Tag Archives: Elements of crime

Amelioration, Elements of crime, Fifth Amendment, Sentencing, Standard of review

Case: 000347

Posted on by Gary McCurdy

Error and/or relief

We reverse and vacate the true findings on the gang murder special circumstances for counts 1 and 4. We also reverse and vacate the true findings on the gang enhancements for counts 1, 2, and 4. We remand the matter to the trial court to allow the District Attorney to retry the gang murder special circumstance and the gang enhancement for count 4 under the current version of the laws as amended by AB No. 333. Principles of double jeopardy preclude retrial as to the gang murder special circumstance for count 1 and the gang enhancement for counts 1 and 2.

First Holding:

Effective January 1, 2022, AB 333 amended section 186.22. The amendment narrowed the definition of a criminal street gang as used for the gang enhancement in section 186.22(b) and the gang murder special circumstance in section 190.2(a)(22). It changed the definition to an ongoing, organized association or group of three or more persons whose members collectively engage in, or have engaged in, a pattern of criminal gang activity, rather than individually or collectively engage in a pattern of criminal gang activity under the former version of section 186.22. A pattern of criminal activity under former section 186.22(e) required two or more predicate offenses committed on separate occasions or by evidence of such offenses committed by two or more persons on the same occasion.

The amendment changed the requirements of a pattern of criminal activity in four ways. First, a pattern of criminal activity now requires the predicate offenses to be separate from the currently charged offense or offenses. Second, the last predicate offense must have occurred within three years of the commission of the currently charged offense. Third, it requires that the predicate offenses were committed by two or more gang members, as opposed to persons. Fourth, the predicate offenses must have commonly benefited a criminal street gang. AB 333 narrowed the common benefit for the gang by the commission of an offense to be more than reputational. The prosecution must show how the predicate offenses provided an actual common benefit to the gang, and that they did not merely enhance the reputation of its individual members.

Authority:

PEN 186.22(g)

People v. Cooper (2023) 14 Cal.5th 735, 738

People v. Hin (2025) 17 Cal.5th 401, 460-461

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

People v. Lamb (2024) 16 Cal.5th 400, 450

Second Holding:

AB 333 applies retroactively to nonfinal judgments as we have here. The instructions read to the defendant’s jury preceded the effective date of AB 333 and his appeal was pending on that effective date. The new requirements in section 186.22 apply retroactively to his case on appeal.

Authority:

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

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

People v. Cooper (2023) 14 Cal.5th 735, 738-739

Third Holding:

We must reverse the gang enhancements and the gang murder special circumstance if any rational fact finder could have come to the opposite conclusion regarding the new requirements of AB 333.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 462

People v. Cooper (2023) 14 Cal.5th 735, 739

People v. Lamb (2024) 16 Cal.5th 400, 453

Fourth Holding:

The double jeopardy clause of the federal constitution’s Fifth Amendment provides that no person may be subject for the same offense to be twice put in jeopardy of life or limb. The state constitution provides the same protection. A defendant may not be tried a second time for the same offense if the conviction is set aside for insufficiency of the evidence. Our conclusion that the gang special circumstance and the gang allegation were unsupported by sufficient evidence bars retrial.

Authority:

Cal. Const., art. I, sec. 15

People v. Hin (2025) 17 Cal.5th 401, 454-455, 468

Amelioration, Appellate Principles, Retroactivity, Sentencing

Case: 000343

Posted on by Gary McCurdy

Error and/or relief

The true finding on the defendant’s prior felony strike conviction must be reversed in light of changes to the gang criminal activity statute by AB 333. Defendant’s sentence, as well as the true finding that defendant’s prior conviction qualifies as prior serious felony conviction under the Three Strikes law, is vacated. The matter is remanded to the trial court for any retrial of that allegation, applying the elements of section 186.22 as amended by AB 333 and for resentencing.

First Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. 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

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

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

Second Holding:

In Fletcher, the Supreme Court addressed the question of whether AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of prior serious felony enhancements. It concluded that where a defendant has suffered a prior conviction under the earlier 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. It also held that it applies retroactively to cases in which the judgment is not yet final.

