Tag Archives: Elements of crime

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000388

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in not reevaluating the conviction for gang criminal activity under the provisions of AB 333, enacted after the original sentencing.

First Holding:

When any aspect of a case is on appeal from sentencing, the case or prosecution has not been reduced to final judgment for Estrada retroactivity purposes.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 397

In re Estrada (1965) 63 Cal.2d 740

Second Holding:

AB 333’s changes to section 186.22 apply retroactively under Estrada.

Authority:

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

Third Holding:

AB 333 essentially adds new elements to the substantive offense and enhancements in section 186.22. AB 333 made the following changes to the law on gang enhancements: First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. These changes also apply to the crime of active participation in a criminal street gang.

Authority:

PEN 186.22

People v. E.H. (2022) 75 Cal.App.5th 467, 479

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

People v. Rojas (2023) 15 Cal.5th 561, 565

Amelioration, Sentencing

Case: 000384

Posted on by Gary McCurdy

Error and/or relief

The matter must be remanded for the trial court to determine whether the defendant’s 2010 conviction still constitutes a serious felony and strike in like of the application of AB 333.

Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. Among other things, AB 333 changed the elements of gang offenses and enhancements 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. 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.

Authority:

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

Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case: 000383

Posted on by Gary McCurdy

Error and/or relief

Though we find sufficient evidence to support the convictions, we conclude the evidence does not support the challenged large quantity aggravating circumstances attached to three of the counts.. There were several errors in the abstract of judgment, but they were corrected after the opening brief was filed.

First Holding:

In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, 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. An appellate court must accept logical inferences that the trier of fact might have drawn from the evidence even if the court would have concluded otherwise.

Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. The same standard of review applies when the conviction rests on circumstantial evidence. The standard of appellate review for determining the sufficiency of the evidence supporting an enhancement is the same as that applied to a conviction.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 11

People v. Halvorsen (2007) 42 Cal.4th 379, 419

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

People v. Kraft (2000) 23 Cal.4th 978, 1053

People v. Weddington (2016) 246 Cal.App.4th 468, 483

Second Holding:

Possession may be actual or constructive. Actual possession means the contraband is in the defendant’s immediate possession or control. A defendant has actual possession when that defendant has the contraband. Constructive possession means the contraband is not in the defendant’s physical possession, but the defendant knowingly exercises control or the right to control the object. Dominion and control is readily found when the controlled substance is discovered in a place such as a defendant’s residence, vehicle, or among his, her, or their personal effects. Exclusive possession is not necessary. A defendant does not avoid conviction if his, her, or their right to exercise dominion and control over the place where the contraband was located is shared with others.

Authority:

In re Daniel G. (2004) 120 Cal.App.4th 824, 831

People v. Busch (2010) 187 Cal.App.4th 150, 162

Third Holding:

Mere proximity to a prohibited item, however, is not sufficient evidence of possession. In Martin, the court concluded the evidence demonstrated the defendant had mere access or proximity when the stolen goods were found in his codefendant’s car without evidence linking the stolen goods to the defendant. In Myles, the evidence was insufficient to establish possession of stolen televisions found in the trunk of a car in which the defendant was a passenger. In Zyduck, the appellate court rejected the argument that the defendant’s mere presence in a car owned and driven by another, in which the stolen property is readily visible, is enough to show possession.

Authority:

People v. Martin (1973) 9 Cal.3d 687, 696,

People v. Myles (1975) 50 Cal.App.3d 423, 429

People v. Zyduck (1969) 270 Cal.App.2d 334, 335-336

People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417, disapproved on another ground in People v. Farwell (2018) 5 Cal.5th 295, 304 & fn. 6

Fourth Holding:

The defendant did not forfeit the challenge to the quantity enhancement by failing to object below. As to forfeiture, an objection is generally required to challenge on appeal a trial court’s reliance on an improper factor in imposing a sentence. However, sufficiency of the evidence has always been viewed as a question necessarily and inherently raised in every contested trial of any issue of fact, and requiring no further steps by the aggrieved party to be preserved for appeal. Parties may generally challenge the sufficiency of the evidence to support a judgment for the first time on appeal because they necessarily objected to the sufficiency of the evidence by contesting it at trial.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 353

In re K.F. (2009) 173 Cal.App.4th 655, 660

People v. McCullough (2013) 56 Cal.4th 589, 596

Fifth Holding:

California Rules of Court, rule 4.421(a)(10) provides a circumstance in aggravation occurs when the crime involved a large quantity of contraband. In light of the testimony of the witnesses, there was insufficient evidence to support the jury’s finding that the the quantity possessed by the defendant constituted a large quantity.

