Tag Archives: Elements of crime

Case 000947

Error and/or relief

The defendant was convicted of kidnapping, attempting kidnapping, and false imprisonment, and was sentenced on all three. We vacate the false imprisonment conviction and stay the sentence on the attempted kidnapping under section 654.

First Holding:

The defendant contends that (1) his conviction for the attempted kidnapping must be reversed because the completed kidnapping conviction covers the same conduct; and (2) his conviction for false imprisonment must be reversed because it is a lesser-included offense of the completed kidnapping crime of which he was convicted.

We review de novo these legal questions of whether convictions merge.

Authority:

People v. Chun (2009) 45 Cal.4th 1172

Second Holding:

The crime of kidnapping is a continuing offense that begins once the victim is forcibly moved and continues until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety. Thus, defendant could not stand convicted of two counts of kidnapping based on the uninterrupted, several-hour period where the defendant remained under defendant’s control.

Authority:

People v. Barnett (1998) 17 Cal.4th 1044, 1159

People v. Thomas (1994) 26 Cal.App.4th 1328, 1334-1335

Third Holding:

But the defendant stands convicted of kidnapping and attempted kidnapping.

Attempted kidnapping is no longer viewed as a lesser-included offense to the completed crime of kidnapping because the former requires proof of specific intent and the latter requires proof of asportation.

As a result, the rule that merges a completed crime with its lesser-included offense does not apply to the crimes of kidnapping and attempted kidnapping, and defendant is properly convicted of both crimes—but he cannot be sentenced on both crimes under section 654 given the uninterrupted kidnapping in this case.

Authority:

PEN 654

PEN 663

People v. Fontenot (2019) 8 Cal.5th 57, 76

People v. Medina (2007) 41 Cal.4th 685, 702

People v. Sanders (2012) 55 Cal.4th 731, 7

Fourth Holding:

Courts must determine the proper unit of prosecution for each crime based on whether the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. This doctrine explains why there could only be a single count of kidnapping, but does not account for the fact that attempted kidnapping and completed kidnapping are separate crimes, and that it is possible for defendant to stand convicted of both crimes.

Authority:

People v. Wilson (2015) 234 Cal.App.4th 193, 199

Fifth Holding:

Unlike attempted kidnapping, the crime of false imprisonment is a lesser included offense of kidnapping. As a result, the lesser-included crime merges upon conviction of the greater offense, and defendant’s false imprisonment conviction based on the same underlying conduct must be vacated.

Authority:

People v. Delacerda (2015) 236 Cal.App.4th 282, 296

People v. Chacon (1995) 37 Cal.App.4th 52, 65

People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820 [if both the false imprisonment count and kidnap[p]ing count relate to the same act, double conviction is prohibited]

People v. Jandres (2014) 226 Cal.App.4th 340, 362 [a defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act]

People v. Milward (2011) 52 Cal.4th 580, 589 [when the jury expressly finds defendant guilty of both the greater and lesser offense the conviction of [the greater offense is controlling, and the conviction of the lesser offense must be reversed]

Case 000946

Error and/or relief

The true findings on the two prior strike allegations must be vacated because of changes under AB 333. The matter is remanded for retrial on those allegations to determine whether the prior convictions still qualify as strikes or serious felonies under the current law.

First Holding:

AB 333 (2021-2022 Reg. Sess.) amended section 186.22 by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

After appellant filed his opening brief in this appeal, Fletcher resolved a conflict of authority regarding whether prior convictions with gang allegations are affected by these amendments. The court concluded that, 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).

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206

People v. Fletcher (2025) 18 Cal.5th 576, 58

Second Holding:

The record here shows defendant’s two pre-2018 convictions included gang enhancements, but provides no information regarding the evidence used to obtain the convictions or the defendant’s underlying conduct. Neither conviction is considered a serious felony within the meaning of section 1192.7 if not for the gang enhancement.

The current law applicable to this nonfinal proceeding includes AB 333’s redefinition of the elements of gang offenses and enhancements under section 186.22. There is no indication that the prior conviction was obtained under AB 333’s more stringent requirements, and the abstract of judgment does not alone prove the elements of the alleged prior serious felony and strike prior enhancements beyond a reasonable doubt.

