Tag Archives: Prejudice

Discretion, Sentencing, Sixth Amendment

Case: 000189

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by reimposing the upper term sentences based on aggravating factors that were not proven beyond a reasonable doubt to a jury as required under section 1170(b)(2). This error violated his Sixth Amendment right to a jury trial and was not harmless beyond a reasonable doubt. The trial court failed to exercise its discretion under AB 518 (2021-2022 Reg. Sess.) (regarding the choice of sentences to impose when section 654 permits sentencing on only one of the counts it applies to) at the resentencing hearing. The abstract of judgment must be corrected to reflect the correct sentencing date and number of custody credits.

First Holding:

Under the Fifth and Sixth Amendments to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. Section 1170(b)(2) similarly provides that the trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt’ at a jury or court trial. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Second Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that 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. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

Authority:

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

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

Third Holding:

Section 654 prohibits a court from punishing a defendant more than once for the same act or course of conduct. Prior to 2022, the statute required that an act or omission punishable in different ways by different statutes be punished under the provision that provided the longest potential term of imprisonment. (Former sec. 654(a).) AB 518 amended section 654 effective January 1, 2022, to grant a court discretion to punish such an act under either of such provisions. The trial court erroneously failed to exercise its discretion under Assembly Bill 518 at the resentencing hearing. Since we are again remanding this matter for resentencing under Senate Bill 567, the trial court should conduct a full resentencing as to all counts based on the law and circumstances that apply when resentencing occurs, including the amendments to section 654 under AB 518.

Authority:

People v. Hester (2000) 22 Cal.4th 290, 294

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

Fourth Holding:

The abstract of judgment will need to be corrected to reflect the correct sentencing date and number of custody credits.

[Gary note: The court did not cite authority for this obviously required order. There are many cases it could have cited. I have listed some of them 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

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

000184

Posted on by Gary McCurdy

Error and/or relief

A jury found the defendant guilty of felony reckless evasion of a police officer. There were evidentiary conflicts. Under the highly deferential substantial evidence review standard, we conclude the conflicting trial evidence nonetheless supports his conviction. These evidentiary conflicts were sufficient, however, to raise a substantial question about whether all the elements of reckless evasion were present, warranting an instruction on the lesser included offense of simple evasion. We conclude failure to give this instruction was prejudicial error.

Accordingly, we reverse the judgment with the direction that if the People do not timely elect to retry the defendant for reckless evasion, then the judgment shall be modified to reflect a conviction for simple evasion and the trial court shall resentence the defendant.

First Holding:

It is undisputed that misdemeanor simple evasion (Veh. Code, sec. 2800.1) is a lesser included offense of felony reckless evasion (Veh. Code, sec. 2800.2) and that the only distinction between the two crimes is that the greater offense requires proof of the additional element that the defendant drove the pursued vehicle in a willful or wanton disregard for the safety of persons or property. The greater offense’s additional element can be established by proving that during the evasion the defendant committed three or more violations that are assigned a traffic violation point count under section 12810.

Authority:

VEH 2800.1

VEH 2800.2

People v. Springfield (1993) 13 Cal.App.4th 1674, 1680

People v. Diaz (2005) 125 Cal.App.4th 1484, 1486

Second Holding:

In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — 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 in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a convictionIf the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Authority:

People v. Houston (2012) 54 Cal.4th 1186, 1215

People v. Oyler (2025) 17 Cal.5th 756, 819–820

People v. Ramirez (2022) 13 Cal.5th 997, 1118

People v. Jennings (2010) 50 Cal.4th 616, 638, 639

Third Holding:

California law has long provided that even absent a request, and over any party’s objection, a trial court must instruct a criminal jury on any lesser offense necessarily included in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence. The rule 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.

Thus, a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. In this context, substantial evidence is not any evidence, no matter how weak; it is evidence that a reasonable jury could find persuasive. If there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged, such instructions shall not be given. Although we concluded above that substantial evidence supports the finding that the defendant committed at least three qualifying Vehicle Code violations during the pursuit, there is also substantial evidence that he did not commit at least three qualifying violations. Accordingly, the trial court erred by failing to instruct the jury sua sponte regarding this lesser included offense.

