Tag Archives: Elements of crime

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

Case 000767

Posted on by Gary McCurdy

Error and/or relief

We find that the evidence was sufficient to support the conviction for discharging a firearm for the benefit of a criminal street gang.

However, the defendant cannot be convicted of both discharging a firearm at a motor vehicle and grossly negligent discharge of a firearm at a motor vehicle, and the abstract of judgment must be corrected to list the enhancements found true.

First Holding:

In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether it discloses substantial credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on isolated bits of evidence. Resolving conflicts and inconsistencies in the testimony is the jury’s exclusive province.

We do not redetermine the weight of the evidence or the credibility of witnesses. Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.

Authority:

People v. Brooks (2017) 3 Cal.5th 1, 57

People v. Cuevas (1995) 12 Cal.4th 252, 261

People v. Young (2005) 34 Cal.4th 1149, 1181

People v. Albillar (2010) 51 Cal.4th 47, 60

Second Holding:

We must accept logical inferences that the trier of fact might have drawn from the evidence even if we would have concluded otherwise. If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

The reviewing court need not address assertions of conflicts in the evidence or alternative theories regarding the inferences that should have been drawn from the evidence. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. This is true for both direct and circumstantial evidence.

In this case, a reasonable jury could have found that the actions of the defendant were gang related and for the benefit of a gang.

Authority:

People v. Streeter (2012) 54 Cal.4th 205, 241, overruled on other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834

People v. Albillar (2010) 51 Cal.4th 47, 60

People v. Letner and Tobin (2010) 50 Cal.4th 99, 162

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

People v. Manibusan (2013) 58 Cal.4th 40, 87

People v. Thompson (2010) 49 Cal.4th 79, 113

Third Holding:

The crime of grossly negligent discharge of a firearm which could result in injury or death (sec. 246.3(a)) is a lesser included offense of discharging a firearm at a motor vehicle (sec. 246).

Although section 954 provides that a single act or course of conduct can lead to convictions of any number of the offenses charged, the courts have created an exception to this rule where multiple convictions are based on necessarily included offenses.

In Ramirez, our Supreme Court reviewed the elements of both offenses and concluded that the only difference between the two crimes, and the basis for the more serious treatment of a section 246 offense, is that the greater offense requires that an inhabited dwelling or other specified object be within the defendant’s firing range.

All the elements of section 246.3(a) are necessarily included in the more stringent requirements of section 246. Therefore, we shall reverse defendant’s conviction on the count alleging grossly negligent discharge of a firearm.

Authority:

PEN 954

People v. Ramirez (2009) 45 Cal.4th 980, 984–985

Fourth Holding:

The abstract of judgment fails to accurately reflect the sentence orally pronounced by the trial court. Courts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.

Authority:

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

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

Case 000760

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction on count 2, and there are errors in the abstract of judgment that must be corrected.

First Holding:

The defendant was charged with taking a vehicle in violation of Vehicle Code section 10851 and with receiving stolen property (the same vehicle) under Penal Code section 496d(a). He was convicted of both counts. Though there was sufficient evidence that he took the vehicle, there was no evidence on what he did with it before its discovery. The evidence supports the theory that defendant was on one continuous journey away from the locus of the theft’ with the golf cart after taking it from the company premises until it was placed at the location from which the victim later retrieved it.

Authority:

People v. Strong (1994) 30 Cal.App.4th 366, 375

Second Holding:

Where a defendant challenges the sufficiency of the evidence supporting a criminal conviction, we apply the substantial evidence standard of review. Accordingly, we review the whole record in the light most favorable to the judgment below 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.

While substantial evidence may consist of inferences, such inferences must be a product of logic and reason and must rest on the evidence; inferences that are the result of mere speculation or conjecture cannot support a finding.

Authority:

People v. Rangel (2016) 62 Cal.4th 1192, 1212

People v. Shively (2025) 111 Cal.App.5th 460, 468

Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633

Third Holding:

Vehicle Code section 10851(a) proscribes a wide range of conduct. A person can violate Vehicle Code section 10851(a) either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding). A taking is complete when the driving is not part of the escape from the scene of the theft.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

People v. Calistro (2017) 12 Cal.App.5th 387, 395

Fourth Holding:

A person who violates section 10851(a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. If, on the other hand, a section 10851(a) conviction is based on posttheft driving, a separate conviction under section 496(a) for receiving the same vehicle as stolen property is not precluded.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

Fifth Holding:

When a defendant is improperly convicted of both stealing and receiving the same stolen property, the theft conviction should be upheld and the receiving conviction reversed.

Authority:

People v. Ceja (2010) 49 Cal.4th 1, 10

Sixth Holding:

There were numerous errors in the abstract of judgment, in which the recitation of prison terms imposed were quite different than orally pronounced. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The abstract must be corrected.