Authority:

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

Third Holding:

That the defendant admitted the prior conviction does not forfeit the issue. Defendant’s admission cannot be construed as knowingly and/or intelligently made because it was prior to the decision in Fletcher. The true finding on defendant’s strike prior should be reversed, and the matter remanded to the trial court for any retrial of the strike allegation, applying the elements of section 186.22 as amended by AB 333. Notwithstanding the admission of the prior conviction in the trial court, we have discretion to reach the merits.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [an appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

People v. Monroe (2022) 85 Cal.App.5th 393, 400 [an appellate court may reach the merits of a forfeited issue in order to forestall a cognizable ineffective assistance of counsel claim]

Amelioration, Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case: 000339

Posted on by Gary McCurdy

Error and/or relief

Because of insufficient evidence of the predicate offense, we reverse the juvenile court’s true finding on the gang enhancement as to count 1 pursuant to section 186.22(b)(1)(A) and remand the matter for resentencing. The prosecution did not present any evidence of predicate offenses showing the alleged gang members individually or collectively engaged in a pattern of criminal gang activity. Thus, it did not prove that the robbery was committed for the benefit of a criminal street gang.

First Holding:

Pursuant to section 186.22(b)(1)(A), the juvenile court may impose a sentencing enhancement for a felony committed for the benefit of, at the direction of, or in association with any criminal street gang.

Authority:

PEN 186.22(b)(1)(A)

Second Holding:

A gang is an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more enumerated offenses, having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.

Authority:

PEN 186.22(f)

Third Holding:

A pattern of criminal gang activity is the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of, two or more enumerated offenses, provided at least one of these offenses occurred after the effective date of [the criminal gang activity chapter], and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, the offenses were committed on separate occasions or by two or more members, the offense commonly benefited a criminal street gang, and the common benefit from the offenses is more than reputational.

Authority:

PEN 186.22(e)(1)

Fourth Holding:

The offenses comprising a pattern of criminal gang activity are referred to as predicate offenses. The term ‘commission’ includes the broader statutory inclusion of the ‘attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction’ of a predicate offense.

Authority:

People v. Valencia (2021) 11 Cal.5th 818, 82

Fifth Holding:

Section 186.22(e) does not state that a predicate offense must be committed by a gang member. However, that requirement derives from the definition of a criminal street gang, which includes proof that the gang’s members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity. It follows, then, that the proof of a predicate offense must establish that a member of a defendant’s alleged gang was involved in its commission. Taken together the statutory scheme requires proof that gang members committed at least two predicate offenses within the statutory timeframe. Such proof will generally require evidence of who committed the crime and when they did so, as well as evidence of their gang membership and the nature of the crimes.

Authority:

People v. Valencia (2021) 11 Cal.5th 818, 829–830

Sixth Holding:

When assessing a claim of sufficiency of evidence of a gang enhancement under section 186.22, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which 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. Shively (2025) 111 Cal.App.5th 460, 468

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

Elements of crime, Sentencing

Case: 000332

Posted on by Gary McCurdy

Error and/or relief

We reverse count 5 because section 4502 permits only a single conviction for possession of more than one weapon at the same time and place in prison.

Holding:

Section 4502 permits only a single conviction for possession of more than one unlawful weapon at the same time and place in prison.

Authority:

People v. Rowland (1999) 75 Cal.App.4th 61, 64-67

(GARY NOTE: The opinion in Rowland relied on People v. Kirk (1989) 211 Cal.App.3d 58, which held that possession of more than one sawed-off shotgun at the same time could result in only one count of conviction under what was then section 12020.

(What was then section 12020 has since been broken down into numerous sections by the Deadly Weapons Recodification Act of 2010. Its provisions were spread among many new code sections. Best to look at the charging document for the charge, but also look for separate sections that may define the terms.

(Subsequent to Kirk, the Legislature amended what was then section 12001 (now section 17800) to clarify that possession of more than one prohibited weapon simultaneously constituted separate offenses, each of which could be charged. The legislation specified the code section affected by the amendment, and Rowland relied on the absence of mention of section 4502 to conclude that possession of more than one weapon simultaneously under section 4502 still was limited to a single count, at least in part on the principle of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). The holding in this Case 000332 applied to section 4502. Rowland and its progeny should be used very carefully, and be cited only if its rationale has not been legislated away with respect to your given facts.)

