Tag Archives: Jury instructions

Duty of the court, Jury instructions, Sentencing, Sixth Amendment, Standard of review

Case 000589

Posted on by Gary McCurdy

Error and/or relief

We affirm the judgment of conviction, but vacate the defendant’s sentence and remand for a new trial on the aggravating factors because it was prejudicial error for the court to impose an upper term sentence based on uninstructed and unproven aggravating factors.

First Holding:

The Sixth Amendment right to a jury trial and the Fourteenth Amendment guarantee of due process entitle a criminal defendant to a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Where enumerated aggravating factors operate as the functional equivalent of an element of a greater offense, the Sixth Amendment requires that they be found by a jury.

Authority:

Apprendi v. New Jersey (2000) 530 U.S. 466, 476-477

Ring v. Arizona (2002) 536 U.S. 584, 609

Cunningham v. California (2007) 549 U.S. 270, 288-289 [under Apprendi, aggravating circumstances supporting upper term sentence must be found by a jury]

Second Holding:

The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense. It is, indeed, very serious constitutional error because it threatens the right to a jury trial that both the United States and California Constitutions guarantee. It is well settled that no objection is required to preserve a claim for appellate review that the jury instructions omitted an essential element of the charge.

Authority:

People v. Merritt (2017) 2 Cal.5th 819, 824

Apprendi v. New Jersey (2000) 530 U.S. 466, 477

People v. Mil (2012) 53 Cal.4th 400, 409 [trial court erred by omitting essential elements of a special circumstance allegation]

Third Holding:

We review constitutional claims and claims of instructional error de novo. We must consider the claim of instructional error in the context of the instructions as a whole and the trial record. An instructional error that improperly describes or omits an element of an offense generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution, unless the instructional error or omission amounts to the total deprivation of a jury trial.

Rather, where the trial court fails to instruct on necessary elements, generally this error is subject to harmless-error analysis under the test of Chapman, that is, whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Overwhelming evidence, other properly given jury instructions, or a defendant’s concession of elements for which an instruction was omitted may render an error harmless.

Authority:

People v. Rivera (2019) 7 Cal.5th 306, 326 [instructional error]

In re Taylor (2015) 60 Cal.4th 1019, 1035 [constitutional claims]

People v. Salazar (2016) 63 Cal.4th 214, 248 [The correctness of jury instructions is to be determined from the entire charge of the court]

People v. Flood (1998) 18 Cal.4th 470, 502-503

People v. Merritt (2017) 2 Cal.5th 819, 830

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

Neder v. U.S. (1999) 527 U.S. 1, 15

People v. Williams (1997) 16 Cal.4th 635, 689, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22

Fourth Holding:

Forfeiture does not bar the defendant’s claim because the trial court had a sua sponte duty to instruct on all essential elements of the charge. Further, the failure to instruct the jury on all essential elements is not a matter of discretion but raises a legal claim under the federal constitution subject to de novo review.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 409

People v. French (2008) 43 Cal.4th 36, 46 [a defendant’s failure to object does not preclude his asserting on appeal that he was denied his constitutional right to a jury trial]

People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5

People v. Serrano (2022) 77 Cal.App.5th 902, 908-909

People v. Lua (2017) 10 Cal.App.5th 1004, 1013

Fifth Holding:

The trial court failed to instruct properly on essential elements of the aggravating factor under rule 4.421(a)(1) that, to find the aggravating factor true, it must determine that the defendant’s conduct was distinctively worse than what was necessary to commit the crime, an element necessary to a true finding under the rule. The jury instructions omitted any definition of cruelty, viciousness, or callousness within the meaning of rule 4.421(a)(1).

This element of the aggravating factor may not be necessary in every case because “great bodily injury” alone may satisfy the requirements of rule 4.421(a)(1). But here, the defendant was also subject to a sentencing enhancement for inflicting great bodily injury under section 12022.7(a), and the trial court could not aggravate the defendant’s sentence on the same factual basis under section 1170(b)(5).

Authority:

People v. Sengpadychith (2001) 26 Cal.4th 316, 320

People v. Harvey (1984) 163 Cal.App.3d 90, 116-117 [In imposing the upper term . under rule 421(a)(1) [now rule 4.421(a)(1)] the factfinder must convince itself that, when compared to other ways in which such a crime could be committed, the manner of this crime’s commission indicated viciousness and callousness]

People v. Webber (1991) 228 Cal.App.3d 1146, 1169

People v. Nevill (1985) 167 Cal.App.3d 198, 206

People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735 [aggravating factor satisfied by finding of “great bodily injury”]

People v. Scott (1994) 9 Cal.4th 331, 350 [a court generally cannot use a single fact both to aggravate the base term and to impose an enhancement]

People v. Castaneda (1999) 75 Cal.App.4th 611, 614-615

People v. Hill (1994) 23 Cal.App.4th 1566, 1575

People v. La Fargue (1983) 147 Cal.App.3d 878, 898

Sixth Holding:

It is the court’s duty to see to it that the jury are adequately informed on the law governing all elements of the case submitted to them to an extent necessary to enable them to perform their function in conformity with the applicable law. Accordingly, the trial court erred by omitting jury instructions on necessary elements of the aggravating factor allegation.