Authority:

People v. Smith (2013) 57 Cal.4th 232, 239–240

People v. Breverman (1998) 19 Cal.4th 142, 154

People v. Williams (2015) 61 Cal.4th 1244, 1263

People v. Kraft (2000) 23 Cal.4th 978, 1063

Fourth Holding:

We apply the generally applicable California test for harmless error under which we deem an error harmless unless it is reasonably probable the outcome would have been different in the absence of the error. Other than in cases involving the unique relationship between murder and voluntary manslaughter, the general rule is that the failure to instruct on other forms of lesser included offenses in noncapital cases is an error of state law. A reasonable probability in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. In assessing prejudice, we consider both the magnitude of the error and the closeness of the case. Applying this standard, we find the error here prejudicial.

Authority:

People v. Schuller (2023) 15 Cal.5th 237, 251

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

People v. Hendrix (2022) 13 Cal.5th 933, 944

People v. Vasquez (2018) 30 Cal.App.5th 786, 798

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case: 000164

Posted on by Gary McCurdy

Error and/or relief

Following the defendant’s conviction by jury trial, the court imposed the upper term based on the defendant’s use of a firearm in the commission of a crime; (2) the manner in which the crime was committed indicates planning, sophistication, and professionalism; and (3) the defendant has refused to accept responsibility for his actions. The only factor submitted to and found true by the jury was that the defendant was armed with or used a firearm.

First Holding:

Effective January 1, 2022, a sentencing court may not impose a determinate upper term sentence unless (1) there are circumstances in aggravation of the crime that justify its imposition, and (2) the aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at trial. Other than stipulated facts or the fact of a prior conviction, aggravating facts relied upon to justify an upper term must be resolved by the jury beyond a reasonable doubt. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction. A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

PEN 1170b)(1)

People v. Lynch (2024) 16 Cal.5th 730, 755, 768

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Second Holding:

We decline to apply forfeiture. It being evident that the trial court imposed an upper term sentence on the basis of its own posttrial factfinding, the defendant’s claim that this violated section 1170(b)(2) presents a pure issue of law that implicates the constitutional right to a jury trial under the Sixth Amendment.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 327

People v. Lynch (2024) 16 Cal.5th 730, 768

In re Sheena K. (2007) 40 Cal.4th 875, 879 [construing defendant’s constitutional challenge to her probation condition as presenting a pure question of law reviewable on appeal despite her failure to object at sentencing]

Third Holding:

The defendant argues that his counsel was constitutionally ineffective for failing to object to the court’s choosing the upper term in reliance on unpleaded and unproven aggravating circumstances. There can be no tactical justification for failing to object to the imposition of the upper term based on plainly unproven aggravating factors that the defendant had no notice of in the operative information. Accordingly, even assuming the issue has been forfeited, we would exercise our discretion to reach the merits to forestall defendant’s claim of ineffective assistance of counsel.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [reaching defendant’s sentencing claim notwithstanding forfeiture]

People v. Crittenden (1994) 9 Cal.4th 83, 146 [reviewing court may exercise discretion to consider forfeited claims to forestall ineffective assistance of counsel arguments]

Fourth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply Chapman. Such errors are prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. Given this exacting standard, we cannot say that the sentencing error here was harmless.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768

People v. Gonzalez (2024) 107 Cal.App.5th 312, 332

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

Elements of crime, Jury instructions

Case: 000160

Posted on by Gary McCurdy

Error and/or relief

The deadly weapon enhancement attached to the attempted carjacking in count two must be reversed due to instructional error.

First Holding:

The trial court committed error (known as alternative theory error) by presenting the jury with two theories by which it could find a knife to be a deadly weapon: (1) inherently or (2) as used. The first theory (inherently) is incorrect, but the second theory (as used) is correct. Because a knife can be, and usually is, used for innocent purpose, it is not among the few objects that are inherently deadly weapons

Authority:

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

Second Holding:

When alternative theory error occurs, the reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence, and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt.

Authority:

People v. Aledamat (2019) 8 Cal.5th 1, 13

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

Sentencing, Sixth Amendment

Case: 000150

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by not obtaining the defendant’s personal waiver of his right to a jury trial on the aggravating circumstance allegations and the prior strike allegation. The People concede, and we agree. The error was prejudicial only as to the aggravating circumstances, not as to the prior strike. The record does not reflect that the defendant had ever waived jury trial on either the prior strike or aggravating factors.

First Holding:

There is a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. A waiver of this right must be personally expressed by the defendant in open court. The waiver must be explicit and will not be implied from a defendant’s conduct. Therefore, a defendant’s failure to object also would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial.

