Tag Archives: Elements of crime

Amelioration, Retroactivity, Sentencing

Case: 000408

Posted on by Gary McCurdy

Error and/or relief

At the hearing under section 1172.75 for recall of sentence and resentencing, the trial court should have considered the impact of AB 333 on the prior serious felony and strike convictions. We agree with the parties that AB 333 applies retroactively to the substantive gang offense conviction and all the gang-related allegations. We therefore vacate the resentencing order, reverse the substantive gang offense conviction, and vacate the findings on the gang enhancement, prior serious felony, and strike prior. On remand, the prosecution may retry all the gang-related allegations under the new law.

First Holding:

Prior to January 1, 2020, section 667.5(b) required trial courts to impose a one-year sentence enhancement for each true finding on an allegation the defendant had served a separate prior prison term and had not remained free of custody for at least five years. Section 667.5(b) was amended effective January 1, 2020, to eliminate prior prison term enhancements for all crimes except certain sexually violent offenses. Effective January 1, 2022, SB 483 (2021−2022 Reg. Sess.) added what was later renumbered as section 1172.75 to make this change retroactive. A defendant serving a term for a judgment that includes a now-invalid enhancement is entitled to resentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid’ enhancements. Section 1172.75(d) sets forth detailed instructions for resentencing once a sentence has been recalled.

Authority:

PEN 667.5

PEN 1172.75

People v. Burgess (2022) 86 Cal.App.5th 375, 379–380

People v. Rhodius (2025) 17 Cal.5th 1050, 1055

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

Second Holding:

In 1988, the Legislature enacted section 186.20 et seq. to eradicate criminal activity by street gangs. Among other things, the Act created the substantive offense of active participation in a criminal street gang and a sentencing enhancement for a felony committed for the benefit of, at the direction of, or in association with a criminal street gang.

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.

Also, 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.

Authority:

AB 333

PEN 186.22

People v. Valencia (2021) 11 Cal.5th 818, 828-829

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

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

Third Holding:

The recall of the defendant’s sentence under section 1172.75 rendered his judgment no longer final, and the defendant was entitled to the presumption of retroactivity of ameliorative legislation under Estrada. The rule in Estrada has been applied to statutes governing penalty enhancements, as well as to statutes governing substantive offenses.

Authority:

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

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

People v. Nasalga (1996) 12 Cal.4th 784, 792

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

People v. Mitchell (2023) 97 Cal.App.5th 1127, 1137–1142 [AB 333 applied retroactively to the defendant’s substantive gang offense conviction and enhancement]

Fourth Holding:

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 was 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. Here, the defendant’s sentence was vacated when the trial court recalled his sentence under section 1172.75. Once his sentence was vacated, the trial court had jurisdiction to resentence him to a new sentence. Reversal is required unless the error is harmless pursuant to Chapman.

Authority:

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

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

People v. Padilla (2022) 13 Cal.5th 152, 163 [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]

Chapman v. California (1967) 386 U.S. 18

Fifth Holding:

As the judgment is no longer final, it is also necessary for the trial court to reassess whether the prior serious felony and strike conviction were based on gang activity, and whether the conduct then would have been considered unlawful gang activity under AB 333. On remand, the prosecution may elect to retry whether the prior conviction qualifies as a serious felony applying the elements of section 186.22 as amended by AB 333.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 582-583, 607-608

People v. Farias (2023) 92 Cal.App.5th 619, 650–653

Abstracts and Minutes, Elements of crime, Sentencing

Case: 000399

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to a new resentencing because the trial court failed to apply relevant provisions of The Three Strikes Reform Act of 2012 at his resentencing under section 1172.75.

First Holding:

Under the Three Strikes law as originally enacted in 1994, an individual convicted of any felony offense following two prior convictions for serious or violent felonies was subject to an indeterminate term of life imprisonment with a minimum term of no less than 25 years. The Three Strikes Reform Act of 2012 lessened the prescribed sentence for a third strike defendant whose current offense is not a serious or violent felony. But under the Reform Act, a defendant does not qualify for this ameliorative change if his current offense is one of several specified violations. Even if not convicted of a disqualifying offense, the ameliorative provisions of the Reform Act also do not apply in cases in which the court finds that release of the defendant would pose an unreasonable risk of danger to public safety.

