I guess I don’t understand the Back East. I read that the rodent detected its shadow on February 2. The article said that means there will be six more weeks of winter. I thought, “Hooray! An early spring!” But then the article quoted from interviews the disappointment, because it meant there was going to be six more weeks of winter, which apparently was a bad thing. Huh? Were they hoping for more, and were disappointed? By the calendar I keep out here on or near the West Coast, six weeks from February 2 is March 16. (Or, in leap years, the Ides of March!) And my calendar says spring starts on March 20 this year. So the sign of the rodent tells me spring is early this year. Isn’t that a GOOD thing? Why be disappointed? Well, I thank my lucky stars I’m not superstitious. And can add.
Summary of Summaries
The court finds a condition of probation too vague, and remands for the trial court to either strike the condition or specify the type of program to which the defendant may be subject.
Another instance where the abstract of judgment is incorrect, and the trial court failed to update the custody credits.
On resentencing, the court must exercise its discretion as expected under section 1385, and it must determine whether the gang criminal activity enhancements past muster under recent amendments. (I also toss in a reference to PC 1016.7, a new obligation on prosecutors in plea bargaining.)
I included a case that found the error harmless and affirmed completely. But I thought it laid out nicely the concept of implied malice for an aider and abettor to a murder, so I included it anyway.
Where the evidence did not quite support the greater offense, the appellate court has the authority to reduce it to a lesser included offense.
Case: 000129
We find that the nature of the required program is impermissibly vague in the condition of probation that the defendant “enter into and continue such education, psychological, psychiatric, drug, alcohol, or other rehabilitation program as directed by the probation officer or as specifically ordered as a term of probation, and shall not leave or terminate such programs without the permission of the probation officer.”
First Holding: Applying de novo review, we address each challenge to a probation condition separately. [See] People v. Smith (2022) 79 Cal.App.5th 897, 902.
Second Holding: It is the court’s duty to determine the nature of the requirements imposed on the probationer. Although a probation condition need not be set forth with mathematical certainty, the language used must have reasonable specificity. Here, such specificity is lacking. The program choices for the probation officer are open-ended, ranging from education to psychological and psychiatric to drug, alcohol, or other rehabilitation. This is too vague to pass muster, and we cannot interpret it more narrowly in light of other probation conditions, the probation report, or the trial court’s commentary. Without meaningful guidance from the record, the open-ended program condition cannot be saved by permitting the probation department to provide the necessary specificity. [See] People v. Smith (2022) 79 Cal.App.5th 897, 902; Sheena K. (2007) 40 Cal.4th 875, 890; People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358.
Case: 000130
The trial court must correct the abstract of judgment to reflect that the court never imposed fines or fees other than restitution to the Victim’s Compensation Board, and must recalculate his actual custody credits.
First Holding: The abstract of judgment must be corrected to reflect that the court waived the imposition of a restitution fine and the parole revocation fine and other fines and fees. [See] [GARY NOTE: The court did not cite authority for correction of the abstract of judgment, but the law is clear that it has the authority to do so. See, e.g., People v. Mitchell (2001) 26 Cal.4th 181, 185 [appellate court may order correction of clerical errors in the abstract of judgment].]
Second Holding: As the People did not object in the court below, the People have forfeited the issue of the propriety of the trial court order waiving the restitution and other fines and fees. [See] People v. Tillman (2000) 22 Cal.4th 300, 303.
Third Holding: When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody (whether in jail or prison) up to that time, including time in custody after the original sentencing. [See] [GARY NOTE: the court did not cite authority for remanding for the court to determine custody credits, but the law is clear, per the following authorities Ieven though not expressly relied on by the court: People v. Buckhalter (2001) 26 Cal.4th 20, 37; PC 2900.1; PC 2900.5.]
Case: 000131
Following remand from the defendant’s prior appeal, the trial court declined to strike a firearm enhancement. The court did not realize the impact of recent changes in the law on gang criminal activity, asserting that its jurisdiction was limited to the scope defined in the remittitur (which remanded for reconsideration of the request to dismiss the firearm enhancement). We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385 under the standard more recently articulated by the Supreme Court.