The appropriate remedy is reversal of the findings on these enhancements for retrial under the correct law.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 606-607

Third Holding:

The true findings on the strike and the prior serious felony enhancement are reversed pursuant to Fletcher. Appellant’s sentence is vacated. The matter is remanded for retrial on the prior serious felony and strike convictions. If appellant is not timely retried regarding the prior strikes or one or both of the prior strikes are not proven, the trial court shall resentence appellant without the strikes. We also remand the matter for a full resentencing.

Authority:

PEN 1382(a)(2)

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

People v. Watts (2006) 131 Cal.App.4th 589, 597-598

Case 000945

Error and/or relief

The trial court erred by finding the defendant’s prior conviction for gang participation constituted a prior strike conviction within the meaning of the Three Strikes law. The true findings on the prior strike conviction and prior serious felony conviction are vacated and the case is remanded.

First Holding:

The trial court agreed with the prosecution that AB 333 was not before the court for consideration at the trial on whether the defendant suffered a prior strike conviction and a serious felony conviction. he court declined to consider the effect of AB 333 on the prior conviction and found true that the defendant had suffered a prior strike conviction and a prior serious felony conviction.

This was error. AB 333 applies to the determination of whether a prior conviction qualifies as a serious or violent felony. The true findings that the defendant suffered a prior strike conviction and a prior serious felony conviction are vacated and the matter is remanded.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 608

Second Holding:

On remand, if the People decide not to retry the enhancements, or at the conclusion of such a retrial, Jones will be entitled to a full resentencing. The court has a duty to ensure that all components of a sentence are authorized by the law and the facts at the time any new sentence is imposed.

Authority:

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. Walker (2021) 67 Cal.App.5th 198, 206

 

Case 000943

Error and/or relief

The defendant is entitled to a remand for the trial court to determine whether his strike prior is valid under current law, in light of the AB 333 changes to the gang activity law since the convictions of the purported strike offenses.

First Holding:

The defendant is entitled to a remand for the trial court to determine whether one of his strike priors satisfies the current requirements of the gang statute.

Authority:

AB 333

People v. Fletcher (2025) 18 Cal.5th 576, 583

Second Holding:

AB 333 amended section 186.22 to provide, among other things, that an offense committed on behalf of a gang may support a substantive gang offense, gang enhancement, or, by definition, a gang special circumstance finding, only if the common benefit to members of a gang is more than reputational. AB 333 applies retroactively to cases pending on appeal

Authority:

PEN 186.22

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

Third Holding:

Where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

If the record contains no indication that the defendant’s prior conviction was obtained under AB 333’s more stringent requirements, and the evidence used to prove the existence of the strike prior does not alone prove the elements of the alleged prior serious felony and strike prior enhancements beyond a reasonable doubt, the remedy is to provide the People an opportunity to retry the strike allegation under the current law.

And, if the People elect not to retry the strike prior or fail to prove beyond a reasonable doubt that it satisfies the requirements of AB 333, the trial court must dismiss the allegation and conduct a full resentencing.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 607

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

Case 000923

Error and/or relief

The instructional errors were prejudicial regarding the multiple-murder and lying-in-wait special circumstance findings attached to counts 1, 2 and 3.

We reverse those findings, but the prosecution may retry these special circumstance allegations.

The firearm enhancements found true as to counts 1, 2 and 3 must be reversed due to prejudicial error, including pleading deficiencies and insufficiency of the evidence. Retrial of the firearm enhancements is barred by principles of double jeopardy.

The trial court also erred by denying the defendant’s renewed motion for a transfer hearing in juvenile court under Welfare and Institutions Code section 707 as amended by AB 2361 (2021–2022 Reg. Sess.).

Accordingly, we conditionally reverse the judgment and remand the matter with directions to refer the case to the juvenile court for a transfer hearing under current law.

First Holding:

In setting forth the relevant pertinent facts in an appellate opinion, we view the record in the light most favorable to the judgment.

