discharged juror refused to deliberate. Rather, the juror listened to all the evidence, participated to some extent in the discussions in the jury room, and remained willing and able to vote concerning the verdict. The judgment is reversed.

First Holding:

If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged. In most circumstances, section 1089 is applied to remove a juror “who becomes physically or emotionally unable to continue to serve as a juror due to illness or other circumstances. However, section 1089 also has been applied “to permit the removal of a juror who refuses to deliberate, on the theory that such a juror is unable to perform his duty.

Authority:

PEN 1089

People v. Cleveland (2001) 25 Cal.4th 466, 474

Second Holding:

The removal of a seated juror for failing to deliberate is a serious matter that implicates a defendant’s state and federal constitutional right to a unanimous decision by the jury. Accordingly, great caution is required when deciding to excuse a sitting juror. The requirement of a unanimous criminal verdict is an important safeguard, long recognized in American jurisprudence. This safeguard rests on the premise that each individual juror must exercise his or her own judgment in evaluating the case. The fact that other jurors may disagree with a panel member’s conclusions, or find disagreement frustrating, does not necessarily establish misconduct.

Authority:

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

People v. Allen and Johnson (2011) 53 Cal.4th 60, 71

Third Holding:

If a juror’s willingness or ability to continue deliberating is unclear, the trial court must take care that its investigation is neither too cursory nor intrudes too deeply into the jury’s deliberative process to avoid invading the sanctity of the deliberations or creating a coercive effect on those deliberations.

The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge.

Authority:

People v. Cleveland (2001) 25 Cal.4th 466, 485

Fourth Holding:

When reviewing the dismissal of a juror, the California Supreme Court has adopted a heightened standard of review that protects the defendant’s fundamental rights to due process and a fair trial. The juror’s inability to perform his or her duty must appear in the record as a demonstrable reality. This test is more comprehensive and less deferential than the substantial evidence test. Under both tests, the appellate court reviews the entire record and does not reweigh the evidence.

However, under the substantial evidence test, the court reviews the record in the light most favorable to the judgment and upholds it if there is credible evidence that could reasonably support the trial court’s decision to remove a juror. Under the demonstrable reality test, by contrast, we must determine whether the trial court actually did rely on evidence that supports removing the juror.

This heightened and “ore stringent demonstrable reality standard more fully reflects an appellate court’s obligation to protect a defendant’s fundamental rights to due process and to a fair trial by an unbiased jury. Under the more comprehensive and less deferential review applicable here, we consider the reasons that the trial court provided, identify the evidence on which the court actually relied, and determine whether the evidence manifestly supports the court’s conclusion that a juror is refusing to deliberate.

Authority:

People v. Armstrong (2016) 1 Cal.5th 432, 450-451

People v. Barnwell (2007) 41 Cal.4th 1038, 1052, 1053

People v. McGhee (2025) 17 Cal.5th 612, 634 [a juror’s ability to describe to the court the views of the challenged juror showed there was some discussion going on]

People v. Engelman (2002) 28 Cal.4th 436, 446 [Jurors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means; it is not required that jurors deliberate well or skillfully]

People v. Barton (2020) 56 Cal.App.5th 496, 515 [juror’s refusal to change her mind and her decision to no longer attempt to explain that decision to the other jurors did not amount to misconduct]

Fifth Holding:

An abuse of discretion in discharging a juror under section 1089 requires reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached but for the error.

Authority:

Authority
People v. Bowers (2001) 87 Cal.App.4th 722, 736 [applying the Watson standard]

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

People v. Henderson (2022) 78 Cal.App.5th 530, 565 [discussing prejudice requirement]

Sixth Holding:

In some instances, removal of a juror was upheld. In Dixon, the discharged juror was not merely disagreeing with the other jurors. The trial court found that the juror was upset by a relative’s illness or by intimidation by the other jurors, and this emotional state inhibited the juror’s ability to deliberate. Based on its observation of the discharged juror’s demeanor, the court assessed that the juror had not been candid with the court about these effects on her ability to deliberate.

In Lomax, the discharged juror had prejudged the case but refused to share any of his reasoning with the other jurors, and the juror himself had said he was not able to consider the evidence or take part in the deliberations because of his conscientious objection to the death penalty.

In Samuels, discharge of a juror was upheld where the juror was distressed, asked to be removed, and told the court she could not follow her oath and lacked courage to impose the death penalty even if she were convinced the case required it.

