Tag Archives: Elements of crime

Case 000468

Error and/or relief

The trial court applied an incorrect legal standard in ruling on the defendant’s petition for mental health diversion, and substantial evidence does not support its ineligibility finding. The court also erred by accepting a guilty to plea to conduct that is not criminal. We reverse defendant’s possession of marijuana conviction, conditionally vacate the remainder of defendant’s guilty pleas, conditionally reverse the judgment, and remand the matter for further proceedings consistent with section 1001.36 and this opinion.

First Holding:

Section 1001.36 authorizes pretrial diversion for criminal defendants suffering from certain recognized mental disorders. To qualify, criminal defendants must show they are both eligible and suitable for the program. A defendant accused of a qualifying offense is eligible for mental health diversion if, within the last five years, a qualified mental health expert has diagnosed the defendant with a qualifying mental health disorder that was a significant factor in the commission of the charged offense.

A qualifying diagnosis creates a rebuttable presumption that the disorder was a significant factor in the commission of the offense, which may only be overcome if there is clear and convincing evidence that the disorder was not a motivating factor, casual factor, or contributing factor to the defendant’s involvement in the alleged offense. For purposes of the diversion statute, a qualified mental health expert includes, but is not limited to, a psychiatrist, psychologist, or a person whose knowledge, skill, experience, training, or education qualifies them as an expert. The statute’s plain language does not limit a qualified mental health expert to a psychiatrist, psychologist, or other medical doctor.

Authority:

PEN 1001.36(b), (f)

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

People v. Gonzalez (2017) 2 Cal.5th 1138, 1141 [appellate court interprets a statute to effectuate the law’s purpose, applying a plain and commonsense meaning to the statute’s text]

Second Holding:

A substance use disorder registered counselor must complete hundreds of hours of classroom education and supervised training regarding addiction counseling, at least over 2,000 hours of work providing counseling services in an alcohol or drug program, and must pass an examination confirming their skill and ability. Under these circumstances, a substance abuse disorder registered counselor possesses the knowledge, skill, experience, training and education to make a substance use disorder diagnosis under the statute.

Authority:

Cal. Code Regs., tit. 9, sec. 13040(a)-(d)

Third Holding:

Where there has been a qualifying diagnosis, it is the People’s burden to overcome by clear and convincing evidence the statutory presumption that the disorder was a significant factor in the commission of the offense. Here, the People did not present any evidence to support a finding that defendant’s substance use disorders were not a motivating, causal, or contributing factor to his commission of the charged drug and firearm possession offenses. Argument by counsel is not evidence in the case and cannot be relied upon to support the trial court’s order.

Despite the lack of evidence, the trial court ruled, based on “common sense,” that possession for sale offenses like defendant’s could not be causally connected to a substance use disorder and that the Legislature could not have intended section 1001.36 to apply to possession of narcotics for sale cases because a vast majority of the felony cases before the court involved drugs. In essence, the trial court carved out a wholesale exception to mental health diversion for possession for sale offenses that does not appear in the plain text of the statute. This was error. It is a corollary to fundamental principles of separation of powers that courts must apply the statutes as written unless doing so would yield absurd results.

Authority:

People v. Harlow (2025) 113 Cal.App.5th 485, 491

Fourth Holding:

The absence of evidence showing defendant’s mental disorder was a factor in the commission of the offenses cannot satisfy the People’s burden to rebut the statutory presumption by clear and convincing evidence.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391,404 [the absence of evidence proving that a petitioner’s mental disorder was a factor in the commission of the offenses is not substantial evidence supporting a finding by clear and convincing evidence that the petitioner’s mental disorder was not a factor in the commission of the offenses]

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 687-689 [By finding the statutory presumption had been overcome by the lack of indication in the police reports that the defendant was suffering from the mental disorder at the time of a robbery, the trial court improperly shifted the burden to the defendant to affirmatively prove that her mental disorder contributed to the offense.]

Fifth Holding:

We review a trial court’s order denying mental health diversion for abuse of discretion and its factual findings for substantial evidence. When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence. We presume a trial court’s order is correct and indulge all intendments and reasonable inferences to support it. Absent evidence to the contrary, we presume a trial court knew and applied the law.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 448-449

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401

People v. Giordano (2007) 42 Cal.4th 644, 666

People v. Ramirez (2021) 10 Cal.5th 983, 1042

Sixth Holding:

It was error for the court to accept the defendant’s guilty plea to an act that was not criminal. The information alleged that he was in possession of not more than 28.5 grams of marijuana. Possession of marijuana is not criminal unless it is of more than 28.5 grams. By accepting defendant’s guilty plea to conduct that is not criminal, and sentencing him for that offense, the trial court exceeded its jurisdiction. Accordingly, we shall modify the judgment to vacate defendant’s conviction and sentence on that count.

