Tag Archives: Elements of crime

Discretion, Elements of crime, Sentencing

Case 001065

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by imposing consecutive sentences for both assault (count 7) and carjacking (count 6). Remanded for resentencing.

First Holding:

The court was required under section 654 to stay the sentence imposed on one of the counts because both were based on the same physical act of driving a vehicle in a threatening manner. Section 654 allows the trial court to stay the sentence for either count 6 or count 7, at its discretion.

Authority:

PEN 654

Second Holding:

The enhancement for personal use of a firearm imposed on the carjacking count must be stricken because no evidence was presented that a firearm was employed during the commission of that offense and that the enhancement for infliction of great bodily injury on the murder count is prohibited by section 12022.7(g).

The Attorney General concedes the above enhancements must be stricken, noting that the information did not allege these enhancements and the jury made no such findings.

Authority:

PEN 12022.7(g)

Amelioration, Elements of crime, Jury instructions, Sentencing, Vicarious liability

Case 001064

Posted on by Gary McCurdy

Error and/or relief

The court erred in concluding that the defendant was, as a matter of law, ineligible under section 1172.6 to seek recall of the early 2000s murder conviction. The court’s order denying defendant’s petition for resentencing is reversed and the matter is remanded with directions for the trial court to issue an order to show cause and hold further proceedings consistent with section 1172.6(d).

First Holding:

SB 1437, effective on January 1, 2019, amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it added what is now now section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.

Section 188 now provides that, except as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

PEN 188

PEN 189

Second Holding:

Under section 189(e), a participant in the perpetration or attempted perpetration of a felony listed in section 189(a) in which a death occurs is liable for murder only if one of the following is proven:

(1) The person was the actual killer.

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.

(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Authority:

PEN 189(e)

Third Holding:

SB 775, effective January 1, 2022, extended SB 1437’s application to those convicted of attempted murder under the natural and probable consequences doctrine.

Authority:

PEN 1172.6

Fourth Holding:

Upon receiving a petition, if the petitioner has requested counsel, the court must appoint counsel to represent the petitioner. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.

Authority:

PEN 1172.6(b), (c)

Fifth Holding:

The record of conviction will necessarily inform the trial court’s prima facie inquiry under section 1172.6, allowing the court to distinguish petitions with potential merit from those that are clearly meritless.

At the prima facie inquiry stage, the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

If so, the court must issue an order to show cause. However, if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner. In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971-972

Sixth Holding:

If the petitioner has made a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. Within 60 days after the order to show cause has issued, the trial court must then hold a hearing “to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.

Authority:

PEN 1172.6(c), (d)

Seventh Holding:

In Morris, the Supreme Court construed the language in section 189(e) on the liability of one aiding and abetting first degree murder to require proof the defendant aided or abetted the actual killer in the lethal act itself, and not just the underlying felony.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 678, 681-686

Eighth Holding:

The jury here was instructed that, if the jury determined that the defendant was not the killer, the defendant could be convicted of murder if the jury found that the defendant, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of robbery, kidnapping, and/or carjacking that resulted in the death of the named human being.

Such a finding is insufficient under Morris to establish the requisite actus reus to the extent the defendant was convicted as a nonkiller.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 683

Appellate Principles, Elements of crime, Sentencing

Case 001059

Posted on by Gary McCurdy

Error and/or relief

The sentence for the defendant’s conviction for unlawful possession of ammunition should be stayed because it arises from the same, indivisible act underlying his conviction for possession of a firearm by a felon.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. Courts have found section 654 prohibits punishing a defendant for both being a felon in possession of a firearm and unlawful possession of ammunition when all of the ammunition in question was loaded into the firearm or had been fired from it.

Authority:

People v. Broadbent (2020) 47 Cal.App.5th 917, 922

Second Holding:

Because a stay of the defendant’s 16-month sentence on count three results in a relatively minor reduction in his total sentence [essentially, 67.333 years to life], we will modify the judgment instead of remanding the case for further proceedings.

Authority:

People v. Burns (1984) 158 Cal.App.3d 1178, 1184 [Staying execution of the penalty imposed for the lesser offense remains the preferred remedy where the reduction in sentence would be relatively minor]

Appellate Principles, Elements of crime, Sentencing

Case 001058

Posted on by Gary McCurdy

Error and/or relief

Among many other offenses committed during related incidents over a period of time, the defendant was convicted of two counts of being in possession of an assault weapon and two counts of being a felon in possession of a firearm. We reverse one of each of those counts.

First Holding:

Possession of a firearm by a felon is a continuing offense. The concept of a continuing offense is well established. Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty.

Thus, when the law imposes an affirmative obligation to act, the violation is complete at the first instance the elements are met. It is nevertheless not completed as long as the obligation remains unfulfilled. The crime achieves no finality until such time.

In the case of continuing offenses, only one violation occurs even though the proscribed conduct may extend over an indefinite period. As the evidence does not support any conclusion but continuing possession, one of the defendant’s convictions for being a felon in possession of a firearm must be reversed and one of his convictions for possession of an assault weapon must be reversed.

Authority:

People v. Mason (2014) 232 Cal.App.4th 355, 365

Second Holding:

It is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate error that justifies reversal of the judgment. To demonstrate error, appellant must present meaningful legal analysis that supports the claim of error. We are not required to examine undeveloped claims or to supply arguments for the litigants.

Authority:

Jameson v. Desta (2018) 5 Cal.5th 594, 608-609

In re S.C. (2006) 138 Cal.App.4th 396, 408

United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 [to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis]

Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52

Third Holding:

Cases are not authority for points not considered.