Authority:

People v. Diaz (2002) 95 Cal.App.4th 695, 705,

People v. Lomax (2010) 49 Cal.4th 530, 591

People v. Samuels (2005) 36 Cal.4th 96, 131–133

Seventh Holding:

While a jury is instructed to try to achieve a unanimous verdict, the possibility of a hung jury is an inevitable by-product of our unanimous verdict requirement.

Authority:

People v. Barraza (1979) 23 Cal.3d 675, 683

Eighth Holding:

It cannot be said a juror has refused to deliberate so long as a juror is willing and able to listen to the evidence presented in court, to consider the evidence and the judge’s instructions, and to finally come to a conclusion and vote. This is precisely what Juror No. 1 did.

Applying the heightened standard of review that governs our assessment of a trial court’s decision to discharge a juror, and based on our examination of the record as a whole, we conclude that the court abused its discretion in discharging Juror No. 1 because her inability to perform her duty as a juror does not appear in the record as a demonstrable reality.

Authority:

People v. Barton (2020) 56 Cal.App.5th 496, 514

Ninth Holding:

On the facts in this case, there is no double jeopardy bar to retrial of the case.

Authority:

People v. Hernandez (2003) 30 Cal.4th 454 1, 9

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

Case 000736

Posted on by Gary McCurdy

Error and/or relief

There is insufficient evidence proving the defendant burned forest land as that term is defined by section 450(b).

First Holding:

Section 451 provides that a person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned any structure, forest land, or property. Section 451 identifies four types of felonious arson: (1) arson causing great bodily injury; (2) arson causing an inhabited structure or property to burn; (3) arson of a structure or forest land; and (4) arson of property. Section 450(b) defines forest land as any brush covered land, cut-over land, forest, grasslands, or woods.

By contrast, property means real property or personal property, other than a structure or forest land. The maximum sentence for arson of a structure or forest land is double that of the maximum sentence for arson of uninhabited property.

Authority:

PEN 451

PEN 450

Second Holding:

At the heart of this case lies a question of statutory interpretation—the meaning of forest land—which we consider de novo. Our primary task in interpreting the statute is to determine the lawmakers’ intent. We begin with the words of the statute and their usual and ordinary meaning, which would typically be their dictionary definition. Their plain meaning controls, unless the words are ambiguous. If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute’s purpose, and public policy.

Authority:

People v. Costella (2017) 11 Cal.App.5th 1, 5-6

People v. Prunty (2015) 62 Cal.4th 59, 71

Third Holding:

To the extent we must determine whether there was sufficient evidence of forest land, we consider whether the record discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We examine the whole record in the light most favorable to the judgment and we do not reweigh evidence. In the end, the only evidentiary question before us is whether the prosecution—consistent with the theory it advanced regarding what constituted forest land—presented sufficient proof in this case.

Authority:

People v. Costella (2017) 11 Cal.App.5th 1, 5

People v. Prunty (2015) 62 Cal.4th 59, 71

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

Fourth Holding:

It appears undisputed that the site here does not fall within the statutory definition of forest land as cut-over land, forest, or woods. The People argue it constitutes forest land as grasslands or brush covered land. We disagree. Merriam-Webster defines grassland as farmland occupied chiefly by forage plants and especially grasses, or land on which the natural dominant plant forms are grasses and forbs, or an ecological community in which the characteristic plants are grasses. Based on these definitions and the language of sections 450 and 451, we agree with the defendant that the mere presence of grass is insufficient to make an area a grassland.

The statutes distinguish between arson of forest land, including grasslands, and arson of other types of uninhabited property, suggesting that the Legislature intended forest land to mean something other than any land on which grass grows. The definitions suggest a grassland is an open land or prairie, occupied largely by grasses, rather than just any land with grass on it, such as a lawn or park. The 1979 amendment to the statute from “any grass” to “grasslands” suggests the Legislature intended to narrow the types of grassy areas giving rise to heightened punishment for arson.

Authority:

PEN 450

Fifth Holding:

Based on the definitions and the discussion in Costella, we believe the definition of “brush covered land” requires that at least some portion of the land in question be densely populated with brush, even if it is not continuously covered with brush. Here, there was insufficient evidence to support a conclusion that the area affected was forest land or grassland or brush covered land. In sum, there is insufficient evidence that the land at issue constituted forest land under sections 450, subdivision (b), and 451, subdivision (c). Therefore, the arson conviction must be reversed.

