Tag Archives: Elements of crime

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

Case 000468

Posted on by Gary McCurdy

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]

Elements of crime, Sentencing, Standard of review

Case 000461

Posted on by Gary McCurdy

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

Elements of crime, Sentencing, Standard of review

Case 000458

Posted on by Gary McCurdy

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]

Amelioration, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case: 000432

Posted on by Gary McCurdy

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

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000417

Posted on by Gary McCurdy

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

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

Elements of crime, Sentencing

Case: 000390

Posted on by Gary McCurdy

Error and/or relief

A jury convicted the defendant of five counts of first degree murder and found true five multiple-murder special circumstances (Pen. Code, § 190.2, subd. (a)(3)). The trial court sentenced him to five consecutive state prison terms of life without parole for the murder counts. It was error to submit to the jury more than one multiple-murder special circumstance allegation of multiple murder, and four must be stricken. However, this does not affect the sentence because the trial court properly applied the special circumstance to impose life without parole for all five murder counts.

First Holding:

The jury should have found only one multiple-murder special circumstance rather than five.

Authority:

PEN 190.2(a)(3)

People v. Mickey (1991) 54 Cal.3d 612, 678

People v. Garnica (1994) 29 Cal.App.4th 1558, 1563–1564

Appellate Principles, Elements of crime, Jury trial, Pleading, Standard of review, Sufficiency of and substantial evidence

Case: 000389

Posted on by Gary McCurdy

Error and/or relief

Consolidation and cross-admission of unrelated charges was improper and prejudicial under the circumstances of this case, and we will therefore reverse the judgment for possible retrial. Due to insufficient evidence of defendant’s guilt under certain murder theories presented to the jury, we will bar the prosecution from pursuing those theories in any retrial.

First Holding:

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We presume the existence of every fact that the trier of fact could reasonably deduce from the evidence to support the judgment. To overturn a jury’s finding, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.

Authority:

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

People v. Medina (2009) 46 Cal.4th 913, 919

People v. Redmond (1969) 71 Cal.2d 745, 755

Second Holding:

First degree willful, deliberate, and premeditated murder must be committed with express malice—i.e., willfully. The remaining elements of premeditation and deliberation are generally established through the following types of evidence: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as planning activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a motive to kill the victim, and (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design to take his victim’s life in a particular way for a reason which the jury can reasonably infer from facts of type (1) or (2).

The evidence of premeditation and deliberation is generally sufficient when there is evidence of all three types or at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3). These factors discussed in Anderson, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.

Authority:

PEN 188(a)(1)

People v. Concha (2009) 47 Cal.4th 653, 662

People v. Anderson (1968) 70 Cal.2d 15, 26–27

People v. Perez (1992) 2 Cal.4th 1117, 1125

Third Holding:

Where, as here, offenses in separate cases meet a statutory basis for consolidation, a defendant bears the burden to make a clear showing of prejudice to establish that the trial court abused its discretion in consolidating the cases. In our review, we examine the record before the trial court when it denied defendant’s severance motion and consider: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.

Authority:

PEN 954

People v. Mendoza (2000) 24 Cal.4th 130, 160-161

Fourth Holding:

We first address the charges’ cross-admissibility, because a finding of cross-admissibility generally negates the possibility of prejudice. Evidence of other crimes can be admitted to prove the offender acted according to a certain plan, or acted with a particular motive, if a degree of similarity exists between the past and present crimes so as to permit a reasonable inference that the offender must have entertained the same intent in both instances

Authority:

People v. Merriman (2014) 60 Cal.4th 1, 38

People v. Jones (2013) 57 Cal.4th 899, 926

Fifth Holding:

There exists a hierarchy, or continuum, with respect to the degree of similarity that is needed for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought. To be admissible to demonstrate a distinctive modus operandi, the evidence must disclose common marks or identifiers, that, considered singly or in combination, support a strong inference that the defendant committed the crimes. To be admissible to show intent, however, the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance. To be cross-admissible to establish motive, the offenses need not necessarily be factually similar but must share a direct logical nexus.

Authority:

Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1222

People v. Maury (2003) 30 Cal.4th 342, 392

People v. Yeoman (2003) 31 Cal.4th 93, 121

People v. Demetrulias (2006) 39 Cal.4th 1, 15

People v. Scheer (1998) 68 Cal.App.4th 1009, 1018 [the motive for the charged crime arises simply from the commission of the prior offense]

Sixth Holding:

Disputed identity is a factor to be considered in weighing the probative value of allegedly cross-admissible evidence of intent against the likelihood of undue prejudice due to its admission.

Authority:

People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2

People v. Earle (2009) 172 Cal.App.4th 372, 390–391

People v. King (2010) 183 Cal.App.4th 1281, 1301–1303

People v. Thompson (1988) 45 Cal.3d 86, 109 [to be admitted, evidence of other crimes must not contravene other policies limiting admission, such as those contained in Evidence Code section 352]