Authority:

People v. Patton (2019) 41 Cal.App.5th 934, 945, fn. 7

Fourth Holding:

Reversal of the two counts means that the defendant must be resentenced. 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.

Authority:

People v. Jones (2022) 79 Cal.App.5th 37, 45-46

Fifth Holding:

One of the defendant’s arguments on a different count is forfeited because it was not raised in the trial court. The parties did not address forfeiture in their appellate briefing, but they had the opportunity to address it, a rule always implicated when an argument is raised for the first time on appeal.

Authority:

People v. Alice (2007) 41 Cal.4th 668, 679 [The parties need only have been given an opportunity to brief the issue decided by the court, and the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within the issues raised does not implicate the protections of Government Code section 68081.]

People v. Graham (2024) 102 Cal.App.5th 787, 798, fn. 6.

Sixth Holding:

A failure to object to a jury instruction does not forfeit the issue on appeal if the alleged error concerns elements of the offense, but the forfeited argument here is at least one step removed from an argument about the elements of the crime in question. And the general rule is that an argument not raised in the trial court is forfeited on appeal, including constitutional arguments.

Authority:

People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012

People v. Marchand (2002) 98 Cal.App.4th 1056, 1060-1061 [ruling that an argument under Apprendi v. New Jersey (2000) 530 U.S. 466 was forfeited because it was not raised in the trial court]

Abstracts and Minutes, Elements of crime, Fines and fees, Sentencing

Case 001056

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment incorrectly reflects a $120 court security fee and a $160 criminal conviction fee, instead of the $40 and $30 ordered by the court in its oral pronouncement. Further, on the attempted murder charge, the abstract must delete the reference to “First Degree,” because attempted murder is not separated into degrees. THe abstract of judgment must be corrected.

Holding:

The abstract of judgment constitutes the commitment and is the order sending the defendant to prison, and the process and authority for carrying the judgment and sentence into effect; no other warrant or authority is necessary to justify or require its execution. Accuracy is essential in a document that prescribes the execution of sentence and is provided to Criminal Investigation and Identification.

This court has the authority to correct clerical errors at any time.

Authority:

PEN 1213

People v. Mitchell (2001) 26 Cal.4th 181, 185-187

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

Abstracts and Minutes, Amelioration, Appellate Principles, Elements of crime, Fines and fees, Jury instructions, Sentencing, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case 001052

Posted on by Gary McCurdy

Error and/or relief

Gary note:  This case had a ton of issues.  The wins consisted of striking two of the four counts of being a felon in possession of ammunition; because he did not waive his presence at the court trial, reversal of the findings on his prior convictions and aggravating circumstance in aggravation made in his absence; remand for a hearing on his strikes that were based on the pre-AB 333 amendments to the criminal gang activity statute; correction of the abstract of judgment that reflected fines and fees that were not orally pronounced; and correction of his credit for time served.  In the course of deciding the case, however, the court announced several principles that I feel are important, even though in this instance they were resolved against the defendant. 

I apologize for the length of the summary.  

First Holding:

In assessing a claim of insufficient evidence, 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.

We presume the evidence of each element of the offense was sufficient, and defendant bears the burden of affirmatively demonstrating otherwise. To meet this burden, defendant must do more than just recite his own evidence or portray the available evidence in a light favorable to him.

We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence. We must accept all logical inferences that the jury may have drawn from circumstantial evidence. If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Authority:

People v. Martinez (2008) 158 Cal.App.4th 1324, 1329

People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573-1574

People v. Pham (2009) 180 Cal.App.4th 919, 924-925

People v. Lucero (2019) 41 Cal.App.5th 370, 411

Second Holding:

It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and the opposing litigant. To be sure, we have discretion to consider a new theory on appeal when it is purely a matter of applying the law to undisputed facts.

But the defendant cannot now, for the first time, claim that insufficient evidence supports his convictions based on new evidence and and a new theory. Accordingly, we decline to consider defendant’s new theory on appeal.

Authority:

Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316

Third Holding:

A trial court must give an instruction on every theory of the case that is supported by substantial evidence. But the court must not give an instruction that is not correct or pertinent, nor is it required to give an instruction that is not supported by substantial evidence.

Authority:

People v. Montoya (1994) 7 Cal.4th 1027, 1047

People v. Larsen (2012) 205 Cal.App.4th 810, 823

Fourth Holding:

We note that defendant forfeited his challenge to (a particular jury instruction) because he did not raise the same instructional error issue in the trial court as he raises on appeal. We nonetheless address the merits because defendant maintains that (the jury instruction) as given was not a correct statement of the law.

Authority:

People v. Rios (2024) 99 Cal.App.5th 1128, 1139 [Generally, an issue is forfeited on appeal if the defendant failed to make a timely and specific objection on the ground asserted on appeal]

People v. Franco (2009) 180 Cal.App.4th 713, 719 [The rule of forfeiture does not apply, however, if the instruction was an incorrect statement of the law, or if the instructional error affected the defendant’s substantial rights]

Fifth Holding:

We review claims of instructional error de novo. We must review the wording of the jury instruction and assess whether it accurately states the law. We must also consider whether a reasonable likelihood exists that the challenged instruction caused the jury to misapply the law in violation of the Constitution.

The challenged instruction is viewed in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner. There is no error in a trial court’s failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial.

As long as the trial court has correctly instructed the jury on all matters pertinent to the case, there is no error. We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation.

Authority:

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

People v. Dieguez (2001) 89 Cal.App.4th 266, 277

People v. Vang (2009) 171 Cal.App.4th 1120, 1129

Sixth Holding:

On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense.