Authority:

People v. Conley (2016) 63 Cal.4th 646, 651, 653

Second Holding:

Where a person serving a life term under the original Three Strikes law is before the court for resentencing under section 1172.75 (under which now-invalid prior prison term enhancements must be vacated and the defendant must be fully resentenced to something no greater than the sentence just vacated), the person must be resentenced under the Three Strikes Reform Act of 2012, unless the court finds that release of the defendant would pose an unreasonable risk of danger to public safety as that term was contemplated in the Reform Act.

Authority:

People v. Superior Court (Guevara) 18 Cal.5th 838

Third Holding:

The abstract of judgment must be corrected because it continues to reflect the five prior prison terms that were stricken by the court under section 1172.75.

[GARY Note: No authority was cited for correcting the abstract, likely because the error and remedy are so obvious, but the there is much authority supporting such orders, such as those I have set forth 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

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000397

Posted on by Gary McCurdy

Error and/or relief

We vacate the true finding that the defendant suffered a prior strike, in light of the retroactivity of AB 333’s amendments to section 186.22 regarding gang criminal activity. The matter is remanded for further proceedings, which may include retrial of the prior strike allegation.

First Holding:

Any felony defined in section 1172.7(c) is a serious felony, and any serious felony is a strike under section 667 and section 1170.12. section 1172.7(c)(28) defines as a serious felony any conviction of section 186.22 and any felony enhanced under 186.22’s provisions.

Authority:

PEN 1192.7(c)(28)

PEN 667(d)(1)

PEN 1170.12(b)(1)

PEN 186.22

People v. Briceno (2004) 34 Cal.4th 451, 462

Second 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. AB 333 is ameliorative legislation that applies to nonfinal judgments under the rule of Estrada.

Authority:

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

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

Third Holding:

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. Application of AB 333 in this manner does not unconstitutionally amend any ballot initiative. Thus, the current law applicable to this nonfinal proceeding includes AB 333’s redefinition of the elements of gang offenses and enhancements under section 186.22.

Authority:

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

Amelioration, Appellate Principles, Elements of crime, Sentencing, Standard of review

Case: 000396

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition for recall under section 1172.6 because it applied an incorrect definition of reckless indifference to human life.

First Holding:

The trial court erred in defining reckless indifference as meaning there is a foreseeable risk of death. Reckless indifference requires there be a grave or significant risk of death.

Authority:

In re Scoggins (2020) 9 Cal.5th 667, 677

Second Holding:

In criminal cases an appellate court may take into consideration the judge’s statements as a whole when they disclose an incorrect rather than a correct concept of the relevant law, embodied not merely in secondary remarks but in the court’s basic ruling. In the instant case, the trial court’s understanding of the law is set forth in the trial court’s ruling, as opposed to stray remarks. Accordingly, we will review the trial court’s presentation and application of the law of reckless indifference. Because this is a purely legal issue, we will utilize the independent standard of review.

Authority:

People v. Tessman (2014) 223 Cal.App.4th 1293, 1303

People v. Reyes (2023) 14 Cal.5th 981, 988

Third Holding:

Reckless indifference means knowingly engaging in criminal activities known to carry a grave risk of death. The degree of risk to human life is crucial to the analysis. There must be a significant risk of death. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient. Only knowingly creating a grave risk of death satisfies the statutory requirement. 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.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 883, 884

In re Scoggins (2020) 9 Cal.5th 667, 677

Fourth Holding:

In its ruling, the trial court asserted that recklessness is also determined by an objective standard, namely what a law-abiding person would observe in the actor’s situation. The trial court’s presentation of the law of recklessness failed to include the requirement that there be a significant risk of death, which is a crucial part of the reckless indifference analysis. By omitting a critical part of the law, one can infer that the trial court did not have a full understanding of the meaning of reckless indifference.

Authority:

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

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

Case: 000393

Posted on by Gary McCurdy

Error and/or relief

The evidence presented at trial was insufficient to support a finding that the open beer can in this case was a deadly weapon. The conviction for assault with a deadly weapon is reversed.

First Holding:

We review a claim of insufficient evidence under the substantial evidence standard of review. The test is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. Substantial evidence is evidence that is reasonable, credible and of solid value. We presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. It must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict.