Authority:

Rules of Court, rule 4.421(a)(10)

Sixth Holding:

Typically, when part of a sentence is stricken on review, a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. However, the record in this case demonstrates with unusual clarity that remand would be an idle act. The trial court indicated it was going to impose the middle term on all counts except those three on which the jury found the large quantity factor in aggravation. It is clear that but for those findings, it would have imposed the middle term. Having concluded that there was insufficient evidence to support those findings, we modify the judgment to impose the middle term for the affect counts.

Authority:

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

People v. Flores (2020) 9 Cal.5th 371, 432

Elements of crime, Sentencing

Case: 000379

Posted on by Gary McCurdy

Error and/or relief

In 2023 a jury convicted the defendant of, among other things, receiving a stolen vehicle and operating a chop shop. On appeal, the defendant seeks to vacate the former conviction because it is a lesser included offense of the latter. The People agree. We agree with the parties, reverse the conviction, and remand for resentencing.

First Holding:

In California, a single act or course of conduct by a defendant can lead to convictions of any number of the offenses charged. But a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. In deciding whether an offense is necessarily included in another, we apply the elements test, asking whether all the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense. In other words, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. Where defendant is convicted of a greater and an included offense, the conviction for the included offense must be reversed.

Authority:

People v. Montoya (2004) 33 Cal.4th 1031, 1034

People v. King (2000) 81 Cal.App.4th 472, 475

Second Holding:

Receiving stolen property is a lesser included offense of operating a chop shop. The elements of receiving stolen property are (1) stolen property; (2) knowledge that the property was stolen; and (3) possession of the stolen property. Operating a chop shop requires the same elements but adds the further requirement that the defendant intentionally own or operate a place in which such stolen property is altered, destroyed, disassembled, dismantled, reassembled, or stored in order to change their identity or to sell them. Accordingly, all of the elements of receiving stolen property are necessarily included in running a chop shop where, as here, it is clear from the information that the stolen property alleged to have been received is the same property, i.e., the stolen motor vehicles, that constitute the chop shop violation.

Authority:

People v. King (2000) 81 Cal.App.4th 472, 476

Third Holding:

Because we reverse one of the defendant’s convictions, we must also remand to allow the trial court to conduct a full resentencing based on the surviving convictions.

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.]

Elements of crime, Sentencing

Case: 000375

Posted on by Gary McCurdy

Error and/or relief

Two murders support only one special circumstance of multiple murders. We strike one of the two multiple-murder enhancements.

First Holding:

Two murders support only one multiple-murder special circumstance.

Authority:

People v. Avena (1996) 13 Cal.4th 394, 425

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

Case: 000374

Posted on by Gary McCurdy

Error and/or relief

The defendant was not the actual killer in the 1995 crime, but the trial court denied his 1172.6 petition based on finding that he was a substantial participant in the underlying felony and thus could be convicted of felony murder even under current law. We do not find substantial evidence to support a finding that the defendant subjectively appreciated (knew) that his actions would likely result in the victim’s death death (i.e., reckless indifference to human life). Thus, we reverse the order of the trial court denying the defendant’s section 1172.6 petition. On remand, the trial court is directed to grant the petition, vacate the murder conviction, and resentence the defendant.

First Holding:

A person who did not kill or act with the intent to kill cannot be liable under a first degree felony-murder theory unless there is substantial evidence that the person was a major participant in the underlying felony and that they subjectively appreciated that their acts were likely to result in the taking of innocent life.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 893

Second Holding:

We accept the trial court’s findings to the extent they are supported by substantial evidence. Substantial evidence means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.

Authority:

People v. Breslin (2012) 205 Cal.App.4th 1409, 1415–1416

People v. Lehman (2016) 247 Cal.App.4th 795, 804

 

Third Holding:

Except for strict liability offenses, every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea. As to murder, the actus reus is the perpetrator’s act causing death, and the mens rea is malice aforethought. Effective January 1, 2019, the Legislature passed SB 1437, which amended sections 188 and 189. The legislation effectively eliminated the natural and probable consequences doctrine as it relates to murder, and narrowed the scope of the felony-murder rule. The legislation also created a procedure by which a defendant previously convicted of murder under either of those former theories could file a petition for resentencing.