Trial courts have a sua sponte duty to instruct juries on all lesser included offenses where there is substantial evidence raising a question as to whether all the elements of the charged offense are present. Under the substantial evidence standard, the trial court has no obligation to instruct on theories not supported, or only weakly supported by the evidence.

However, instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury. Substantial evidence in this context is evidence from which a jury composed of reasonable persons could conclude that the lesser offense, but not the greater, was committed.

Authority:

People v. Souza (2012) 54 Cal.4th 90, 113

People v. Lewis (2001) 25 Cal.4th 610, 645

People v. Breverman (1998) 19 Cal.4th 142, 155, 162

People v. Reeves (2001) 91 Cal.App.4th 14, 51

Seventh Holding:

The defendant cannot be convicted of multiple counts of being a felon in possession of different types of ammunition. Multiple items of contraband that are classified within a single statutory category or subdivision will support only a single violation of a possession statute. This includes possession of different types of ammunition.

There is, however, an exception when contraband is possessed by a defendant at different times or at different locations.

Authority:

In re Carleisha P. (2006) 144 Cal.App.4th 912, 923

De La Cerda v. Superior Court (2022) 75 Cal.App.5th 40

People v. Sample (2011) 200 Cal.App.4th 1253

People v. Von Latta (1968) 258 Cal.App.2d 329

Eighth Holding:

Defendant was not present for the bifurcated bench trial on his prior convictions and aggravating factors allegations. The parties agree that this was error because defendant did not expressly waive his right to be present for the bench trial in writing as required by section 977(b)(1).

Authority:

PEN 977(b)(1)

Ninth Holding:

A defendant has a right to be present at critical stages of a criminal prosecution, a right protected by both the federal Constitution and the state Constitution. California has also guaranteed the right by statute, under section 977. The defendant may waive that right.

The waiver of a defendant’s right to be present may be in writing and filed with the court or, with the court’s consent, may be entered personally by the defendant or by the defendant’s counsel of record. Although the defendant submitted a writing under which he waived his right to a jury trial on prior convictions and aggravating factors allegations, the waiver extended only to his right to a jury, not to his right to be present.

Authority:

PEN 977

U.S. Const., 6th and 14th Amends.

Cal. Const., art. I, secs. 15, 16

Kentucky v. Stincer (1987) 482 U.S. 730, 745

People v. Perry (2006) 38 Cal.4th 302, 311

Tenth Holding:

Absent a valid waiver, constitutional error concerning a defendant’s right of presence is subject to harmless error review under Chapman. We must therefore assess whether the error was harmless beyond a reasonable doubt and did not contribute to the outcome of the proceeding.

Here, defense counsel did not call any witnesses and submitted on the prosecution’s exhibits at the bifurcated trial. Had defendant been present at the trial, he could have assisted in his defense and/or exercised his constitutional right to testify on his own behalf regarding any number of the aggravating factors that were alleged against him.

Thus, we cannot say that the exclusion of defendant at the bifurcated bench trial was harmless beyond a reasonable doubt. Accordingly, we will remand the matter for a new bifurcated trial on the prior convictions and aggravating factors.

Authority:

Chapman v. California (1967) 386 U.S. 18, 23

People v. Millsap (2025) 114 Cal.App.5th 368, 384

Eleventh Holding:

The trial court found true that defendant had been convicted in 1999 of unlawful possession of a firearm committed for the benefit of a criminal street gang. Based upon the recent decision in Fletcher, both parties request that the true finding on the prior gang-related enhancement be vacated and that the matter be remanded for a retrial in conformance with the changes to the law on criminal street gangs after AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576

Twelfth Holding:

The Three Strikes law doubles a felony sentence if the defendant has a prior conviction for a serious felony, which includes any felony offense that would also constitute a felony violation of section 186.22. A prior felony firearm conviction constitutes a strike if committed for the benefit of a criminal street gang” pursuant to section 186.22(b)(1).

Authority:

PEN 1192.7(c)(28)

PEN 667(d)(1), (e)(1)

PEN 1170.12(b)(1)(c)(1)

People v. Briceno (2004) 34 Cal.4th 451, 45

Thirteenth Holding:

AB 333, effective January 1, 2022, amended section 186.22 to narrow the definition of benefit to mean to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

This provision applies retroactively to cases that are not final on appeal to determine whether a prior violation of section 186.22 constitutes a strike. With regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions under section 1192.7(c)(28). The appropriate remedy is to remand to permit the prosecution the opportunity to establish that the prior conviction constitutes a strike under current law.

Authority:

PEN 186.22(g)

People v. Fletcher (2025) 18 Cal.5th 576, 586-587, 607-608

Fourteenth Holding:

The trial court did not mention any fines or fees at the sentencing hearing and the minute order is also silent on this subject. However, the abstract of judgment reflects the following fines and fees were imposed: $300 for restitution (sec. 1202.4(b)); $400 for the court security fee (sec. 1465.8); and $300 for the criminal conviction assessment (Gov. Code, sec. 70373). The $300 parole revocation restitution fine (sec. 1202.45) was conditionally suspended.

Rendition of judgment is an oral pronouncement. Entering the judgment in the minutes being a clerical function, a discrepancy between the judgment as orally pronounced and as entered in the minutes is presumably the result of clerical error. Nor is the abstract of judgment controlling. The abstract of judgment is not the judgment of conviction. By its very nature, definition and terms it cannot add to or modify the judgment which it purports to digest or summarize.


If there is a discrepancy between the oral pronouncement of judgment and the minutes or abstract of judgment, the oral pronouncement controls.

