Tag Archives: Elements of crime

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

Case 000828

Posted on by Gary McCurdy

Error and/or relief

The Trial Court Erred by Failing to Instruct on the Lesser Included Offense of Nonforcible Lewd Acts as to Count 8.

First Holding:

A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive.

Authority:

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

Second Holding:

On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense. Where a trial court has erred in failing to instruct on a lesser included offense, we review for prejudice under the standard set forth in Watson. Under this standard, the failure to instruct on a lesser included offense is not subject to reversal unless it is reasonably probable a more favorable result would have been obtained absent the error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

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

People v. Beltran (2013) 56 Cal.4th 935, 955

Third Holding:

Nonforcible lewd act under section 288(a), is a lesser included offense of forcible lewd act under section 288(b)(1). The crimes are distinguishable in that forcible lewd act requires the defendant to have committed the crime by means of force, violence, duress, menace, or fear.

Authority:

People v. Chan (2005) 128 Cal.App.4th 408, 421

People v. Griffin (2004) 33 Cal.4th 1015, 1026

Fourth Holding:

In this context, force means physical force substantially different from or substantially greater than that necessary to accomplish the act itself. Fear has been defined as (1) A feeling of alarm or disquiet caused by the expectation of danger, pain, disaster, or the like; terror; dread; apprehension and (2) Extreme reverence or awe, as toward a supreme power.

And duress as used in this context means a direct or implied threat of force, violence, danger, hardship or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to (1) perform an act which otherwise would not have been performed or, (2) acquiesce in an act to which one otherwise would not have submitted.

Authority:

People v. Cochran (2002) 103 Cal.App.4th 8, 13, disapproved on another ground in People v. Soto (2011) 51 Cal.4th 229, 248, fn. 12

People v. Cardenas (1994) 21 Cal.App.4th 927, 939–940

Fifth Holding:

On this record, there is simply no evidence that the defendant employed the requisite force, duress, or fear to commit the forcible lewd act charged in count 8.

Authority:

People v. Espinoza (2002) 95 Cal.App.4th 1287, 1319–1321

Sixth Holding:

Consequently, we must reverse the judgment and conviction for forcible lewd act under section 288(b)(1), as charged in count 8. Under settled law, the judgment will be modified to reflect a conviction for nonforcible lewd act under section 288(a), unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Seventh Holding:

The federal and state prohibitions against ex post facto laws apply to any statute that punishes as a crime an act previously committed which was not a crime when done or that inflicts greater punishment than the applicable law when the crime was committed.

It is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.

And, where the prosecutor failed to establish at trial when the charged acts occurred, it would be inappropriate for an appellate court to review the record and select among acts that occurred before and after that date, or to infer that certain acts probably occurred after that date.

In sum, as to counts 8 and 10, the prosecution failed to present unambiguous evidence that the acts underlying these counts occurred after the law increasing the sentence range took effect. Given the ambiguity, the trial court was not permitted to impose the harsher penalty under the revised law as to these counts.

The defendant’s 10-year sentences on counts 8 and 10 therefore violate the ex post facto clause and resentencing is required on these counts. At resentencing, as to counts 8 and 10, the court must apply the sentencing provisions applicable before the statute was amended to increase the sentence range.

Authority:

People v. Hiscox (2006) 136 Cal.App.4th 253, 256, 261

Eighth Holding:

Because we conclude that the judgment must be reversed in part and this action must be remanded to the trial court for further proceedings, the defendant will ultimately be entitled to full resentencing.

Authority:

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

People v. Navarro (2007) 40 Cal.4th 668, 681 [Although the Court of Appeal’s prior remand order was for resentencing on the modified convictions only, we believe a remand for a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.]

Appellate Principles, Elements of crime, Jury trial

Case 000824

Posted on by Gary McCurdy

Error and/or relief

The conviction on count 2 must be reversed because it is a lesser included offense of count 1.

First Holding:

The law prohibits simultaneous convictions for both a greater offense and a lesser offense necessarily included within it, when based on the same conduct. 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.

