Tag Archives: Elements of crime

Elements of crime, Pleading, Sufficiency of and substantial evidence

Case 001159

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support a conviction under section 290.10, which requires lifetime registrants to register the address of each of their residences, regardless of the number of days or nights spent at each residence.

First Holding:

Section 290.010 requires a person subject to lifetime registration under section 290 who regularly resides at more than one residence to register in each jurisdiction where those residences are located, regardless of the number of days or nights spent at each address.

Authority:

PEN 290.010

Second Holding:

The defendant identified one residence for several years, then registered as a transient. He was seen at the original residence and mail was found addressed to him at that address.

The Sex Offender Registration Act defines a “transient” as a person who has no residence. A “residence,” in turn, means one or more addresses at which a person regularly resides, regardless of the number of days or nights spent there. These definitions are dispositive. The defendant’s transient registration did not constitute one residence in addition to the Lakeside address.

Rather, once he regularly resided at the Lakeside address, he no longer qualified as a transient because he had a residence. Thus, his failure to register that address as a residence did not establish he had multiple residences or failed to register multiple residences as alleged in count 1.

Authority:

PEN 290.11(g)

Third Holding:

The evidence instead suggests the defendant violated section 290.011, which requires a transient who moves to a residence register that address within five working days. The People concede, and we agree, that charging the offense under section 290.010 was not harmless error. The defendant lacked notice that he was charged with violating section 290.011 and therefore had no opportunity to prepare or present a defense to that offense.

Accordingly, the conviction on count 1 must be reversed

Authority:

PEN 290.011(b)

People v. Jones (1990) 51 Cal.3d 294, 317

Elements of crime, Sentencing, Statutory interpretation

Case 001150

Posted on by Gary McCurdy

Error and/or relief

The court had no jurisdiction to issue a post-sentence protective order on a person who was neither a victim nor a percipient witness.

First Holding:

Although the defendant did not object to the protective orders, sentences entered in excess of a trial court’s jurisdiction may be challenged for the first time on appeal. We therefore address the defendant’s objection to the protective orders issued under section 136.2.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 852

People v. Ponce (2009) 173 Cal.App.4th 378, 381-382

Second Holding:

Section 136.2 does not authorize post-sentence protective orders based on his conviction for assault with a deadly weapon. Section 136.2(a) provides that, upon a good cause belief that a victim or witness was harmed, intimidated, or dissuaded, a court with jurisdiction over a criminal matter may issue an order restraining the defendant from, among other things, communicating with a specified witness or a victim except through an attorney under reasonable restrictions that the court may impose.

Section 136.2(i) also provides that when a criminal defendant has been convicted of certain specified offenses, at the time of sentencing a trial court shall consider issuing an order restraining the defendant from any contact with a victim that may extend up to 10 years. Subdivision (i)(2) also permits similar orders concerning percipient witnesses that have been harassed.

Authority:

PEN 136.2

Third Holding:

Prior to 2011, section 136.2 permitted protective orders only during the pendency of the criminal proceedings and did not authorize such orders after the defendant was sentenced.

Authority:

People v. Stone (2004) 123 Cal.App.4th 153, 159

People v. Ponce (2009) 173 Cal.App.4th 378, 382

People v. Selga (2008) 162 Cal.App.4th 113, 118

Fourth Holding:

The legislative history reveals that the Legislature added subdivision (i) to section 136.2 in express reliance on the decisions holding that subdivision (a) does not authorize post-sentencing restraining orders. Thus, it is clear that the Legislature understood that subdivision (a) of section 136.2 does not authorize post-sentence protective orders and that the section authorizes such orders only under subdivision (i).

Authority:

Sen. Com. on Public Safety, Rep. on Sen. Bill 723 (2011-2012 Reg. Sess.) Feb. 18, 2011, p. 6

Assem. Com. on Public Safety, Rep. on Sen. Bill 723 (2011-2012 Reg. Sess.) as amended May 2, 2011, p. 2

Fifth Holding:

Section 136.2(i) authorizes post-sentence protective orders when a criminal defendant has been convicted of a crime involving domestic violence, as defined in section 13700 or in section 6211 of the Family Code; a violation of section 236.1(a), (b), or (c) prohibiting human trafficking; section 261; section 261.5; former section 262; section 266h(a); section 266i(a); a violation of section 186.22; or a crime that requires the defendant to register pursuant to section 290(c).

The defendant’s conviction does not fall within any of those categories, and the protective order was unauthorized. The protective orders against the defendant are stricken.