Authority:

PEN 1207

People v. Mesa (1975) 14 Cal.3d 466, 471

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

People v. Mitchell (2001) 26 Cal.4th 181, 185-186

Fifteenth Holding:

The trial court did not orally impose restitution fines or fees, nor were any included in the Minute Order from the sentencing hearing. The People did not object to the court’s failure to orally impose the fines or fees.

Because the restitution fine and matching parole revocation fine are discretionary given the court’s ability to not impose them if it makes certain findings on the record, the People forfeited the imposition of the fines by not objecting. Accordingly, we decline the People’s request for a remand on the restitution fines and instead, direct those fines to be stricken.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 303

Sixteenth Holding:

However, the same is not true for the two mandatory ancillary costs including the court operations assessment and the court facilities assessment. Indeed, the trial court was required to impose these fees but did not do so, nor did it state any reasons for declining to do so.

Accordingly, on remand, the trial court is directed to either impose these fees or state its reasons for declining to do so

Authority:

PEN 1465.8

GOV 70373

People v. El (2021) 65 Cal.App5th 963, 967

Seventeenth Holding:

The abstract of judgment incorrectly reflects the credit for time served. Although there was no oral pronouncement of credit for time served at the sentencing hearing, the probation officer’s report shows that she calculated the total credit for time served based on defendant’s presentencing time in jail. We agree with the parties that this is a miscalculation, and any miscalculation of credits results in an unauthorized sentence, which may be corrected upon discovery.

Credits for presentence custody are calculated from the day of arrest through the day of sentencing. The defendant was sentenced 11 days later than reported by the probation officer. Accordingly, the correct number of actual days of presentencing time served is (a number greater than 900 days).

Because he was convicted of violent felonies, the defendant cannot earn conduct credit in excess of 15%.

Authority:

PEN 2933.1

People v. Taylor (2004) 119 Cal.App.4th 628, 647

People v. Ramos (1996) 50 Cal.App.4th 810, 816 [explaining proper method of calculation for conduct credits under section 2933.1]

People v. Bravo (1990) 219 Cal.App.3d 729, 735

Amelioration, Appellate Principles, Elements of crime, Jury instructions, Sentencing, Statutory interpretation, Vicarious liability

Case 001049

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition at the prima facie stage. The jury instructions on aiding and abetting, implied malice, and lying-in-wait murder allowed for the jury to convict him of murder under a theory by which malice was imputed to him based solely on his participation in the crime.

First Holding:

SB 1437 became effective on January 1, 2019. SB 1437 amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it added what is now section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.

Accordingly, section 188 now provides that, except as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime. The change reflects the Legislature’s intent that a person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

Additionally, section 189 previously stated that all murder committed in the perpetration of, or attempt to perpetrate, various specified crimes, is murder of the first degree. SB 1437 amended section 189 to add subdivision (e), which provides that a participant in the perpetration or attempted perpetration of one of the enumerated feloines in which a death occurs is liable for murder only if:

(1) The person was the actual killer; or

(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; or

(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).

Authority:

PEN 188

PEN 189

Second Holding:

Section 1172.6 sets forth procedures on how the court is consider the petitions.

There is a first stage review to determine whether the petition states fact that demonstrate a prima facie entitlement to relief. The court is not permitted to do fact-finding at that stage, but it may review certain portions of the record to determine whether the record establishes that the defendant is ineligible for relief as a matter of law.

If a prima facie case appears from the petition, the court must then hold an evidentiary hearing, at which the prosecution bears the burden of proving beyond a reasonable doubt that the defendant is guilty under current law

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 971-972

Third Holding:

In SB 775, effective January 1, 2022, the Legislature amended the language of section 1172.6 to expand the scope of the petitioning procedure, in part, by expressly permitting persons convicted of attempted murder under the natural and probable consequences doctrine to petition for relief.

Authority:

PEN 1172.6

Fourth Holding:

There has been a split of authority on whether a defendant is ineligible for relief under section 1172.6 if the defendant could have raised the the instructional argument in a prior appeal. (Gary note: For the main part, the discussions in the split cases were over the impact of various jury instructions that were given in the original trials, and whether the failure to raise those arguments gave rise to issue preclusion in determining the applicability of section 1172.6. If you are interested in reading the development and evolution of those cases, Lopez might be a good read.)

Lopez resolved the dispute by holding that a defendant is not barred by issue preclusion. The mere fact that a petitioner could have raised an analogous … claim of instructional error at trial or in his original appeal does not render him categorically ineligible for relief under section 1172.6. The primary and overarching purpose of SB 1437’s scheme is to identify and to afford resentencing relief, in qualifying cases, to those who may have been convicted under imputed-malice murder theories.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 661

Fifth Holding:

Resentencing courts should not ignore potentially ambiguous or even openly flawed instructions when evaluating a petitioner’s prima facie allegations merely because these flaws were not raised in a prior appeal. Rather, the section 1172.6 resentencing court should address on the merits the alleged flaws or ambiguities in instructions that may have resulted in conviction under now invalid theories of imputed malice.

After considering Lopez, we now agree with the defendant that the record here does not establish he is categorically ineligible for relief. Accordingly, we reverse the trial court’s order denying defendant’s petition for recall and resentencing at the prima facie stage and remand for the court to issue an order to show cause and hold a hearing pursuant to section 1172.6(d).

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 658, 668

Amelioration, Duty of the court, Elements of crime, Sentencing, Standard of review

Case 001047

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially applied the wrong standard when it denied the defendant’s motion for recall of his sentence under section 1172.6. We accordingly reverse the order denying the defendant’s petition for resentencing and remand for a new evidentiary hearing.

