Error and/or relief
The instructional errors were prejudicial regarding the multiple-murder and lying-in-wait special circumstance findings attached to counts 1, 2 and 3.
We reverse those findings, but the prosecution may retry these special circumstance allegations.
The firearm enhancements found true as to counts 1, 2 and 3 must be reversed due to prejudicial error, including pleading deficiencies and insufficiency of the evidence. Retrial of the firearm enhancements is barred by principles of double jeopardy.
The trial court also erred by denying the defendant’s renewed motion for a transfer hearing in juvenile court under Welfare and Institutions Code section 707 as amended by AB 2361 (2021–2022 Reg. Sess.).
Accordingly, we conditionally reverse the judgment and remand the matter with directions to refer the case to the juvenile court for a transfer hearing under current law.
First Holding:
In setting forth the relevant pertinent facts in an appellate opinion, we view the record in the light most favorable to the judgment.
Authority:
In re Jesus O. (2007) 40 Cal.4th 859, 861
People v. Johnson (1980) 26 Cal.3d 557, 578
Second Holding:
In counts 1 through 3, the jury convicted appellant of first degree murder. The jury found true four special circumstance allegations: (1) lying in wait; (2) multiple murders; (3) murder in the commission of robbery; and (4) murder in the commission of burglary. Because of the special circumstance findings, appellant was sentenced to three consecutive LWOP terms.
There were several instructional errors, but many we find to have been harmless error. The instructional errors were prejudicial regarding the multiple-murder and lying-in-wait special circumstance findings attached to counts 1, 2 and 3.
We reverse those findings, but the prosecution may retry these special circumstance allegations. Even if the People do not elect to do so, however, a full resentencing is required.
(Gary note: The opinion concluded that some of the instructions permitted finding guilt on the natural and probable consequences doctrine, which has been abolished. Cutting to the chase in this summary, the court stated in its analysis whether the instructional error was harmless, the court stated, that the evidence overwhelmingly demonstrated that appellant acted as a major participant in these crimes and with his own reckless indifference to human life. It was satisfied beyond a reasonable doubt that any rational juror who convicted appellant of first degree murder would have necessarily found the facts required under section 189(e)(3).
(Also, the jury was erroneously told at times that, if appellant was not an actual killer, the lying-in-wait and the multiple-murder special-circumstance allegations could be found true merely if he was a major participant who acted with reckless indifference to human life. This was legally incorrect. If appellant was not the actual killer, then the prosecution was required to prove that he acted with an intent to kill for each murder in order to establish these special circumstance allegations. The court did not find the error harmless on those instructions, and reversed those special circumstances, allowing the prosecution to retry them.)
Authority:
PEN 188(a)(3) [Malice shall not be imputed to a person based solely on his or her participation in a crime]
PEN 190.2(c) and (d)
People v. Curiel (2023) 15 Cal.5th 433, 449
People v. Hallock (1989) 208 Cal.App.3d 595, 607 [conviction reversed for instructional error may be retried if supported by sufficient evidence]
People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, a full resentencing is required so the trial court can exercise its sentencing discretion in light of the changed circumstances]
Third Holding:
We reject the prosecution’s contention that the defendant has forfeited claims of instructional error by failing to object. Trial courts have a sua sponte duty to correctly instruct on the elements of the charged offenses and on special circumstance allegations.
No objection is required to preserve a claim for appellate review when the jury instructions omit an essential element of a charge.
Moreover, a court may review any question of law involved in an instruction which affects the substantial rights of the defendant. As alleged, the instructional errors in this matter altered the mens rea and actus reus elements that the jury was required to find.
Accordingly, we decline to find forfeiture, and we will review this claim on its merits.
Authority:
PEN 1259
People v. Mil (2012) 53 Cal.4th 400, 409
People v. Hardy (2018) 5 Cal.5th 56, 91 [declining to rely on forfeiture doctrine where alleged instructional errors would have impacted defendant’s substantial rights].
Fourth Holding:
The instructional errors impacted appellant’s constitutional rights because they permitted the jury to convict him on an invalid legal theory. Accordingly, we must reverse the convictions unless, after examining the entire cause—including the evidence and considering all relevant circumstances—we determine the errors, including the disputed ones, were all harmless beyond a reasonable doubt.
Authority:
Chapman v. California (1967) 386 U.S. 18, 24
In re Ferrell (2023) 14 Cal.5th 593, 602
People v. Aledamat (2019) 8 Cal.5th 1, 13
Fifth Holding:
When a jury is instructed on both a legally valid theory and a legally invalid theory of guilt, harmlessness can be shown if the jury verdict on other points effectively embraces the valid theory or if, based on the evidence, it is impossible to have found what the verdict did find without also finding the facts underlying the valid theory.
