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Amelioration, Sentencing, Sixth Amendment

Case 000612

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to resentence the defendant under section 1172.75 in his absence where there was no waiver of his presence.

First Holding:

Reversal is required for a new hearing at which defendant may be present or validly waive his presence. Nothing in the record at the resentencing hearing reflected a valid waiver, nor similarly was there evidence that the defendant or his attorney previously entered a valid waiver on the record. We cannot say the error was harmless given that section 1172.75(d)(3) calls for consideration of the postconviction factors defendant enumerated in his brief, but the defendant was deprived of his right to address these factors personally if he chose to do so or to aid his attorney in doing so. The error thus was not harmless beyond a reasonable doubt.

Authority:

People v. Velasco (2023) 97 Cal.App.5th 663, 674

People v. Quan (2023) 96 Cal.App.5th 524, 535

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

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

Case 000611

Posted on by Gary McCurdy

Error and/or relief

The trial court failed to instruct the jury about how a defendant who is an initial aggressor can regain the right to self-defense.

First Holding:

The defendant’s defense was self-defense, and the trial court accordingly instructed the jury on perfect and imperfect self-defense under CALCRIM No. 505. Over his objection, the trial court also instructed the jury with CALCRIM No. 3471 regarding an initial aggressor’s right to self-defense. However, the trial court omitted language from CALCRIM No. 3471 about how an initial aggressor can regain the right to self-defense. Omission of that language was prejudicial error. Whether a trial court properly instructed a jury is a question of law that we review de novo.

Authority:

People v. Cole (2004) 33 Cal.4th 1158, 1210

Second Holding:

A trial court in a criminal case must instruct on the general principles of law that are closely and openly connected to the facts before the court and are necessary for the jury’s understanding of the case. This includes a sua sponte duty to instruct the jury on an affirmative defense if it appears the defendant is relying on such a defense or if substantial evidence supports it and it is not inconsistent with the defendant’s theory of the case.

Authority:

People v. Hovarter (2008) 44 Cal.4th 983, 1021

People v. Boyer (2006) 38 Cal.4th 412, 469

People v. Ramirez (2015) 233 Cal.App.4th 940, 949

Third Holding:

It is error to give an instruction that is not supported by substantial evidence. Substantial evidence is evidence of reasonable, credible value sufficient to deserve consideration by the jury. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.

Authority:

People v. Marshall (1997) 15 Cal.4th 1, 39–40

People v. Guiton (1993) 4 Cal.4th 1116, 1129

People v. Wilson (2005) 36 Cal.4th 309, 331

People v. Crew (2003) 31 Cal.4th 822, 835

People v. Salas (2006) 37 Cal.4th 967, 982

Fourth Holding:

As an initial matter, the Attorney General contends the defendant forfeited his contention that it was error to omit the language on how an initial aggressor can regain his right to self defense, because he failed to ask the trial court to include the omitted language. Assuming forfeiture applies, we nonetheless may decline to apply it if the instructional error affected the defendant’s substantial rights. Because the contention affects the defendant’s substantial rights, we consider it.

Authority:

PEN 1259

People v. Jennings (2010) 50 Cal.4th 616, 671 [party may not complain on appeal that instruction correct in law and responsive to evidence was too general or incomplete in absence of request for clarifying language]

People v. Ramirez (2015) 233 Cal.App.4th 940, 949

Fifth Holding:

When a defendant engages in simple assault or trespass and his opponent responds with deadly force so suddenly that the person cannot withdraw, a defendant may immediately use deadly force in self-defense. The qualification in the language omitted from the jury instruction thus applies where the defendant commits a simple assault. But if one makes a felonious assault upon another, or has created appearances justifying the other to launch a deadly counterattack in self-defense, the original assailant cannot slay his adversary in self-defense unless he has first, in good faith, declined further combat, and has fairly notified him that he has abandoned the affray.