Authority:

PEN 136.2(i)

Amelioration, Sentencing, Vicarious liability

Case 001143

Posted on by Gary McCurdy

Error and/or relief

In light of Morris, it was error to deny the defendant’s motion to recall his sentence under section 1172.6 based on the court’s conclusion that he was ineligible because the defendant was an aider and abettor to the underlying felony.

Holding:

In Morris, the court specifically held that an aider and abettor must aid the actual killer in the commission of the fatal act itself, not merely the underlying felony.

Authority:

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

Gary note:

This opinion was very short, because it was a remand from the Supreme Court’s grant of review, held pending the decision in Morris. This opinion does not discuss Morris and relies simply on its own recognition and the concession by the People that the defendant was not ineligible for consideration under section 1172.6 as a matter of law.

Though not cited by the court in this opinion, you can get the gist of Morris by the Supreme Court’s statement in Morris on page 678, “We interpret the statutory language to mean just what it says: the phrase ‘aided … or assisted the actual killer in the commission of murder in the first degree’ requires proof the defendant aided or abetted the actual killer in the lethal act itself, and not just the underlying felony.” The language it was interpreting was in section 188(a)(3), that malice “shall not be imputed to a person based solely on his or her participation in a crime.”

Under section 189(e)(2), when a person was not the actual killer, that person must have, “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.”

Elements of crime, Retroactivity, Sentencing

Case 001141

Posted on by Gary McCurdy

Error and/or relief

The court erred in sentencing the defendant for a term in prison that had not yet been enacted at the time of the crime.

First Holding:

On September 9, 2010, the Chelsea King Child Predator Prevention Act of 2010 went into effect, significantly increasing the penalties for sex crimes against minors by imposing longer determinate sentences, indeterminate sentences for some crimes, and longer parole restrictions.

The penalty for continuous sexual abuse of a minor under section 288.5 changed from 25 years to life from the former sentence of 15 years to life.

Authority:

People v. Soto (2011) 51 Cal.4th 229, 237, fn. 4

In re Vaquera (2024) 15 Cal.5th 706, 713-714 [The amendment to section 667.61 added subdivision (j)(2)to increase the penalty to 25 years to life]

Second Holding:

Our state and federal Constitutions prohibit ex post facto laws. Any law that applies to events occurring before its enactment and which disadvantages the offender either by altering the definition of criminal conduct or increasing the punishment for the crime is prohibited as ex post facto.

The offenses the jury found defendant had committed against the victim necessarily occurred prior to when she turned 14 years of age prior to the effective date of Chelsea’s Law. Thus, the increased punishment under Chelsea’s Law effective on September 9, 2010, was not applicable, and the court erred in imposing a 25-year-to-life sentence. The sentence is vacated, and the matter is remanded for further proceedings.

Authority:

People v. Rojas (2015) 237 Cal.App.4th 1298, 1306

Appellate Principles, Jury trial

Case 001134

Posted on by Gary McCurdy

Error and/or relief

The record must be amended to delete the term “or firearm” with respect to the jury’s true finding under section 667.61(e)(3).

Holding:

The jury answered “true” to the question of whether the defendant personally used a dangerous or deadly weapon or firearm within the meaning of section 667.61(e)(3). The jury instruction CALCRIM 3145 is limited to only the use of a dangerous or deadly weapon. It does not refer to firearms. The prosecutor’s closing argument expressly informed the jury that the prosecution was relying on [specific nonfirearm items] to be the dangerous or deadly weapon for purposes of section 667.61(e)(3). There was absolutely no evidence that a firearm was used in the commission of the crime.

These considerations lead to two conclusions. First, the jury’s verdict could not be based on the defendant using a firearm. Second, the verdict form’s use of the term firearm for purposes of count 3 conformed only to the general language of section 667.61(e)(3) and did not conform to either the evidence presented or the arguments and theories of the prosecution. Under these circumstances, we are satisfied that inclusion of the term firearm for purposes of count 3 and section 667.61(e)(3) was a clerical error.

Courts have the inherent power and discretion to correct clerical errors so that court records accurately reflect the true facts. This includes clerical errors that appear in a jury’s verdict form.

For accuracy’s sake and for the record to clearly reflect the true state of the facts, we will exercise our discretion and direct the trial court to strike the phrase “or firearm” the verdict form.

Authority:

People v. Alanis (2008) 158 Cal.App.4th 1467,1473–1474

People v. Trotter (1992) 7 Cal.App.4th 363, 370