Authority:

In re Jesus O. (2007) 40 Cal.4th 859, 861

People v. Johnson (1980) 26 Cal.3d 557, 578

Second Holding:

In counts 1 through 3, the jury convicted appellant of first degree murder. The jury found true four special circumstance allegations: (1) lying in wait; (2) multiple murders; (3) murder in the commission of robbery; and (4) murder in the commission of burglary. Because of the special circumstance findings, appellant was sentenced to three consecutive LWOP terms.

There were several instructional errors, but many we find to have been harmless error. The instructional errors were prejudicial regarding the multiple-murder and lying-in-wait special circumstance findings attached to counts 1, 2 and 3.

We reverse those findings, but the prosecution may retry these special circumstance allegations. Even if the People do not elect to do so, however, a full resentencing is required.

(Gary note: The opinion concluded that some of the instructions permitted finding guilt on the natural and probable consequences doctrine, which has been abolished. Cutting to the chase in this summary, the court stated in its analysis whether the instructional error was harmless, the court stated, that the evidence overwhelmingly demonstrated that appellant acted as a major participant in these crimes and with his own reckless indifference to human life. It was satisfied beyond a reasonable doubt that any rational juror who convicted appellant of first degree murder would have necessarily found the facts required under section 189(e)(3).

(Also, the jury was erroneously told at times that, if appellant was not an actual killer, the lying-in-wait and the multiple-murder special-circumstance allegations could be found true merely if he was a major participant who acted with reckless indifference to human life. This was legally incorrect. If appellant was not the actual killer, then the prosecution was required to prove that he acted with an intent to kill for each murder in order to establish these special circumstance allegations. The court did not find the error harmless on those instructions, and reversed those special circumstances, allowing the prosecution to retry them.)

Authority:

PEN 188(a)(3) [Malice shall not be imputed to a person based solely on his or her participation in a crime]

PEN 190.2(c) and (d)

People v. Curiel (2023) 15 Cal.5th 433, 449

People v. Hallock (1989) 208 Cal.App.3d 595, 607 [conviction reversed for instructional error may be retried if supported by sufficient evidence]

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, a full resentencing is required so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Third Holding:

We reject the prosecution’s contention that the defendant has forfeited claims of instructional error by failing to object. Trial courts have a sua sponte duty to correctly instruct on the elements of the charged offenses and on special circumstance allegations.

No objection is required to preserve a claim for appellate review when the jury instructions omit an essential element of a charge.

Moreover, a court may review any question of law involved in an instruction which affects the substantial rights of the defendant. As alleged, the instructional errors in this matter altered the mens rea and actus reus elements that the jury was required to find.

Accordingly, we decline to find forfeiture, and we will review this claim on its merits.

Authority:

PEN 1259

People v. Mil (2012) 53 Cal.4th 400, 409

People v. Hardy (2018) 5 Cal.5th 56, 91 [declining to rely on forfeiture doctrine where alleged instructional errors would have impacted defendant’s substantial rights].

Fourth Holding:

The instructional errors impacted appellant’s constitutional rights because they permitted the jury to convict him on an invalid legal theory. Accordingly, we must reverse the convictions unless, after examining the entire cause—including the evidence and considering all relevant circumstances—we determine the errors, including the disputed ones, were all harmless beyond a reasonable doubt.

Authority:

Chapman v. California (1967) 386 U.S. 18, 24

In re Ferrell (2023) 14 Cal.5th 593, 602

People v. Aledamat (2019) 8 Cal.5th 1, 13

Fifth Holding:

When a jury is instructed on both a legally valid theory and a legally invalid theory of guilt, harmlessness can be shown if the jury verdict on other points effectively embraces the valid theory or if, based on the evidence, it is impossible to have found what the verdict did find without also finding the facts underlying the valid theory.

To make this assessment, we must rigorously review the evidence to determine whether any rational juror who found the defendant guilty based on an invalid theory, and made the factual findings reflected in the jury’s verdict, would necessarily have found the defendant guilty based on a valid theory as well.

We must be convinced that the errors were harmless beyond a reasonable doubt, and we must be satisfied that this standard is beyond serious debate.

We have rigorously reviewed the totality of the record to determine whether, based on the evidence, it is impossible for a rational juror to have found what the verdicts did find without also finding the facts underlying a valid theory.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 443-444

In re Lopez (2023) 14 Cal.5th 562, 568

In re Ferrell (2023) 14 Cal.5th 593, 602

Sixth Holding:

Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions.