Authority:

People v. Sanchez (1950) 35 Cal.2d 522, 528

Seventh Holding:

In addition, the court imposed an upper term sentence based on untried aggravating facts, discussing aspects purportedly related to public safety. An upper term sentence may be imposed only when circumstances in aggravation justify that term, and only when the facts underlying those justifying circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial.

Here, the court erred by imposing an upper term sentence based on facts not found by the jury or stipulated to by the defendant, including that the defendant used a knife, that the assault occurred in a busy public area, and that his conduct endangered public safety. It was error for the court to consider these additional uncharged and unproven aggravating circumstances to impose an upper term sentence. We are unable to determine with a requisite degree of confidence that a jury would have found those facts to be factors in aggravation. We thus reverse the sentence and remand for resentencing.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 759

People v. Whitten (1994) 22 Cal.App.4th 1761, 1767 [examination of aggravating factors necessarily involves subjective determinations based upon objectively demonstrated facts]

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

Case 000583

Posted on by Gary McCurdy

Error and/or relief

Though the trial court erred in failing to instruct that mere presence at the scene is insufficient to prove guilt, the error was harmless in light of the other evidence presented. The abstract of judgment is premature. The trial court suspended imposition of sentence and placed the defendant on probation for two years. The abstract of judgment, however, indicates that the defendant was sentenced to state prison for two years. It must be corrected.

First Holding:

The abstract of judgment is premature. The trial court suspended imposition of sentence and placed the defendant on probation for two years. The abstract of judgment, however, indicates that the defendant was sentenced to state prison for two years. it must be corrected.

(GARY note: The court cited no authority for its directive that the abstract of judgment be corrected. Likely because the error and cure seem so obvious. But there is plenty of authority for the court’s order, and I have set out some 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

Second Holding:

We review questions of instructional error de novo. In so doing, we consider the jury instructions as a whole, as well as the charges and entire record.

Authority:

People v. Posey (2004) 32 Cal.4th 193, 218

People v. Serrano (2022) 77 Cal.App.5th 902, 909

Third Holding:

In determining a sufficiency of the evidence challenge, we review the whole record in the light most favorable to the judgment 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. The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on isolated bits of evidence.Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.

In other words, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The standard is the same in cases in which the People rely primarily on circumstantial evidence. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.

Authority:

People v. Johnson (1980) 26 Cal.3d 557, 578

People v. Cuevas (1995) 12 Cal.4th 252, 261

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

People v. Nguyen (2015) 61 Cal.4th 1015, 1055

People v. Bean (1988) 46 Cal.3d 919, 932

Fourth Holding:

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, and (3) by act or advice aids, promotes, encourages or instigates the commission of the crime. Whether a person has aided and abetted a crime is a question of fact for which the trier of fact may consider presence at the scene of the crime, companionship, and conduct before and after the offense. The requisite state of mind may be proven with circumstantial evidence.

Authority:

People v. Nguyen (2015) 61 Cal.4th 1015, 1054-1055

Fifth Holding:

Although defendant’s mere presence at the scene cannot alone establish aiding and abetting, her presence may be considered along with other evidence to establish that she aided and abetted the burglary. Further, possession of recently stolen property cannot alone establish burglary, but such possession is highly incriminating and need only be slightly corroborated.

Authority:

People v. Pettie (2017) 16 Cal.App.5th 23, 57

People v. Nguyen (2015) 61 Cal.4th 1015, 1055

People v. Mendoza (2000) 24 Cal.4th 130, 176

People v. McFarland (1962) 58 Cal.2d 748, 754-755

Sixth Holding:

It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. The trial court has a sua sponte duty to give the mere presence portion of the aiding and abetting instructions where there is substantial evidence supporting its consideration.

Authority:

People v. Ochoa (1998) 19 Cal.4th 353, 422

People v. Boyd (1990) 222 Cal.App.3d 541, 557

Seventh Holding:

We conclude that the defendant’s testimony was sufficient to trigger the trial court’s sua sponte duty to give the mere presence portion of the aiding and abetting instruction. However, whether prejudice is to be measured under the Watson standard or the more rigorous Chapman standard, we find beyond a reasonable doubt that the failure to instruct was harmless, in light of our review of the entire record, including the arguments of the parties.

Authority:

People v. Boyd (1990) 222 Cal.App.3d 541, 557

People v. Perry (1979) 100 Cal.App.3d 251, 260

People v. Powell (2021) 63 Cal.App.5th 689, 715

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

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

Elements of crime, Jury instructions

Case 000581

Posted on by Gary McCurdy

Error and/or relief

The jury received a legally erroneous instruction on the elements of the gang conspiracy offense.