Authority:

People v. Milward (2011) 52 Cal.4th 580, 589

Second Holding:

Assault with a firearm is a lesser included offense of assault with a semi-automatic firearm. Accordingly, the defendant’s conviction for assault with a firearm must be reversed

Authority:

People v. Martinez (2012) 208 Cal.App.4th 197, 199

Elements of crime

Case 000808

Posted on by Gary McCurdy

Error and/or relief

A jury convicted the defendant of assault with a semiautomatic firearm and shooting at an occupied motor vehicle. The conviction for assault with a firearm must be reversed because it is a lesser included offense of assault with a semiautomatic firearm. We reverse the conviction for assault with a firearm.

First Holding:

Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. A defendant cannot be convicted of both an offense and a lesser included offense. If the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed.

Authority:

People v. Jennings (2010) 50 Cal.4th 616, 667–668

People v. Martinez (2012) 208 Cal.App.4th 197, 199

People v. Moran (1970) 1 Cal.3d 755, 763

Second Holding:

Here, the greater offense, assault with semiautomatic firearm (sec. 245(b))includes all the elements of the lesser offense, assault with a firearm (sec. 245(a)(2)). Therefore, we reverse the conviction on count 4 for assault with a firearm.

Authority:

People v. Martinez (2012) 208 Cal.App.4th 197, [A semiautomatic firearm assault cannot be committed without also committing a firearm assault.]

Amelioration, Sentencing

Case 000803

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by believing that, because the defendant pleaded guilty to attempted murder after the original the original effective date of section 1172.6., the defendant was ineligible for section 1172.6 relief as a matter of law.

First Holding:

We review de novo a trial court’s denial of a section 1172.6 resentencing petition at the prima facie stage.

Authority:

People v. Lovejoy (2024) 101 Cal.App.5th 860, 865

Second Holding:

Effective January 1, 2019, SB 1437 eliminated natural and probable consequences liability for murder as it applies to aiding and abetting and limited the scope of the felony-murder rule. SB 1437 also established a procedure for convicted individuals to retroactively seek resentencing relief if they had been convicted under either the natural and probable consequences doctrine or felony murder rule, as set forth in what is now section 1172.6.

Section 1172.6(c) provides that after the submission of a petition for relief, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. A denial of the petition 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.

Authority:

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

People v. Ervin (2021) 72 Cal.App.5th 90, 101

Third Holding:

The trial court erred in denying the defendant relief at the prima facie stage. If the court issues an order to show cause it must then hold an evidentiary 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.

Authority:

PEN 1172.6(d)

Fourth Holding:

Ordinarily, section 1172.6 resentencing relief would be unavailable as a matter of law to a petitioner who, like the defendant here, was convicted after the effective date of SB 1437. However, in the years immediately following the passage of SB 1437, there was considerable controversy among the Courts of Appeal as to whether it eliminated the natural and probable consequences theory in connection with the crime of attempted murder.

This controversy was resolved upon the passage of SB 775, effective January 1, 2022, which among other things clarifies that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief under section 1172.6 as those persons convicted of murder under the same theories.

Authority:

People v. Lezama (2024) 101 Cal.App.5th 583, 590

People v. Alaybue (2020) 51 Cal.App.5th 207, 222 [summarizing the split of opinions between various Courts of Appeal]

Fifth Holding:

The defendant’s attempted murder guilty plea here was entered during the interim period between the effective dates of Senate Bill No. 1437 and Senate Bill No. 775, when the law was unsettled as to whether an individual could be convicted of attempted murder based on the natural and probable consequences theory.

Because the People struck the “willful, deliberate, and premeditated” allegation from the attempted murder charge to which the defendant pled guilty, it is possible that the prosecution proceeded under the now-disallowed theory of natural and probable consequences, which would entitle the defendant to resentencing under section 1172.6.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 337-338 [where defendant did not plead to a particular type of malice in connection with his attempted murder plea, or a specific theory of guilt in connection with his voluntary manslaughter plea, the prosecution could have proceeded under any theory of liability, including a natural and probable consequences theory]

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

Case 000796

Posted on by Gary McCurdy

Error and/or relief

The conviction of assault with a firearm is reversed for insufficient evidence.