Authority:

Cal. Const., art. I, sec. 16

People v. Wiley (2025) 17 Cal.5th 1069, 1078

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

Second Holding:

Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error. When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, reversal and remand are required 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. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding with respect to the aggravating fact at issue.

We accept the People’s concession that a rational jury could have reached a different conclusion with respect to the defendant’s prior performance on probation. The probation report noted that he had satisfactorily completed two prior grants of probation, although he failed on two other grants. The report listed his past successes on probation as a mitigating factor and his failures as an aggravating factor. This mixed view of performance on probation is what leads us to conclude that a rational jury could have disagreed with the trial court’s finding that his prior performance on probation was unsatisfactory. Therefore, the error here with respect to this allegation was prejudicial under Chapman

Authority:

Washington v. Recuenco (2006) 548 U.S. 212

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

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

Third Holding:

The right to have the jury decide the truth of a prior conviction allegation stems from section 1025(b), not from the jury trial provision of article I, section 16 of the California Constitution or the Sixth Amendment of the United States Constitution. Absent an objection to the discharge of the jury or commencement of court trial, defendant is precluded from asserting on appeal a claim of ineffective waiver of the right to jury trial of prior prison term allegations. Here, by failing to object, the defendant forfeited any claim that the trial court improperly denied him his right to a jury trial by failing to take his express waiver of that right.

Authority:

PEN 1025

People v. Vera (1997) 15 Cal.4th 269, 277

People v. Grimes (2016) 1 Cal.5th 698, 737–738 [defendant forfeited a claim of involuntary waiver of jury trial on prior conviction allegations based on failure to object in the trial court]

Fourth Holding:

But even assuming an error with respect to his right to a jury trial on the prior strike allegation, the error is subject to the harmless error analysis under the Watson standard. The question under this standard is whether it is reasonably probable that a different result would have obtained had the prior strike allegation been tried before a jury. There is no such probability here.

To prove the prior strike conviction, the People produced as evidence his certified RAP sheet, a certified printout of the docket showing his conviction for that offense, the complaint associated with that prior, the waiver of rights and plea form, and the probation terms related to that conviction. For his part, the defendant never claimed he did not commit the offense, and he presented no evidence regarding this allegation. There is no reasonable probability the jury would have failed to find the allegation true under the evidence presented. Accordingly, we reject his claim that the trial court’s true finding on the prior strike allegation must be vacated.

Authority:

People v. Epps (2001) 25 Cal.4th 19, 29

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

Amelioration, Sentencing

Case: 000143

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the superior court’s order denying his petition for resentencing under Penal Code section 1172.6 (former section 1170.95) as to his second-degree murder conviction by a no-contest plea. The court denied the petition at the prima facie stage without appointing counsel, concluding the defendant was not entitled to relief as a matter of law. The People concede the court erred and the error was prejudicial. We agree and thus reverse.

First Holding:

If a section 1172.6 petition contains all the required information, the sentencing court must appoint counsel to represent the petitioner if requested.

Authority:

PEN 1172.6(b)(1)(A), (3)

People v. Lewis (2021) 11 Cal.5th 952, 962-963

Second Holding:

Failing to appoint counsel for a petitioner at the prima facie review stage is state law error only, tested for prejudice under Watson. Error in failing to appoint counsel is harmless only if we can determine that the record of conviction contain[s] facts refuting the allegations made in the petition.

Authority:

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

People v. Mejorado (2022) 73 Cal.App.5th 562, 572, 574 [concluding failure to appoint counsel was not harmless and remanding with instructions to appoint counsel for defendant, issue an order to show cause and hold an evidentiary hearing]

Third Holding:

A trial court must not engage in factfinding involving the weighing of evidence or the exercise of discretion during the prima facie stage.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 972

People v. Duchine (2021) 60 Cal.App.5th 798, 815 [remand was necessary where a trial court made major participant and reckless indifference findings at the prima facie stage which entailed weighing evidence, drawing inferences, and assessing credibility]

People v. Curiel (2023) 15 Cal.5th 433, 463 [to aid and abet a murder, the aider and abettor must aid in the commission of the fatal act]

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

Case: 000131

Posted on by Gary McCurdy

Error and/or relief

[GARY NOTE: No relief was granted, because the errors were all found to be harmless in light of the rest of the evidence. The gold here rests in the relative clarity in which the principles of implied malice were set out by the court.] The trial court instructed the jury incorrectly on implied malice and aiding and abetting implied malice murder. However, we find the error harmless beyond reasonable doubt. If anything, the defect in CALCRIM No. 401 only made it harder for the jury to find defendant guilty. It would have been easier for the jury to find that defendant knew that the co-defendants intended to commit a life-endangering act than to find defendant knew they intended to commit murder, a life-ending act.