First Holding: The scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws. We review associated questions of statutory construction de novo. Whether a statute applies retroactively is a question of statutory construction we review de novo. We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c). [See] People v. Lopez (2025) 17 Cal.5th 388, 396; People v. Burke (2023) 89 Cal.App.5th 237, 242; People v. Brown (2012) 54 Cal.4th 314, 319; People v. Walker (2024) 16 Cal.5th 1024, 1033.
Second Holding: Section 1385(c)(1) provides that, notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the nine mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. [See] PC 1385.
Third Holding: Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice. [See] People v. Walker (2024) 16 Cal.5th 1024.
Fourth Holding: The Legislature amended PC 186.22(g) to redefine the phrase “benefit, promote, further, or assist” a criminal street gang for the purposes of section 186.22. The phrase now means “to provide a common benefit to members of a gang where the common benefit is more than reputational.” Those elemental changes apply retroactively to all nonfinal cases such as this one. [See] PC 186.22(e)(1), (g); People v. Tran (2022) 13 Cal.5th 1169, 1207; In re Estrada (1965) 63 Cal.2d 740, 745.
Fifth Holding: Where a statute is silent regarding retroactivity, we employ the ordinary presumptions and rules of statutory construction to discern the Legislature’s intent. Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. Estrada, however, held that an amendment to a statute that lessened punishment for a crime gave rise to an inference of contrary legislative intent; that is, that the Legislature must have intended that the amendment mitigating punishment would apply retroactively to every case to which it constitutionally could apply. The Estrada rule rests on an inference that the Legislature intends an amendment reducing punishment under a criminal statute to apply as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not. [See] Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230; People v. Burgos (2024) 16 Cal.5th 1, 7; In re Estrada (1965) 63 Cal.2d 740; People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.
Sixth Holding: If the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. In that event, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges. [See] People v. Stamps (2020) 9 Cal.5th 685, 707-708; People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256; Mendoza v. Superior Court (2023) 91 Cal.App.5th 42.
Seventh Holding: Penal Code section 1016.7 provides that, in the interest of justice and to reach a just resolution during plea negotiations, the prosecutor shall consider whether the defendant has experienced psychological, physical, or childhood trauma, whether the defendant is or was a youth at the time of the commission of the offense, and whether any of those considerations contributed to the commission of an alleged offense. The statute defines youth as any person under 26 years of age on the date of the offense. But it is not retroactive. It does not reduce punishment for a criminal offense, create discretion to reduce punishment, narrow the scope of criminal liability, or create a concrete avenue for certain individuals charged with a criminal offense to be treated more leniently or avoid punishment altogether. [See] People v. Burgos (2024) 16 Cal.5th 1, 13.
Case: 000132
[GARY NOTE: No relief was granted, because of harmless error. The gold here rests in the relative clarity in which the principles of implied malice were set out by the court.] The trial court instructed the jury incorrectly on implied malice and aiding and abetting implied malice murder. However, we find the error harmless beyond reasonable doubt. If anything, the defect in CALCRIM No. 401 only made it harder for the jury to find defendant guilty. It would have been easier for the jury to find that defendant knew that the co-defendants intended to commit a life-endangering act than to find defendant knew they intended to commit murder, a life-ending act.
First Holding: Implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less. Implied malice contains an objective or physical component and a subjective or mental component. [See] People v. Knoller (2007) 41 Cal.4th 139, 143; People v. Nieto Benitez (1992) 4 Cal.4th 91, 106.
Second Holding: To be liable for an implied malice murder, a direct aider and abettor must aid the perpetrator in committing a life endangering act that proximately causes death. [See] People v. Reyes (2023) 14 Cal.5th 981, 990-991; People v. Powell (2021) 63 Cal.App.5th 689, 712-713.
Third Holding: Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review. [See] People v. Hillhouse (2002) 27 Cal.4th 469, 503.
Fourth Holding: Defendant’s jury was incorrectly instructed under CALCRIM No. 401 to determine whether defendant aided and abetted the perpetrators’ commission of a crime, not an act. Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea. In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life. [See] People v. Reyes (2023) 14 Cal.5th 981, 991; People v. Powell (2021) 63 Cal.App.5th 689, 712-713; People v. McCoy (2001) 25 Cal.4th 1111, 1122.