First Holding:

To the end of ensuring a person’s sentence is commensurate with the person’s individual criminal culpability, SB 1437 (effective January 1, 2019) limited accomplice liability under the felony-murder rule, eliminated the natural and probable consequences doctrine as it relates to murder, and eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person’s participation in a crime.

SB 1437 added section 189(e) (limiting application of the felony-murder rule) and section 188(a)(3) (to be convicted of murder, a principal in a crime shall act with malice aforethought, and malice shall not be imputed to a person based solely on his or her participation in a crime). Under SB 775, effective January 1, 2022, these ameliorative changes to the law expressly apply to attempted murder and voluntary manslaughter.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 986

People v. Lewis (2021) 11 Cal.5th 952, 957, 959

People v. Gentile (2020) 10 Cal.5th 830, 842–843

Second Holding:

SB 1437 also created a procedure, under section 1172.6, for a person convicted of murder, attempted murder, or voluntary manslaughter under the former law to be resentenced if the person could no longer be convicted of those crimes under the current law.

A defendant commences that procedure by filing a petition containing a declaration that, among other things, the petitioner could not presently be convicted of murder or attempted murder because of the changes to section 188 or 189 made by SB 1437.

Authority:

PEN 1172.6(a)(3)

People v. Lewis (2021) 11 Cal.5th 952, 957, 959

People v. Gentile (2020) 10 Cal.5th 830, 847

People v. Strong (2022) 13 Cal.5th 698, 708

Third Holding:

At the prima facie stage, the trial court takes as true the petitioner’s factual allegations and assesses whether the petitioner would be entitled to relief if those allegations were proved. In determining whether the petitioner has made a prima facie case for relief, the trial court may look at the record of conviction, including jury instructions, verdicts and closing argument, to determine readily ascertainable facts such as the crime of conviction.

At the prima facie stage, the trial court does not engage in factfinding that involves the weighing of evidence or exercise of discretion. If a petition establishes a prima facie case for relief, the trial court must appoint counsel if requested, issue an order to show cause, and hold an evidentiary hearing.

Authority:

PEN 1172.6(b)(3), (c), and (d)(1)

People v. Lewis (2021) 11 Cal.5th 952, 957, 971-972

People v. Duchine (2021) 60 Cal.App.5th 798, 815

People v. Harden (2022) 81 Cal.App.5th 45, 56

Fourth Holding:

A defendant is liable as a direct aider and abettor of express malice murder if the defendant aided or encouraged the murder with knowledge of the perpetrator’s unlawful purpose and with the intent or purpose of committing, encouraging, or facilitating the murder’s commission.

Authority:

In re Lopez (2023) 14 Cal.5th 562, 579

People v. McCoy (2001) 25 Cal.4th 1111, 1122 [direct aiding and abetting is based on participants’ combined actus reus and aider and abettor’s own mens rea]

Fifth Holding:

In contrast, a defendant is liable as a direct aider and abettor of implied malice murder if the defendant, by words or conduct, aids the commission of a life-endangering act, not the act’s result. The direct aider and abettor must know that the perpetrator intended to commit the act, intend to aid the perpetrator in committing the act, know that the act is dangerous to human life, and act in conscious disregard to human life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 991

Sixth Holding:

Section 1172.6(d)(3) required the trial court to act as an independent factfinder––resolving the disputed facts and determining for itself, beyond a reasonable doubt, whether the defendant was guilty of murder under current law—not to ask whether a jury could or would convict him if the matter were retried. The trial court’s statements show it did not perform that role here.

(Gary note: The appellate court then recited comments by the trial court that reflected the trial court’s apparent belief that its role was to determine whether there was sufficient evidence to support the jury’s finding. The crux of section 1172.6(d)(3) is that the judge reviewing the section 1172.6 petition must determine whether he or she is convinced beyond a reasonable doubt that the evidence shows that the defendant IS guilty (not “could be found guilty”) of murder under the current elements.)

Authority:

PEN 1172.6(d)(3)

Seventh Holding:

The trial court’s failure to perform the factfinding section 1172.6(d)(3) requires is subject to harmless error review. Reversal is required if it is reasonably probable Lopez would have obtained a more favorable result in the absence of the error. We cannot conclude that the error was not prejudicial. The trial court’s order denying the defendant’s section 1172.6 petition is reversed and the matter is remanded for a new evidentiary hearing under section 1172.6(d)

(Gary note: In the course of its discussion on whether the error was prejudicial, the appellate court discussed the various theories potentially arguable as a theory under which the defendant could be guilty of murder as currently defined. It concluded that it is impossible to determine from the trial court’s comments the findings of fact that would support either theory. It stressed that, for the trial court to deny the defendant’s petition for recall, the trial court was required to find facts that led it to conclude beyond a reasonable doubt that the defendant was guilty of murder under current law. And it did not do that factfinding.)

Authority:

People v. Vance (2023) 94 Cal.App.5th 706, 715–716

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

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

Case 001041

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the denial of his motion for recall of sentence under section 1172.6. The evidence is insufficient to support he was a major participant who acted with reckless indifference to human life. The order denying the defendant’s section 1172.6 petition is reversed and the matter is remanded to the trial court with instructions to vacate his voluntary manslaughter conviction and resentence him on the remaining charges.