The Legislature’s current version of the felony-murder rule now provides that a participant in the perpetration or attempted perpetration of a felony listed in subdivision (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.

Authority:

PEN 189

PEN 1172.6.

People v. McCoy (2001) 25 Cal.4th 1111, 1117

Fourth Holding:

For felony-murder, the required act is being a major participant in the underlying felony, and the required mental state is a reckless indifference to human life.

Authority:

PEN 189

Fifth Holding:

Ordinarily, the United States Supreme Court has held that the prohibition against cruel and unusual punishments requires a defendant to have either an express or implied intent to kill in order for the death penalty to apply. But as an exception, the Court held that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.

Authority:

Enmund v. Florida (1982) 458 U.S. 782, 797 [wheelman who did not participate in killing during armed robbery could not receive the death penalty]

Tison v. Arizona (1987) 481 U.S. 137, 158

Sixth Holding:

In Banks, the California Supreme Court later identified a nonexclusive list of factors that are relevant in deciding whether a person was a major participant under the felony-murder special circumstance. The major participant factors identified in Banks are these: What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?

No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant’s participation in criminal activities known to carry a grave risk of death was sufficiently significant to be considered major.

Authority:

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

Seventh Holding:

In Clark, the Court identified a nonexclusive list of factors that are relevant in deciding whether a person acted with reckless indifference to human life: the defendant’s knowledge, and the use and number of weapons; the defendant’s proximity to the crime and opportunity to stop the killing or aid the victim; the duration of the conduct, that is, whether a murder came at the end of a prolonged period of restraint of the victims by defendant; the defendant’s awareness his or her confederate was likely to kill; and the defendant’s efforts to minimize the possibility of violence during the crime.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618-623

Eighth Holding:

Reckless indifference encompasses both subjective and objective elements. As to the subjective element, 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. As to the objective element,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.

Authority:

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

Ninth Holding:

The degree of risk to human life is crucial to the analysis. The possibility of bloodshed is inherent in the commission of any violent felony, such that one who perpetrates or attempts to perpetrate such a crime may well anticipate the use of lethal force as a possibility. Were that degree of culpability sufficient, however, it would amount to little more than a restatement of the former felony-murder rule that the Legislature retired. 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. Emanuel (2025) 17 Cal.5th 867, 884

Tenth 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. Although any person who plans or participates in an armed robbery can be said to anticipate that lethal force might be used, only about 1 in 200 armed robberies result in death.

Authority:

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

Eleventh Holding:

Courts must conduct a fact-intensive, individualized inquiry into where a defendant’s conduct falls on the spectrum of culpability between Enmund (the wheelman who merely participated in the underlying felony) and Tison (the defendants who armed escaped convicts and whose actions over a prolonged period demonstrated that they knew that the escapees were likely to kill).

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 882-883

Amelioration, Appellate Principles, Retroactivity, Sentencing

Case: 000370

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to deny the defendant’s second petition for recall of sentence under section 1172.6 as successive, because there were changes in the statutory law between the first and the second. Remanded for the court’s consideration of the second petition.

Holding:

The defendant maintains that changes in statutory and decisional law after the denial of his first resentencing petition dictate that it not be accorded preclusive effect. On the merits, he argues that the jury’s verdict does not conclusively establish he is ineligible for relief as a matter of law. Asserting that his conviction for first degree murder may have been based on the felony murder rule, he contends he has made a prima facie case for relief and is entitled to an evidentiary hearing. The Attorney General appropriately concedes error.

Because there were several applicable changes to the law since the denial of appellant’s first petition, the second petition was not barred under principles of collateral estoppel. These include amendments to the statute limiting reliance on a prior appellate opinion to the procedural history of the case and providing that substantial evidence to support a murder conviction is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. Further, caselaw has clarified that at the prima facie stage, a trial court must not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

PC 1172.6(d)(3)

People v. Jimenez (2024) 103 Cal.App.5th 994, 1005

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

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

Amelioration, Sentencing

Case: 000368

Posted on by Gary McCurdy

Error and/or relief

The defendant was sentenced to LWOP in the 1980s for his murder and robbery conviction. In a 2022 resentencing hearing under section 1172.75, the superior court declined to resentence the defendant because of prior convictions for sexually violent offenses that made him ineligible. The court erred, as the prior prison term enhancement subjection to review under section 1172.75 was based on escape, not on his prior sexually violent offenses. His prior sexually violent offenses were not a basis to render him ineligible for resentencing.

