Tag Archives: Appellate process

Abstracts and Minutes, Appellate Principles

Case: 000471

Posted on by Gary McCurdy

Error and/or relief

Although not technically incorrect, the minute order is ambiguous and could be construed representing as a court finding that the court did not make. The court ordered a slight rewording.

Holding:

[GARY NOTE: The court did not cite any authority for its order rewording the minute order, but if one considers that the original order could be construed to mean something it did not, then this act is akin to ordering correction of a minute order. Though none was cited, the following cases do support the court’s authority to order corrections in abstracts of judgment and minute orders, often in the context of where the minute order or abstract does not accurately reflect the oral pronouncement.]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts may correct clerical errors at any time, and appellate courts with jurisdiction have the power to order correction of abstracts of judgment that do not accurately reflect the oral judgment of the sentencing court]

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

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

People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral pronouncement; the record of the oral pronouncement of the court controls over the clerk’s minute order and abstract of judgment]

Second Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Amelioration, Appellate Principles, Sentencing

Case 000469

Posted on by Gary McCurdy

Error and/or relief

Where on resentencing under PC 1172.75 the trial court imposed a term of 51 to life instead of the correct 45 years to life, the remedy is for the appellate court to simply modify the judgment to the correct sentence.

First Holding:

When a count is reversed or other part of the sentence is stricken, the sentencing court must, upon remand, be permitted to consider its other discretionary sentencing choices.

Authority:

People v. Buycks (2018) 5 Cal.5th 857

Second Holding:

When the defendant first appealed his conviction, this court ordered the sentence reduced from 51 years to life to the correct 45 years to life, as the trial court had miscalculated the term for the Three Strikes sentence. The superior court modified the sentence to 45 years to life in accordance with the remand from the first appeal. Many years later, the defendant came before the court for resentencing under section 1172.75 because his sentence had been enhancement by a now-invalid prior prison term enhancement. Hearing full argument from the defendant at the resentencing hearing, and acknowledging that the court had the authority to reduce the sentence beyond striking that invalid enhancement, it exercised its discretion not to do so. But it reimposed the original sentence of 51 years to life.

Given this, it is unlikely that a remand for full resentencing in light of the error that imposed a longer term would result in a term even shorter than the correction of 45 years to life from the incorrect 51 years to life. We can easily conclude the court “undoubtedly” would not make any choices more favorable to appellant when it is required to impose a shorter mandatory term of 45 years to life. Under the circumstances of this case, modifying the judgment, rather than remanding for full resentencing is appropriate.

Authority:

PEN 1260 [among options available to reviewing court, it may modify judgment or reduce punishment imposed]

People v. Alford (2010) 180 Cal.App.4th 1463, 1473 [appellate court exercised discretion to modify judgment where the court could determine the sentence that the trial court undoubtedly would have imposed]

Appellate Principles, Fines and fees, Sentencing

Case 000467

Posted on by Gary McCurdy

Error and/or relief

The trial court imposed a restitution fine of $400, believing that $400 was the minimum. The appellate court revised the judgment to impose the intended minimum restitution fine of $300.

First Holding:

The minimum restitution fine for a defendant convicted of a felony is $300.

Authority:

PEN 1202.4(b)(1)

Second Holding:

We may review an asserted legal error in sentencing for the first time on appeal even if the defendant did not object in the trial court. When sentencing error does not require additional evidence, further fact finding, or further exercise of discretion, the appellate court may modify the judgment appropriately and affirm it as modified.

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 594

People v. Haskin (1992) 4 Cal.App.4th 1434, 1441

Abstracts and Minutes, Appellate Principles, Sentencing

Case 000453

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly indicates that the defendant was convicted under the Three Strikes law, and must be corrected.

Holding:

The clerk of the superior court is directed to prepare an amended abstract of judgment by unchecking the box that the defendant was sentenced under the Three Strikes law.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185 [reviewing courts have the inherent power on appeal to correct clerical errors found in court records, such as may be found in abstracts of judgment, whether on the court’s own motion or upon application of the parties]

Appellate Principles, Duty of the court, Fines and fees, Sentencing

Case 000452

Posted on by Gary McCurdy

Error and/or relief

The court imposed the fines and fees without conducting an ability to pay hearing over trial counsel’s objection. While this appeal was pending, the Supreme Court settled the question of imposition of fines and fees with regard to the ability to pay. We strike the $370 in fines and fees.