Authority:

People v. Quach (2004) 116 Cal.App.4th 294, 301

People v. Conkling (1896) 111 Cal. 616, 626–627

People v. Hecker (1895) 109 Cal. 451, 464 [Where one is the first wrongdoer, but his unlawful act is not felonious, as a simple assault upon the person of another, or a mere trespass upon his property, even though forcible, and this unlawful act is met by a counter assault of a deadly character, the right of self-defense to the first wrongdoer is not lost]

People v. Ramirez (2015) 233 Cal.App.4th 940, 949

People v. Gleghorn (1987) 193 Cal.App.3d 196, 201

People v. Salazar (2016) 63 Cal.4th 214, 249-250 [exception did not apply where defendant approached victim with cocked gun]

Sixth Holding:

We apply the harmless-beyond-a-reasonable-doubt standard in Chapman to determine whether the error merits reversal. The Chapman standard requires us to determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error. We must reverse the conviction under that standard unless we conclude that no rational juror who made the findings reflected in the verdict and heard the evidence at trial court could have had a reasonable doubt regarding the findings necessary to convict the defendant, absent the instructional error.

Authority:

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

People v. Quach (2004) 116 Cal.App.4th 294, 303

People v. Ramirez (2015) 233 Cal.App.4th 940, 953

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

People v. Schuller (2023) 15 Cal.5th 237, 244

Seventh Holding:

Simple assault requires an act that by its nature would directly and probably result in the application of physical force to another person, and the crime does not require actual physical injury or contact to the victim.

Authority:

People v. Harring (2021) 69 Cal.App.5th 483, 503

Eighth Holding:

An instruction is inconsistent with defendant’s theory of case if it requires acknowledging, if only inferentially, existence of facts which defendant otherwise denied. The language omitted from the instruction was not inconsistent with the defendant’s defense.

Authority:

People v. Jo (2017) 15 Cal.App.5th 1128, 1168–1169

People v. Salas (2006) 37 Cal.4th 967, 982–983 [trial court has no duty to instruct on affirmative defense inconsistent with defendant’s theory of case]

Amelioration, Discretion, Sentencing, Standard of review

Case 000610

Posted on by Gary McCurdy

Error and/or relief

The court erroneously believed that the defendant was categorically ineligible for resentencing under section 1172.75 because he was serving an indeterminate sentence under the “Three Strikes” law. Because the record does not clearly indicate that the court would have made the same decision had it been aware of the full scope of its resentencing power and discretion, we reverse and remand the matter with directions for the court to conduct a full resentencing under section 1172.75.

First Holding:

Once the trial court confirms that the underlying judgment includes an invalid prior prison term enhancement, the court must recall the sentence and resentence the defendant. A defendant who is eligible for relief under section 1172.75 is entitled to a full resentencing.

Authority:

PEN 667.5

PEN 1172.75

People v. Rhodius (2025) 17 Cal.5th 1050, 1067, fn. 3

Second Holding:

Section 1172.75(d) establishes several parameters for resentencing.

First, the resentencing shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.

Second, the court must apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

Third, the court may consider postconviction factors that speak to whether continued incarceration remains in the interest of justice, such as the defendant’s physical condition and records of discipline and rehabilitation while incarcerated.

Finally, unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts 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.

Authority:

PEN 1172.75

Third Holding:

A trial court has the authority to exercise its discretion under section 1385(a) and Romero to strike any or all of a defendant’s strike priors after recalling his sentence and for the purposes of resentencing him under section 1172.75. As the court in Rogers explained, because a trial court’s power under section 1385(a) to dismiss or strike a strike prior is independent of either the Three Strikes law or the subsequent Three Strikes Reform Act of 2012, any exercise of that power at a resentencing proceeding under section 1172.75 does not offend either.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Rogers (2025) 108 Cal.App.5th 340, 362, 364

Fourth Holding:

Where, as here, a trial court sentences a defendant without being aware of the full scope of its sentencing discretion, remand is required to allow the court to fully exercise that discretion unless the record clearly indicates that the court would have reached the same decision had it been aware of the scope of its discretion.

Authority:

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

Racial Justice Act, Standard of review

Case 000609

Posted on by Gary McCurdy

Error and/or relief

The trial court applied improper legal standards in denying the defendant’s renewed new trial motion under the Racial Justice Act (RJA) and his request for RJA discovery.

First Holding:

In enacting Penal Code section 745, effective 1/1/2021, the Legislature sought to eliminate racial bias from California’s criminal justice system, declaring that racism—whether intentional or implicit—at any stage of a criminal case undermines fairness and constitutes a miscarriage of justice under the state Constitution. The statute is designed not to punish bias but to remedy its impact on defendants and the judicial process, ensuring that race plays no role in obtaining convictions or imposing sentences and rejecting the premise that racial disparities in the system are unavoidable. The following year, the Legislature amended subdivision (j) to provide the RJA applies to all cases where the judgment is not final.