First Holding:

Section 245(a)(2), criminalizes the commission of an assault upon the person of another with a firearm. Assault is defined by statute as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.

Authority:

PEN 245(a)(3)

PEN 240

Second Holding:

Assault is a general intent crime. It requires proof that the defendant willfully committed an act that by its nature will probably and directly result in injury to another. Further, the defendant must have been aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result.

Authority:

People v. Williams (2001) 26 Cal.4th 779, 782, 788

Third Holding:

The actus reus of assault is the present ability to commit a violent injury on the person of another. It is the action enabling[a defendant to inflict a present injury. The present ability element is satisfied when a defendant has attained the means and location to strike immediately. In this context, however, immediately does not mean instantaneously. It simply means that the defendant must have the ability to inflict injury on the present occasion even if the defendant is several steps away from actually inflicting injury.

Authority:

PEN 240

People v. Chance (2008) 44 Cal.4th 1164, 1167-1168, 1172

People v. Licas (2007) 41 Cal.4th 362, 370

Fourth Holding:

As a general rule, a defendant cannot commit assault with a firearm using an unloaded or inoperable weapon, unless the firearm is used as a club or bludgeon. The reason is straightforward: absent the means to fire the weapon, the defendant lacks the present ability to commit a violent injury on the person threatened, in the manner in which the injury is attempted to be committed.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 11, fn. 3

People v. Mosqueda (1970) 5 Cal.App.3d 540, 544 [person pointing an unloaded gun at another has no present ability to commit a violent injury]

People v. Ranson (1974) 40 Cal.App.3d 317, 321

People v. Fain (1983) 34 Cal.3d 350, 357, fn. 6

People v. Valdez (1985) 175 Cal.App.3d 103, 110–111, 112 [assault defendant with an unloaded gun lacks personal means to inflict injury]

People v. Wolcott (1983) 34 Cal.3d 92, 102

People v. Orr (1974) 43 Cal.App.3d 666, 672

People v. Sylva (1904) 143 Cal. 62, 64

People v. Lee Kong (1892) 95 Cal. 666, 669 [it cannot be said that a person with an unloaded gun would have the present ability to inflict an injury upon another many yards distant]

People v. Chance (2008) 44 Cal.4th 1164, 1167-1168, 1173, fn. 11 [as the unloaded gun cases demonstrate, the defendant must have an actual, not merely apparent, ability to inflict injury]

Fifth Holding:

This rule, however, is not categorical. Consistent with Chance’s explanation that present ability requires only the ability to inflict injury on the present occasion, courts have recognized that an unloaded or inoperable firearm may support assault liability where the evidence establishes the defendant had the means to load and/or render it operable immediately.

Authority:

People v. Lattin (2024) 107 Cal.App.5th 596, 612, 620 [there is no brightline-rule requiring a loaded firearm]

People v. Ranson (1974) 40 Cal.App.3d 317, 321

Sixth Holding:

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This determination presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.

Authority:

People v. Cardenas (2025) 18 Cal.5th 797, 821

Seventh Holding:

(Gary note: the court then outlined the evidence and concluded that it was insufficient to support this count. The defendant pulled the trigger but the gun was unloaded, and there was no evidence that he had the ability to reload it at the time of the offense. Thus, he had no present ability.)

Accordingly, the conviction on count 2 must be reversed for insufficient evidence, and double jeopardy bars retrial on that charge. The associated firearm enhancement (sec. 12022.5(a)) necessarily falls with the conviction. We vacate appellant’s sentence and remand the matter for resentencing.

Authority:

Lockhart v. Nelson (1988) 488 U.S. 33, 39

Eighth Holding:

A full resentencing is appropriate when part of a sentence is stricken on review. This permits the trial court to exercise its sentencing discretion in light of the changed circumstances.

Authority:

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