First Holding:

A defendant may challenge the imposition of a punitive fine under the excessive fines provisions of the United States and California Constitutions. Equal protection principles require a court, upon request, to consider a defendant’s ability to pay before imposing court operations and facilities assessments fees as ancillary costs.

Authority:

People v. Kopp (2025) 19 Cal.5th 1, 29-30

Second Holding:

On this record, it would not serve the interests of justice or judicial economy to require remand. Appellant has been incarcerated for most of his adult life. Given his current sentence (55 years to life), he will presumably be incarcerated for the rest of his life. Additionally, the probation report does not indicate he has any assets or property. The court has the authority to strike the fines and fees rather than remand the matter for a hearing on the defendant’s ability to pay.

Authority:

PC 1260 [The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.]

Appellate Principles, Discretion, Duty of the court, Sentencing, Standard of review

Case 000448

Posted on by Gary McCurdy

Error and/or relief

The defendant contends that it was error to proceed to sentencing in the absence of the attorney she retained after counsel was appointed, and that the court abused its discretion when it found that her youth was not a contributing fact. Retained counsel did file a document titled “Limited Scope Substitution of Counsel.” Thereafter, appointed counsel filed a resentencing brief on the defendant’s behalf. The retained attorney did not. At the resentencing hearing, appointed counsel appeared with the defendant. The retained attorney did not appear. We affirm, but the trial court must recalculate the credit for time served.

First Holding:

The trial court did not recalculate the defendant’s custody credits and ordered the California Department of Corrections and Rehabilitation to do the calculation. A trial court must calculate a defendant’s custody credits when resentencing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [when a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody, whether in jail or prison, up to that time]

Second Holding:

We review the defendants’s contentions regarding counsel of choice and selection of sentence term under the deferential abuse of discretion standard. A defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of trial.

Authority:

People v. O’Malley (2016) 62 Cal.4th 944, 1004 [trial court has discretion to deny substitution of counsel where it would prejudice the defendant or disrupt the orderly processes of justice]

People v. Blake (1980) 105 Cal.App.3d 619, 623-624

People v. Partida (2005) 37 Cal.4th 428, 435 [appellate review of asserted evidentiary error forfeited where defendant failed to make a timely, specific objection]

Third Holding:

Section 1170(b)(6) does not mandate a presumption in favor of the lower term in every case in which the defendant was under age 26 at the time the crime was committed. Instead, the presumption applies only if the defendant’s youth was a contributing factor in his or her commission of the offense.

Authority:

PEN 1170(b)(6)

People v. Fredrickson (2023) 90 Cal.App.5th 984, 991-992

People v. Carmony (2004) 33 Cal.4th 367, 376-377 [trial court’s sentencing choices reviewed for abuse of discretion]

Fourth Holding:

At oral argument, the defendant contended that the trial court erred in conducting the resentencing hearing without her physical presence. But the defendant failed to raise this contention in her opening brief. Thus, it is forfeited. Forfeiture aside, any error would have been harmless beyond a reasonable doubt based on the record before us.

Authority:

People v. Stanley (1995) 10 Cal.4th 764, 793 [Every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration]

People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [claims not raised in the opening brief are waived]

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

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000417

Posted on by Gary McCurdy

Error and/or relief

It was error to impose a $10 crime prevention fine under section 1202.5. It is ordered stricken. The minute order must be corrected to reflect that the resentencing proceedings were under section 1172.75, not under section 1172.6 as the minute order indicated.

First Holding:

The original imposition of the section 1202.5 crime prevention fine was unauthorized.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354 [claims of unauthorized sentencing error may be raised at any time]

Second Holding:

Under section 1202.5(a), courts are required to impose a $10 crime prevention fine on a defendant who is convicted of a theft-related offense listed in the statute. Here, the $10 crime prevention fine was unauthorized because defendant’s convictions are not among the offenses listed in section 1202.5(a). Thus, we strike the $10 crime prevention fine from defendant’s sentence.

Authority:

PEN 1202.5(a)

People v. Jefferson (2016) 248 Cal.App.4th 660, 663

Third Holding:

The minute orders refer to the proceedings as taking place pursuant to section 1172.6. As the record is clear these were resentencing proceedings pursuant to section 1172.75, this appears to be a clerical error.