First Holding:

Implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less. Implied malice contains an objective or physical component and a subjective or mental component.

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 143

People v. Nieto Benitez (1992) 4 Cal.4th 91, 106

Second Holding:

To be liable for an implied malice murder, a direct aider and abettor must aid the perpetrator in committing a life endangering act that proximately causes death.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990-991

People v. Powell (2021) 63 Cal.App.5th 689, 712-713

Third Holding:

Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review.

Authority:

People v. Hillhouse (2002) 27 Cal.4th 469, 503

Fourth Holding:

Defendant’s jury was incorrectly instructed under CALCRIM No. 401 to determine whether defendant aided and abetted the perpetrators’ commission of a crime, not an act. Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea. 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:

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

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

People v. McCoy (2001) 25 Cal.4th 1111, 1122

Fifth Holding:

The instruction given was thus an erroneous aiding and abetting instruction for purposes of this case. We review the error under the Chapman harmless error standard.

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 714-715

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

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

Case: 000109

Posted on by Gary McCurdy

Error and/or relief

The defendant was charged with first degree murder under two theories–deliberation and premeditation, and lying in wait. The jury was not required to agree unanimously on the theory. He was convicted of first degree murder, along with a count of attempted murder with premeditation and deliberation. We conclude that insufficient evidence supports the finding of lying in wait. One of the elements of lying in wait, namely, “a substantial period of watching and waiting for an opportune time to act,” is not supported by substantial evidence. That conclusion requires us to reverse the finding on the lying-in-wait special circumstance, but it does not require a reversal of the first degree murder convictions, as they are supported by the alternative theory of premeditation and deliberation.

First Holding:

The lying-in-wait special circumstance requires an intentional murder, committed under circumstances that include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) a surprise attack on an unsuspecting victim from a position of advantage It includes the elements of first degree lying-in-wait murder but requires the additional element that the killing was intentional, not merely committed with implied malice.

Authority:

PEN 190.2(a)(15)

People v. Flinner (2020) 10 Cal.5th 686, 74

Second Holding:

To support a finding of concealment of purpose, it is not required that a defendant be literally concealed from view before he attacks the victim. Rather, it is sufficient that a defendant’s true intent and purpose were concealed by his actions or conduct. The concealment, in that sense, is that which puts the defendant in a position of advantage, from which the factfinder can infer that lying-in-wait was part of the defendant’s plan to take the victim by surprise. Concealment of purpose inhibits detection, defeats self-defense, and may betray at least some level of trust, making it more blameworthy than premeditated murder that does not involve surprise.

The lying-in-wait special circumstance requires no fixed, quantitative minimum time, but the lying in wait must continue for long enough to premeditate and deliberate, conceal one’s purpose, and wait and watch for an opportune moment to attack. To distinguish the circumstance from ordinary premeditation and deliberation, a distinct period of watchful waiting is required. “Watchful” does not require actual watching; it can include being alert and vigilant in anticipation of the victim’s arrival to take him or her by surprise.

Authority:

People v. Barrett (2025) 17 Cal.5th 897, 966–967

People v. Duong (2020) 10 Cal.5th 36, 67

People v. Stevens (2007) 41 Cal.4th 182, 204

People v. Clark (2016) 63 Cal.4th 522, 629

People v. Nelson (2016) 1 Cal.5th 513, 551

People v. Streeter (2012) 54 Cal.4th 205, 247

Third Holding:

In assessing a challenge to the sufficiency of the evidence, we must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. The same standard applies when examining the sufficiency of the evidence supporting a special circumstance finding. “Substantial evidence” includes circumstantial evidence and any reasonable inferences drawn from that evidence.

Authority:

People v. Brooks (2017) 3 Cal.5th 1, 57

Fourth Holding:

A first degree murder verdict will be upheld if there is sufficient evidence as to at least one of the theories on which the jury is instructed, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. The appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory. In making that determination, we examine the entire record, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict.