Authority:

PEN 450

PEN 451

People v. Costella (2017) 11 Cal.App.5th 1, 7

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

Case 000711

Posted on by Gary McCurdy

Error and/or relief

There is insufficient evidence that the defendant sent harmful material to the minor with the required intent to engage in sexual conduct or intimate touching with him. We therefore reverse the conviction and eight-month consecutive sentence for count one, and remand for full resentencing.

First Holding:

We apply the substantial evidence standard in reviewing a claim of insufficient evidence. We must examine the record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. In doing so, we presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.

Authority:

People v. Zaragoza (2016) 1 Cal.5th 21, 44

Second Holding:

The relevant question for purposes of substantial evidence review is whether, in light of all the evidence, any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Reversal based on insufficient evidence is warranted only if it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Authority:

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

Third Holding:

Substantial evidence includes circumstantial evidence and any reasonable inferences that can be drawn from the evidence. We presume every reasonable inference from the evidence to support the judgment.

Authority:

People v. Clark (2011) 52 Cal.4th 856, 943

People v. Covarrubias (2016) 1 Cal.5th 838, 890

Fourth Holding:

While it is the jury, not the appellate court that must be convinced of the defendant’s guilt, in order to affirm, we must be able to conclude the evidence is sufficient to have convinced that jury of the defendant’s guilt beyond a reasonable doubt. In making this determination, we must necessarily take into account the prosecution’s burden of proof beyond a reasonable doubt at trial. The question is whether a reasonable trier of fact could have regarded the evidence as satisfying this standard of proof.

Authority:

People v. Lara (2017) 9 Cal.App.5th 296, 320

Jackson v. Virginia (1979) 443 U.S. 307, 317–320 [conviction based on insufficient evidence violates due process clause of Fourteenth Amendment]

People v. Ware (2022) 14 Cal.5th 151, 167

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1009

Fifth Holding:

The officer gave testimony that 75 percent of adults who send explicit images to undercover law enforcement agents posing as children online will arrange a meeting and show up with the intent to have a sexual relationship. Although this testimony was admitted without objection, we caution that California courts have excluded other similar forms of probability evidence.

Statistical odds are not a substitute for admissible evidence to decide the guilt or innocence of the defendant. We will not decide the admissibility of this probability evidence, however, because we must consider all admitted evidence in our sufficiency of evidence review. Incompetent testimony received without objection takes on the attributes of competent proof when considered on the sufficiency of evidence to support a finding.

Authority:

People v. Collins (1968) 68 Cal.2d 319, 327–332

People v. Julian (2019) 34 Cal.App.5th 878, 880, 885–889

People v. Wilson (2019) 33 Cal.App.5th 559, 568–572

People v. Panah (2005) 35 Cal.4th 395, 476

Sixth Holding:

Although there was ample evidence of the defendant’s sexual attraction to children and child pornography, there was no evidence that he had ever engaged or attempted to engage in any sexual conduct or intimate touching with a minor, or that he had expressed an intent to do so, or that he had made any arrangements to meet a minor in person for such a purpose. The record is devoid of evidence of the type offered to prove intent in other cases of this nature.

Authority:

Cf. People v. Nakai (2010) 183 Cal.App.4th 499, 509–510

Cf. People v. Hsu (2000) 82 Cal.App.4th 976, 981

Seventh Holding:

Although we must draw all reasonable inferences in favor of the prosecution, a reasonable inference is one that is supported by a chain of logic, rather than, as in this case, mere speculation dressed up in the guise of evidence. A jury must avoid unreasonable inferences and not resort to imagination or suspicion. Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and does not constitute proof.

The defendant’s conduct with the victim was unquestionably harmful, but on this record, the evidence of his specific intent to commit a sexual or intimate act with the victim does not rise to a level beyond bare suspicion or conjecture. We therefore reverse the defendant’s conviction on count one and the eight-month consecutive sentence imposed for that count. This also requires us to remand the matter for full resentencing.

Authority:

People v. Lara (2017) 9 Cal.App.5th 296, 324

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

People v. Buycks (2018) 5 Cal.5th 857, 893 [remand for full resentencing required where part of sentence is stricken on review]

Eighth Holding:

We review any express or implied factual findings underlying the trial court’s ruling for substantial evidence. We must review the record in a light most favorable to the trial court’s decision and assume any facts the trial court could have reasonably deduced from the evidence presented at trial.