First Holding:

In 2018, the Legislature enacted SB 1437 (2017–2018 Reg. Sess.) to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who was not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

To accomplish these goals, SB 1437 redefined malice in section 188, and narrowed the classes of persons liable for felony murder under section 189. It also added what is now section 1172.6 to the Penal Code, which permitted those convicted of felony murder or murder under a natural and probable consequences theory to petition to have their murder convictions vacated and be resentenced on any remaining counts. SB 775 (2021–2022 Reg. Sess.) subsequently extended this relief to persons convicted of manslaughter.

If a trial court determines that a petitioner has made a prima facie case for relief, it shall issue an order to show cause” and hold an evidentiary hearing.

At the evidentiary hearing, the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioner is guilty of murder under California law as amended by SB 1437. The parties may offer evidence from a prior trial or hearing or offer new or additional evidence.

If the prosecution fails to carry its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.

Authority:

PEN 188

PEN 189

PEN 1172.6

Second Holding:

We review the denial of a section 1172.6 petition following an evidentiary hearing for substantial evidence. Under this standard, we review the record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find beyond a reasonable doubt that the defendant was a major participant who acted with reckless indifference to human life.

Our job on review is different from the trial judge’s job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder’s findings beyond a reasonable doubt.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 885

People v. Clements (2022) 75 Cal.App.5th 276, 298

Third Holding:

A person who did not kill or act with the intent to kill may be liable for murder under the felony-murder doctrine only if they were a major participant in the underlying felony and acted with reckless indifference to human life. The major participant and reckless indifference standards did not originate with SB. 1437, but rather the Legislature imported those standards from section 190.2(d), which governs the felony-murder special circumstance that renders a criminal act eligible for the death penalty or life without parole.

In Banks and Clark, our high court interpreted section 190.2(d) and provided guidelines for the major participant and reckless indifference standards. When SB 1437 amended section 189 to incorporate major participation and reckless indifference requirements, it codified the understanding of those requirements elucidated in Banks and Clark.

Authority:

PEN 189(e)(3)

People v. Emanuel (2025) 17 Cal.5th 867, 881

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

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

People v. Strong (2022) 13 Cal.5th 698, 710

Fourth Holding:

Banks identified factors relevant to determining whether a defendant was a major participant in the underlying felony:

(1) the defendant’s role in planning the crime that led to the death;

(2) the defendant’s role in supplying or using deadly weapons;

(3) the defendant’s awareness of the particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of other participants;

(4) whether the defendant was present at the scene of the killing, in a position to facilitate or prevent it, and whether the defendant’s own actions or inactions played a particular role in the death; and

(5) the defendant’s actions after lethal force was used.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 803

Fifth Holding:

Clark identified factors relevant to whether a defendant acted with reckless indifference to human life:

(1) the defendant’s knowledge of weapons, and the use and number of weapons;

(2) the defendant’s physical presence at the scene of the crime and opportunity to restrain the crime and/or aid the victim;

(3) the duration of the interaction between the perpetrator and the victim;

(4) the defendant’s knowledge of their cohort’s propensity for violence or likelihood of killing; and

(5) the defendant’s attempts to minimize violence during the crime.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618-622

Sixth Holding:

A defendant’s youth can also be a relevant factor in the reckless indifference analysis.

Authority:

People v. Keel (2022) 84 Cal.App.5th 546, 558–559

Seventh Holding:

No one of the Banks or Clark factors is necessary, nor is any one of them necessarily sufficient to establish a defendant was a major participant or acted recklessly indifferent to human life. Moreover, there is often a significant overlap between being a major participant and acting with reckless indifference to human life, for the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 803

People v. Clark (2016) 63 Cal.4th 522, 615, 618

Eighth Holding:

In cases where a major participant finding was substantiated, there was evidence that the defendant played a substantial role or was a mastermind who planned and organized the underlying offense and orchestrated the events at the scene.

(Gary note: A portion of this part of opinion compares the defendant’s participation to cases in which there was a finding of substantial participation. I have listed those cases below–after the Clark reference, which pertains to the first paragraph of this “Eighth Holding”–because they do hold that the conduct as described does represent sufficient substantial evidence in support of a finding that the accused was a major participant in the underlying felony.)

Authority:

People v. Clark (2016) 63 Cal.4th 522, 615, 612

Tison v. Arizona (1987) 481 U.S. 137, 158 (Tison) [petitioners were actively involved in every element of the kidnaping-robbery and were physically present during the entire sequence of criminal activity culminating in the murder and the subsequent flight]

People v. Mitchell (2022) 81 Cal.App.5th 575, 584 [defendant agreed to rob someone with his brother, helped pick out the victim, and after the victim was injured, held the firearm while his brother rifled through the victim’s pockets]

People v. Richardson (2022) 79 Cal.App.5th 1085, 1088, 1091-1092 [The defendant yelled, “Shoot him. Shoot him,” directing his armed coparticipants to shoot a citizen who was following the defendant’s car during the commission of the crime. Richardson was a major participant in the underlying robbery, as his orders to shoot showed he took on—or already had—a role in directing the robbery and the conduct of his coparticipants.]

Ninth Holding:

But even if we assume the defendant was a major participant, the evidence is insufficient to support that he exhibited reckless indifference to human life. Reckless indifference to human life is implicit in knowingly engaging in criminal activities known to carry a grave risk of death.

It encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions. Examples of reckless indifference include the person who tortures another not caring whether the victim lives or dies, or the robber who shoots someone in the course of the robbery, utterly indifferent to the fact that the desire to rob may have the unintended consequence of killing the victim as well as taking the victim’s property.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 616-617

In re Scoggins (2020) 9 Cal.5th 667, 676

Tenth Holding:

The reckless indifference standard has both a subjective and an objective component. Subjectively, the defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, and he or she must consciously disregard the significant risk of death his or her actions create.