Fifth Holding: The instruction given was thus an erroneous aiding and abetting instruction for purposes of this case. We review the error under the Chapman harmless error standard. [See] People v. Powell (2021) 63 Cal.App.5th 689, 714-715; Chapman v. California (1967) 386 U.S. 18, 24.
Case: 000133
We shall reduce one conviction to reflect a lesser included offense, remand for resentencing, and otherwise affirm the judgment.
First Holding: In considering the sufficiency of 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. We review the record in the light most favorable to the judgment, presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. We also accept logical inferences that the jury might have drawn from the circumstantial evidence. We do not resolve credibility issues or evidentiary conflicts. [See] People v. Osband (1996) 13 Cal.4th 622, 690; People v. Baker (2021) 10 Cal.5th 1044, 1103; People v. Young (2005) 34 Cal.4th 1149, 1181.
Second Holding: In considering the substantiality of generic testimony regarding multiple indistinguishable instances of child sexual abuse, a victim of child molestation need not specify precisely the date, time, or circumstances of each crime. Rather, the victim 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 (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment, a requirement that can be met with such testimony as “twice a month” or “every time we went camping.” [See] People v. Jones (1990) 51 Cal.3d 294, 299–300, 315–316.
Third Holding: The jury was instructed pursuant to CALCRIM No. 1015 that duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to, and that in making its determination the jury should consider all the circumstances, including the age of the other person and his relationship to the defendant.” As to fear, the jury was told, “[a]n act is accomplished by fear if the other person is actually and reasonably afraid.” The existence of duress is an objective inquiry, and it is not dependent on the response exhibited by a particular victim. We consider the totality of the circumstances, including the victim’s relationship to the perpetrator, whether the perpetrator physically controlled the victim when the victim attempted to resist, and the relative physical vulnerability of the victim. Duress may arise in a variety of ways related to psychological and/or situational factors between the perpetrator and victim, including an uneven power dynamic between a victim and perpetrator inhabiting a position of authority. Not all forms of coercion necessarily constitute duress, however. [See] People v. Soto (2011) 51 Cal.4th 229, 246; People v. Guenther (2024) 104 Cal.App.5th 483, 518 [courts apply reasonable person standard to inquiry into duress]; People v. Thomas (2017) 15 Cal.App.5th 1063, 1072–1073; People v. Veale (2008) 160 Cal.App.4th 40, 44, 47; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321.
Fourth Holding: A variance between the crime charged and proved is not material unless it is of such a substantive character as to mislead the accused in preparing his defense, or is likely to place him in second jeopardy for the same offense. [See] People v. Williams (1945) 27 Cal.2d 220, 226; PC 960 [No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits]; People v. Maury (2003) 30 Cal.4th 342.
Fifth Holding: A lesser offense is necessarily included in a charged offense if one of two tests is met: either all the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense (the “ elements test”) or the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed (the “accusatory pleading test”). We do not consider the evidence presented at trial to determine whether one offense is necessarily included in the other. [See] People v. Lopez (1998) 19 Cal.4th 282, 288–289; People v. Cheaves (2003) 113 Cal.App.4th 445, 454; People v. Ortega (1998) 19 Cal.4th 686, 698.
Sixth Holding: Despite the constitutional prohibition of a second trial if a conviction is reversed for insufficient evidence, 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. [See] People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225; People v. Navarro (2007) 40 Cal.4th 668, 677; PC 1181; PC 1260; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321–1322, 1324 [reducing conviction to reflect lesser included offense where there was no evidence defendant used direct or implied threat to commit a lewd act].
Seventh Holding: We review a court’s award of restitution to a victim for abuse of discretion, reversing only if it is arbitrary or capricious. An abuse of discretion exists when there is no rational and factual basis for the amount of restitution ordered. The court must demonstrate a rational basis for its award, and ensure that the record is sufficient to permit meaningful review. The burden is on the party seeking restitution to provide an adequate factual basis for the claim. [See] People v. Gomez (2023) 97 Cal.App.5th 111, 116.