Tag Archives: Elements of crime

Amelioration, Elements of crime, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case: 000296

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to support the defendant’s conviction on count 2 for attempted voluntary manslaughter, and that conviction must be reversed. We also conclude the court’s use of the pre-AB 333 pattern jury instruction was prejudicial. This requires reversal of the gang enhancements, the substantive gang offense (count 7), and the related section 12022.53(d) and (e)(1) gang related firearm use enhancements.

First Holding:

Attempted voluntary manslaughter requires proof that the defendant specifically intended to kill the named victim, although the intent is mitigated by heat of passion or imperfect self-defense.

Authority:

People v. Manriquez (2005) 37 Cal.4th 547, 583

Second Holding:

The jury must agree unanimously the defendant is guilty of a specific crime. When the evidence suggests more than one discrete crime under a single count, either the prosecution must elect the act relied upon or the court must instruct the jury to agree on the same criminal act. The unanimity instruction exists to prevent jurors from convicting a defendant based on different instances of conduct, thereby ensuring all 12 jurors are convinced beyond a reasonable doubt that the same act constituted the offense. A unanimity instruction is required when the record shows evidence of more than one crime that could support conviction under a single count. But if the evidence shows only a single discrete crime, no instruction is necessary.

Authority:

People v. McDaniel (2021) 12 Cal.5th 97, 142

People v. Russo (2001) 25 Cal.4th 1124, 1132

People v. Covarrubias (2016) 1 Cal.5th 838, 877

People v. Hernandez (2013) 217 Cal.App.4th 559, 569

People v. Grimes (2016) 1 Cal.5th 698, 727

People v. Diedrich (1982) 31 Cal.3d 263, 281

Third Holding:

Determining whether a particular instruction was required presents a predominantly legal mixed question of law and fact. We therefore review claims of instructional error de novo.

Authority:

People v. Hernandez (2013) 217 Cal.App.4th 559, 568

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Guiuan (1998) 18 Cal.4th 558, 569

Fourth Holding:

In a criminal case, the trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues raised by the evidence and necessary to the jury’s understanding of the case. The correctness of jury instructions is determined by considering the charge as a whole, not by viewing individual instructions in isolation.

Authority:

People v. Martinez (2010) 47 Cal.4th 911, 953

People v. Carrington (2009) 47 Cal.4th 145, 192

Fifth Holding:

To determine whether the trial court properly instructed on the kill zone theory, we apply the substantial evidence standard of review. Under this standard, the question is whether the record contains evidence from which a reasonable jury could infer that the defendant intended to kill everyone within the zone of harm as a means of killing the primary target.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 193, 203 [Without substantial evidence showing the defendant acted with intent to kill a primary target, the essential basis for a concurrent intent analysis is not satisfied]

Sixth Holding:

The standard for assessing a sufficiency of the evidence claim is highly deferential. We examine 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. In conducting our review, we must presume in support of the judgment the existence of every fact the trial court could reasonably deduce from the evidence. We also accept all logical inferences the trial court could have drawn from circumstantial evidence. The question is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence supports the trier of fact’s finding. The judgment must be upheld unless it appears that, under no hypothesis whatsoever, is there sufficient substantial evidence to support it.

Authority:

People v. Cravens (2012) 53 Cal.4th 500, 507-508

People v. Kurey (2001) 88 Cal.App.4th 840, 848–849 [we resolve all inferences and intendments in favor of the judgment, and all conflicting evidence will be resolved in favor of the decision]

People v. Medina (2009) 46 Cal.4th 913, 919, superseded by statute on other grounds

People v. Flores (2020) 9 Cal.5th 371, 411

People v. Crittenden (1994) 9 Cal.4th 83, 139

People v. Sanchez (2003) 113 Cal.App.4th 325, 329

Seventh Holding:

The jury was instructed on the gang participation law as it existed at the time of trial. Because subsequent amendments under AB 333 changed the elements considerably and the defendant’s judgment is not final, the gang-related convictions must be retried under the new law.

Authority:

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

People v. Lopez (2025) 17 Cal.5th 388, 394

People v. Hallock (1989) 208 Cal.App.3d 595, 610

Amelioration, Appellate Principles, Elements of crime, Retroactivity, Standard of review, Vicarious liability

Case: 000295

Posted on by Gary McCurdy

Error and/or relief

There are two defendants, both convicted of murder and other matters. We reverse all counts of the conviction of Defendant A because of instructional error. It is therefore not necessary for us to consider the other errors urged by Defendant A. As to Defendant B, we reverse the conviction on the firearm offenses because of instructional error, and agree that the jury’s true findings on gang enhancements and related gang-related firearm enhancements must be vacatedand remanded because of changes in the law of gang criminal activity.