First Holding:

The trial court instructed the jury on count 10 as follows: The defendant is charged with participating in a criminal street gang conspiracy, in violation of section 182.5. It is charged that the felony committed was murder, in violation of section 187(a) To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant was an active participant in a criminal street gang; 2. The defendant had knowledge that its members engage in or have engaged in a pattern of criminal gang activity; 3. The crime of murder, in violation of section 187 was committed by the gang in which the defendant belongs; and 4. The defendant intended to promote, further, assist, or benefit in the commission of the crime by other gang members.

The court failed to advise the jury that it must find defendant in fact promoted, furthered, assisted, or benefitted in the commission of the crime and did not just intend to do so.

Authority:

People v. Abbate (2020) 58 Cal.App.5th 100, 110

Second Holding:

While there was sufficient evidence for a properly instructed jury to find the defendant guilty on count 10, it was far from overwhelming. The jury found the defendant not guilty on several of the counts charged against him. And the court’s instructional error was exacerbated by the prosecution’s argument that “the fourth element is that they either intended to further, to promote, or further assist in the commission of crimes of other gang members.

The reviewing court must consider the arguments of counsel in assessing the probable impact of the instruction on the jury. On this record, we cannot conclude that the instructional error was harmless. We will therefore vacate the conviction on count 10 and remand the matter to the trial court to allow the prosecution an opportunity to retry count 10.

Authority:

People v. Young (2005) 34 Cal.4th 1149, 1202

People v. Cooper (2023) 14 Cal.5th 735, 746–747

People v. E.H. (2022) 75 Cal.App.5th 467, 480

People v. Lopez (2021) 73 Cal.App.5th 327, 346

Third Holding:

A trial court must instruct on all lesser included offenses supported by substantial evidence, including voluntary manslaughter.

Authority:

People v. Duff (2014) 58 Cal.4th 527, 561

Appellate Principles, Elements of crime, Jury instructions, Sufficiency of and substantial evidence

Case 000561

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction of child endangerment where the child was not near the endangering activity (an insecure location where a firearm was stored in the home).

First Holding:

We generally review allegedly improper jury instructions de novo. Resulting error is reviewed under either Chapman, which requires the prosecution to show federal constitutional error was harmless beyond a reasonable doubt, or under the less strenuous standard of Watson, which requires the defendant to demonstrate the reasonable probability of a more favorable result and generally applies to state-law errors. An instructional error involving a single element will be deemed harmless only in unusual circumstances, such as where the element was undisputed, the defense was not prevented from contesting the omitted element, and overwhelming evidence supports the omitted element.

Authority:

People v. Posey (2004) 32 Cal.4th 193, 218

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

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

People v. Merritt (2017) 2 Cal.5th 819, 828

Second Holding:

In evaluating a claim that a conviction lacks sufficient evidence, we review the whole record to determine whether there is substantial evidence to support the verdict such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. Such evidence can include not only circumstantial evidence, but also all reasonable inferences drawn from it. We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, but we neither reweigh the evidence nor reevaluate the credibility of the witnesses.

Authority:

People v. Wear (2020) 44 Cal.App.5th 1007, 1019

People v. Soriano (2021) 65 Cal.App.5th 278, 286

People v. Ochoa (1993) 6 Cal.4th 1199, 1206

Third Holding:

Failing to deny children access to a loaded firearm is sufficient to constitute circumstances likely to produce great bodily harm and death.

Authority:

People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 91

Amelioration, Elements of crime, Evidence, Jury instructions, Jury trial, Sentencing, Sixth Amendment, Standard of review, Statutory interpretation

Case 000555

Posted on by Gary McCurdy

Error and/or relief

Because we are unable to conclude beyond a reasonable doubt that the omission of an instruction on the organizational nexus element of the gang allegations did not contribute to the verdict obtained, we reverse all gang enhancements under section 186.22(b), the gang-related firearm enhancement on count 1 under section 12022.53,(d) and (e)(1), and the gang-related indeterminate sentence imposed on count 13 under section 186.22(b)(C)(4). We remand for resentencing and for further proceedings consistent with this opinion.

First Holding:

All gang-related enhancements must be reversed because the jury was not instructed on the organizational nexus element of the gang enhancement under amended Penal Code section 186.22(b).

Authority:

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

Second Holding:

AB 333 substantially narrowed the definition of a criminal street gang and made numerous amendments to the statutory language. The specific amendment relevant here concerns the definition of criminal gang activity. Under the amended language, the prosecution must now present evidence that the members of the gang collectively engaged in a pattern of criminal activity, as opposed to the former language under which individual criminal action by members was sufficient.

While the evidence necessary to establish an organizational nexus might often overlap with the evidence used to demonstrate how a predicate offense commonly benefitted the gang, the inquiries are nonetheless conceptually distinct. The phrase collective engagement calls for an inquiry not just into how the predicate offenses benefited the gang, but also how the gang works together as a gang. It calls for a showing of a connection, or nexus, between an offense committed by one or more gang members and the organization as a whole.