Authority:

People v. Brents (2012) 53 Cal.4th 599, 618

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

Ninth Holding:

Further, the abstract of judgment and the minute order incorrectly indicate that the out-on-bail enhancement (sec. 12022.1) was attached to the misdemeanor count. The enhancement applies only to felonies. The abstract of judgment and the minute order must be corrected accordingly upon resentencing.

(Gary note: The opinion was modified a few weeks later regarding the 12022.1 enhancement. It recognized that if the primary offense (i.e., the felony on which the defendant had been released on bail,to which the 12022.1 enhancement attaches) is reversed on appeal, the enhancement must be suspended pending retrial and reimposed only upon retrial and reconviction of the primary offense.)

(Gary note: The court did not cite authority for the order for correction. Given that the case was being remanded for resentencing, the court’s comments were more for guidance of the trial court rather than an actual order correcting the documents. But there is much authority regarding the need for the abstract of judgment and the minute order to conform to the oral pronouncement of judgment, and I have set forth some below.)

Authority:

(Regarding section 12022.1 on reversal of primary count:)

PEN 12022.1(g)

(Regarding authority of court to direct the correction of abstracts of judgments and minute orders:)

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

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

Tenth Holding:

Gary note: The court declined to find that section 654 applied, but the opinion contains several principles important to know about section 654, so I’ve laid them out below.)

Section 654 prohibits multiple punishment for an act or omission that is punishable in different ways by different provisions of law. This restriction applies not only to a single act or omission, but also an indivisible course of conduct violating multiple provisions.

Authority:

People v. Latimer (1993) 5 Cal.4th 1203, 1207–1209

Eleventh Holding:

Whether a course of conduct is divisible for purposes of section 654 depends on the intent and objective of the defendant. If multiple offenses were incident to a single objective, the defendant may be punished for no more than one. However, a course of conduct divisible in time, though directed to only one objective, may give rise to multiple violations and punishment, particularly when the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and renew his intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken.

Authority:

People v. Fuentes (2022) 78 Cal.App.5th 670, 680

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

Twelfth Holding:

When section 654 applies, it does not allow any multiple punishment, including either concurrent or consecutive sentences. If punishment for multiple offenses is prohibited by section 654, the court must impose sentence for one of the offenses and stay sentence on the others.

Authority:

People v. Deloza (1998) 18 Cal.4th 585, 591-592

Thirteenth Holding:

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

Authority:

People v. Cleveland (2001) 87 Cal.App.4th 263, 267–268

Abstracts and Minutes, Appellate Principles, Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case 000710

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the count 4 conviction. The court erred by imposing the additional 25-year-to-life terms on counts 1 through 3. Section 1170(b) requires remand and resentencing on count 8 on which the court imposed the upper term. The court must correct the error in the abstract of judgment.

First Holding:

To prove that a defendant committed attempted murder, the prosecution must demonstrate beyond a reasonable doubt that the defendant acted with the intent to kill.T]he intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be transferred from one attempted murder victim to another under the transferred intent doctrine.

As there was no evidence that the defendant had the intent to kill, there was insufficient evidence of attempted murder. We reverse the defendant’s attempted murder conviction on count 4, and double jeopardy principles bar retrial of the charge. A finding of insufficient evidence is the functional equivalent of a judgment of acquittal, upon which retrial is prohibited.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 455, 456

Second Holding:

We cannot reduce the defendant’s attempted murder conviction to one for the lesser included offense of attempted voluntary manslaughter or the lesser related offense of assault with a firearm. To prove the crime of attempted voluntary manslaughter, the prosecution must introduce evidence demonstrating that the defendant intended to kill—evidence absent from the record here. And we are authorized to reduce a conviction only to a lesser included offense, not a lesser related offense.

Authority:

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225 [when a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence]

People v. Montes (2003) 112 Cal.App.4th 1543, 1545–1547

People v. Hamilton (2018) 30 Cal.App.5th 673, 685

People v. Parks (2004) 118 Cal.App.4th 1, 5–7 [assault with a firearm is not a lesser included offense of attempted murder]

Third Holding:

Double jeopardy principles prohibit retrying the defendant on these lesser offenses.

