Tag Archives: Lesser included offense

Amelioration, Elements of crime, Sentencing, Standard of review

Case: 000145

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the trial court’s denial of his resentencing petition under Penal Code section 1172.6 for failure to state a prima facie case. Because the record of conviction before us does not conclusively establish that defendant is ineligible for resentencing as a matter of law, we reverse and remand the matter for an evidentiary hearing.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. The Legislature did so to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.

It also added section 1172.6, which allows those convicted of murder, attempted murder, or manslaughter under a now-invalid theory to petition the trial court to vacate the conviction and resentence the defendant. In its current form, section 1172.6 applies to those who pled guilty to manslaughter after being charged with murder and who would have been subject to prosecution for murder under a felony-murder theory, the natural and probable consequences doctrine, or any other theory of imputed malice

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448-449

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211

Second Holding:

If the trial court finds that a petitioning defendant has made a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing. The prima facie inquiry under section 1172.6(c) is limited. The court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. The court may rely on the record of conviction in determining whether defendant has made a prima facie showing, and if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner.

Authority:

PC 1172.6(c) and (d)

People v. Lewis (2021) 11 Cal.5th 952, 971

Third Holding:

At the prima facie stage, the record of conviction includes a preliminary hearing transcript preceding a guilty plea. A trial court does not engage in impermissible judicial factfinding and may rely on a preliminary hearing transcript where it is unchallenged and includes relief-foreclosing facts that refute conclusory, checkbox allegations.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 564, 568

Fourth Holding:

We independently review the denial of a section 1172.6 petition at the prima facie stage. If it was correct to deny a defendant’s section 1172.6 petition at the prima facie review stage, we will affirm even if the trial court’s reasoning was erroneous.

Authority:

People v. Ervin (2021) 72 Cal.App.5th 90, 101

People v. Eynon (2021) 68 Cal.App.5th 967, 976

Fifth Holding:

The charging document is insufficient on its own to foreclose a theory of either felony murder or natural and probable consequences murder, where it alleged that defendant unlawfully murdered the victim, willfully and with malice aforethought, in violation of section 187, subdivision (a), does not refer to another defendant, and the only other felonies at issue were related to unlawful firearm possession or activity.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 337-338 [because an accusatory pleading need not specify the manner in which a murder was committed, or the theory on which the prosecution will rely at trial, a complaint that only generically charges attempted murder (or murder) is not enough to establish a sec. 1172.6 petitioner is ineligible for relief at the prima facie stage]

Sixth Holding:

In pleading guilty to voluntary manslaughter, defendant admitted every element of voluntary manslaughter, but not to any particular theory, meaning it is possible that defendant could have been convicted under an imputed malice theory. Thus, defendant’s guilty plea to voluntary manslaughter does not make him ineligible for relief under section 1172.6 as a matter of law.

Authority:

People v. Eynon (2021) 68 Cal.App.5th 967, 977-978

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1212 [generic plea of voluntary manslaughter following murder charge does not preclude a natural and probable consequences theory]

Seventh Holding:

Absent additional facts, defendant’s admission of the two firearm enhancements does not establish he is ineligible for resentencing as a matter of law.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328,at p. 338 [admitting to personally using a deadly weapon does not preclude a theory of imputed malice]

People v. Jones (2003) 30 Cal.4th 1084, 1120 [a finding of personal use of a firearm would not in itself prove the defendant was the actual killer]

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

Case: 000144

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by failing to instruct the jury on simple battery as a lesser included offense of the sexual battery count. Thus, we reverse the misdemeanor sexual-battery conviction and remand for the People to elect whether to retry that charge or accept a modification of the judgment to reflect a conviction of simple battery. In either case, the defendant shall be fully resentenced.

First Holding:

The trial court has a duty to instruct the jury sua sponte on all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater. Thus, even though the defendant did not request an instruction on simple battery below, the claim is preserved for appeal.

Authority:

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

Second Holding:

We review de novo whether a trial court erred by not instructing on a lesser included offense, considering the evidence in the light most favorable to the defendant to determine whether substantial evidence supported the instruction.

Authority:

People v. Brothers (2015) 236 Cal.App.4th 24, 30

Third Holding:

It is a crime to touch an intimate part of another person, if the touching is done against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse. Simple battery is defined as any willful and unlawful use of force or violence upon the person of another. The least touching may constitute battery, and a touching is unlawful if it is harmful or offensive. It is undisputed that simple battery is a lesser included offense of sexual battery. Viewing the evidence in the light most favorable to the defendant, we conclude that there was substantial evidence on which a reasonable juror could have relied to determine that he committed simple battery only.