[GARY NOTE: The opinion is 70 pages long and goes into extensive discussion of the elements of murder. The reversals were based on the absence of proper jury instructions. I have chosen to summarize only a few of the pronouncements in the opinion rather than present a treatise on the elements of murder. I will, however, send the opinion to attorneys on request.]

First Holding:

Due to the trial court’s failure to instruct the jury on the meanings of “willfully,” “deliberately,” and “with premeditation,” or with the instructions describing aider and abettor liability for murder, Defendant A’s conviction for first degree murder requires reversal.

To be guilty of first degree murder as an aider and abettor, the jury must be instructed that 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.

Authority:

People v. Beeman (1984) 35 Cal.3d 547, 561

Second Holding:

We evaluate the failure to instruct the jury on an element of an offense for prejudice under Chapman. Under this standard, we must reverse the conviction unless after examining the entire cause, including the evidence, and considering all relevant circumstances, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.

Authority:

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

People v. Beck and Cruz (2019) 8 Cal.5th 548, 642

People v. Swain (1996) 12 Cal.4th 593, 607

Third Holding:

We review a claim of instructional error de novo. Review of the adequacy of instructions is based on whether the trial court fully and fairly instructed on the applicable law. Generally, the trial court is required to instruct the jury on the general principles of law that are closely and openly connected with the evidence and that are necessary to the jury’s understanding of the case. It also has a duty to refrain from giving incorrect instructions or instructions on principles of law that are irrelevant and that would have the effect of confusing the jury or relieving it from making findings on the relevant issues. The trial court’s duty in this regard extends to lesser included offenses that find substantial support in the evidence. In determining the correctness of jury instructions, we consider the entire charge of the court, in light of the trial record.

Authority:

People v. Manriquez (2005) 37 Cal.4th 547, 581, 584

People v. Barber (2020) 55 Cal.App.5th 787, 798-799

People v. Thomas (2023) 14 Cal.5th 327, 388–389

People v. Breverman (1998) 19 Cal.4th 142, 162

People v. Covarrubias (2016) 1 Cal.5th 838, 926

Fourth Holding:

An erroneous failure to instruct on a lesser included offense requires reversal of a conviction if, taking into account the entire record, it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. In a noncapital case, a failure to instruct sua sponte on a lesser necessarily included offense that is supported by the evidence is state law error that we review for prejudice under Watson. Under Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error. We also consider the instructions as a whole, the jury’s findings, and the closing arguments of counsel.

Authority:

People v. Breverman (1998) 19 Cal.4th 142, 169, 178

People v. Watson (1956) 46 Cal.2d 818, 836

People v. Ledesma (2006) 39 Cal.4th 641, 716

People v. Watson (1956) 46 Cal.2d 818

People v. Beltran (2013) 56 Cal.4th 935, 955

People v. Larsen (2012) 205 Cal.App.4th 810, 831

Fifth 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.

Authority:

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

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

Sixth Holding:

AB 333 amended section 186.22, by, among other things, modifying the definitions of “pattern of criminal activity” and “criminal street gang,” as well as clarifying what is required to establish that an offense benefits, promotes, furthers, or assists a criminal street gang. Section 186.22 now requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have commonly benefited a criminal street gang where the common benefit is more than reputational; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense.

To benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

Authority:

People v. Perez (2022) 78 Cal.App.5th 192, 206

People v. Lopez (2021) 73 Cal.App.5th 327, 345

Seventh Holding:

Because the changes to the criminal street gang statute in AB 333 are ameliorative,those changes apply retroactively to defendants whose convictions are not yet final.

Authority:

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

Appellate Principles, Duty of the court, Pleading, Standard of review, Sufficiency of and substantial evidence

Case: 000291

Posted on by Gary McCurdy

Error and/or relief

This was a People’s appeal from the trial court’s grant of a motion under section 995 to set aside counts and enhancements in the information that the magistrate found insufficient evidence to support at the preliminary hearing. Grant of section 995 motion affirmed.