Authority:

PEN 745

Second Holding:

The RJA identifies four categories of conduct, any one of which, if proved, is sufficient to establish a violation of Penal Code section 745, subdivision (a). In the renewed motion, the defendant relied on section 745(a)(1) and (2), which permit a defendant to establish a RJA violation by a preponderance of the evidence where:

(1) The judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin; or

(2) During the defendant’s trial, in court and during the proceedings, the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror, used racially discriminatory language about the defendant’s race, ethnicity, or national origin, or otherwise exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.

(Paragraph (2) does not apply if the person speaking is relating language used by another that is relevant to the case or if the person speaking is giving a racially neutral and unbiased physical description of the suspect.)

Section 745 defines racially discriminatory language.

Authority:

PEN 745

Young v. Superior Court (2022) 79 Cal.App.5th 138, 147

Third Holding:

A defendant alleging an RJA violation must first make a prima facie showing in the trial court—i.e., present facts that, if true, demonstrate a substantial likelihood of a violation. This standard falls between a mere possibility and a preponderance of the evidence. At this stage, the court must accept the defendant’s factual allegations as true, including expert and statistical evidence, unless they are conclusory, unsupported, or contradicted by the record.

The trial court may not weigh competing evidence or make credibility determinations, except in the rare circumstances where the record irrefutably establishes the allegations are false. If the trial court determines a defendant has made a prima facie showing, it must conduct an evidentiary hearing where it may consider evidence and arguments submitted by the People, make credibility determinations, and weigh the evidence.

Authority:

Finley v. Superior Court (2023) 95 Cal.App.5th 12, 22-23, 25

Fourth Holding:

We review de novo the trial court’s legal conclusion that appellants failed to make a prima facie showing.

Authority:

People v. Howard (2024) 104 Cal.App.5th 625, 650

Fifth Holding:

The trial court concluded that the defendant failed to make a prima facie showing. The court did not find the defendant’s testimony conclusory, irrelevant, or unsupported; rather, it discounted the testimony as uncorroborated and not credible. This was error. At the prima facie stage, the defendant was not required to prove the truth of his account; he was required only to show that, if true, the facts alleged would establish a violation.

The court further erred by proceeding with a prejudice analysis—reasoning that, even if the jury heard the introduction of the rap lyrics, the verdicts would not have changed and no miscarriage of justice occurred. But prejudice is not part of the prima facie inquiry. The question is solely whether the defendant satisfied his initial minimal burden to produce facts that, if true, establish that there is more than a mere possibility of an RJA violation. Applying de novo review, we conclude that the defendant met his minimal burden to allege facts that, if true, establish more than a mere possibility of an RJA violation.

Authority:

People v. Howard (2024) 104 Cal.App.5th 625, 656

Sixth Holding:

The court erred in denying the defendant’s motion for RJA discovery. He provided some data in support of his motion. The showing required to establish a plausible factual foundation for discovery under the RJA is minimal. At the request for discovery stage a court need not determine whether a violation under Penal Code section 745(a) may ultimately be established or ruled out. The dispositive question is whether a defendant demonstrated a plausible factual foundation for any potential RJA violation sufficient to show good cause.

Authority:

Gonzales v. Superior Court (2024) 108 Cal.App.5th Supp. 36

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 244

Young v. Superior Court (2022) 79 Cal.App.5th 138

Seventh Holding:

We review the trial court’s discovery order for abuse of discretion, because management of discovery lies within the sound discretion of the trial court. The RJA was designed to facilitate the exposure and evaluation of potential racial bias, not to erect insurmountable barriers at the discovery stage. By requiring more than a plausible factual showing and prematurely invoking additional discovery constraints, the trial court applied a framework that unduly restricted access to potentially probative evidence. Because the trial court’s ruling rested on erroneous legal premises, its denial of discovery constitutes an abuse of discretion.