Authority:

PEN 243.4(e)(1)

PEN 242

People v. Shockley (2013) 58 Cal.4th 400, 404

People v. Yonko (1987) 196 Cal.App.3d 1005, 1010

Fourth Holding:

Generally, a trial court’s failure to instruct on a lesser included offense supported by substantial evidence is state law error that requires reversal if a different result was reasonably probable under Watson. A reasonable juror could have believed everything the victim said said but still harbored a reasonable doubt that the defendant’s purpose in touching her was sexual. The prejudice stemming from such an error is the risk that the jury ignored its instructions and convicted the defendant of an offense for which the prosecution did not carry its burden. The jury might have been convinced that the defendant was guilty of some lesser included offense and, as a result, been tempted to convict of a greater offense rather than acquit. Nor did the jury make any other findings establishing that it necessarily concluded the defendant had such a purpose. Particularly given that the jury was willing to convict him of lesser included offenses on other counts, we perceive nothing in the record dispelling the risk that because it was not instructed on simple battery, it convicted him of sexual battery rather than acquitting him.

Authority:

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

People v. Gonzalez (2018) 5 Cal.5th 186, 196, 200, 201

People v. Schuller (2023) 15 Cal.5th 237, 260

Fifth Holding:

The People must elect whether to retry that charge or accept a modification of the judgment to reflect a conviction of simple battery. In either case, the defendant shall be fully resentenced.

Authority:

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

Appellate Principles, Elements of crime, Sentencing, Statutory interpretation, Sufficiency of and substantial evidence

Case: 000132

Posted on by Gary McCurdy

Error and/or relief

We shall reduce one conviction to reflect a lesser included offense, remand for resentencing, and otherwise affirm the judgment.

First Holding:

In considering the sufficiency of evidence, we must determine 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. We review the record in the light most favorable to the judgment, presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. We also accept logical inferences that the jury might have drawn from the circumstantial evidence. We do not resolve credibility issues or evidentiary conflicts.

Authority:

People v. Osband (1996) 13 Cal.4th 622, 690

People v. Baker (2021) 10 Cal.5th 1044, 1103

People v. Young (2005) 34 Cal.4th 1149, 1181

Second Holding:

In considering the substantiality of generic testimony regarding multiple indistinguishable instances of child sexual abuse, a victim of child molestation need not specify precisely the date, time, or circumstances of each crime. Rather, the victim must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment, a requirement that can be met with such testimony as “twice a month” or “every time we went camping.”

Authority:

People v. Jones (1990) 51 Cal.3d 294, 299–300, 315–316

Third Holding:

The jury was instructed pursuant to CALCRIM No. 1015 that duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to, and that in making its determination the jury should consider all the circumstances, including the age of the other person and his relationship to the defendant.

As to fear, the jury was told, “[a]n act is accomplished by fear if the other person is actually and reasonably afraid.” The existence of duress is an objective inquiry, and it is not dependent on the response exhibited by a particular victim.

We consider the totality of the circumstances, including the victim’s relationship to the perpetrator, whether the perpetrator physically controlled the victim when the victim attempted to resist, and the relative physical vulnerability of the victim. Duress may arise in a variety of ways related to psychological and/or situational factors between the perpetrator and victim, including an uneven power dynamic between a victim and perpetrator inhabiting a position of authority. Not all forms of coercion necessarily constitute duress, however.

Authority:

People v. Soto (2011) 51 Cal.4th 229, 246

People v. Guenther (2024) 104 Cal.App.5th 483, 518 [courts apply reasonable person standard to inquiry into duress]

People v. Thomas (2017) 15 Cal.App.5th 1063, 1072–1073

People v. Veale (2008) 160 Cal.App.4th 40, 44, 47

People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321

Fourth Holding:

A variance between the crime charged and proved is not material unless it is of such a substantive character as to mislead the accused in preparing his defense, or is likely to place him in second jeopardy for the same offense.

Authority:

PEN 960 [No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits]

People v. Williams (1945) 27 Cal.2d 220, 226

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

Fifth Holding:

A lesser offense is necessarily included in a charged offense if one of two tests is met: either all the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense (the “elements test”) or the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed (the “accusatory pleading test”). We do not consider the evidence presented at trial to determine whether one offense is necessarily included in the other.

Authority:

People v. Lopez (1998) 19 Cal.4th 282, 288–289

People v. Cheaves (2003) 113 Cal.App.4th 445, 454

People v. Ortega (1998) 19 Cal.4th 686, 698

Sixth Holding:

Despite the constitutional prohibition of a second trial if a conviction is reversed for insufficient evidence, when a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence.