[GARY NOTE: This opinion went into depth analyzing the sufficiency of evidence on the question of gang common benefit and whether the members collectively engaged in the pattern of criminal gang activity that the statute requires. It discussed several published cases as example that guided its decision. I have not included the discussion or the cases cited, as that depth is beyond the scope of this blog. I’m happy to provide the full opinion to any attorney who asks me for it.]

First Holding:

Under section 995, an information will be set aside if the defendant was committed without reasonable or probable cause. To establish probable cause sufficient to withstand a section 995 motion to dismiss, the People must make some showing as to the existence of each element of the charged offense. Reasonable or probable cause’ means such a state of facts as would lead a [person] of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. Probable cause signifies a level of proof below that of proof beyond a reasonable doubt, or even proof by a preponderance of the evidence. The showing required at this stage is exceedingly low, and an information should be set aside only when there is a total absence of evidence to support a necessary element of the offense charged.

Authority:

Hale v. Superior Court (2014) 225 Cal.App.4th 268, 271 [a defendant may utilize section 995 to strike invalid enhancement allegations]

People v. Chapple (2006) 138 Cal.App.4th 540, 545

People v. Mower (2002) 28 Cal.4th 457, 473

People v. Superior Court (Mendez) (2022) 86 Cal.App.5th 268, 276

People v. Garcia (2018) 29 Cal.App.5th 864, 870–871

Second Holding:

When we review a section 995 motion, we disregard the ruling of the superior court and directly review the determination of the magistrate. We must draw all reasonable inferences in favor of the information and decide whether there is probable cause to hold the defendants to answer, i.e., whether the evidence is such that a reasonable person could harbor a strong suspicion of the defendant’s guilt.

Authority:

People v. San Nicolas (2004) 34 Cal.4th 614, 654 [reviewing denial of sec. 995 motion made after magistrate struck special circumstance allegation]

Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072

Third Holding:

As here with respect to the gang evidence presented by the prosecution, where the facts are undisputed, the determination of probable cause constitutes a legal conclusion which is subject to independent review on appeal.

Authority:

People v. Superior Court (Farley) (2024) 100 Cal.App.5th 315, 326

People v. Scully (2021) 11 Cal.5th 542, 582 [independent standard of review applies when magistrate determines that the People did not put forth sufficient evidence to support the charges]

Fourth Holding:

Not every crime committed by gang members is related to a gang. Concerned with lax interpretations of the prior gang law that allowed for overly expansive application of gang enhancements, the Legislature amended section 186.22 effective January 1, 2022. The amendments to section 186.22 narrowed the definition of a criminal street gang and increased the prosecution’s burden of proof by altering the definition of a criminal street gang and instituting new requirements to prove that a criminal street gang engaged in a pattern of criminal gang activity.

Authority:

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

People v. Cooper (2023) 14 Cal.5th 735, 744

People v. Renteria (2022) 13 Cal.5th 951, 961, fn. 6

Fifth Holding:

For the reasons stated in this opinion, we conclude that there was insufficient evidence that a reasonable person could harbor a strong suspicion that gang’s predicate offenses were either committed for the gang’s common benefit or that the gang members collectively engaged in a pattern of criminal gang activity as defined under section 186.22. Finding insufficient evidence that the gang meets the definition of a criminal street gang under section 186.22, we discern no error in the trial court’s partial grant of the section 995 motion as to the gang enhancements and gang related firearm enhancements as to all defendants.

Authority:

Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072

Amelioration, Jurisdiction, Sentencing

Case: 000286

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the trial court failed to consider the amendments under AB 333 to the elements of gang criminal activity and gang criminal enhancements. The trial court must first, however, determine whether the defendant’s name was on a list prepared by the Department of Corrections and Rehabilitation as being a person whose sentence includes a now-invalid enhancement for a prior prison term. If it is not, then the trial court has no jurisdiction to conduct a hearing under section 1172.75.

First Holding:

A trial court is deprived of jurisdiction to resentence a criminal defendant once execution of the sentence has commenced. Where the trial court relinquishes custody of a defendant, it also loses jurisdiction over that defendant. The Legislature may restore jurisdiction to the trial court by enacting a statute allowing defendants with final convictions to petition for resentencing, and indeed, has done so several times.