Authority:

In re Ryan N. (2001) 92 Cal.App.4th 1359, 1372

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

In re I.C. (2018) 4 Cal.5th 869, 892

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

People v. Conners (2008) 168 Cal.App.4th 443, 453

Second Holding:

Objects may be deadly weapons as a matter of law, such as dirks and blackjacks, because the ordinary use for which they are designed establishes their character as such. On the other hand, pocket knives, canes, hammers and hatchets are not deemed deadly weapons per se.

Authority:

People v. Aguilar (1997) 16 Cal.4th 1023, 1029

People v. Graham (1969) 71 Cal.2d 303, 327, disapproved on other grounds by People v. Ray (1970) 14 Cal.3d 20

Third Holding:

Objects may be determined to be deadly weapons when used in a manner capable of producing and likely to produce great bodily injury. “Likely” means a high probability of occurring with a great probability of serious injury. Rolls of coins, batteries, and bicycle footrests have been determined to be deadly weapons when used in a manner capable of producing and likely to produce great bodily injury. No injury or even physical contact is required to support a conviction of assault with a deadly weapon because the focus is on the use of the weapon in a manner likely to produce great bodily injury.

Authority:

In re B.M. (2018) 6 Cal.5th 528, 533 [the manner of use must by capable of and likely to produce death or great bodily injury – two different concepts]

In re David V. (2010) 48 Cal.4th 23, 30 and fn. 5

People v. Aguilar (1997) 16 Cal.4th 1023, 1028

Fourth Holding:

The use of an object in a manner likely to produce death or great bodily injury requires more than a mere possibility that serious injury could have resulted from the way the object was used. Conjecture as to how the object could have been used is not permitted in the analysis. Rather, the determination of whether an object is a deadly weapon under section 245(a)(1) must rest on evidence of how the defendant actually used the object.

Authority:

In re B.M. (2018) 6 Cal.5th 528, 534

Fifth Holding:

If injury does occur, such injuries and their location are relevant in determining whether the object was used in a manner likely to produce great bodily injury. Great bodily injury means significant or substantial injury. Insignificant, trivial or moderate injury is not significant or substantial. Our inquiry is limited to whether substantial evidence supports the jury’s finding that the defendant used the open beer can as a deadly weapon, that is, in a manner capable of producing and likely to produce great bodily injury.

On this record, the defendant’s use of the beer can, tossed from six feet away in a slight overhand manner or with a slinging or flicking motion was not likely to cause serious bodily injury or death. The victim did not sustain great bodily injury, significant or substantial injury, or even anything greater than minor or moderate harm. There was little or no objective description of the can or its weight, and it was not introduced into evidence. There was no evidence of sharp or jagged edges on the can, other data points that would have been relevant to determining the likelihood of producing great bodily injury.

Without more details, it is speculation that the open beer can, used as it was, was capable of producing and likely to produce great bodily injury. Perhaps the beer can, if wielded differently, may have been likely to cause great bodily injury, but our inquiry is limited to how the beer can was actually used.

Authority:

In re Brandon T. (2011) 191 Cal.App.4th 1491, 1497

People v. Brown (2012) 210 Cal.App.4th 1, 7

People v. Quinonez (2020) 46 Cal.App.5th 457, 464

In re Manuel G. (1997) 16 Cal.4th 805, 822–825

People v. Hahn (1956) 147 Cal.App.2d 308, 309–310 [assault with a deadly weapon occurred when robbery victim driving a car was struck on the head four times with a beer can by passenger sitting behind him]

People v. Beasley (2003) 105 Cal.App.4th 1078, 1087, 1088 [bruises on arms and shoulders, without further injury, not great bodily injury]

In re Brandon T. (2011) 191 Cal.App.4th 1491, 1497 [small scratch on cheek not great bodily injury]

In re D.T. (2015) 237 Cal.App.4th 693, 696–697 [sharp pocketknife poked into the victim’s back likely to produce great bodily injury]

People v. Page (2004) 123 Cal.App.4th 1466, 1469, 1474 [sharp pencil held to the victim’s neck likely to produce great bodily injury]

People v. Duke (1985) 174 Cal.App.3d 296, 303