Authority:

PEN 186.22

People v. Clark (2024) 15 Cal.5th 743, 752, 762

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

Third Holding:

Section 186.22 now requires evidence demonstrating a nexus between the individual predicate offenses and the gang as an organized, collective enterprise. This organizational nexus requirement is satisfied by showing a connection between the predicate offenses and the organizational structure, primary activities, or common goals and principles of the gang. Defendant’s trial took place several months before the Supreme Court issued its decision in Clark and before CALCRIM No. 1401 was amended. The jury was therefore not instructed on the organizational nexus element as interpreted in Clark. The pre-Clark instruction given below was adequate.

Authority:

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

Fourth Holding:

When a jury instruction omits an element of an offense or special allegation, it impermissibly lessens the prosecution’s burden of proof and implicates the defendant’s federal due process rights. When such an instructional error occurs, we assess prejudice under the federal harmless error standard of Chapman In this context, our review under Chapman requires an examination of the record in its totality. If, at the end of that examination, we cannot conclude beyond a reasonable doubt the jury verdict would have been the same absent the error, the instructional error was not harmless. Put another way, the error was prejudicial if we determine the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742 [concluding Chapman applied in assessing prejudice where instructions omitted new element of gang enhancement that common benefit to gang must be more than reputational]

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

People v. Mil (2012) 53 Cal.4th 400, 417

Fifth Holding:

Defendant had the right to cross-examine a witness about whether he had been offered inducements to testify, expected benefits from giving his testimony, or otherwise had a motive to lie. Exposing a witness’s potential for bias and fabrication has long been recognized as one of the most important functions of cross-examination.

Authority:

EVID 780(f)

People v. Pearson (2013) 56 Cal.4th 393, 455

Delaware v. Van Arsdall (1986) 475 U.S. 673, 678–679

Sixth Holding:

The trial court is vested with broad discretion to impose reasonable limitations on defendant’s cross-examination without offending the constitution. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. The Sixth Amendment guarantees a defendant an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.

Authority:

People v. Contreras (2013) 58 Cal.4th 123, 152

Delaware v. Van Arsdall (1986) 475 U.S. 673, 679

People v. Harris (2008) 43 Cal.4th 1269, 1292

Seventh Holding:

We review the trial court’s evidentiary rulings in this context under the deferential abuse of discretion standard. Moreover, as a general rule, the application of the ordinary rules of evidence do not impermissibly infringe on a defendant’s right to present a defense.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 9–10 [discretion abused only where exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice]

People v. Gurule (2002) 28 Cal.4th 557, 620

Eighth Holding:

In order to establish a prejudicial abuse of discretion that violated the Sixth Amendment right to confrontation, a defendant is required to affirmatively show the trial court’s order limiting or precluding cross-examination left the jury with a significantly different impression of the witness’ credibility. Otherwise, the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.

Authority:

People v. Pearson (2013) 56 Cal.4th 393, 455-456

Delaware v. Van Arsdall (1986) 475 U.S. 673, 680

People v. Gonzalez (2021) 12 Cal.5th 367, 406

Ninth Holding:

The record reflects the trial court failed to impose sentence on counts 14 and 15, two of the extortion counts on which the jury found defendant guilty. As defendant concedes in his reply brief, the appropriate course of action in such circumstances is a remand for the purpose of pronouncement of a judgment in accordance with the verdict. In light of the reversal of all gang enhancements, the gang-related firearm enhancement on count 1 and the gang-related indeterminate term on count 13, the superior court, on remand, shall conduct a full resentencing at which it may consider all of its sentencing choices anew.

Authority:

People v. Taylor (1971) 15 Cal.App.3d 349, 353

Duty of the court, Elements of crime, Jury instructions, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000540

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of five offenses arising from a violent, domestic-violence-related altercation. The trial court erred when it failed to instruct the jury on a lesser included offense. The court issued a protective order outside of its jurisdiction under Penal Code section 136.2. The court miscalculated the total assessment due from the defendant pursuant to Government Code section 70373(a). We vacate the protective order and reverse the judgment, remanding for a possible retrial on one conviction and for a full resentencing.

First Holding:

We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law.

Authority:

People v. Lueth (2012) 206 Cal.App.4th 189, 195

Second Holding:

In a criminal case, a jury verdict must be unanimous. When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. The unanimity instruction requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. If required, the instruction must be given sua sponte.

Authority:

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

People v. Melhado (1998) 60 Cal.App.4th 1529, 1534

People v. Riel (2000) 22 Cal.4th 1153, 1199

Third Holding:

If a prosecutor elects to rely upon a specific act to prove a charged crime, then the trial court has no duty to give the jury an instruction that it must unanimously agree on the act that constituted the crime charged.