To make this assessment, we must rigorously review the evidence to determine whether any rational juror who found the defendant guilty based on an invalid theory, and made the factual findings reflected in the jury’s verdict, would necessarily have found the defendant guilty based on a valid theory as well.
We must be convinced that the errors were harmless beyond a reasonable doubt, and we must be satisfied that this standard is beyond serious debate.
We have rigorously reviewed the totality of the record to determine whether, based on the evidence, it is impossible for a rational juror to have found what the verdicts did find without also finding the facts underlying a valid theory.
Authority:
People v. Hin (2025) 17 Cal.5th 401, 443-444
In re Lopez (2023) 14 Cal.5th 562, 568
In re Ferrell (2023) 14 Cal.5th 593, 602
Sixth Holding:
Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions.
Authority:
People v. Sanchez (2001) 26 Cal.4th 834, 852
Seventh Holding:
Section 12022.53(d) requires personal discharge by the defendant; it does not impose vicarious liability for another principal’s firearm discharge. Vicarious firearm liability is available only when a gang enhancement is proven. Once the gang allegations were dismissed on motion of the prosecution, the vicarious theory was unavailable.
Authority:
PEN 12022.53(d) and (e)
PEN 186.22(b)(1)
People v. Cooper (2023) 14 Cal.5th 735, 746
Eighth Holding:
Because personal discharge by appellant was neither charged nor expressly found true by the jury in the verdict forms, the court could not supply that missing fact at sentencing. Any fact increasing punishment must be found by the jury beyond a reasonable doubt.
The trial court lacked authority to stay the count 1 enhancement merely as an exercise of sentencing discretion. The court was only authorized to strike or dismiss the enhancement, not to stay it even based on its own discretionary sense of justice. Based on principles of double jeopardy, retrial is barred.
Authority:
PEN 12022.53(j)
Apprendi v. New Jersey (2000) 530 U.S. 466, 490
People v. Lopez (2004) 119 Cal.App.4th 355, 364
Porter v. Superior Court (2009) 47 Cal.4th 125, 132–133 [“Because the prosecution had a full opportunity to prove the facts necessary for a conviction but failed to do so, double jeopardy bars a second bite at the apple”]
Curry v. Superior Court of San Francisco (1970) 2 Cal.3d 707, 712 [jeopardy attaches when a defendant is placed on trial in a court of competent jurisdiction on a valid accusatory pleading]
Ninth Holding:
In January 2011, appellant was 16 years old when he committed the present crimes. In 2012, he was charged directly in adult court. In 2016, appellant filed a motion for remand to the juvenile court and a transfer hearing under Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57). Proposition 57 was passed in November 2016, and it prohibited prosecutors from charging crimes against juveniles directly in adult court.
Authority:
People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303
Tenth Holding:
Before sentencing occurred in this matter, AB 2361 (2021–2022 Reg. Sess.) amended Welfare and Institutions Code section 707. These changes were effective January 1, 2023.
AB 2361 increased the burden of proof the prosecution was required to establish in order for a juvenile to be prosecuted in adult criminal court.
Under the newer heightened standard, it must be shown by clear and convincing evidence that a juvenile should be transferred to adult criminal court.
These developments materially changed the requirements for transfer in effect when the defendant originally waived his right to a transfer hearing. AB 2361 applies retroactively to nonfinal cases.
Authority:
In re E.P. (2023) 89 Cal.App.5th 409, 416
In re S.S. (2023) 89 Cal.App.5th 1277, 1284
Eleventh Holding:
A person who is eligible to have his case proceed in juvenile court may knowingly waive this statutory right. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.
A criminal defendant cannot be deemed to have waived or forfeited a legal argument that was not recognized at the time of his trial. Even where a right may be waived, a waiver generally does not include protections that were not reasonably available or contemplated at the time.
The matter must be remanded to the juvenile court to conduct a transfer hearing.
Authority:
People v. Nguyen (1990) 222 Cal.App.3d 1612, 1620
People v. Johnson (2020) 45 Cal.App.5th 123, 132 [legal counsel may waive the right to a juvenile fitness hearing for an accused who has reached adulthood]
Johnson v. Zerbst (1938) 304 U.S. 458, 464
People v. Cardenas (2007) 155 Cal.App.4th 1468, 1479
People v. French (2008) 43 Cal.4th 36, 48 [in a negotiated plea, waiver of right to jury trial on charged offenses does not extend to proof of aggravating circumstances when no such jury right was recognized at time of plea]
People v. Panizzon (1996) 13 Cal.4th 68, 85 [general waiver of right to appeal from a negotiated plea agreement will not bar the appeal of sentencing errors occurring subsequent to the plea]
People v. Becerra (2019) 32 Cal.App.5th 178, 188 [defendant cannot knowingly and intelligently waive right to appeal an issue not contemplated at time of waiver].