Authority:

People v. Sanchez (2001) 26 Cal.4th 834, 852

Seventh Holding:

Section 12022.53(d) requires personal discharge by the defendant; it does not impose vicarious liability for another principal’s firearm discharge. Vicarious firearm liability is available only when a gang enhancement is proven. Once the gang allegations were dismissed on motion of the prosecution, the vicarious theory was unavailable.

Authority:

PEN 12022.53(d) and (e)

PEN 186.22(b)(1)

People v. Cooper (2023) 14 Cal.5th 735, 746

Eighth Holding:

Because personal discharge by appellant was neither charged nor expressly found true by the jury in the verdict forms, the court could not supply that missing fact at sentencing. Any fact increasing punishment must be found by the jury beyond a reasonable doubt.

The trial court lacked authority to stay the count 1 enhancement merely as an exercise of sentencing discretion. The court was only authorized to strike or dismiss the enhancement, not to stay it even based on its own discretionary sense of justice. Based on principles of double jeopardy, retrial is barred.

Authority:

PEN 12022.53(j)

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

People v. Lopez (2004) 119 Cal.App.4th 355, 364

Porter v. Superior Court (2009) 47 Cal.4th 125, 132–133 [“Because the prosecution had a full opportunity to prove the facts necessary for a conviction but failed to do so, double jeopardy bars a second bite at the apple”]

Curry v. Superior Court of San Francisco (1970) 2 Cal.3d 707, 712 [jeopardy attaches when a defendant is placed on trial in a court of competent jurisdiction on a valid accusatory pleading]

Ninth Holding:

In January 2011, appellant was 16 years old when he committed the present crimes. In 2012, he was charged directly in adult court. In 2016, appellant filed a motion for remand to the juvenile court and a transfer hearing under Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57). Proposition 57 was passed in November 2016, and it prohibited prosecutors from charging crimes against juveniles directly in adult court.

Authority:

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303

Tenth Holding:

Before sentencing occurred in this matter, AB 2361 (2021–2022 Reg. Sess.) amended Welfare and Institutions Code section 707. These changes were effective January 1, 2023.

AB 2361 increased the burden of proof the prosecution was required to establish in order for a juvenile to be prosecuted in adult criminal court.

Under the newer heightened standard, it must be shown by clear and convincing evidence that a juvenile should be transferred to adult criminal court.

These developments materially changed the requirements for transfer in effect when the defendant originally waived his right to a transfer hearing. AB 2361 applies retroactively to nonfinal cases.

Authority:

In re E.P. (2023) 89 Cal.App.5th 409, 416

In re S.S. (2023) 89 Cal.App.5th 1277, 1284

Eleventh Holding:

A person who is eligible to have his case proceed in juvenile court may knowingly waive this statutory right. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.

A criminal defendant cannot be deemed to have waived or forfeited a legal argument that was not recognized at the time of his trial. Even where a right may be waived, a waiver generally does not include protections that were not reasonably available or contemplated at the time.

The matter must be remanded to the juvenile court to conduct a transfer hearing.

Authority:

People v. Nguyen (1990) 222 Cal.App.3d 1612, 1620

People v. Johnson (2020) 45 Cal.App.5th 123, 132 [legal counsel may waive the right to a juvenile fitness hearing for an accused who has reached adulthood]

Johnson v. Zerbst (1938) 304 U.S. 458, 464

People v. Cardenas (2007) 155 Cal.App.4th 1468, 1479

People v. French (2008) 43 Cal.4th 36, 48 [in a negotiated plea, waiver of right to jury trial on charged offenses does not extend to proof of aggravating circumstances when no such jury right was recognized at time of plea]

People v. Panizzon (1996) 13 Cal.4th 68, 85 [general waiver of right to appeal from a negotiated plea agreement will not bar the appeal of sentencing errors occurring subsequent to the plea]
People v. Becerra (2019) 32 Cal.App.5th 178, 188 [defendant cannot knowingly and intelligently waive right to appeal an issue not contemplated at time of waiver].