Authority:

People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455

Fourth Holding:

The trial court instructed the jury with the elements of assault with a deadly weapon, but did not instruct them with the elements of simple assault. We conduct an independent review of the question of whether this was error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

Fifth Holding:

We conclude that it was error for the to not instruct the jury with the elements of simple assault. A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. Simple assault is a lesser included offense of aggravated assault The trial court, accordingly, was required to instruct the jury on the lesser included offense of simple assault if a reasonable jury could have found that the defendant committed only a simple assault and not an assault with a deadly weapon.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 645

People v. McDaniel (2008) 159 Cal.App.4th 736, 747

Sixth Holding:

Under section 245 (assault with a deadly weapon), an object may be a deadly weapon in two ways. First, objects are considered deadly weapons as a matter of law, or deadly per se, when the ordinary use for which they are designed establishes their character as such. Typical examples include dirks and blackjacks. Second, if an object is not inherently deadly, the prosecution must prove to the trier of fact that the object was used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. Objects which have been found to be a deadly weapon based on the way they were used include a pillow, an automobile, a large rock, a razor blade, and a fingernail file. A wrench is not inherently deadly as a matter of law. It is designed and typically used for innocent purposes.

Authority:

People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029

People v. Montes (1999) 74 Cal.App.4th 1050, 1054

People v. Aledamat (2019) 8 Cal.5th 1, 6

Seventh Holding:

Based on the evidence, we conclude reasonable jurors could have decided the evidence was sufficient to prove the defendant assaulted the victim with the wrench but was insufficient to prove he did so in a manner likely to cause death or great bodily injury. And so we must reverse the judgment and conviction for assault with a deadly weapon. Under settled law, the judgment will be modified unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Eighth Holding:

Whether section 136.2(i)(1) authorized the court to issue a protective order against a defendant is an issue of statutory interpretation we review de novo.

Authority:

People v. Pena (2025) 113 Cal.App.5th 640, 645

Ninth Holding:

Under section 136.2(i)(2), trial courts, generally speaking, are authorized to issue postconviction orders restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a percipient witness to the crime who has been harassed by the defendant. It was improper to issue a protective order under section 136.2(i) where the person was not a percipient witness. The broader protective orders under section 136.2 are limited to the time frame during the pendency of the criminal action. It does not apply to postconviction orders.

Authority:

PEN 136.2

People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465 and fn. 4, 466

People v. Walts (2025) 112 Cal.App.5th 127, 140–144

Tenth Holding:

The court imposed $180 as the court facilities funding assessment for the five counts. However, at $30 for each count, the assessment should have been $150, not $180.

Authority:

GOV 70373(a)

AppellateAdvisor Updates, Due process, Elements of crime, Fifth Amendment, Jury instructions, Sufficiency of and substantial evidence

Case 000489

Posted on by Gary McCurdy

Error and/or relief

There is insufficient evidence to support the child pornography count. The court also impermissibly restricted cross-examination to the extent that it violated the defendant’s right to cross-examine the witness. After reconsideration following four days of testimony, the court changed its mind. Rather than allow the defense to rebut the evidence already before the jury or declare a mistrial, the court instructed the jury that it was striking that portion of the victim’s testimony over the last four days as to her feelings in response to defendant’s actions, statements and text messages, instructing the jury to disregard the stricken testimony.

On this record, the defendant was denied a fair trial, and the judgment is reversed.

First Holding:

There is insufficient evidence to support the child pornography count. The photograph on which it relies does not depict a minor personally engaging in or simulating sexual conduct, as defined in section 311.4(d). Exhibition of the breasts is not included in the statutory definition of sexual conduct. In the context of section 311.4, the rectal area is not equivalent to buttocks and, to the extent rectal area may include any portion of the buttocks, it is limited to a portion of the lower buttocks near the rectum or anus.

Authority:

PEN 311.4(d)

PEN 311.11(a)(1)

PEN 311.4(d)

People v. Wallace (1992) 11 Cal.App.4th 568, 582 ([exposure of breasts does not constitute the prohibited exhibition under section 311.4], disapproved on another ground in People v. Martinez (1995) 11 Cal.4th 434, 452)

People v. Cantrell (1992) 7 Cal.App.4th 523, 545

Second Holding:

The Kongs factors are not included in the standard CALCRIM No. 1145 instruction. The factors are derived from People v. Kongs, where the Court of Appeal applied a list of six factors adopted by the federal courts for a trier of fact to consider when determining what constitutes a lascivious exhibition of specified private parts in assessing a sufficiency of the evidence claim under section 311.4 (using a minor to pose for sex acts) and section 311.11(a) (possession of child pornography).

[GARY NOTE: While it would be perfectly proper to provide the specific language and factors recited in the opinion, I’ve exercised my “G-Rating”-censorship-reserved-right to modify the actual language used and to go no further than I’ve recited. If the factors may have a bearing in your case, you should be reading Kongs for yourself.]

Authority:

People v. Kongs (1994) 30 Cal.App.4th 1741, 1753–1755

Third Holding:

We conclude no reasonable jury could determine, based on the overall content of the photograph, that it depicts an exhibition of the rectal area for the viewer’s sexual stimulation. We thus conclude the subject photograph does not, as a matter of law, depict the minor engaging in or simulating sexual conduct. Consequently, the evidence was insufficient to support the defendant’s conviction for possession of child pornography in count 26. The Double Jeopardy Clause bars retrial on this charge.