[Gary note: The court did not cite any authority for the order or observation regarding the correction of the minute order, but there is authority aplenty. The court could have cited one or more of the cases I have set out below.]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

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

Appellate Principles, Equal protection, Probation Parole PRCS, Sentencing

Case: 000414

Posted on by Gary McCurdy

Error and/or relief

The court erroneously applied the doctrine of the law of the case to deny the defendant’s section 1170(d) petition in which he sought resentencing under its provisions because 50 years to life was the functional equivalent of a sentence of life without the possibility of parole (LWOP).

First Holding:

In his original appeal from the 2010 conviction the Court of Appeal concluded that 50 years to life was not the functional equivalent of an LWOP sentence. The trial court denied his petition under section 1170(d) in 2023 on the basis that, under the law of the case doctrine, an appellate court had previously ruled that his sentence was not the functional equivalent of LWOP. However, years after the original appeal was decided, the Supreme Court determined that 50 years to life was the functional equivalent of LWOP.

Authority:

People v. Contreras (2018) 4 Cal.5th 349

Second Holding:

The law of the case doctrine states that when, in deciding an appeal, an appellate court states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and this although in its subsequent consideration the court may be clearly of the opinion that the former decision is erroneous in that particular.

Authority:

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 374, fn. 6

People v. Boyer (2006) 38 Cal.4th 412, 442 [The law-of-the-case doctrine binds the trial court as to the law but controls the outcome only if the evidence on rehearing of an issue is substantially the same as that upon which the appellate ruling was based.]

People v. Barragan (2004) 32 Cal.4th 236, 253

People v. Vizcarra (2015) 236 Cal.App.4th 422, 430 [The doctrines of collateral estoppel and law of the case bar a defendant from raising an issue that was raised and rejected in a prior appeal.]

Third Holding:

The law of the case doctrine generally precludes a party from obtaining appellate review of the same issue more than once in a single action. It is well settled, however, that the doctrine may be disregarded where the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations.

Authority:

Truck Ins. Exchange v. Kaiser Cement and Gypsum Corp. (2024) 16 Cal.5th 67, 87, fn. 6

People v. Strong (2022) 13 Cal.5th 698, 716-717 [Issue preclusion (collateral estoppel) does not apply when there has been a significant change in the law since the factual findings were rendered that warrants reexamination of the issue.]

Fourth Holding:

Here, although defendant raised and this court previously rejected the issue of whether, as a juvenile offender, defendant’s 50-year-to-life sentence was the functional equivalent of LWOP, the law on the issue has changed significantly and is currently split.

Authority:

People v. Franklin (2016) 63 Cal.4th 261, 268 [eligibility for parole pursuant to sec. 3051 mooted any assertion that defendant’s 50-year-to-life sentence was the functional equivalent of LWOP]

People v. Contreras (2018) 4 Cal.5th 349, 359 [50 years to life for juvenile offender ineligible for sec. 3051 relief is the functional equivalent of LWOP]People v. Heard (2022) 83 Cal.App.5th 608, 624 [103 years to life is the functional equivalent of LWOP]

People v. Sorto (2024) 104 Cal.App.5th 435, 441 [140 years to life is the functional equivalent of LWOP]

People v. Bagsby (2024) 106 Cal.App.5th 1040, 1054-1061 [107 years to life is the functional equivalent of LWOP]

People v. Munoz (2025) 110 Cal.App.5th 499, 513, dis. opn. of Feuer, J. [ majority holds 50 years to life is not the functional equivalent of LWOP, but the dissent would hold that it is], review granted June 25, 2025, S290828

People v. Baldwin (2025) 113 Cal.App.5th 978, 999 [44 years to life not functional equivalent of LWOP]

People v. Thompson (2025) 112 Cal.App.5th 1058, 1081, review granted Sept. 24, 2025, S292540 [50 years to life not functional equivalent of LWOP]

People v. Perez (2013) 214 Cal.App.4th 49, 58 [parole eligibility at 47 years of age was by no stretch of the imagination functional or de facto LWOP]

People v. Ortega (2025) 111 Cal.App.5th 1252, 1260, review granted Sept. 17, 2025, S292070 [The requirement of a youth offender parole hearing moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP]

People v. Isayev (2025) 113 Cal.App.5th 1117, review granted Nov. 12, 2025, S292860 [The requirement of a youth offender parole hearing moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP]

People v. Lara (2025) 115 Cal.App.5th 484, review granted Dec. 30, 2025, S294095 [The requirement of a youth offender parole hearing moots a juvenile defendant’s constitutional claim that he is serving a sentence that is the functional equivalent of LWOP]