First Holding:

Defendant’s prior prison term enhancement was imposed based on a conviction for escape, which is not a sexually violent offense as defined in Welfare and Institutions Code section 6600(b) Thus, the enhancement was not imposed for a prior conviction for a sexually violent offense under section 1172.75(a).

Authority:

PEN 1172.75(a)

WIC 6600(b)

People v. Green (2024) 104 Cal.App.5th 365, 370-373

Second Holding:

Under section 1172.75(f), commencing on January 1, 2025, an individual who has been convicted of a sexually violent offense as defined in Welfare and Institutions Code section 6600(b) and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c), is not eligible for recall and resentencing under this section. This subdivision does not apply retroactively. But the defendant’s sentence was reviewed in 2022, and by its terms the section 1172.75(f) restriction is not retroactive. The disqualification does not apply to the defendant.

Authority:

PEN 1172.75(f)

Amelioration, Sentencing

Case: 000366

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by: (1) refusing to strike a prior serious felony enhancement attached to the defendant’s conviction for one count of possession of a firearm after an associated gang enhancement was dismissed; and (2) maintaining an indeterminate sentence on that same count. Accordingly, we will vacate the sentence for that count, strike one of the associated serious felony enhancements, and remand for resentencing consistent with Penal Code section 667(e)(1).

First Holding:

The defendant was sentenced to a Three Strikes indeterminate sentence and the sentence was enhanced for a prior serious felony conviction. During the appeal from that conviction, AB 333 was enacted to change the elements of section 186.22 regarding the crime and enhancements for gang criminal activity. As a result of the opinion in Valencia we reversed the conviction for violation of section 186.22 in count 5, and the jury’s finding that defendant committed the attempted shooting at an occupied vehicle (count 1) and possessed a firearm (count 7) for the benefit of a criminal street gang.

We remanded to give the prosecution an opportunity to retry count 5 and the gang enhancement allegations on counts 1 and 7 under amended section 186.22. The trial court granted the prosecution’s motion to dismiss count 5 and the gang enhancement allegations as to counts 1 and 7. The court denied the defendant’s request to sentence the defendant to a determinate term and rejected his argument that the basis of the count 7’s status as serious felony had been undermined by AB 333, and it was no longer a serious felony to support either the five-year enhancement for his prior serious felony or as a third strike. The court erred. Count 7 was only considered a serious felony by reason of the jury’s true finding on the gang enhancement. With the gang enhancement out of the picture, count 7 could no longer be considered a serious felony.

Authority:

PEN 186.22

PEN 667

PEN 1192.7(c)(28)

People v. Valencia (2021) 11 Cal.5th 818

Second Holding:

Count 7 was only a serious felony by reason of the gang enhancement, which had been stricken. Therefore, he was not convicted in the current case of a third strike, and was subject to only a doubling of his sentence, not a life term.

Authority:

PEN 667

Amelioration, Elements of crime, Sentencing

Case: 000362

Posted on by Gary McCurdy

Error and/or relief

The record of conviction does not show as a matter of law that defendant is ineligible for resentencing under section 1172.6 on his murder and attempted murder convictions. The jury was instructed on the natural and probable consequence doctrine, and the record does not show the jury necessarily found all elements of murder and attempted murder under current law. We therefore reverse the trial court’s order denying defendant’s petition.

First Holding:

SB 1437, effective in 2019, the Legislature amended sections 188 and 189 of the Penal Code to eliminate natural and probable consequences liability for murder as it applies to aiding and abetting, and to limit the scope of the felony-murder rule. Amended section 188 provides that except as stated in the amended section 189 governing felony murder, 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 bill also added what is now section 1172.6, which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. Relief is potentially available for a person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter .

Authority:

SB 1437

PEN 1172.6

People v. Lee (2023) 95 Cal.App.5th 1164, 1173

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

Second Holding:

The section 1172.6 petitioning process begins with the filing of a petition containing a declaration that all requirements for eligibility are met, including that the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 . If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. A defendant who petitions for resentencing under section 1172.6 is ineligible for resentencing only if the record conclusively establishes every element of the offense. In making that determination a court may give effect to a jury’s factual finding. If the petition survives the prima facie stage, the court must hold an evidentiary hearing at which the People bear the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by SB 1437.