Authority:

People v. Anderson (2009) 47 Cal.4th 92, 103–104 The double jeopardy bar protects against a second prosecution for the same offense following an acquittal and both federal and California law generally treat greater and lesser included offenses as the same offense for purposes of double jeopardy]

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1224–1226 [double jeopardy principles prohibit retrial on a lesser related offense where, as here, the court instructs on the lesser offense and the jury is discharged without rendering a verdict on the offense]

Fourth Holding:

In addition to sentencing the defendant to LWOP on each of counts 1 through 3, the court imposed terms of 25 years to life under the Three Strikes law on each count. This was improper. The finding of a special circumstance eliminates the possibility of a 25-year-to-life sentence and leaves only the sentencing options of death or LWOP. We therefore direct the trial court on remand to strike the terms of 25 years to life imposed on each of counts 1 through 3.

Authority:

PEN 190.2(a)

People v. Rodriguez (1998) 66 Cal.App.4th 157, 164

Fifth Holding:

A defendant’s citation to a silent record is insufficient to meet his burden to demonstrate an abuse of discretion.

Authority:

People v. Coleman (2024) 98 Cal.App.5th 709, 725

Sixth Holding:

Once the court elected to impose the greater section 12022.53(d) enhancements on counts 1 through 7, it erred by failing to stay or strike the lesser section 12022.53(b) and (c) firearm enhancements. We therefore direct the trial court on remand to stay or strike the lesser firearm enhancements found true by the jury.

Authority:

People v. Gonzalez (2008) 43 Cal.4th 1118, 1122–1123 [after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment, the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed]

People v. Vizcarra (2015) 236 Cal.App.4th 422, 432 [failure to pronounce sentence for an enhancement represents an unauthorized sentence]

Seventh Holding:

The trial court violated section 1170(b) and ran afoul of the defendant’s constitutional due process and jury-trial rights by relying on unproven aggravating circumstances in imposing an upper term sentence on count 8. Under section 1170(b)(1), when a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).

Paragraph (2), in turn, provides that the court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term 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.

Thus, section 1170(b), by its terms, governs sentences imposed pursuant to a statutory triad. It does not apply to indeterminate terms. But it does apply to count 8. The court failed to comply with section 1170(b)(5)’s requirement that it set forth on the record the facts and reasons for choosing the sentence imposed on count 8. Without any statement of reasons, we cannot properly review the propriety of the court’s selection of the upper term.

Accordingly, we direct the trial court on remand to resentence the defendant on count 8, consistent with section 1170(b). We express no opinion concerning how the court should exercise its sentencing discretion on remand, apart from requiring that it set forth the facts and reasons for choosing the sentence imposed.

Authority:

PEN 1170(b)(1) and (b)(5)

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

People v. May (1990) 221 Cal.App.3d 836, 838 [the absence of a statement of reasons for a sentencing decision may impede appellate review]

Eighth Holding:

Although the trial court orally awarded the defendant [more than 1300] days of actual custody credit, the last page of the written abstract of judgment reflects only [less than 300] such credits. Accordingly, we direct the court on remand to recalculate the defendant’s actual custody credits and to prepare an amended abstract of judgment that accurately reflects the court’s award of such credits.

[Gary note: the court did not separately list any citations for its order regarding the abstract of judgment. The opinion characterized the error as a clerical error in the abstract, and does not actually claim that the trial court did not adequately calculate the credits. So for your convenience, I have added below Buckhalter some additional authorities not cited by the court for its power to order the correction of abstracts of judgment.]

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23 When an appellate remand results in modification of a felony sentence during the term of imprisonment, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence]

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

Jurisdiction, Standard of review, Sufficiency of and substantial evidence

Case 000682

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to establish that one of the charged counts of aggravated sexual assault of a child based on sexual penetration took place within the jurisdiction of the superior court, and reverse the conviction on that count.

Holding:

There was insufficient evidence that more than one of the two counts of aggravated sexual assault of a child by sexual penetration occurred in a city in California, as opposed to Mexico.

When considering a challenge to the sufficiency of the evidence supporting a conviction, we review the entire record in the light most favorable to the judgment and determine whether there is substantial evidence 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.

The victim’s answers to the questions indicated that at least one of the incidents occurred in California, but did not exclude the possibility that the other occurred in Mexico, outside the superior court’s jurisdiction.

Authority:

People v. Maciel (2013) 57 Cal.4th 482, 514–515

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

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

Case 000671

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to support the conviction for sexual penetration by force upon a child.

First Holding:

To evaluate the defendant’s challenge to the sufficiency of the evidence, we must review the entire record in the light most favorable to the judgment, and then determine whether it contains evidence that is reasonable, credible, and of solid value such that a reasonable jury could have found the defendant guilty beyond a reasonable doubt.  