The defendant does not challenge the sufficiency of the evidence to support a finding of premeditation and deliberation. Thus, our inquiry is whether there is a reasonable probability that the jury returned a verdict of first degree murder based solely on lying in wait, rather than also on premeditation and deliberation. The jury’s express findings in connection with the attempted murder in count 2 preclude any reasonable probability the jury relied solely on lying in wait as the theory for first degree murder.

Authority:

People v. Nelson (2016) 1 Cal.5th 513, 552 [affirming first degree murder based on sufficient evidence of premeditation and deliberation despite insufficient evidence to support lying in wait]

People v. Guiton (1993) 4 Cal.4th 1116, 1130

Fifth Holding:

The court committed harmless error under Chapman in declining the defendant’s request to instruct the jury on the theory of imperfect self-defense. Under the doctrine of imperfect self-defense. if a person kills in the unreasonable but good faith belief in having to act in self-defense, the belief negates what would otherwise be malice, and that person is guilty of voluntary manslaughter, not murder.

Authority:

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

People v. Rios (2000) 23 Cal.4th 450, 461

People v. Schuller (2023) 15 Cal.5th 237, 243

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

Sixth Holding:

The trial court was required to instruct on imperfect self-defense if there was substantial evidence to support the theory. “Substantial evidence” is evidence from which a jury could conclude beyond a reasonable doubt that the lesser offense of voluntary manslaughter was committed, but does not include evidence that is speculative, minimal, or insubstantial.

Authority:

People v. Schuller (2023) 15 Cal.5th 237, 253

People v. Simon (2016) 1 Cal.5th 98, 132

Seventh Holding:

We review de novo a trial court’s decision not to give an imperfect self-defense instruction. When the record contains substantial evidence of imperfect self-defense, the trial court’s failure to instruct on that theory amounts to constitutional error and is thus subject to review under the federal Chapman standard. Under the Chapman standard, reversal is required unless it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Though there was insufficient evidence of the watchful waiting to support a finding of lying in wait, the jury returned a finding that the murder was committed by lying in wait.

There was sufficient evidence of the aspects of lying in wait other than watchful waiting. Because of its true finding on lying in wait, the jury could not have found an imperfect self-defense in which the defendant used deadly force against the victim because he unreasonably believed that doing so was necessary to defend himself.

Authority:

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

People v. Schuller (2023) 15 Cal.5th 237, 243

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

People v. Cruz (2008) 44 Cal.4th 636, 665 [a jury’s true finding on a lying-in-wait special circumstance negated any possibility that defendant was prejudiced from the failure to instruct on unreasonable self-defense theories of manslaughter]

Sentencing, Sixth Amendment, Standard of review

Case 000082

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred in imposing the upper term based on aggravating circumstances not proven in accordance with Penal Code section 1170(b). We will vacate defendant’s sentence and remand the matter to the trial court for further litigation of the aggravating circumstances and resentencing.

First Holding:

With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 747

Cunningham v. California (2007) 549 U.S. 270, 281

Second Holding:

A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768

Third Holding:

The United States Supreme Court rejected the argument that the prior conviction exception to the Sixth Amendment “permits a judge to find perhaps any fact related to a defendant’s past offenses. A judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 837-838

Fourth Holding:

The aggravating circumstances were not proven in accordance with section 1170(b)(2) and the prior conviction exception would not apply to them.e

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1083-1084 [We understand Erlinger to require that any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt]

Fifth Holding:

A trial court’s reliance on aggravating circumstances not found in accordance with section 1170(b) is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 768

Sixth Holding:

When assessing prejudice under Chapman, the proper inquiry is whether any rational fact finder could have come to the opposite conclusion. If a rational juror could have reached the opposite conclusion, the error is not harmless under Chapman. The People bear the burden of establishing that the federal constitutional error was harmless beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 775-776 [To the extent a potential aggravating circumstance rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court]

People v. Wiley (2025) 17 Cal.5th 1069, 1090 [deciding it could not conclude beyond a reasonable doubt that a properly instructed jury would have found the defendant’s criminal convictions were of increasing seriousness]

People v. Avalos (2022) 85 Cal.App.5th 926, 953

Amelioration, Elements of crime, Evidence, Jury trial, Racial Justice Act, Statutory interpretation, Sufficiency of and substantial evidence

Case 000081

Posted on by Gary McCurdy

Error and/or relief

[Gary note: Grabba cuppa. This case rivaled Fort Knox for gold.]