Authority:

Young v. Superior Court (2022) 79 Cal.App.5th 138, 156

Appellate Principles, Elements of crime, Sentencing, Sufficiency of and substantial evidence, Vicarious liability

Case 000608

Posted on by Gary McCurdy

Error and/or relief

The denial of the defendant’s motion for recall of sentence under section 1172.6 is reversed, and the court is directed to grant the petition. After examination of all the evidence, we conclude that there is insufficient evidence to support any theory today under which the defendant coould be convicted of murder.

First Holding:

The defendant was the assigned getaway driver who was not present in the building where the robbery took place. A bystander was killed by the police during the confrontation between the other defendants and the police. The defendant entered a plea bargain in which he pleaded guilty to one count of felony murder. First degree implied malice murder is not a valid theory of conviction for an accomplice under the provocative act theory of murder; the accomplice must harbor express malice–the specific intent to kill–in order to be properly convicted of first degree murder under this theory.

Authority:

People v. Concha (2009) 47 Cal.4th 653, 662

Second Holding:

The felony murder rule is not applicable where the killing was committed by a third party (e.g., police officer) who was not involved in the perpetration of the underlying felony. Because the felony murder rule is not applicable to these facts, the Banks/Clark inquiry as to the degree of defendant’s participation in the robbery and whether he displayed reckless indifference to human life during the course of the robbery is also inapplicable.

The provocative act murder doctrine arose as an alternative to felony-murder liability in circumstances where the killing was committed by a third party who was not involved in the perpetration of the underlying felony. A provocative act murder case necessarily involves at least three people—the perpetrator of the underlying offense, an accomplice, and a victim of their crime.

Authority:

People v. Taylor (2025) 108 Cal.App.5th 849, 861, 866

People v. Clark (2016) 63 Cal.4th 522

People v. Banks (2015) 61 Cal.4th 788

People v. Antonelli (2025) 17 Cal.5th 719, 727

Third Holding:

SB 1437, which took effect on January 1, 2019, limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, to ensure that a person’s sentence is commensurate with his or her individual criminal culpability.

Authority:

People v. Gentile (2020) 10 Cal.5th 830, 842-844

Fourth Holding:

This court will ignore the findings purportedly made by the trial court following the remand from the court in the earlier appeal, as they were outside the scope of the remittitur. The remittitur defines the scope of the trial court’s jurisdiction to act, and action which does not conform to the reviewing court’s directions is unauthorized and void. Trial courts are bound by the directions given by a reviewing court and have no authority to retry any other issue or to make any other findings; the court’s authority is limited wholly and solely to following the directions of the reviewing court.

Authority:

In re J.M. (2024) 103 Cal.App.5th 745, 755

People v. Dutra (2006) 145 Cal.App.4th 1359, 1367

Fifth Holding:

Murder is the unlawful killing of a human being with malice aforethought. The requisite malice may be express or implied. Murder is committed with implied malice when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.

To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. The defendant’s life-endangering act must proximately cause the victim’s death and to suffice for implied malice murder, the defendant’s act must involve a high degree of probability that it will result in death.

A relevant life-endangering act is one that proximately causes the victim’s death. It is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the death of the victim and without which the death would not occur.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988-989

People v. Cervantes (2016) 26 Cal.4th 860, 866

Sixth Holding:

Notwithstanding SB 1437’s elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990

Seventh Holding:

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.

The direct aider and abettor must, therefore, act with intent to aid the life-endangering act of the direct perpetrator that proximately causes the death. Implied malice murder requires attention to the aider and abettor’s mental state concerning the life endangering act committed by the direct perpetrator, such as shooting at the victim.

The aider and abettor must know the direct perpetrator intends to commit the murder or life-endangering act and intend to aid the direct perpetrator in its commission. It is this mental relationship to the perpetrator’s acts that confers liability on the aider and abettor.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990-992

People v. Collins (2025) 17 Cal.5th 293, 311

People v. Curiel (2023) 15 Cal.5th 433, 468

Eighth Holding:

We remand the case with directions to grant the petition and resentence defendant on the underlying offense of robbery.

Authority:

People v. Dixon (2026) 118 Cal.App.5th 116, 137, fn. 3 [Granting the petition for resentencing, as opposed to ordering a new evidentiary hearing, may be the appropriate remedy where a petitioner successfully demonstrates no substantial evidence supports the denial of a section 1172.6 petition even considering erroneously admitted evidence at an evidentiary hearing]