Authority:

PEN 1181

PEN 1260

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225

People v. Navarro (2007) 40 Cal.4th 668, 677

People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321–1322, 1324 [reducing conviction to reflect lesser included offense where there was no evidence defendant used direct or implied threat to commit a lewd act]

Seventh Holding:

We review a court’s award of restitution to a victim for abuse of discretion, reversing only if it is arbitrary or capricious. An abuse of discretion exists when there is no rational and factual basis for the amount of restitution ordered. The court must demonstrate a rational basis for its award, and ensure that the record is sufficient to permit meaningful review. The burden is on the party seeking restitution to provide an adequate factual basis for the claim.

Authority:

People v. Gomez (2023) 97 Cal.App.5th 111, 116

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

Case: 000094

Posted on by Gary McCurdy

Error and/or relief

We reverse the defendant’s convictions for kidnapping to commit robbery in counts 11 and 12, and we reduce the convictions in counts 11 and 12 to the lesser included offense of felony false imprisonment by violence or menace.   We remand the matter for a full resentencing as to all counts, so that the trial court can exercise its sentencing discretion in light of the changed circumstances.

First Holding:

Kidnapping for robbery requires a simple kidnapping in which the movement increased the risk of harm to the victim over and above that necessarily present in the intended underlying offense. The increased risk may be of either physical or psychological harm.

Authority:

PEN 209(b)(1)–(2)

People v. Rayford (1994) 9 Cal.4th 1, 11–12

People v. Waqa (2023) 92 Cal.App.5th 565, 577

People v. Nguyen (2000) 22 Cal.4th 872, 886

Second Holding:

In a simple kidnapping or kidnap for robbery involving an associated crime, the jury should be instructed to consider whether the distance a victim was moved was incidental to the commission of that crime in determining the movement’s substantiality. Such consideration is relevant to determining whether more than one crime has been committed, and is amply supported by the case law. An associated crime for the purposes of simple kidnapping is any criminal act the defendant intends to commit where, in the course of its commission, the defendant also moves a victim by force or fear against his or her will.

Authority:

People v. Williams (2017) 7 Cal.App.5th 644, 671

Third Holding:

Whether movement is incidental and whether it increased the risk to the victim are not mutually exclusive, but interrelated.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 470

Fourth Holding:

If in the course of a robbery a defendant does no more than move his victim around inside the premises in which he finds him or her—whether it be a residence or a place of business or other enclosure—his conduct generally will not be deemed to constitute the offense proscribed by section 209. Indeed, most movements that have been found to be insubstantial or merely incidental to the underlying crime have been within a building, or within the premises of a business. It is not unusual in the course of a robbery for a robber to move the victims to one spot to make it easier for the robber to search for valuables and flee undetected. Although measured distance is relevant, no minimum distance is required to satisfy the asportation requirement so long as the movement is substantial. Each case must be considered in the context of the totality of its circumstances.

Authority:

People v. Daniels (1969) 71 Cal.2d 1119, 1140

People v. Power (2008) 159 Cal.App.4th 126, 139

People v. Leavel (2012) 203 Cal.App.4th 823, 834

People v. Dominguez (2006) 39 Cal.4th 1141, 1152

People v. Corcoran (2006) 143 Cal.App.4th 272, 279 [holding that movement of 10 feet was a substantial distance in connection with a robbery]

Fifth Holding:

In general, to prove the crime of simple kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance.

Authority:

People v. Hartland (2020) 54 Cal.App.5th 71, 77

Sixth Holding:

Where, as here, the appellate court finds there is insufficient evidence to support a conviction for a greater offense, we may modify the judgment of conviction to reflect a conviction for a lesser included offense. We remand the matter for a full resentencing as to all counts, so that the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

PEN 1181, subd. 6

PEN 1260

People v. Bailey (2012) 54 Cal.4th 740, 748

People v. Ellis (2025) 108 Cal.App.5th 590, 601

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

Seventh Holding:

Our Supreme Court has long recognized that under sections 1181, subdivision 6, and 1260, an appellate court that finds that insufficient evidence supports the conviction for a greater offense may, in lieu of granting a new trial, modify the judgment of conviction to reflect a conviction for a lesser included offense.

Authority:

People v. Navarro (2007) 40 Cal.4th 668, 671

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

Case 000040

Posted on by Gary McCurdy

Error and/or relief

Two of the convictions for a lewd act upon a child of 14 or 15 years must be reversed because there was insufficient evidence that victim was under 16 years old at the time of the crimes. The People concede and ask us to modify the verdicts to the lesser included and affirm as modified. Remanded for full resentencing.

Holding:

Where the appellate court finds there is insufficient evidence to support a conviction for a greater offense, it may modify the judgment of conviction to reflect a conviction for a lesser included offense.

