Tag Archives: Elements of crime

Elements of crime, Statutory interpretation

Case 000530

Posted on by Gary McCurdy

Error and/or relief

A person may be ineligible for a concealed weapon permit if the person has been subject to any restraining order, protective order, or other type of court order issued pursuant to specified statutory provisions. There are exceptions, however, and the defendant fell within those exceptions. The emergency protective order expired, and he had not been given notice and was not given an opportunity to be heard before the emergency protective order was issued.

[Gary note: This is not exactly a criminal case. It was an appeal from a denial of application for a concealed weapons permit. I decided to include it, as it highlights the elements of time since the disqualifying event AND the requirement that the permitted person be notified of the expiry or termination of the permit. You may someday have a client facing a concealed weapons charge because of an expired or vacated permit, and it may be useful to be familiar with section 26202, so here it is.]

Holding:

Penal Code section 26202 provides that an applicant for a permit to carry a concealed weapon shall be deemed ineligible under various specified circumstances, including where the person has been subject to any restraining order, protective order, or other type of court order issued pursuant to specified statutory provisions.

However, that ineligibility does not apply if that order expired or was vacated or otherwise canceled more than five years prior to the licensing authority receiving the completed application, or that order expired or was vacated or otherwise canceled and the applicant did not receive notice and an opportunity to be heard before the order was issued. The applicant defendant in this case falls under the latter exception–lack of notice and opportunity to challenge the order before the expired order was issued.

Authority:

PEN 26202

Elements of crime, Jury trial, Sentencing

Case 000525

Posted on by Gary McCurdy

Error and/or relief

Reversal of the conviction on one of the counts is called for because there is a reasonable probability that one of defendant’s acts improperly formed the basis of two convictions.

First Holding:

As to count 1, the jury found defendant not guilty of assault with a deadly weapon, but found him guilty of the lesser included offense of simple battery and found him guilty of injuring a dating partner (count 2). As to count 3, the jury found defendant not guilty of assault by means of force to cause great bodily injury but found him guilty of the lesser included offense of simple assault. The conviction for injuring a dating partner (count 2) and the simple assault conviction (count 3) are based upon the same conduct and, because the latter is a lesser included offense of former, he cannot be convicted of both.

Authority:

People v. Serrano (2022) 77 Cal.App.5th 902, 919 [simple assault is a necessarily included offense of infliction of a corporal injury (sec. 273.5)]

Second Holding:

The jury was not advised that they could not convict defendant of both injuring a dating partner and a simple assault based on the same act. The gist of the prosecution’s summation focused on the single act of throwing a rock that hit the victim. In view of the People’s arguments and the lack of instruction to the jury, it is reasonably probable that the same act formed the basis for defendant’s conviction for infliction of a corporal injury as well as the simple assault conviction. Accordingly, we reverse the simple assault conviction.

Authority:

People v. Cole (1982) 31 Cal.3d 568, 582 [if the evidence supported the verdict as to a greater offense then the conviction on that offense is controlling and the conviction on the lesser offense must be reversed]

Amelioration, Elements of crime, Retroactivity, Sentencing

Case 000520

Posted on by Gary McCurdy

Error and/or relief

On resentencing, the defendant was entitled to have the trial court examine whether recent amendments under AB 333 to gang criminal activity statutes affected his conviction for carrying a loaded firearm in a public place by an active participant in a criminal street gang. Remanded.

First Holding:

Resentencing under section 1172.75 for a person serving a sentence containing a now-invalid prior prison term enhancement requires a full resentencing, not merely that the trial court strike the newly invalid enhancements. When the trial court recalled defendant’s sentence under section 1172.75, it was effectively vacated. Once defendant’s sentence was vacated, the trial court had jurisdiction to resentence him to a new sentence. Defendant, therefore, regained the right to appeal whatever new sentence was imposed, and his judgment became nonfinal for purposes of Estrada. Under Estrada, ameliorative amendments to criminal statutes apply to all cases not final on appeal absent contrary legislative intent.

Authority:

People v. Monroe (2022) 85 Cal.App.5th 393, 402

People v. Arias (2020) 52 Cal.App.5th 213, 219 [recall of [the defendant’s] sentence effectively vacated his original sentence and commitment]

People v. Padilla (2022) 13 Cal.5th 152, 163, 177 [once a court has determined that a defendant is entitled to resentencing, the result is vacatur of the original sentence, whereupon the trial court may impose any appropriate sentence]

In re Estrada (1965) 63 Cal.2d 740, 744–745

Second Holding:

Effective January 1, 2022,AB 333 made several changes to the criminal street gang laws.

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.

And finally, AB 333 omitted certain nonviolent offenses from the list of offenses that could make up a gang’s primary activities or form the requisite pattern of criminal gang activity, reducing the list of offenses from 33 to 26. The changes to the elements of a section 186.22 gang enhancement apply retroactively pursuant to Estrada.

Authority:

PEN 186.22

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

People v. Clark (2024) 15 Cal.5th 743, 753

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

Third Holding:

In determining whether a judgment is final for Estrada purposes, the finality inquiry focuses on whether the criminal prosecution or proceeding as a whole is complete, i.e., when the last word of the judicial department with regard to a particular case or controversy has issued.