We agree with the parties that the gang offense must be reversed and the gang-related allegations must be vacated, and that the sentences on several witness dissuasion counts may be readdressed upon remand. We further agree with the defendant that the prosecution should not have been permitted to play and introduce two rap music videos under Evidence Code section 352, although we conclude that the error was harmless given our reversal of the gang offense and the vacation of the gang-related allegations. In addition, we find that the defendant has established a prima facie case that the prosecution violated the California Racial Justice Act by playing and using the rap music videos at trial, and we remand this matter to the trial court to conduct a hearing to determine if a violation of the California Racial Justice Act has been proven by a preponderance of the evidence.

First Holding:

AB 333 made the following changes: 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.

Authority:

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

Second Holding:

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.

Authority:

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

Third Holding:

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.

Authority:

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

Fourth Holding:

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.

Authority:

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

Fifth Holding:

We determine whether substantial evidence supports a jury’s finding by inquiring whether evidence was presented from which a reasonable trier of fact could conclude, beyond a reasonable doubt, that the prosecution sustained its burden of proof. Although we assess whether the evidence is inherently credible and of solid value, we must also view the evidence in the light most favorable to the jury verdict and presume the existence of every fact that the jury could reasonably have deduced from that evidence.

Authority:

People v. Mora and Rangel (2018) 5 Cal.5th 442, 488

Sixth Holding:

Speculative testimony by a gang expert does not constitute substantial evidence to support a gang enhancement.

Authority:

People v. Soriano (2021) 65 Cal.App.5th 278, 288

People v. Renteria (2022) 13 Cal.5th 951, 964 [Where there is no proof the defendant acted in association with or at the direction of the gang, the prosecution cannot rely on the joint nature of the offense to establish either the requisite benefit to the gang or the specific intent to promote the criminal activity of gang members]

Seventh Holding:

We also will vacate the gang-related firearm allegations under section 12022.53(b) and (e)(1).

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 746 [reversing affirmance of firearm enhancement because the firearm enhancement alleged under section 12022.53(e)(1) is contingent on a true finding on the gang enhancement under section 186.22]

People v. Campbell (2023) 98 Cal.App.5th 350, 376 [the amendments AB 333 made apply retroactively to the gang-related gun use enhancement under section 12022.53(e)]

Eighth Holding:

Because we conclude that substantial evidence does not support the conviction on the gang offense and the true findings on the gang-related allegations under the law at the time of the defendant’s trial, the defendant may not be retried concerning these matters.

Authority:

United States v. DiFrancesco (1980) 449 U.S. 117, 131

Ninth Holding:

The California Supreme Court recently held that Evidence Code section 352.2 [rap video evidence] does not apply retroactively to cases not yet final on appeal. Evidence Code section 352.2 has at best an attenuated and inconsistent connection to reduced punishment and there is good reason why the Legislature might not have intended for its approach toward the admissibility of creative expressions to apply retroactively, and thus the inference of retroactive application does not attach to the statute. However, the court noted that Evidence Code section 352.2, by providing additional direction for evaluating the admissibility of creative expressions, sets forth several factors that trial courts already might have folded into an evaluation of whether this type of material was admissible under Evidence Code sections 352 and 1101.

Authority:

People v. Aguirre (2025) 18 Cal.5th 629, 692, 693

Tenth Holding:

While the Supreme Court’s decision in Aguirre dictates that Evidence Code section 352.2 does not apply retroactively to the defendant’s case, we conclude that the trial court abused its discretion under Evidence Code section 352 by permitting the prosecutor to play the videos in his opening statement and by admitting evidence of the videos. A Racial Justice Act [RJA] violation occurs when an attorney in the case exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, among other circumstances. A central premise of the RJA is that bias can be unconscious and implied as well as conscious and express.

Authority:

PEN 745

Bonds v. Superior Court (2024) 99 Cal.App.5th 821, 824

Eleventh Holding:

To forestall the defendant’s claim of ineffective assistance of counsel, we exercise our discretion to reach the merits of his’s RJA claim. This approach is particularly appropriate here, where we can discern no rational tactical reason for the defendant’s counsel not raising the RJA issue when counsel already filed a motion for a new trial concerning the playing and use of the rap music videos.