Authority:

People v. Ellis (2025) 108 Cal.App.5th 590, 601

Duty of the court, Fifth Amendment, Jury instructions, Sufficiency of and substantial evidence

Case 000037

Posted on by Gary McCurdy

Error and/or relief

The trial court should have instructed the jury on the lesser included offense of attempted voluntary manslaughter based on imperfect self-defense as to the attempted murder of defendant’s wife. We reverse the judgment on that count and remand the matter to the trial court for a new trial. We also conclude the prosecutor committed prejudicial misconduct during the questioning of the witnesses and closing argument, warranting reversal of the judgment as to all counts.

First Holding:

A trial court’s decision not to instruct on imperfect self-defense or defense of others is reviewed de novo.

Authority:

People v. Simon (2016) 1 Cal.5th 98, 133

Second Holding:

The trial court has an independent obligation to instruct the jury on all lesser included offenses the evidence warrants, even against the defense’s wishes. Such instructions are required when, but only when, a jury could reasonably conclude that the defendant committed the lesser offense but not the greater one.

Authority:

People v. Hardy (2018) 5 Cal.5th 56, 98

Third Holding:

In assessing whether substantial evidence exists in this context, a court determines only its bare legal sufficiency, not its weight.

Authority:

People v. Breverman (1998) 19 Cal.4th 142, 161 [disapproved on another ground in People v. Schuller (2023) 15 Cal.5th 237, 254-260]

Fourth Holding:

Speculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense.

Authority:

People v. Simon (2016) 1 Cal.5th 98, 133

Fifth Holding:

Doubts about whether an instruction is warranted should be resolved in favor of the accused.

Authority:

People v. Tufunga (1999) 21 Cal.4th 935, 944

Sixth Holding:

Advising examining counsel to simply “move on “ is not a ruling. Such inaction runs the risk of confusing the jury and emboldening the objectionable conduct, and leaves the appellate court with an incomplete record.

Authority:

Reid v. Google (2010) 50 Cal.4th 512, 524, 532

Seventh Holding:

[Gary’s short description of an extensive discussion in the opinion:] There was extensive discussion regarding improper comment by the prosecution on the defendant’s post-arrest exercise of his right to remain silent. Under Doyle, in essence, the prosecution may not comment on the defendant’s exercise of his right to remain silent. Doyle has also been broadly interpreted to apply to any testimony about a defendant’s desire or request for counsel.

Authority:

Griffin v. California (1965) 380 U.S. 609

Doyle v. Ohio (1976) 426 U.S. 610

People v. Galloway (1979) 100 Cal.App.3d 551 [The Doyle rule is not limited to a defendant’s failure to talk with police. It applies to questions such as “No one? You told no one?” not just to silence to police officers after receiving Miranda warnings]

People v. Fabert (1982) 127 Cal.App.3d 604, 609

People v. Bryant Smith and Wheeler (2014) 60 Cal.4th 335, 387

Eighth Holding:

The prosecutor may neither comment, directly or indirectly, on a defendant’s failure to testify or urge the jury to infer guilt from such silence. Griffin/Doyle error requires reversal unless the court can conclude it was harmless beyond a reasonable doubt. The appellate court must determine, absent the prosecutor’s reference to defendant’s failure to testify, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty.

Authority:

Griffin v. California (1965) 380 U.S. 609

People v. Hardy (1992) 2 Cal.4th 86, 153–154

United States v. Hasting (1983) 461 U.S. 499, 507–509

Ninth Holding:

Indirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. But the error is prejudicial if the evidence against defendant is less than overwhelming and the improper comment touched a live nerve in the appellant’s defense. It is prejudicial if it served to fill an evidentiary gap in the prosecution’s case. The appellate court must determine whether the comment actually or implicitly invited the jury to infer guilt from silence.

Authority:

People v. Hovey (1988) 44 Cal.3d 543, 572

People v. Galloway (1979) 100 Cal.App.3d 551, 560

People v. Medina (1974) 41 Cal.App.3d 438, 463

People v. Hardy (1992) 2 Cal.4th 86, 159

Tenth Holding:

The harmful impact of a Doyle error has been ameliorated in some cases when the trial court gave a strong curative instruction.

Authority:

People v. Galloway (1979) 100 Cal.App.3d 551, 560

Eleventh Holding:

Griffin prohibits the prosecution from so much as suggesting to the jury that it may view the defendant’s [silence] as evidence of guilt.

Authority:

Griffin v. California (1965) 380 U.S. 609

People v. Guzman (2000) 80 Cal.App.4th 1282, 1287

People v. Lindsey (1988) 205 Cal.App.3d 112, 116–117 [error to suggest to jury that there was no reason defense counsel would have let the defendant sit in jail if counsel had exculpatory evidence to present]