Authority:

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

Amelioration, Elements of crime, Evidence, Sentencing, Vicarious liability

Case 000752

Posted on by Gary McCurdy

Error and/or relief

In denying the defendant’s petition for recall of his sentence imposed nearly 20 years ago for murder, attempted murder, a gang crime, and related enhancements, for which he was sentenced to life without the possibility of parole, plus 25 years to life, plus 20 years, the trial court erred in relying on the gang expert’s testimony that the defendant aided and abetted the shooter. The denial is reversed.

On remand, the court is directed to grant the petition, vacate the murder and attempted murder convictions, and resentence the defendant on the remaining substantive gang offense.

First Holding:

A defendant’s mere presence at a crime does not constitute substantial evidence that the defendant directly aided and abetted the commission of that crime.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 493

People v. Pettie (2017) 16 Cal.App.5th 23, 57–58 [Mere presence at the scene of a crime which does not itself assist its commission does not amount to aiding and abetting]

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.

Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence. However, a reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guesswork; a finding of fact must be an inference drawn from evidence rather than a mere speculation as to probabilities. By definition, substantial evidence requires evidence and not mere speculation.

Authority:

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

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

People v. Soriano (2021) 65 Cal.App.5th 278, 286

Third Holding:

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. However, it did not eliminate direct aider and abettor liability for murder or attempted murder. SB 1437 also added a procedure for those convicted under the former law to seek retroactive relief under the law as amended.

Authority:

People v. Gentile (2020) 10 Cal.5th 830, 848 [Senate Bill 1437 does not eliminate direct aiding and abetting liability for murder], superseded by statute on other grounds as stated in People v. Oyler (2025) 17 Cal.5th 756, 836

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

Fourth Holding:

Under section 1172.6, a petitioner must first file a petition containing a declaration that he or she is eligible for relief, including that he or she could not presently be convicted of murder because of changes to Section 188 or 189” effectuated by SB 1437. Upon the filing of a facially sufficient petition, the trial court must determine whether the petitioner has made a prima facie case for relief.

If the court concludes such a showing has been made, it must issue an order to show cause and hold an evidentiary hearing. At the evidentiary hearing, the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner is guilty of murder under the law as amended by SB 1437. The trial court acts as an independent fact finder and determines whether the evidence establishes that the petitioner is ineligible for resentencing.

Authority:

PEN 1172.6

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

People v. Cody (2023) 92 Cal.App.5th 87, 110

Fifth 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. All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission are principals in any crime so committed.

Authority:

PEN 31

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

Sixth Holding:

A person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.

Under direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another if the accomplice aids the commission of that offense with knowledge of the direct perpetrator’s unlawful intent and with an intent to assist in achieving those unlawful ends.

Authority:

People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295–296

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

Seventh Holding:

Proof of aider and abettor liability requires proof of a culpable actus reus on the part of the aider and abettor in the form of some conduct by him that in fact assisted the achievement of the crime. A defendant’s mere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant’s criminal responsibility.

Authority:

People v. Perez (2005) 35 Cal.4th 1219, 1225

People v. Richardson (2008) 43 Cal.4th 959, 1024

Eighth Holding:

Speculative testimony by a gang expert does not constitute substantial evidence to support a gang enhancement.

Authority:

People v. Soriano (2021) 65 Cal.App.5th 278, 288

People v. Ramon (2009) 175 Cal.App.4th 843, 847

Appellate Principles, Sentencing

Case 000743

Posted on by Gary McCurdy

Error and/or relief

Because the defendant was not convicted of a serious felony in this case, the two five-year prior serious felony enhancements are not authorized and must be stricken.

First Holding:

The Three Strikes law is a sentencing scheme that requires a court to double or sometimes triple the punishment for a felony offense if the defendant was previously convicted of a crime that qualifies as a serious or violent’ felony. The serious or violent felonies that trigger this sentencing scheme, commonly referred to as strikes or strike priors, are enumerated by statute. If a defendant’s current offense is a serious felony, the defendant is also subject to a five-year prior serious felony enhancement—a so-called ‘nickel prior’—in addition to any strike

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 582

People v. Thomas (1999) 21 Cal.4th 1122, 1129,

People v. Arnett (2006) 139 Cal.App.4th 1609, 1613

Second Holding:

Penal Code section 667(a) provides that a person convicted of a serious felony who previously has been convicted of a serious felony shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. A serious felony means a serious felony listed in section 1192.7(c), which identifies 42 offenses as serious felonies, including any felony punishable by death or imprisonment in the state prison for life.

Authority:

PEN 667(a)

PEN 1192.7(c)

Third Holding:

For an offense falling within the enumerated list without any change in elements since the conviction, the question whether that conviction qualifies as a serious felony is entirely legal. But if there is a factual question of whether conduct underlying the crime qualifies the offense as a serious felony, any such facts must be tried to the same factfinder that decided the defendant’s guilt of the charged crime.