Authority:

People v. Torres (2025) 113 Cal.App.5th 88, 92 [reviewing court may reach forfeited claim where ineffective assistance of counsel claimed]

People v. Quintero (2024) 107 Cal.App.5th 1060, 1074 [addressing merits of forfeited RJA claim because defendant alleged he received ineffective assistance of counsel by failing to object]

Twelfth Holding:

The fact that the prosecutor did not utter the words in the video does not foreclose an RJA claim. The RJA expressly includes in its description of qualifying acts an attorney using racially discriminatory language, but it also includes an attorney otherwise exhibiting bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.

Authority:

PEN 745(a)(2)

Thirteenth Holding:

The RJA does not define racial bias or animus, but it specifies that the moving party is not required to prove intentional discrimination. Indeed, the statement of Legislative intent behind the RJA’s enactment states that the act was aimed at addressing the use of racially incendiary or racially coded language, images, and racial stereotypes in criminal trials. Based on the lack of probative value the videos had, the danger of racial bias that the “A Day in the Life” video particularly presented, and the manner in which the prosecutor used the videos at trial, we conclude that the defendant has satisfied his initial minimal burden to produce facts that, if true, establish that there is more than a mere possibility of an RJA violation.

Authority:

PEN 745(c)(2)

People v. Howard (2024) 104 Cal.App.5th 625, 656

Fourteenth Holding:

Challenges for cause are constitutionally guaranteed under the Sixth Amendment. Our state Constitution provides the same general right to a fair trial and an impartial jury. In California, criminal defendants are allowed an unlimited number of challenges to prospective jurors for cause, which the defendants must use before exercising any peremptory challenges.

Authority:

People v. Black (2014) 58 Cal.4th 912, 916

Fifteenth Holding:

On forfeiture of jury challenge because defendant still had peremptory challenges available, the defense was afforded 30 total peremptory challenges, with 20 of the challenges being joint challenges and the remaining 10 split between the two defendants. The defense had peremptory challenges available when it accepted the jury as seated. The California Supreme Court has repeatedly rejected requests to abandon the forfeiture rule concerning denials of juror challenges for cause in analogous situations where the three requirements to preserve the issue for appeal were not met.

Authority:

People v. Suarez (2020) 10 Cal.5th 116, 143

People v. Winbush (2017) 2 Cal.5th 402, 425-426

People v. Rangel (2016) 62 Cal.4th 1192, 1209-1210

People v. Manibusan (2013) 58 Cal.4th 40, 61

People v. Jones (2012) 54 Cal.4th 1, 45-46

People v. Mills (2010) 48 Cal.4th 158, 186

People v. Carasi (2008) 44 Cal.4th 1263, 1290

Sixteenth Holding:

Evidence is substantially more prejudicial than probative if, broadly stated, it poses an intolerable risk to the fairness of the proceedings or the reliability of the outcome. In applying this statute we evaluate the risk of undue prejudice, that is, evidence that uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues, not the prejudice that naturally flows from relevant, highly probative evidence.

Authority:

People v. Waidla (2000) 22 Cal.4th 690, 724

People v. Salcido (2008) 44 Cal.4th 93, 148

Seventeenth Holding:

A trial court’s discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.

Authority:

People v. Lewis (2001) 26 Cal.4th 334, 372-373

People v. Rodrigues (1994) 8 Cal.4th 1060, 1124

Eighteenth Holding:

The weighing process under Evidence Code section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. The record must affirmatively show that the trial judge did in fact weigh prejudice against probative value, but no more is required. We review the trial court’s exercise of discretion in admitting evidence under Evidence Code section 352 for abuse and will not disturb the court’s ruling except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.

Authority:

People v. Megown (2018) 28 Cal.App.5th 157, 164

Nineteenth Holding:

A trial court’s admission of evidence, including gang testimony, is reviewed for abuse of discretion.

Authority:

People v. Coneal (2019) 41 Cal.App.5th 951, 964

Twentieth Holding:

When evaluating the admission of rap music, courts have recognized it has minimal probative value to the extent that it depends on construing the lyrics as literal statements of fact or intent without a persuasive basis to do so. We have also held that the relevance of rap lyrics is further diminished when they lack foundation. These foundational components include whether the defendant authored the lyrics. Thus, absent some meaningful method to determine which lyrics represent real versus made up events, or some persuasive basis to construe specific lyrics literally, the probative value of lyrics as evidence of their literal truth is minimal.