For Estrada purposes, the judgment means the judgment of conviction and the sentence. A criminal case is only reduced to a singular, final judgment following the conclusion of the entire criminal case or prosecution. Thus, a criminal case in which the sentence is not yet final, including one in which an appellate court has affirmed the conviction and remanded for reconsideration of sentencing-related issues, is not final for purposes of Estrada, and the benefits of supervening ameliorative legislation apply retroactively. It is presumed ameliorative changes to the law extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not. Estrada applies to statutory amendments which redefine, to the benefit of defendants, conduct subject to criminal sanctions. AB 333 added new elements to the substantive offense and enhancements in the gang statute, and its substantive changes apply retroactively to all nonfinal cases under Estrada.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 392-395

Fourth Holding:

Because AB 333 applies retroactively to all nonfinal judgments under Estrada, and defendant’s judgment is nonfinal by virtue of section 1172.75, defendant was entitled to the ameliorative effects of AB 333 at resentencing. The jury’s findings on the gang allegations made more than a decade prior to the amendments to section 186.22 and without the benefit of jury instructions on the elements added by AB 333. Based on this record, we cannot conclude that error was harmless. Therefore, we remand for the trial court to determine, in the first instance, any effect the amendments have on defendant’s conviction on count 5 of an active participant in a criminal street gang carrying a loaded firearm in a public place.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396-400

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

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

Case 000516

Posted on by Gary McCurdy

Error and/or relief

For section 136.1 (dissuasion of witness) to apply [prior to its amendment effective 1/1/26], the attempt at dissuading must be performed prior to the commencement of the parole revocation proceedings. There was insufficient evidence to prove that parole revocation proceedings had commenced after the alleged attempt to dissuage.

(GARY NOTE: Effective 1/1/2026, section 136.1 was amended to eliminate the ambiguity under which Reynoza concluded that section 136.1 applies only if the alleging document has not yet been filed. The original language (by the use of the word “and”) ambiguously implied that, to constitute a violation, the defendant had to attempt to dissuade not only the filing of the charges, but also assistance in the prosecution once filed.

(Under that interpretation, if the only attempt at dissuasion took place after charges were filed, then the evidence was not sufficient to show that there was an attempt to dissuade from the filing of the charges. In direct response to Reynoza, section 136.1 now has changed the “and” to an “or,” the effect of which makes section 136.1 applicable to attempted dissuasion occurring on or after 1/1/2026, whether the attempt at dissuasion took place before or after charges were filed. I have included this summary because there may still be some defendants whose alleged misconduct occurred prior to 1/1/26 and must be prosecuted under the law in effect at the time of the crime.)

First 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. A reviewing court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Reversal is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

Authority:

People v. Powell (2018) 5 Cal.5th 921, 944

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

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

Second Holding:

Under Reynoza, where criminal charges have already been filed, postcharging dissuasion alone does not constitute an offense under section 136.1(b)(2). In Reynoza, all evidence of the defendant’s dissuasive conduct occurred after the underlying charging document had been filed. Therefore, since there was no substantial evidence that the dissuasive conduct occurred before charges were filed, the court affirmed the Court of Appeal’s reversal of the conviction.

Authority:

People v. Reynoza (2024) 15 Cal.5th 982, 1013

Third Holding:

There is no substantial evidence that satisfies the required element that defendant’s dissuading conduct occurred before proceedings were initiated in order to support defendant’s section 136.1(b)(2) convictions. Absent substantial evidence to support the convictions, the judgment must be reversed. A reversal based on insufficient evidence shields defendant from retrial because it means that no rational factfinder could have voted to convict the defendant. As such, defendant cannot be retried on counts 2 and 3

Authority:

People v. Tripp (2007) 151 Cal.App.4th 951, 959

Tibbs v. Florida (1982) 457 U.S. 31, 41

[Gary Reminder:

[Reread what I wrote as a Gary note  in the Error and/or relief secrion above about the law having changed effective 1/1/26 for those whose crimes occurred on or after that date.  It demonstrates how critical it is for you to always check on exactly WHAT the language was for the crime on the date your client was alleged to have committed it.]
Abstracts and Minutes, Appellate Principles, Effective assistance of counsel, Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000512

Posted on by Gary McCurdy

Error and/or relief

Though we find the evidence was sufficient and we affirm the jury trial convictions, there are errors in the indeterminate abstract of judgment insofar as it incorrectly reflects that two section 12022.53(b) personal use enhancements were found true. The jury found only one to be true. Also, the determinate abstract of judgment reflects the incorrect number of custody credits. There were other errors as well, but the matter must be remanded for further clarity on what should be included in the abstract of judgment.

First Holding:

This court’s role in reviewing a challenge to the sufficiency of evidence is limited. When considering a claim of insufficient evidence, we examine the entire record to assess whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. 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.

We resolve neither credibility issues nor evidentiary conflicts; we look for substantial 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. Additionally, when undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment.

Authority:

People v. Smith (2005) 37 Cal.4th 733, 738

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

People v. Hill (1998) 17 Cal. 4th 800, 849

Second Holding:

Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot. A thing is in the immediate presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.

Authority:

PEN 211

People v. Cooper (1991) 53 Cal.3d 1158, 1165

People v. Hayes (1990) 52 Cal.3d 577, 626-627

Third Holding:

An act may be robbery even if the property had been taken after the victim died. While it may be true that one cannot rob a person who is already dead when one first arrives on the scene, one can certainly rob a living person by killing that person and then taking his or her property.

Authority:

People v. Navarette (2003) 30 Cal.4th 458, 499

Fourth Holding:

Defendant’s ineffective assistance claim is forfeited for failure to support his argument with analysis and citation to evidence in the appellate record.

Authority:

Rules of Court rule 8.204(a)(1)(B)(C)

People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument is forfeited if it is raised in a perfunctory fashion without any supporting analysis and authority]

Fifth Holding:

[GARY NOTE: The court cited no authority for its order directing correction of the abstract of judgment, likely because the need for correction of material errors is simply obvious. But the court could have cited a number of cases, a few of which I have laid out.]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2