Authority:

People v. King (2022) 77 Cal.App.5th 629, 636

Second Holding:

The Legislature did not create a right for defendants to petition for resentencing in section 1172.75. Instead, it required the secretary of the CDCR and the county correctional administrator of each county to initiate the resentencing process by identifying those persons in their custody currently serving a term for a judgment that includes an invalid enhancement and providing the name of each person to the sentencing court that imposed the enhancement. Absent action by the CDCR, the trial court lacks jurisdiction to entertain a defendant’s motion for resentencing.

Authority:

People v. Escobedo (2023) 95 Cal.App.5th 440, 447-448

People v. Burgess (2022) 86 Cal.App.5th 375, 381

People v. Newell (2023) 93 Cal.App.5th 265, 268

People v. Cota (2025) 112 Cal.App.5th 1118, 1129-1131, review granted Oct. 1, 2025, S292637 [superior court has jurisdiction to resentence a defendant if the CDCR includes the defendant in a list of eligible inmates but fails to forward the list to the superior court]

Third Holding:

The record before us does not establish that the superior court had jurisdiction to resentence the defendant under section 1172.75. Any action taken without fundamental jurisdiction is void, not simply voidable. Prior to taking any further action on remand, therefore, the court must first determine whether the CDCR in fact placed the defendant’s name on a list of defendants potentially eligible for resentencing.

Authority:

People v. Boyd (2024) 103 Cal.App.5th 56, 71

Fourth Holding:

The full resentencing rule applies to proceedings under section 1172.75. Under this rule, the resentencing court has jurisdiction to modify every aspect of the sentence and may revisit all prior sentencing decisions . In particular, the court may consider any changed circumstances since the original sentencing hearing.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 877

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

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

People v. Navarro (2007) 40 Cal.4th 668, 681

Fifth Holding:

The original sentence was based in part on the jury’s finding that the defendant committed the offenses for the benefit of a criminal street gang. Without that finding, his sentence for premeditated and deliberate attempted murder would have been life with the possibility of parole after having served seven years. Because of the gang finding, however, his sentence for attempted murder required that he serve at least 15 years prior to any parole.

AB 333 restricted the circumstances in which gang enhancements under section 186.22 apply. In resentencing proceedings under section 1172.75,the court shall apply any changes in law that reduce sentences, and the defendant argued that in light of the amendments to section 186.22, a retrial on the gang allegation is necessary. The trial court disagreed, concluding the gang enhancement has been found to be true and that a retrial was not warranted.

But AB 333’s substantive amendments to section 186.22 apply retroactively to defendants whose convictions are not final. Even if a defendant’s conviction became final years ago, if his sentence is vacated as a result of subsequent legislation, it becomes nonfinal for purposes of resentencing. Thus, assuming the court had jurisdiction to vacate the defendant’s sentence, he is entitled to benefit from the recent amendments to section 186.22 at resentencing.

Authority:

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

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

People v. Padilla (2022) 13 Cal.5th 152, 162

Amelioration, Elements of crime, Retroactivity, Sentencing

Case: 000277

Posted on by Gary McCurdy

Error and/or relief

AB 333’s amendments to section 186.22 are retroactive and should have been addressed when appellant’s sentence was recalled under section 1172.75. As a result of those amendments, we reverse appellant’s conviction in count 4 for active participation in a criminal street gang, vacate the gang enhancements found true as to three felony convictions, and remand for the People to determine whether to retry appellant on the gang allegations pursuant to the amended version of section 186.22.

First Holding:

AB 333 changed the elements required to prove both the gang conviction under section 186.22(a) and the gang enhancement under subdivision (b). AB 333 added new elements to the substantive gang offense and gang enhancements in section 186.22—for example, by requiring proof that gang members collectively engage in a pattern of criminal gang activity, that the predicate offenses were committed by gang members, that the predicate offenses benefitted the gang, and that the predicate and underlying offenses provided more than a reputational benefit to the gang. These changes had the effect of increasing the threshold for conviction of the section 186.22 offense and the imposition of the enhancement.

Authority:

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

People v. Burgos (2024) 16 Cal.5th 1, 9

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

AB 333’s amendments to section 186.22 are ameliorative and retroactive to all cases not final as of the legislation’s effective date. When a defendant’s sentence is recalled, the amended version of section 186.22 is applicable at the section 1172.75 resentencing hearing.

Authority:

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

People v. Burgos (2024) 16 Cal.5th 1, 25

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

People v. Lopez (2025) 17 Cal.5th 388, 395–396

People v. Salgado (2022) 82 Cal.App.5th 376, 380–381

People v. Sek (2022) 74 Cal.App.5th 664, 667