Authority:

People v. Hin (2025) 17 Cal.5th 401, 477, 478

Twenty-first Holding:

We do not mean to suggest that lyrics are never probative of their literal truth. For example, where lyrics are written within a reasonable period of time before or after the charged crime and bear a sufficient level of similarity to the charged crime, their probative value as a statement of fact is increased. It may also be that lyrics with sufficient corroboration from other evidence will have increased probative value. However, corroborating evidence may also render the lyrics cumulative.

Authority:

People v. Coneal (2019) 41 Cal.App.5th 951, 96

Twenty-second Holding:

Section 29800(a)(1) states that any person who has been convicted of a felony, who has been convicted of an enumerated offense, or who is addicted to the use of any narcotic drug and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony. As relevant here: This offense has three elements: (1) the defendant possessed a firearm, (2) the defendant knew that he possessed the firearm, and (3) the defendant had previously been convicted of a felony.

Authority:

People v. Clark (2021) 62 Cal.App.5th 939, 958

Twenty-third Holding:

Where a defendant will stipulate to ex-felon status, evidence of the nature of his prior convictions still may and should be withheld from the jury, since such evidence is irrelevant to the ex-felon issue. Thus, to prove the third element of a violation of section 29800(a)(1), one of two alternatives may be used: (1) The prosecution can prove the conviction in open court, and that proof can include both the fact that the defendant has previously been convicted of a felony offense as well as the nature of the felony involved; or (2) the defendant can stipulate to having a felony conviction and thereby keep from the jury the nature of the particular felony. When the defendant stipulates to a prior conviction, “the court ‘sanitizes’ the prior by telling the jury that the defendant has a prior felony conviction, without specifying the nature of the felony committed.

Authority:

People v. Valentine (1986) 42 Cal.3d 170, 173

People v. Sapp (2003) 31 Cal.4th 240, 261, 262

Fifth Amendment, Standard of review

Case 000071

Posted on by Gary McCurdy

Error and/or relief

The trial court should have granted the defendant’s motion to suppress his interrogation statements because he invoked his right to counsel under Miranda. His statements were involuntary and coerced. We conclude the admission of the interrogation was prejudicial. We therefore reverse his convictions and remand for retrial.

First Holding:

A custodial interrogation can come in various forms and does not require questions. The term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.

Authority:

Miranda v. Arizona (1966) 384 U.S. 436

Rhode Island v. Innis (1980) 446 U.S. 291, 301

Second Holding:

Miranda’s safeguards do not apply when police ask a suspect routine booking questions to secure the biographical data necessary to complete booking or pretrial services. But there is an exception to that exception: courts have recognized the potential for abuse by law enforcement officers who might, under the guise of seeking objective or neutral information, deliberately elicit an incriminating statement from a suspect.

Authority:

Pennsylvania v. Muniz (1990) 496 U.S. 582, 601

United States v. Zapien (9th Cir. 2017) 861 F.3d 971, 975

E

Third Holding:

When a police officer has reason to know that a suspect’s answer may incriminate him even routine questioning may amount to interrogation.

Authority:

United States v. Williams (9th Cir. 2016) 842 F.3d 1143, 1147

Fourth Holding:

Once a suspect states he wishes to consult with an attorney, the interrogation must stop until an attorney is present or the suspect reinitiates contact. This is a bright-line rule: it requires all questioning cease after a suspect requests counsel. This is a prophylactic rule designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights. In the absence of such a bright-line prohibition, the authorities through badgering or overreaching—explicit or subtle, deliberate or unintentional—might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance. Once a suspect invokes the right to counsel, everything changes; that is, the police can no longer engage in efforts to convince the suspect to speak to them.

Authority:

Edwards v. Arizona (1981) 451 U.S. 477, 484–485

People v. Johnson (2022) 12 Cal.5th 544, 580

Michigan v. Harvey (1990) 494 U.S. 344, 350

People v. Henderson (2020) 9 Cal.5th 1013, 1022

People v. Avalos (2022) 85 Cal.App.5th 926, 932

Fifth Holding:

The error requires reversal unless it is harmless beyond a reasonable doubt.

Authority:

People v. Elizalde (2015) 61 Cal.4th 523

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

Sixth Holding:

We review Miranda claims under federal constitutional standards. We accept the trial court’s determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda. When an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review.

Authority:

People v. Johnson (2022) 12 Cal.5th 544, 578

People v. Henderson (2020) 9 Cal.5th 1013, 1023

People v. Suarez (2020) 10 Cal.5th 116, 158