Elements of crime, Jury instructions, Standard of review, Vicarious liability

Case: 000331

Posted on by Gary McCurdy

Error and/or relief

The trial court failed to appropriately instruct the jury that, in order to find them guilty of implied malice murder as aiders and abettors, the jury must find that they personally acted with malice.

First Holding:

In order to find the defendants guilty of implied malice murder as aiders and abettors, the jury must find that they personally acted with malice.

Authority:

People v. Langi (2022) 73 Cal.App.5th 972, 982 [the previous standard jury instructions on aider and abettor liability create an ambiguity under which the jury may find the defendant guilty of aiding and abetting second degree murder without finding that he personally acted with malice]

Second Holding:

We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. When we review a purportedly erroneous instruction, we consider whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. We consider the instructions as a whole and assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.

Authority:

People v. Ramos (2008) 163 Cal.App.4th 1082, 1088

People v. Richardson (2008) 43 Cal.4th 959, 1028

Third Holding:

If a trial court incorrectly instructs on an element of a charged offense such that the error impermissibly shifted or lowered the burden of proof for that element, the applicable standard of prejudice is the Chapman standard. Under the Chapman standard, a federal constitutional error requires reversal unless the People show the error was harmless beyond a reasonable doubt.

Authority:

Rose v. Clark (1986) 478 U.S. 570, 570–581

Chapman v. California (1967) 386 U.S. 18, 24

Fourth Holding:

For the error to be harmless, the state must show it would be impossible, based on the evidence, for a jury to make the findings reflected in its verdict without also making the findings that would support a valid theory of liability. While overwhelming evidence may demonstrate harmlessness, a court’s analysis of whether the evidence is overwhelming in this context is not as subjective or free-ranging as that term might imply. Instead, the analysis requires a court to rigorously review the evidence to determine whether any rational juror who found the defendant guilty based on an invalid theory, and made the factual findings reflected in the jury’s verdict, would necessarily have found the defendant guilty based on a valid theory as well. The question here is not the sufficiency of the evidence to support a valid theory, but its opposite.

Authority:

In re Lopez (2023) 14 Cal.5th 562, 568, 591

Fifth Holding:

In determining whether instructional error that leaves out an element of the offense is harmless, we do not focus exclusively on the evidence favorable to the verdict, and we do not presume the existence of any facts the jury might reasonably infer in favor of the prosecution. We do not view the evidence in the light most favorable to the prosecution. We review the evidence in the light most favorable to the defendant, and in doing so, we do not reweigh the evidence or resolve evidentiary conflicts. The testimony of a single witness may be sufficient—even if there is significant countervailing evidence, and the testimony is subject to justifiable suspicion. If a thorough review of the record shows there is any evidence that a rational juror could find as a basis for reasonable doubt as to any erroneously omitted element, then the error requires reversal, even when there is ample evidence to support a finding of guilt.

Authority:

People v. Madrigal (2023) 93 Cal.App.5th 219, 243

People v. Mil (2012) 53 Cal.4th 400

People v. Valenti (2016) 243 Cal.App.4th 1140, 1166, 1167

People v. Barnwell (2007) 41 Cal.4th 1038, 1052

Sixth Holding:

Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder. Malice may be either express, i.e., when a defendant manifests an intention to kill, or implied. Malice is implied when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. Thus, implied malice includes an objective component—an act that is dangerous to life—and a subjective component—the defendant’s awareness of and disregard for the danger. Intent to kill may be inferred from the defendant’s acts and the circumstances of the crime. A person can be convicted of aiding and abetting second degree murder based on implied malice.

Authority:

People v. Clements (2022) 75 Cal. App. 5th 276, 299

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

People v. Reyes (2023) 14 Cal.5th 981, 990

People v. Gentile (2020) 10 Cal.5th 830, 850 [Notwithstanding SB 1437’s elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life]

Seventh Holding:

In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

ADPeople v. Reyes (2023) 14 Cal.5th 981, 991