Authority:

People v. Mutch (1971) 4 Cal.3d 389, 395-396, 399 [conviction for conduct not prohibited by statute is void]

People v. Soriano (1992) 4 Cal.App.4th 781, 784-785 [the defendant could not have been guilty of violating Penal Code section 115 by attempting to file a forged instrument because, as a matter of law, the writing he was charged with and admitted forging, a death certificate, is not an instrument within the meaning of section 115]

Case 000461

Error and/or relief

We direct the trial court to modify the judgment to correct a sentencing error on the defendant’s sentence for attempted kidnapping.

First Holding:

We review unauthorized sentences de novo. A computational error that leads to an unauthorized sentence can be corrected at any time.

Authority:

People v. Tua (2018) 18 Cal.App.5th 1136, 1140

People v. Turrin (2009) 176 Cal.App.4th 1200, 1205

Second Holding:

Kidnapping is punishable by three, five, or eight years in state prison. The sentence for an attempted offense is one-half of the sentence for the completed offense. Thus, attempted kidnapping would be punishable by 18 months, 30 months, or four years. However, any subordinate counts to be served consecutively are only given one-third of the middle term. Here, the trial court used count 2 (assault with a deadly weapon) as the principal count for the determinate term.

This made count 3, the attempted kidnapping, a subordinate term. Since the court imposed a consecutive sentence for this count, the court was only authorized to impose one-third of the middle term, which is 10 months. However, the court stated one-third the middle term was two years and six months. The court clearly intended to pronounce the correct sentence but miscalculated or misspoke as to the actual length of the term. The abstract of judgment reflects the incorrect calculation and should be amended to reflect 10 months for count 3.

Authority:

PEN 208

PEN 664

PEN 1170.1(a)

People v. Felix (2000) 22 Cal.4th 651, 655

People v. Wilson (2013) 219 Cal.App.4th 500, 518 [reviewing court has authority to correct unauthorized sentence]

Third Holding:

As to his convictions and punishment for murder and robbery, section 654 prohibits punishment for both murder and the target offense when the prosecution relies only on a theory of first degree felony murder. However, if the prosecution offers an alternate theory such as premeditation, and there is evidence to support the alternate theory, then the court may properly impose separate sentences for the murder and the underlying felony.

Authority:

People v. Carter (2019) 34 Cal.App.5th 831, 841

Fourth Holding:

We use the substantial-evidence standard to assess the trial court’s factual findings, implicit or explicit, of whether there was a course of conduct with a single criminal objective. We review the trial court’s legal conclusions de novo. We look at the entire record in the light most favorable to the verdict.

Authority:

People v. Moseley (2008) 164 Cal.App.4th 1598, 1603

People v. Perry (2007) 154 Cal.App.4th 1521, 1524

Fifth Holding:

Section 654(a) prohibits multiple punishments for actions that fall within the same course of conduct in which the perpetrator had a single intent and objective. A defendant may be punished only once if all the crimes were merely incidental to or were the means of accomplishing a single objective. If a defendant had multiple, independent criminal objectives, he or she may be punished for each crime, even if the crimes had common acts or were parts of an otherwise indivisible course of conduct. The applicability of section 654 turns on whether the defendant had multiple criminal objectives, not whether an act occurred during the commission of a crime.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

People v. Perry (2007) 154 Cal.App.4th 1521, 1525

People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1007

Sixth Holding:

We review instructional error de novo. We view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction impermissibly. We assume jurors are intelligent and capable of understanding and correlating instructions.

Authority:

People v. Ocegueda (2023) 92 Cal.App.5th 548, 557

Case 000458

Error and/or relief

The evidence showed the defendant possessed the firearm on each of the dates alleged in the information, but there was no evidence his possession of the firearm was anything but continuous over this period of time. One of the two counts must be stayed.

First Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense.

Authority:

People v. Hester (2000) 22 Cal. 4th 290, 294

People v. Jackson (2016) 1 Cal.5th 269, 354

Second Holding:

A trial court’s express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence. The trial court has broad latitude in determining whether section 654(a) applies in a given case. Under this standard, this court must view the evidence in the light most favorable to the trial court’s finding and presume the existence of every fact the court could reasonably deduce from the record.

Authority:

People v. Brents (2012) 53 Cal.4th 599, 618

People v. Vasquez (2020) 44 Cal.App.5th 732, 737

People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113

Third Holding:

Though the trial court did not provide specific reasoning for its decision not to stay the sentence for felon in possession of a firearm, we review the record to determine whether there exists substantial evidence in support of the court’s finding of multiple criminal intents.

Authority:

People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312–1313

Fourth Holding:

We conclude the sentence for one of the counts for being a felon in possession of a firearm should be stayed pursuant to section 654. That is, we find no substantial evidence to support a conclusion defendant harbored multiple criminal intents in possessing the firearm on the two charged dates. To the contrary, the evidence only supported a conclusion that the gun possessed on July 11 was the same gun used in the charged shooting on July 7. However, there was no evidence defendant’s firearm possession was anything but continuous and pursuant to a single criminal objective. The prosecution did not present evidence, for example, showing defendant relinquished possession of the gun for a period between the specified dates.