We must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence, 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.

But we cannot, however, venture beyond the evidence presented at trial, and may consider only those inferences that are reasonably supported by the record. A reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. It must logically flow from other facts established in the action, and it cannot be based entirely on the suspicions of the officers involved in the case and the conjecture of the prosecution.

Authority:

People v. Ware (2022) 14 Cal.5th 151, 167–168

Second Holding:

In reviewing the sufficiency of the evidence to determine whether retrial is permissible for purposes of double jeopardy, we must consider all of the evidence presented at trial, including evidence that should not have been admitted. Because the record contains no evidence that could support a reasonable inference that the defendant sexually penetrated the victim with a foreign object, insufficient evidence supports a verdict of guilt on that count. Double jeopardy bars retrial on that count.

Authority:

People v. Story (2009) 45 Cal.4th 1282, 1296

Lockhart v. Nelson (1988) 488 U.S. 33, 39

Third Holding:

When a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence.

Authority:

PEN 1181(6)

PEN 1260

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225

People v. Navarro (2007) 40 Cal.4th 668, 677

Discretion, Sentencing, Sufficiency of and substantial evidence

Case 000657

Posted on by Gary McCurdy

Error and/or relief

The court erred in denying the medically eligible defendant’s petition for compassionate release under section 1172.2, because there was insufficient evidence to support the court’s finding that there was an unreasonable risk that the defendant would commit a super strike.

First Holding:

The Penal Code imposes a presumption favoring compassionate release for medically-eligible individuals and, as to the risk of re-offense, requires an assessment not of whether a new crime would be theoretically possible, but whether there would be an unreasonable risk of a super strike as defined by the law. On this record, we conclude there is insufficient evidence of an unreasonable risk that defendant would commit a super strike if granted compassionate release. Accordingly, we will reverse the trial court’s order denying the petition for compassionate release and direct the trial court to recall defendant’s sentence in accordance with section 1172.2.

Authority:

PEN 1172.2

Second Holding:

A superior court abuses its discretion when the factual findings essential to its decision lack evidentiary support. The superior court’s factual findings are reviewed for substantial evidence.

Authority:

People v. Cluff (2001) 87 Cal.App.4th 991, 998

In re White (2020) 9 Cal.5th 455, 470

Third Holding:

Section 1172.2 authorizes a trial court to recall the sentence of an incarcerated person who is permanently medically incapacitated with a medical condition or functional impairment that renders them permanently unable to complete basic activities of daily living. If the trial court finds that an incarcerated person satisfies this criterion, the statute establishes a presumption favoring recall and resentencing that may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision section 1170.18(c), based on the incarcerated person’s current physical and mental condition.

Authority:

PEN 1172.2(b)(2)

Fourth Holding:

Under section 1170.18(c), an unreasonable risk of danger to public safety is an unreasonable risk that the petitioner will commit a “super strike,” which includes any homicide or attempted homicide offense, any serious or violent felony offense punishable by life imprisonment or death, and certain sexually violent offenses.

Authority:

PEN 1170.18(c)

Fifth Holding:

After reviewing the evidence of the physical and mental condition of the defendant, the court concluded that there was insufficient evidence to support the finding that he was capable of committing a super strike. The appellate court relied on Lewis, a case in which it was held to be an abuse of discretion to deny compassionate release on evidence that showed that the defendant perhaps had the capacity to commit a super strike, but that did not necessarily establish an unreasonable risk that he would commit such an offense.

Authority:

People v. Lewis (2024) 101 Cal.App.5th 401, 407-409

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

Case 000624

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by failing to instruct the jury regarding unlawful detention or unlawful arrest. The judgment is reversed. Because there was sufficient evidence that a properly instructed jury could have returned the same verdict, double jeopardy principles do not apply and the matter may be retried.

First Holding:

All criminal defendants have the right to a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Thus, the trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense.

A claim of instructional error is reviewed de novo. An appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law.

Similarly, if the trial court decides to provide supplemental instruction to the jury during deliberation, we review de novo the legal accuracy of any supplemental instructions provided.

Authority:

People v. Merritt (2017) 2 Cal.5th 819, 824

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Parker (2025) 113 Cal.App.5th 1261, 1271

Second Holding:

Section 69 provides that every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law is punishable by a fine or by imprisonment. Similarly, section 148(a)(1) prohibits resisting an officer in the performance of duty, though the resistance need not be forceful or violent.