Authority:

People v. Spurlock (2003) 114 Cal.App.4th 1122, 1133

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

Fourth Holding:

The admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must be of such quality as necessarily prevents a fair trial.

Authority:

People v. Partida (2005) 37 Cal.4th 428, 439

Estelle v. McGuire (1991) 502 U.S. 62, 70

People v. Albarran (2007) 149 Cal.App.4th 214, 229

Fifth Holding:

At trial, the prosecutor extensively questioned the minor about how the defendant made her feel through his statements and actions. The defendant’s defense counsel objected to the prosecutor’s line of questioning on relevance grounds, but the trial court overruled the objection, finding the testimony relevant to the minor’s credibility. As a result, over the course of four days, the minor was permitted to testify extensively on direct examination on how the defendant’s encouraging words made her feel.

When the defense proffered evidence that portrayed an opposite picture of the minor, the trial court conceded that it should have sustained the defense objection on relevancy grounds, denied the defendant’s request to introducing the contrasting evidence, and purported to strike the offending portions of the minor’s direct testimony, instructing the jury to disregard the minor’s testimony over the four days as to her feelings regarding the defendant’s statements. This presentation of extensive inadmissible evidence, combined with the exclusion of defense evidence that would have rebutted the inadmissible testimony, denied the defendant of his due process right to a fair trial.

Authority:

People v. Albarran (2007) 149 Cal.App.4th 214

Sixth Holding:

Constitutional errors in admitting or excluding evidence are both subject to harmless error review. Federal constitutional errors subject to harmless error review are reviewed under Chapman, which requires us to reverse the conviction unless the People can demonstrate that the error was harmless beyond a reasonable doubt. To determine whether the People have carried their burden, we examine the entire record and must reverse if there is a reasonable possibility that the error contributed to the verdict.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 412

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

People v. Reese (2017) 2 Cal.5th 660, 671

Seventh Holding:

Even thoughtfully phrased limiting instructions may be insufficient to mitigate the harm resulting from prejudicial evidence.

Authority:

People v. Guerrero (1976) 16 Cal.3d 719, 730 [No limiting instruction, however thoughtfully phrased or often repeated, could erase from the jurors’ minds the prejudicial evidence]

Eighth Holding:

Ordinarily, a party’s failure to object to certain testimony at all, or failure to object on the specific grounds asserted on appeal, would render a challenge to the admission of the testimony forfeited.

Authority:

People v. Oyler (2025) 17 Cal.5th 756, 831

Duty of the court, Elements of crime, Jury instructions, Sentencing, Standard of review

Case: 000348

Posted on by Gary McCurdy

Error and/or relief

Remand is necessary for resentencing because the trial court determined one of the factors in aggravation against the defendant in violation of his constitutional right to a jury and relied on such determination in increasing his sentence. [Not error to fail to instruct on section 148 as lesser of section 69 because the jury necessarily relied on the force element of PC 69.]

First Holding:

It was error for the court to impose the upper term based on its own conclusion that the defendant’s prior convictions are numerous or of increasing seriousness. The right to a jury on any fact that increases the normal punishment for an offense derives from the Sixth Amendment to the United States Constitution.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082

Erlinger v. United States (2024) 602 U.S. 821, 840

Second Holding:

A criminal defendant does not waive his constitutional right to a jury trial by failing to object when a court resolves issues to which the right attaches without first obtaining the requisite waivers. As to whether the error was harmless, because the right to a jury trial on the aggravating factors derives from the United States Constitution, we assess prejudice under the standard set forth in Chapman. Under the Chapman standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. French (2008) 43 Cal.4th 36, 47

People v. Holmes (1960) 54 Cal.2d 442, 443–444

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

People v. Wiley (2025) 17 Cal.5th 1069, 1087

People v. Lynch (2024) 16 Cal.5th 730, 761 [When the trial court actually relies on improperly proven aggravating facts to justify an upper term sentence, a Sixth Amendment violation occurs and Chapman must be satisfied.]

Third Holding:

Because a reasonable jury could have concluded the defendant’s convictions were not of increasing seriousness, we remand for resentencing without the need to consider their numerosity. Even if we were to reach the issue, we would likely have reasonable doubt a jury would have concluded the defendant’s prior convictions were numerous. Whether prior convictions are “numerous” for purposes of rule 4.421(b)(2) is not further defined in the California Rules of Court. A reasonable jury might consider numerosity in terms of the number of criminal episodes resulting n convictions, not in the number of convictions alone.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 847

Fourth Holding:

We review the trial court’s failure to instruct on a lesser included offense de novo considering the evidence in the light most favorable to the defendant.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 847

Fifth Holding:

A trial court is obligated to instruct the jury on an uncharged lesser offense included in one charged if there is substantial evidence from which a reasonable juror could conclude the defendant committed the lesser, but not the greater, offense. Because this is a sua sponte obligation, a defendant may raise it for the first time on appeal. This instructional requirement prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither harsher nor more lenient than the evidence merits.