Authority:

PEN 969f(a)

People v. Kelii (1999) 21 Cal.4th 452, 456

Fourth Holding:

None of the defendants prior convictions are for offenses listed in section 1192.7(c). And though he received a life sentence because he was a third-strike offender, section 1192.7(c)(7) category requires that the offense be itself punishable by life imprisonment, without regard to application of the Three Strikes law based on defendant’s status as a recidivist.

Authority:

People v. Thomas (1999) 21 Cal.4th 1122, 1130

People v. Hernandez (2017) 10 Cal.App.5th 192, 198 [construing the ineligibility factors of the Three Strikes Reform Act of 2012–Proposition 36–depends on the nature of the offense itself, not the effect of other prior convictions on the defendant’s sentence]

People v. Harrison (2025) 116 Cal.App.5th 1145, 1159 [construing the ineligibility factors for consideration under section 1170.91 regarding the mitigating effect of trauma incurred in the course of military service, which may even include recall of the sentence and resentencing]

Fifth Holding:

Because the defendant was not convicted of a serious felony in this case, the two five-year prior serious felony enhancements are not authorized and must be stricken. We have authority to correct a sentence that is not authorized by law. But when an error affects part of a sentence, the case must be remanded for a full resentencing hearing as to all counts to permit a trial court to exercise its sentencing discretion in light of the changed circumstances. We thus remand for resentencing.

Authority:

People v. Choyce (2025) 18 Cal.5th 86, 128

People v. Sanders (2012) 55 Cal.4th 731, 743, fn. 13.)

People v. Shaw (2020) 56 Cal.App.5th 582, 588-589

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

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

Case 000736

Posted on by Gary McCurdy

Error and/or relief

There is insufficient evidence proving the defendant burned forest land as that term is defined by section 450(b).

First Holding:

Section 451 provides that a person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned any structure, forest land, or property. Section 451 identifies four types of felonious arson: (1) arson causing great bodily injury; (2) arson causing an inhabited structure or property to burn; (3) arson of a structure or forest land; and (4) arson of property. Section 450(b) defines forest land as any brush covered land, cut-over land, forest, grasslands, or woods.

By contrast, property means real property or personal property, other than a structure or forest land. The maximum sentence for arson of a structure or forest land is double that of the maximum sentence for arson of uninhabited property.

Authority:

PEN 451

PEN 450

Second Holding:

At the heart of this case lies a question of statutory interpretation—the meaning of forest land—which we consider de novo. Our primary task in interpreting the statute is to determine the lawmakers’ intent. We begin with the words of the statute and their usual and ordinary meaning, which would typically be their dictionary definition. Their plain meaning controls, unless the words are ambiguous. If the statute is ambiguous, we may consider a variety of extrinsic aids, including legislative history, the statute’s purpose, and public policy.

Authority:

People v. Costella (2017) 11 Cal.App.5th 1, 5-6

People v. Prunty (2015) 62 Cal.4th 59, 71

Third Holding:

To the extent we must determine whether there was sufficient evidence of forest land, we consider whether the record 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 examine the whole record in the light most favorable to the judgment and we do not reweigh evidence. In the end, the only evidentiary question before us is whether the prosecution—consistent with the theory it advanced regarding what constituted forest land—presented sufficient proof in this case.

Authority:

People v. Costella (2017) 11 Cal.App.5th 1, 5

People v. Prunty (2015) 62 Cal.4th 59, 71

People v. Oyler (2025) 17 Cal.5th 756, 820

Fourth Holding:

It appears undisputed that the site here does not fall within the statutory definition of forest land as cut-over land, forest, or woods. The People argue it constitutes forest land as grasslands or brush covered land. We disagree. Merriam-Webster defines grassland as farmland occupied chiefly by forage plants and especially grasses, or land on which the natural dominant plant forms are grasses and forbs, or an ecological community in which the characteristic plants are grasses. Based on these definitions and the language of sections 450 and 451, we agree with the defendant that the mere presence of grass is insufficient to make an area a grassland.

The statutes distinguish between arson of forest land, including grasslands, and arson of other types of uninhabited property, suggesting that the Legislature intended forest land to mean something other than any land on which grass grows. The definitions suggest a grassland is an open land or prairie, occupied largely by grasses, rather than just any land with grass on it, such as a lawn or park. The 1979 amendment to the statute from “any grass” to “grasslands” suggests the Legislature intended to narrow the types of grassy areas giving rise to heightened punishment for arson.

Authority:

PEN 450

Fifth Holding:

Based on the definitions and the discussion in Costella, we believe the definition of “brush covered land” requires that at least some portion of the land in question be densely populated with brush, even if it is not continuously covered with brush. Here, there was insufficient evidence to support a conclusion that the area affected was forest land or grassland or brush covered land. In sum, there is insufficient evidence that the land at issue constituted forest land under sections 450, subdivision (b), and 451, subdivision (c). Therefore, the arson conviction must be reversed.

Authority:

PEN 450

PEN 451

People v. Costella (2017) 11 Cal.App.5th 1, 7