Authority:

PEN 69

PEN 148

People v. Hupp (2023) 96 Cal.App.5th 946, 950

In re A.L. (2019) 38 Cal.App.5th 15, 22

Third Holding:

The lawfulness of an officer’s conduct is an essential element of both offenses because there is no distinction between performing a duty and lawfully performing a duty, since an officer who is acting unlawfully cannot be said to be performing his or her duty. And the prosecution has the burden of proving the lawfulness of the officers’ conduct beyond a reasonable doubt. Thus, the lawfulness of the officers’ conduct is an essential element upon which the trial court had a sua sponte duty to properly instruct the jury.

Authority:

In re A.L. (2019) 38 Cal.App.5th 15, 25

People v. Southard (2021) 62 Cal.App.5th 424, 435

Fourth Holding:

To convict defendant of a violation of section 69 or 148, the prosecution was required to prove, and the jury was required to find, that officers were engaged in the lawful performance of their duties. The pattern jury instructions include definitions for various scenarios in which an officer can be considered engaged in a lawful performance of duty, including during a detention, an arrest without a warrant, and an arrest for a misdemeanor offense. (CALCRIM 2670.)

However, the trial court did not give any of these definitions to the jury. Nor did the trial court offer its own definition for the jury to consider. In essence, the trial court instructed the jury that it was required to find that the officers were engaged in a lawful performance of duty but provided no definitions or guidance to the jury regarding how to make this finding. This was clearly error.

Authority:

People v. Serrano (2022) 77 Cal.App.5th 902, 913 [Where a term or phrase has a special definition for purposes of a statute, the failure to define it for the jury is error.]

People v. Reyes (1992) 2 Cal.App.4th 1598, 1601 [Failure to define terms essential to an element of an offense is “equivalent to the omission of an element from the definition of the crime given to the jury.]

Fifth Holding:

The question of reasonable or probable cause is ordinarily one for the court and, where there are disputed facts to be resolved by a jury, the jury is to be told that if it finds the facts in a designated way such facts do or do not amount to probable cause.

Authority:

Roberts v. City of Los Angeles (1980) 109 Cal.App.3d 625, 629-630

Sixth Holding:

Whether an offense has been committed in an officer’s presence is determined by whether the officer could testify to actual knowledge to every element of the offense.

Authority:

People v. Garrison (1961) 189 Cal.App.2d 549, 557

In re Alonzo C. (1978) 87 Cal.App.3d 707, 714

People v. Welsch (1984) 151 Cal.App.3d 1038, 1044

Seventh Holding:

When the jury is misinstructed on an element of the offense reversal is required unless we are able to conclude that the error was harmless beyond a reasonable doubt. In such cases, a reviewing court must determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error. Here, we cannot say with any confidence that the jury would have reached the same verdict had it been properly instructed in this case.

Authority:

People v. Wilkins (2013) 56 Cal.4th 333, 348

People v. Merritt (2017) 2 Cal.5th 819, 831

Eighth Holding:

It has long been settled that the Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction. However, a settled exception to this rule permitting retrial after a successful appeal occurs when a conviction has been reversed due to insufficiency of the evidence.

Thus, even where reversal is required based on instructional error, an appellant’s arguments regarding insufficiency of the evidence should be considered to determine whether retrial is barred by double jeopardy principles. The inquiry at this stage is to determine whether, if properly instructed, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Authority:

People v. Wilson (2023) 14 Cal.5th 839, 852-853

People v. Wetle (2019) 43 Cal.App.5th 375, 388

People v. Hallock (1989) 208 Cal.App.3d 595, 608-609;

In re Martinez (2017) 3 Cal.5th 1216, 1224 [Where instructional error occurs, retrial is barred if defendant can show there was insufficient evidence to support a conviction even when the law is properly construed.]

Ninth Holding:

While an offense may be considered a “wobbler” punishable as either a misdemeanor or felony, its status as a wobbler has no bearing on the lawfulness of a warrantless arrest. This is because the commission of a wobbler is a felony at the time it is committed and remains deemed a felony unless charged as a misdemeanor by the People or reduced to a misdemeanor by the sentencing court.

Authority:

People v. Moomey (2011) 194 Cal.App.4th 850, 857-858

People v. Statum (2002) 28 Cal.4th 682, 685