Authority:

PEN 1172.6.

People v. Antonelli (2025) 17 Cal.5th 719, 724

People v. Curiel (2023) 15 Cal.5th 433, 463, 465

Third Holding:

Under the jury instructions given at defendant’s trial, the defendant could have been found guilty even if not the slayer, because there was a second person who was the slayer. Additionally, the finding defendant personally discharged a firearm and proximately caused great bodily injury and death does not establish the defendant intended to kill or was aware of the danger to life that his act posed. In sum, the jury verdict does not show as a matter of law defendant harbored malice aforethought. Under the trial court’s instructions, the jury could instead have concluded defendant aided and abetted an assault with a firearm the natural and probable consequences of which was murder. Thus, the entire record of conviction does not foreclose that defendant was convicted based on a now invalid theory of murder.

Authority:

People v. Offley (2020) 48 Cal.App.5th 588, 598

People v. Curiel (2023) 15 Cal.5th 433, 463, 465

Fourth Holding:

Under current law, attempted murder requires intent to kill. We cannot conclude, as a matter of law, that the record of conviction shows defendant harbored intent to kill. The jury finding that the attempted murder was committed willfully and with premeditation and deliberation shows only that the slayer harbored this mental state. The jury does not further identify the slayer. Additionally, the fact defendant intended to discharge a firearm does not show the defendant harbored a particular mental state.

Authority:

People v. Morales (2024) 102 Cal.App.5th 1120, 1132

People v. Offley (2020) 48 Cal.App.5th 588, 598 [explaining that section 12022.53(d) provides that the defendant must have intended to discharge a firearm, but does not refer to an intent to achieve any additional consequence.]

Amelioration, Retroactivity, Sentencing, Sufficiency of and substantial evidence

Case: 000357

Posted on by Gary McCurdy

Error and/or relief

On remand from the Supreme Court, the prior opinion is amended to vacate the strike finding and prior serious felony enhancement in light of AB 333, enacted after he was sentenced. As held in the original opinion, three of the four counts of felon in possession of a firearm must be vacated, because the same gun was possessed for all four underlying robberies.

First Holding:

The evidence is insufficient to support three of the four charged counts of being a felon in possession of a firearm because he possessed the same gun continuously and can therefore be convicted of only one count. As the Attorney General concedes, the evidence shows a single continuing offense without the interruption in possession necessary for separate crimes. (Indeed, to help prove identity of the perpetrator, the prosecutor relied on the fact that the same gun was used in all the offenses.) We will therefore reverse the judgment and order all but one firearm possession conviction vacated.

Authority:

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

Second Holding:

After defendant was sentenced, section 1170(b) was amended to create a presumption in favor of the low term under certain circumstances, including where the defendant was under age 26 at the time of the offense and youth was a contributing factor in the offense. Because that new provision is ameliorative, it applies retroactively to this nonfinal judgment.

Authority:

PEN 1170(b)(6)

People v. Flores (2022) 73 Cal.App.5th 1032, 1039

Third Holding:

The Attorney General does not dispute defendant was under 26 at the time of the offenses but argues resentencing is not required because there is no evidence youth was a contributing factor and the aggravating factors found by the court outweigh the mitigating factors such that the court would not have imposed the low term in any event. But when a court has imposed a sentence while unaware of the extent of its discretion—in this case because the legislation was not yet in effect—resentencing is required unless the record clearly indicates the court would have imposed the same sentence under the new standard. We are not persuaded that a lack of evidence showing youth contributed to the offense obviates the need for remand, as before the enactment of the new law, counsel may have had less incentive to present mitigation on the point, and defendant should now be allowed the opportunity to do so.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1096

Fourth Holding:

Defendant’s sentence was increased based on the finding that he was convicted in 2012 of a serious felony. The prior conviction is for assault under former Penal Code section 245(a)(1), which qualified as a prior serious felony because it was found to have been committed to benefit a criminal street gang under the version of Penal Code section 186.22 then in effect. The strike finding and prior serious felony enhancement must be vacated because legislation enacted after his sentencing (AB No. 333) added several elements to the gang enhancement statute and, if the current standard is applied to his 2012 conviction, the evidence in the record is insufficient to prove the new elements. 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. We will therefore remand for possible retrial as contemplated in Fletcher, or for resentencing without an increase to defendant’s sentence based on a prior serious felony conviction.