Authority:

People v. DePriest (2007) 42 Cal.4th 1, 50

People v. Brothers (2015) 236 Cal.App.4th 24, 29-30, 33, fn. 6

Sixth Holding:

The most significant difference between the lesser offense described in section 148(a)(1) and the greater offense described in section 69(a) is that a defendant may be convicted of the lesser offense even if he did not use force or violence to effectuate the resistance. Accordingly, the trial court was required to instruct on the lesser offense of section 148(a)(1) resisting if substantial evidence supported a finding that the defendant did not use force or violence when he resisted the deputies.

Authority:

People v. Brown (2016) 245 Cal.App.4th 140, 153

Seventh Holding:

Resisting an officer by force or violence under section 69(a) does not require either a threshold quantum of force or violence, or the use of force or violence upon the person of the officer. The statutory language does not, in other words, require the defendant to have actual physical contact with the officer. Thus, forceful resistance of an officer by itself gives rise to a violation of section 69, without proof force was directed toward or used on any officer. Here, there is no evidence the defendant did not use force in resisting arrest by the deputies. Under the facts here, there is no substantial evidence to show that only the lesser crime was committed. No reasonable juror could conclude the defendant’s physical resistance amounted to a violation of section 148(a)(1) but not of section 69(a). Therefore, the trial court was correct not to instruct the jury on section 148(a)(1).

Authority:

People v. Morgan (2024) 103 Cal.App.5th 488, 508, disapproved on another ground in People v. Wiley (2025) 17 Cal.5th 1069, 1087

People v. Carrasco (2008) 163 Cal.App.4th 978, 985-986 [where uncontradicted evidence was that the defendant struggled forcefully against arrest, instruction on section 148(a)(1) was unnecessary because there was no evidence on which a jury could conclude the defendant resisted without violating section 69(a)]

Appellate Principles, Duty of the court, Jury instructions, Standard of review

Case 000344

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred and violated his due process rights by failing to provide a self-defense instruction as to the lesser included battery offense. We reverse defendant’s misdemeanor simple battery conviction.

First Holding:

The trial court must instruct on the general principles of law relevant to the issues raised by the evidence.

Authority:

People v. Smith (2013) 57 Cal.4th 232, 239

Second Holding:

We independently review claims of instructional error. We examine 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 in an impermissible manner.

Authority:

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

People v. Posey (2004) 32 Cal.4th 193, 218

People v. Houston (2012) 54 Cal.4th 1186, 1229

Third Holding:

Under appropriate circumstances a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case. But a trial court need not give a pinpoint instruction if it is argumentative , merely duplicates other instructions , or is not supported by substantial evidence. However, a defendant bears the burden of requesting a pinpoint instruction; a trial court has no sua sponte duty to provide one.

Authority:

People v. Bolden (2002) 29 Cal.4th 515, 558

People v. Gutierrez (2009) 45 Cal.4th 789, 824

Fourth Holding:

Furthermore, a trial court must instruct the jury sua sponte on general principles of law applicable to the case, including any defense supported by substantial evidence that is not inconsistent with the defendant’s theory of the case. In deciding whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the evidence, but only whether there is evidence which, if believed by the jury, is sufficient to raise a reasonable doubt of guilt.

Authority:

People v. Villanueva (2008) 169 Cal.App.4th 41, 49

People v. Barton (1995) 12 Cal.4th 186, 195

People v. Orlosky (2015) 233 Cal.App.4th 257, 269-270

Fifth Holding:

Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. But that rule does not apply when the trial court gives an instruction that is an incorrect statement of the law. Moreover, a failure to object to instructional error will not result in forfeiture if the error affects the defendant’s substantial rights. In this instance, the trial court on its own modified the instruction on the lesser included offense of battery by omitting the element of lack of self-defense, and directing the jury to consider self-defense solely on the question of whether he acted in self-defense on the greater offense of inflicting corporal injury. The instruction affirmatively and erroneously precluded the jury from considering the self-defense evidence in connection with the lesser included battery charge.

Authority:

People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012

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

People v. Townsel (2016) 63 Cal.4th 25, 60

Sixth Holding:

The California Supreme Court has yet to determine whether a trial court’s failure to instruct on a requested affirmative defense instruction supported by substantial evidence is federal constitutional error or state law error. We need not resolve the question in this case, because the error was prejudicial even under the state law standard. Under that standard, reversal is warranted if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. In this context, a probability does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.