Amelioration, Sentencing

Case: 000409

Posted on by Gary McCurdy

Error and/or relief

At the hearing on the petition for recall of sentence under section 1172.75, the trial court declined to reduce the defendant’s sentence beyond the dismissal of the now-invalid enhancement for prior prison terms. The judgment is reversed and the matter remanded for reconsideration in light of the views expressed in this opinion. We do not conclude the trial court necessarily abused its discretion or that it could not reach the same result upon resentencing. Given the number of questions raised by the record, however, remand is appropriate. To the extent the trial court did not conduct the proper analysis, it will have the opportunity to reconsider its rulings. To the extent the court did apply the correct standards, it will have the opportunity to clarify its reasoning.

(GARY NOTE: This was a lengthy opinion reciting many facts regarding the conducting of the resentencing hearing. The defendant argued that it was error to not impose a mitigated sentence, or a worst, the middle term, and it was error not to strike one or more of the enhancements. The defendant had presented to the trial court an extensive social study on his behalf which, arguably, demonstrated that his circumstances merited great weight in favor of mitigation.

(The opinion recites the pertinent factors, the facts asserted in favor, and the trial court’s responses. The opinion is replete with citations in response to assertions by both the defense and the People on why the trial erred or did not err. To do the opinion justice, I found it very hard to condense its holdings into a summary of the sort I present in this blog. But it still contains some gems worth setting forth, whether the appellate court relied on them in the defendant’s favor or not.

(As indicated in the intro paragraph, the appellate court did not so much as find that the trial court erred but instead it could not tell from the record whether the court gave proper consideration to the factors and understood clearly its options. So it was remanded for a do-over, encouraging at least tacitly that the trial court needs to be clearer in its reasoning if it does not intend to grant any of the relief requested by the defendant. The “holdings” and authorities listed hereafter should be seen simply as pronouncements I thought worthy of mention, and not so much as providing support for the appellate court’s decision to remand for resentencing or clarification.)

First Holding:

The question relevant to the section 1385(c) analysis is whether the defendant would pose a danger to the public if released from prison at the end of a sentence resulting from dismissal of the enhancements. Current dangerousness cannot be determined simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude. Moreover, under section 1385(c), unless dismissal of the enhancement would result in immediate release, the question is not just current dangerousness but dangerousness at a point in the future.

Authority:

PEN 1385(c)

People v. Buford (2016) 4 Cal.App.5th 886, 914

In re Shaputis (2008) 44 Cal.4th 1241, 1255

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228

Second Holding:

Absent evidence to the contrary, we presume that the trial court knew the law and followed it. Here, however, the record reflects several reasons to question whether the court afforded the mitigating circumstances the weight required by section 1385(c)(2) in considering whether to dismiss any of the enhancements.

Authority:

People v. Ramirez (2021) 10 Cal.5th 983, 1042

People v. Bravo (2025) 107 Cal.App.5th 1144, 1157

Third Holding:

Section 1172.75 requires full resentencing for all defendants who qualify for recall of sentence under the statute. The court may revisit all prior sentencing decisions and has jurisdiction to modify every aspect of the sentence, and not just the portion subjected to the recall.

Authority:

PEN 1172.75

People v. Rogers (2025) 108 Cal.App.5th 340, 358, 361

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

Fourth Holding:

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). A trial court may impose an upper term sentence only where there are aggravating circumstances in the crime and the defendant has either stipulated to the facts underlying those circumstances or they have been found true beyond a reasonable doubt. The sentencing court can also rely on certified records of conviction without having to submit the prior convictions to the jury. The amendments also created a presumption in favor of the lower term where specified circumstances were contributing factors in the commission of the offense, unless the trial court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice.

Authority:

PEN 1170

People v. Flores (2022) 75 Cal.App.5th 495, 500

Fifth Holding:

Section 1385(c)(1) provides that 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. Subdivision (c)(2) provides that a sentencing court in exercising its discretion to dismiss a sentencing enhancement shall consider and afford great weight to evidence offered by the defendant to prove certain enumerated mitigating circumstances, and 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.