Authority:

People v. Spirlin (2000) 81 Cal.App.4th 119, 129–131 [Where no evidence was presented that the defendant did not maintain constructive possession of the gun the entire time, it could be inferred he had continuous constructive possession of the gun with a singular intent to possess the weapon as a felon, and thus was a single act with a single objective]

People v. Mason (2014) 232 Cal.App.4th 355, 366

Fifth Holding:

One of the sentences on the two counts should be stayed pursuant to section 654. Remand is necessary for the trial court to exercise its discretion in modifying defendant’s sentence.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Case: 000432

Error and/or relief

It was error to deny the petition for recall of sentence for attempted murder under section 1172.6 because there was insufficient evidence of intent to kill. We reverse the order denying the petition and remand the matter with directions for the trial court to grant the resentencing petition, vacate the attempted murder conviction, and resentence on the remaining charges.

First Holding:

The Legislature enacted SB 1437 (2017–2018 Reg. Sess.) to eliminate the natural and probable consequences doctrine and to limit application of the felony murder rule. Except in cases of felony murder, a principal must act with malice aforethought to be convicted of murder, and malice shall not be imputed to a person based solely on his or her participation in a crime. A defendant convicted of murder or attempted murder under a now-invalid theory may petition the sentencing court to have his or her conviction vacated and to be resentenced on any remaining counts under section 1172.6.

Authority:

PEN 188(a)(3)

People v. Curiel (2023) 15 Cal.5th 433, 448–449

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

Second Holding:

At the evidentiary hearing, the prosecution bears the burden to prove beyond a reasonable doubt that the defendant is guilty of murder or attempted murder under a currently valid theory. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.

Authority:

PEN 1172.6(d)(3)

Third Holding:

We review the trial court’s factual findings following a section 1172.6(d) hearing for substantial evidence. We review the entire record in the light most favorable to the court’s order to determine whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt.

Authority:

People v. Clements (2022) 75 Cal.App.5th 276, 298

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

Fourth Holding:

To prove the crime of attempted murder, the prosecution must establish ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. A defendant cannot be convicted of attempting to kill someone if the defendant is not aware that person is present. Because direct evidence of a defendant’s intent is rare, intent to kill may be inferred from the defendant’s acts and the circumstances of the crime.

Authority:

People v. Canizales (2019) 7 Cal.5th 591, 602

People v. Mumin (2023) 15 Cal.5th 176, 191

People v. Ibarra (2024) 106 Cal.App.5th 1070, 1079

People v. Smith (2005) 37 Cal.4th 733, 741

Fifth Holding:

A defendant may be convicted of attempted murder as a direct aider and abettor. To be convicted under such a theory, the defendant must give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill.

Authority:

People v. Nguyen (2015) 61 Cal.4th 1015, 1054

Sixth Holding:

Without any evidence that someone inside the co-defendant’s car targeted or otherwise shot at another person when they fired the underlying shots, we can only speculate as to whether the defendant acted with the intent to kill. Speculation is not substantial evidence.

Authority:

People v. Waidla (2000) 22 Cal.4th 690, 735

Seventh Holding:

The trial court also improperly relied on its own experience as a former gang prosecutor when it denied the petition, noting that it had prosecuted several cases against members of a gang in the 1990’s in explaining why it found that the defendant acted with the intent to kill. The court’s personal experience is not evidence.

Authority:

Abatti v. Imperial Irrigation Dist. (2020) 52 Cal.App.5th 236, 286

Eighth Holding:

When admitting a sentencing enhancement, the defendant admits only the facts necessary to establish the enhancement’s elements.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 338

Case: 000417

Error and/or relief

It was error to impose a $10 crime prevention fine under section 1202.5. It is ordered stricken. The minute order must be corrected to reflect that the resentencing proceedings were under section 1172.75, not under section 1172.6 as the minute order indicated.

First Holding:

The original imposition of the section 1202.5 crime prevention fine was unauthorized.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354 [claims of unauthorized sentencing error may be raised at any time]

Second Holding:

Under section 1202.5(a), courts are required to impose a $10 crime prevention fine on a defendant who is convicted of a theft-related offense listed in the statute. Here, the $10 crime prevention fine was unauthorized because defendant’s convictions are not among the offenses listed in section 1202.5(a). Thus, we strike the $10 crime prevention fine from defendant’s sentence.

Authority:

PEN 1202.5(a)

People v. Jefferson (2016) 248 Cal.App.4th 660, 663

Third Holding:

The minute orders refer to the proceedings as taking place pursuant to section 1172.6. As the record is clear these were resentencing proceedings pursuant to section 1172.75, this appears to be a clerical error.

[Gary note: The court did not cite any authority for the order or observation regarding the correction of the minute order, but there is authority aplenty. The court could have cited one or more of the cases I have set out below.]

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