Objectively, the risk of death must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him or her, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient to establish reckless indifference to human life; only knowingly creating a grave risk of death satisfies the statutory requirement.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 617

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

Eleventh Holding:

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, 884

In re Scoggins (2020) 9 Cal.5th 667, 677 [the fact a participant or planner of an armed robbery could anticipate lethal force might be used is not sufficient to establish reckless indifference to human life]

People v. Banks (2015) 61 Cal.4th 788, 805 [participation in an armed robbery, without more, does not involve engaging in criminal activities known to carry a grave risk of death]

(Gary note:

(At this point and throughout the opinion, the appellate court compares and contrasts the defendant’s conduct in this case with other cases in which the question of major participant and reckless indifference to human life was resolved by finding either the presence or the absence of same.

(The analysis is fact-specific and would be of no value in your cases because you cannot cite an unpublished case, so you would have no way to get the facts of this summarized case before your court. But you should be able to learn what you need from the published cases this appellate court discussed in reaching its conclusion that this defendant was not a major participant in the underlying felony, and that his conviction for voluntary manslaughter (obtained by plea agreement) must be vacated.)

 

Amelioration, Elements of crime, Sentencing, Sixth Amendment, Standard of review, Vicarious liability

Case 001033

Posted on by Gary McCurdy

Error and/or relief

It was error for the court to deny the defendant’s petition for resentencing under section 1172.6 at the prima facie stage. Remanded for the court to conduct an evidentiary hearing.

First Holding:

Section 189, as amended, limits liability under a felony-murder theory principally to actual killers and those who, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree. Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were major participants in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d)—that is, the statute defining the felony-murder special circumstance.

Authority:

PEN 189

People v. Strong (2022) 13 Cal.5th 698, 708

Second Holding:

A person convicted of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced. The petition must allege the petitioner was:

(1) charged with one of the enumerated crimes under a theory of felony murder or other theory under which malice is imputed to a person based solely on that person’s participation in a crime;

(2) convicted of murder, attempted murder, or manslaughter; and

(3) could not presently be convicted of murder because of changes to sections 188 or 189.

Authority:

PEN 1172.6

Third Holding:

Where the petition complies with the three requirements, the superior court proceeds to section 1172.6c), to assess whether the petitioner has made a prima facie showing for relief. The prima facie inquiry is limited. The court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.

If so, the court must issue an order to show cause. A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. At the prima facie hearing, the court may consider the record of conviction. If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the superior court may dismiss the petition.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960, 971

People v. Strong (2022) 13 Cal.5th 698, 708

Fourth Holding:

A denial at the prima facie stage is appropriate only if the record of conviction demonstrates that the petitioner is ineligible for relief as a matter of law. This is a purely legal conclusion, which we review de novo.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 960

People v. Harden (2022) 81 Cal.App.5th 45, 52

Fifth Holding:

To be liable for felony murder as a direct aider and abettor, a nonkiller must not only share the perpetrator’s intent to kill but must also aid or abet the actual killer in the lethal act, and not just the underlying felony.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 693

People v. Reyes (2023) 14 Cal.5th 981, 991 [implied malice murder liability as a direct aider and abettor requires aiding the commission of the perpetrator’s life-endangering act]

Sixth Holding:

Since a nonkiller must aid or abet the actual killer in the lethal act itself, and not just the underlying felony, the jury’s true finding on the lying-in-wait special circumstance is insufficient to prevent defendant from making a prima facie showing for resentencing relief under section 1172.6.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 693

People v. Bocanegra (2026) 122 Cal.App.5th 481

Amelioration, Elements of crime, Jury trial, Pleading, Retroactivity, Sentencing

Case 001032

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, it was error for the court to impose a term of prison under section 12022.53(d), an enhancement that was not pleaded or proved on the count for which it was imposed. It was also error for the court not to consider the impact of AB 333’s amendments on criminal gang activity laws on the defendant’s sentence.

First Holding:

Section 12022.53(d) provides that a person who, in the commission of a felony specified in section 246(a), or section 26100(c) or (d), personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in section 12022.7, or death, to a person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.

Section 12022.53(e)(1) provides that the enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved:

(A) The person violated subdivision (b) of Section 186.22.

(B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).

In other words, a firearm enhancement under section 12022.53(e)(1) imposes vicarious liability for another’s personal use of a firearm on aiders and abettors who commit crimes in participation with a criminal street gang.

Authority:

PEN 12022.53

People v. Garcia (2002) 28 Cal.4th 1166, 1171

Second Holding:

Here, the vicarious gang-related firearm enhancement under section 12022.53(d) and (e)(1) was alleged as to count 1. The jury found that enhancement true, but it made no finding defendant personally and intentionally discharged a firearm during the commission of the offense proximately causing GBI or death to a nonaccomplice as required under section 12022.53(d). The verdict form reflects the jury found true the vicarious gang-related firearm enhancement under section 12022.53(e)(1), but does not include a finding regarding the personal and intentional discharge firearm enhancement under section 12022.53(d). This is fatal to imposition of a firearm enhancement under section 12022.53(d).

Further, the trial court dismissed the gang enhancement that was charged, which resulted in section 12022.53(e) being inapplicable. The section 12022.53(d) firearm enhancement must be stricken.

Authority:

PEN 12022.53

Third Holding:

On resentencing, the prosecution asked that if the trial court was not going to reimpose the gang enhancement, that it dismiss the enhancement under AB 333, which would permit the prosecution to retry the gang enhancement to prove that it was valid under the AB 333 amendments. The court declined to decide the retroactivity of AB 333, and instead dismissed it in the interest of justice under section 1385.