Authority:

PEN 1385(c)(1)

People v. Walker (2024) 16 Cal.5th 1024, 1028

Sixth Holding:

Section 1170(b)(6) now provides for a presumption in favor of the lower term where specified circumstances were contributing factor[s] in the commission of the offense. The sentencing court may only depart from this lower term presumption if it finds that the aggravating circumstances outweigh the mitigating circumstances such that the lower term would be contrary to the interests of justice. The new law thus dramatically restrains the court’s discretion to impose the middle or upper term, now requiring the court to impose the lower term if a qualifying trauma was a contributing factor in the commission of the offense unless the court finds that the aggravating circumstances outweigh the mitigating circumstances so that imposition of the lower term would be contrary to the interests of justice. Accordingly, under the new law, the presumption is that the court shall order imposition of the lower term whenever the defendant has a qualifying trauma.

Authority:

PEN 1170(b)(6)

People v. Salazar (2023) 15 Cal.5th 416, 419

Seventh Holding:

Section 1170(b)(6) makes clear that the low term is presumed only if the sentencing court first finds the defendant falls into one of the three special categories set forth in section 1170(b)(6) and, second, finds that circumstance was a contributing factor in the commission of the offense.

Authority:

People v. Hillburn (2023) 93 Cal.App.5th 189, 205

Sentencing

Case: 000403

Posted on by Gary McCurdy

Error and/or relief

On resentencing, it was error for the court to impose a sentence on the greater subdivision of the gun use enhancement when, at the original sentencing, it had imposed the lesser enhancement.

First Holding:

When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. The trial court may reconsider all its prior discretionary sentencing decisions. The Henderson rule however imposes a limitation on the court’s sentencing discretion. Under the Henderson rule, when a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Navarro (2007) 40 Cal.4th 668, 681

People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 [upon remand for resentencing, the trial court has jurisdiction to modify every aspect of the defendant’s sentence]

People v. Valenzuela (2019) 7 Cal.5th 415, 424–425 [the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant]

People v. Hanson (2000) 23 Cal.4th 355, 357

People v. Vizcarra (2015) 236 Cal.App.4th 422, 431

People v. Henderson (1963) 60 Cal.2d 482, 495-497

Second Holding:

When a trial court pronounces an unauthorized sentence,such a sentence is subject to being set aside judicially and is no bar to the imposition of a proper judgment thereafter, even though it is more severe than the original unauthorized pronouncement. The Serrato rule protects the People’s right to mandated, lawful sentences. The limitations of the rule rebut any appearance of vindictiveness. If an increase in penalty has no nexus to the original illegality in the sentence, the protection against vindictiveness is not applicable. The general rule applies that in California a harsher penalty may not be imposed after a successful appeal.

Authority:

People v. Serrato (1973) 9 Cal.3d 753, 764

People v. Price (1986) 184 Cal.App.3d 1405, 1413

People v. Karaman (1992) 4 Cal.4th 335, 348–350

Third Holding:

Imposition of the firearm enhancement undersection 12022.53(b) on count 1 was not unauthorized. An unauthorized sentence is one that could not lawfully be imposed under any circumstance in the particular case, regardless of the facts. Our criticism of the firearm enhancement in the prior appeal was limited to the manner in which it was imposed rather than the fact of its imposition. Because the challenged enhancement had no nexus to the original illegality in the sentence, we conclude that the trial court erred by imposing the greater enhancement under section 12022.53(d) on this count, in lieu of the lesser enhancement under section 12022.53(b) that it had originally imposed.

We will therefore remand the matter back to the trial court for a full resentencing hearing. While the trial court may reconsider all discretionary sentencing choices under no circumstances should the aggregate sentence be more than the sum of the original sentence and the mandatory increase required due to any Serrato errors.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Hill (1986) 185 Cal.App.3d 831, 834

People v. Trammel (2023) 97 Cal.App.5th 415, 435

Amelioration, Appellate Principles, Elements of crime, Sentencing, Standard of review

Case: 000396

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition for recall under section 1172.6 because it applied an incorrect definition of reckless indifference to human life.

First Holding:

The trial court erred in defining reckless indifference as meaning there is a foreseeable risk of death. Reckless indifference requires there be a grave or significant risk of death.

Authority:

In re Scoggins (2020) 9 Cal.5th 667, 677

Second Holding:

In criminal cases an appellate court may take into consideration the judge’s statements as a whole when they disclose an incorrect rather than a correct concept of the relevant law, embodied not merely in secondary remarks but in the court’s basic ruling. In the instant case, the trial court’s understanding of the law is set forth in the trial court’s ruling, as opposed to stray remarks. Accordingly, we will review the trial court’s presentation and application of the law of reckless indifference. Because this is a purely legal issue, we will utilize the independent standard of review.