Authority:

People v. Gonzalez (2018) 5 Cal.5th 186, 199

People v. Salas (2006) 37 Cal.4th 967, 984

Chapman v. California (1967) 386 U.S. 18, 24 [federal harmlessness standard]

People v. Watson (1956) 46 Cal.2d 818, 836-837 [state law harmlessness standard]

Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050

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

Amelioration, Elements of crime, Jury instructions, Retroactivity, Vicarious liability

Case: 000329

Posted on by Gary McCurdy

Error and/or relief

Habeas petition granted, because the defendant was convicted of first degree murder as an aider and abettor under the natural and probable consequences doctrine found improper under Chiu, decided shortly after his conviction was final. The record does not establish beyond a reasonable doubt he was convicted of first degree murder under another, valid theory of liability. We grant the petition and remand to the trial court so the People may decide whether to retry petitioner on the first degree murder charge or accept a reduction of the conviction to second degree murder.

First Holding:

An aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Natural and probable consequences liability cannot extend to first degree premeditated murder because punishing someone for first degree premeditated murder when that person did not actually perpetrate or intend the killing is inconsistent with reasonable concepts of culpability.

Authority:

People v. Chiu (2014) 59 Cal.4th 155, 165

Second Holding:

This holding is retroactive to convictions already final at the time Chiu was decided.

Authority:

In re Martinez (2017) 3 Cal.5th 1216, 1222

Third Holding:

When a trial court instructs a jury on two theories of guilt, one of which was legally correct [e.g., direct aiding and abetting] and one legally incorrect [i.e., natural and probable consequences], reversal is required, unless the court concludes beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder.

Authority:

People v. Chiu (2014) 59 Cal.4th 155, 165, 167

In re Lopez (2023) 14 Cal.5th 562, 568 [a reviewing court may hold the error harmless where 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]

Abstracts and Minutes, Amelioration, Elements of crime, Jury instructions, Sentencing, Standard of review

Case: 000302

Posted on by Gary McCurdy

Error and/or relief

The defendants are entitled to retrial on the counts for active participation in a criminal street gang in light of AB 333’s retroactive changes to section 186.22. It was error to order Defendant’s 2 and 3 to be jointly responsible for the funeral expenses of the victim killed by Defendant 1. In addition there were several errors in Defendant 1’s consolidated abstract of judgment that need correction.

First Holding:

During the appeal, the Legislature amended section 186.22’s defendant of a criminal street gang. 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; it requires that the pattern of criminal activity foundational to a criminal street gang have been collectively engaged in by members of the gang; it also imposed further requirements limiting the offenses on which a pattern of criminal gang activity could be predicated; and it required that for an offense to have commonly benefitted a street gang, any common benefit be more than reputational.

Authority:

AB 333

PEN 186.22

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

Second Holding:

The ameliorative amendments apply retroactively to all cases not yet final as of its effective date.

Authority:

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

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

Third Holding:

The trial court instructed the jury on the then-applicable definition of a criminal street gang, omitting several of the requirements that have now been imposed by AB 333. The jury instruction thus relieved the prosecution of its burden to prove all elements of the crime as now defined.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742

Fourth Holding:

We apply the harmless beyond a reasonable doubt standard articulated in Chapman. When a jury instruction has omitted an element of an offense, our task is to determine whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. The question is not whether there is evidence in the record that would support a jury finding of the missing element, but whether we can conclude beyond a reasonable doubt that the jury verdict would have been the same had the jury been instructed on the missing element.

Authority:

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

People v. Cooper (2023) 14 Cal.5th 735, 742-743

People v. Lamb (2024) 16 Cal.5th 400, 449

Fifth Holding:

All three defendants will be entitled to a full resentencing upon remand, independent of the prosecution’s election whether to pursue the gang charge or enhancements on remand. The full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.

Authority:

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

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

Sixth Holding:

We observe, however, that neither Defendant 2 nor Defendant 3 can be ordered to pay restitution for any losses attributable to Defendant 1’s murder of the deceased. Neither of them were charged with any offense involving the deceased, and nothing in the evidence before the jury or the court at sentencing implicated them in his murder. It was accordingly error to make them jointly and severally liable for the deceased’s funeral expenses.

Authority:

PEN 1202.4(f) [authorizing restitution where a victim has suffered economic loss as a result of the defendant’s conduct]

People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence cannot be lawfully imposed]

Seventh Holding:

Defendant 1’s consolidated abstract of judgment requires correction. First, in case number A, the abstract of judgment erroneously lists as stayed count 2’s multiple-murder special circumstance when the trial court vacated this finding. In case number B, Defendant 1’s conviction for assault with force likely to produce great bodily injury in violation of section 245(a)(4) is described on the abstract as “Asslt w/deadly wpn/force likely to prod GBI.” We agree that an amended abstract should be reworded to avoid confusion between assault with a deadly weapon (sec. 245(a)(1), (2), or (3))—a serious felony under section 1192.7—and assault by force likely to produce great bodily injury (sec. 245(a)(4)).

(GARY NOTE–the appellate court did not cite case authority for the correction of the abstract, but it is abundantly clear the court has that authority. I have set forth some below)

Authority:

PEN 1192.7(c) [listing serious felonies]

People v. Delgado (2008) 43 Cal.4th 1059, 1065

[on correction of abstracts]

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