By declining to make a decision about the retroactive application of AB 333, the trial court potentially deprived the People of their opportunity to retry the gang enhancement, and the court did not adequately consider whether AB 333 would affect the imposition of the gang-related vicarious firearm enhancement. Without considering the full effect of AB 333, the court exercised less than fully informed sentencing discretion. This was an abuse of discretion.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [a court that is unaware of the scope of its discretionary powers can no more exercise informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record]

Fourth Holding:

We remand for a full resentencing. As the firearm enhancement under section 12022.53(d) was not found true by the jury and was unlawfully imposed, it shall be stricken. Given this changed circumstance, resentencing is required to allow the trial court to exercise its sentencing discretion anew.

When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme.

Moreover, because AB 333 applies retroactively, the trial court must apply these changes in the law and consider, in the first instance, whether the jury’s gang enhancement finding is viable, and, if not, the People may elect to retry the enhancement.

In the absence of the gang enhancement, the gang-related vicarious firearm enhancement under section 12022.53(d), (e)(1) cannot be imposed as it is predicated on a pled and proven section 186.22(b) gang enhancement.

(Gary note: I was a bit confused by the presence of this observation, because it appeared to me that the appellate court stated that the jury verdict failed to make a finding of personal use by a participant; I cite the principle here, but I was surprised to see it in this case. Is the court saying that the prosecution gets another opportunity to try the 12022.53(d) enhancement that was missing a vital component? I may have misread something–the opinion dealt with a very complicated set of circumstances, peculiar to this case, that arose in the resentencing)

Authority:

People v. Lopez (2025) 17 Cal.5th 388,

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

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

People v. Sek (2022) 74 Cal.App.5th 657, 668, 669–670 [by requiring proof that benefit to gang was more than reputational, AB 333 added a new element to the enhancement; prosecution was entitled to an opportunity to retry the gang enhancement upon remand]

People v. Cooper (2023) 14 Cal.5th 735, 746–747 [where newly required elements were never tried to jury, remedy is to remand and give the People an opportunity to retry affected charges]

Fifth Holding:

Upon resentencing, subject to the principles articulated in Henderson and its progeny, the trial court may not impose a greater aggregate sentence than that imposed at the resentencing.

Authority:

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

People v. Ali (1967) 66 Cal.2d 277, 281

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

People v. Trammel (2023) 97 Cal.App.5th 415, 434

People v. Serrato (1973) 9 Cal.3d 753, 763–764, [exception to Henderson applies only to unauthorized sentences that were unlawfully lenient to the detriment of the People]

Amelioration, Elements of crime, Retroactivity, Sentencing, Standard of review

Case 001029

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court should have granted the defendant’s request to retry his case to the extent that he was prosecuted under the criminal gang statutes in effect prior to their amendent by AB 333.

The defendant’s conviction for active participation in a street gang and the true findings on the gang enhancements on counts 2 and 3 are reversed. The People may seek to try the gang charge and enhancements under amended section 186.22. Following any trial, or if none occurs, the trial court will conduct a full resentencing under section 1172.75. Judgment is otherwise affirmed.

First Holding:

AB 333 modified the law on gang crimes and enhancements in several ways. It amended section 186.22 to increase the evidentiary burden to prove the crime of active participation in a criminal street gang and a gang enhancement by requiring the charged offense and any predicate offenses benefit the gang in a way that is more than reputational.

It amended the definition of a pattern of criminal gang activity—an element of proving the crime of active participation as well as a gang enhancement—to mean two or more predicate offenses, the last of which occurred within three years of the date the current offense is alleged to have been committed.

It also precluded using the currently charged offense to establish a pattern. Proving predicate offenses under section 186.22(b) now requires showing a connection between the predicate offenses and the organizational structure, primary activities, or common goals and principles of the gang.

Authority:

AB 333

PEN 186.22

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

The jury convicted the defendant under the prior version of section 186.22. With the relevant aspects of AB 333 applying retroactively, this disconnect with the law as it has since been amended constitutes error affecting defendant’s conviction for active participation in a criminal street gang and the true findings as to the gang enhancements.

Under Chapman, vacating the jury’s finding is required unless it appears beyond a reasonable doubt that the finding would have been the same’ under current law. If there is any reasonable possibility that the error might have contributed to the finding, vacatur is required.

Authority:

People v. Aguirre (2025) 18 Cal.5th 629, 715

In re A.M. (2024) 102 Cal.App.5th 557, 570

People v. Tran (2022) 13 Cal.5th 1169, 1207

People v. Lewis (2006) 139 Cal.App.4th 874, 887

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

Third Holding:

We cannot say the jury would have found appellant guilty of active participation in a criminal street gang, or found true the special allegations, beyond a reasonable doubt under the new law based on the record. The evidence provides little information from which the jury could infer the predicate offenses benefitted a gang in a way that was more than reputational, much less connect the offenses to the organizational structure, primary activities, or common goals and principles of the gang.

Authority:

People v. Lamb (2024) 16 Cal.5th 400, 454 [absence of evidence how predicate offenses actually benefitted the gang cannot preclude finding that the benefit was merely reputational


Fourth Holding:
The defendant’s remaining contentions need not be addressed by this court, as he will be able to address his concerns in the trial court upon full resentencing. We decline to advise the trial court about its future application of the sentencing laws.

Authority:
People v. Slayton (2001) 26 Cal.4th 1076, 1084 [As a general rule, we do not issue advisory opinions indicating what the law would be upon a hypothetical state of facts.]