Authority:

People v. Tessman (2014) 223 Cal.App.4th 1293, 1303

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

Third Holding:

Reckless indifference means knowingly engaging in criminal activities known to carry a grave risk of death. The degree of risk to human life is crucial to the analysis. There must be a significant risk of death. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient. Only knowingly creating a grave risk of death satisfies the statutory requirement. Participation in a garden-variety armed robbery, i.e., one in which the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 883, 884

In re Scoggins (2020) 9 Cal.5th 667, 677

Fourth Holding:

In its ruling, the trial court asserted that recklessness is also determined by an objective standard, namely what a law-abiding person would observe in the actor’s situation. The trial court’s presentation of the law of recklessness failed to include the requirement that there be a significant risk of death, which is a crucial part of the reckless indifference analysis. By omitting a critical part of the law, one can infer that the trial court did not have a full understanding of the meaning of reckless indifference.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

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

Case: 000389

Posted on by Gary McCurdy

Error and/or relief

Consolidation and cross-admission of unrelated charges was improper and prejudicial under the circumstances of this case, and we will therefore reverse the judgment for possible retrial. Due to insufficient evidence of defendant’s guilt under certain murder theories presented to the jury, we will bar the prosecution from pursuing those theories in any retrial.

First Holding:

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses 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 presume the existence of every fact that the trier of fact could reasonably deduce from the evidence to support the judgment. To overturn a jury’s finding, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.

Authority:

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

People v. Medina (2009) 46 Cal.4th 913, 919

People v. Redmond (1969) 71 Cal.2d 745, 755

Second Holding:

First degree willful, deliberate, and premeditated murder must be committed with express malice—i.e., willfully. The remaining elements of premeditation and deliberation are generally established through the following types of evidence: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as planning activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a motive to kill the victim, and (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design to take his victim’s life in a particular way for a reason which the jury can reasonably infer from facts of type (1) or (2).

The evidence of premeditation and deliberation is generally sufficient when there is evidence of all three types or at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3). These factors discussed in Anderson, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.

Authority:

PEN 188(a)(1)

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

People v. Anderson (1968) 70 Cal.2d 15, 26–27

People v. Perez (1992) 2 Cal.4th 1117, 1125

Third Holding:

Where, as here, offenses in separate cases meet a statutory basis for consolidation, a defendant bears the burden to make a clear showing of prejudice to establish that the trial court abused its discretion in consolidating the cases. In our review, we examine the record before the trial court when it denied defendant’s severance motion and consider: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.

Authority:

PEN 954

People v. Mendoza (2000) 24 Cal.4th 130, 160-161

Fourth Holding:

We first address the charges’ cross-admissibility, because a finding of cross-admissibility generally negates the possibility of prejudice. Evidence of other crimes can be admitted to prove the offender acted according to a certain plan, or acted with a particular motive, if a degree of similarity exists between the past and present crimes so as to permit a reasonable inference that the offender must have entertained the same intent in both instances

Authority:

People v. Merriman (2014) 60 Cal.4th 1, 38

People v. Jones (2013) 57 Cal.4th 899, 926

Fifth Holding:

There exists a hierarchy, or continuum, with respect to the degree of similarity that is needed for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought. To be admissible to demonstrate a distinctive modus operandi, the evidence must disclose common marks or identifiers, that, considered singly or in combination, support a strong inference that the defendant committed the crimes. To be admissible to show intent, however, the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance. To be cross-admissible to establish motive, the offenses need not necessarily be factually similar but must share a direct logical nexus.

Authority:

Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1222

People v. Maury (2003) 30 Cal.4th 342, 392

People v. Yeoman (2003) 31 Cal.4th 93, 121

People v. Demetrulias (2006) 39 Cal.4th 1, 15

People v. Scheer (1998) 68 Cal.App.4th 1009, 1018 [the motive for the charged crime arises simply from the commission of the prior offense]

Sixth Holding:

Disputed identity is a factor to be considered in weighing the probative value of allegedly cross-admissible evidence of intent against the likelihood of undue prejudice due to its admission.

Authority:

People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2

People v. Earle (2009) 172 Cal.App.4th 372, 390–391

People v. King (2010) 183 Cal.App.4th 1281, 1301–1303

People v. Thompson (1988) 45 Cal.3d 86, 109 [to be admitted, evidence of other crimes must not contravene other policies limiting admission, such as those contained in Evidence Code section 352]