Authority:

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

Fifth Holding:

Effective January 1, 2020, Penal Code section 667.5(b) was amended to limit prior prison term enhancements (for nonviolent offenses not listed in 667.5(c)) to sentences that were served for sexually violent offenses as defined in Welfare and Institutions Code section 6600(b). The amendment applies retroactively and requires the prior prison term enhancements to be vacated because they were not based on sexually violent offenses.

Authority:

SB 136

PEN 667.5

Sixth Holding:

The trial court imposed a concurrent prison term for possessing ammunition, which should have been stayed under section 654 because the ammunition offense is based on the same conduct as unlawfully possessing a firearm, for which the court also imposed a prison term. When resentencing defendant, the trial court shall apply section 654 to stay any prison terms arising from conduct for which punishment is otherwise imposed.

[GARY NOTE: Section 654 now gives the court the discretion to impose punishment for ANY ONE of multiple counts (and stay the punishment on the other(s)) where section 654 applies, and does NOT require that it impose the sentence on the count bearing the greater sentence.]

Authority:

PEN 654

Sixth Holding:

On resentencing, the defendant will be entitled to consideration under the amendments to section 1385 under SB 81 to to limit sentencing enhancements by requiring that great weight be given to evidence of certain mitigating circumstances. By its terms, amended Penal Code section 1385 applies to all sentencings after January 1, 2022, which will include defendant’s resentencing.

Authority:

PEN 1385

Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000351

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction of aggravated sexual assault by sexual penetration under section 289. The One Strike law applies only to certain offenses. The offense resulting in conviction of Count 18 is not one of those offenses, and the One Strike Sentence for that count is modified accordingly.

First Holding:

Section 289 defines various terms pertaining to the conduct it describes as a crime. [Gary note: you just witnessed a little adjustment of precise language to maintain a “G” rating for this movie. If you have an issue involving this section, read it carefully for its definitions. In this case, the conduct in question did not meet the definition for violation of this section.]

Authority:

PEN 289(k)

Second Holding:

When reviewing for substantial evidence, we examine the entire record in the light most favorable to the prosecution to determine if a rational factfinder could find the essential elements of the crime beyond a reasonable doubt. Substantial evidence is reasonable, credible evidence of solid value, even if circumstantial. We will reverse only if upon no hypothesis whatever is there sufficient substantial evidence to support it.

Authority:

People v. Zamudio (2008) 43 Cal.4th 327, 357

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

Third Holding:

When insufficient evidence supports a conviction for a greater offense, we may modify the judgment to reflect a conviction for a lesser included offense.

Authority:

People v. Bailey (2012) 54 Cal.4th 740, 748

Fourth Holding:

The only lesser offenses here are time barred. Although the defendant did not raise the statute of limitations in his supplemental brief, a defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense. Because the only applicable lesser included offenses are time-barred, we must reverse the defendant’s conviction for count 19 for insufficient evidence.

Authority:

People v. Williams (1999) 21 Cal.4th 335, 338

Kellett v. Superior Court (1966) 63 Cal.2d 822, 827 [Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.]

Fifth Holding:

The One Strike law, section 667.61, applies only to certain felony sex offenses. The defendant’s Count 18 conviction is not among those offenses. Consequently, we reverse the jury’s two count 18 true findings under section 667.61.

Authority:

PEN 667.61(c)

People v. Anderson (2009) 47 Cal.4th 92, 102

People v. Seals (1993) 14 Cal.App.4th 1379, 1385

Sixth Holding:

The defendant contends his sentence of [hundreds of years to life] constitutes cruel and unusual punishment under the United States and California Constitutions. The defendant forfeited this claim of error. A claim that a sentence is cruel or unusual requires a fact specific inquiry and is forfeited if not raised below. At the sentencing hearing, defense counsel never invoked the state constitutional prohibition against cruel or unusual punishment (Cal. Const., art. I, sec. 17). The defendant did not adequately preserve an objection under the Eighth Amendment either. To the contrary, after imposing the sentence, the court asked if counsel for either side wanted to be heard, and defense counsel responded, “No.” As a result, the defendant’s federal constitutional claim is also forfeited.

Authority:

People v. Baker (2018) 20 Cal.App.5th 711, 720

People v. Boyce (2014) 59 Cal.4th 672, 731