Tag Archives: Sentencing

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

Case 001024

Posted on by Gary McCurdy

Error and/or relief

In light of Emanuel, we reverse the denial of the defendant’s motion for resentencing filed under section 1172.6.

First Holding:

The trial court denied the defendant’s petition for resentencing, finding that he was a major participant who acted with reckless indifference to for human life during the commission of the offenses. there is insufficient evidence to support the trial court’s finding that the defendant acted with reckless indifference to human life. For that reason alone, he is entitled to resentencing relief under section 1172.6.

Authority:

People v. Guiffreda (2023) 87 Cal.App.5th 112, 117

Second Holding:

Effective January 1, 2019, the Legislature passed SB 1437 to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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.

Defendants who were neither actual killers nor acted with the intent to kill can be held liable for murder only if they were ‘major participants in the underlying felony and acted with reckless indifference to human life.

When the felony-murder rule does not apply, a principal in the crime of murder can only be convicted where he acted with malice aforethought, and malice shall not be imputed to a person based solely on his or her participation in a crime.

Authority:

PEN 188

PEN 189

People v. Gentile (2020) 10 Cal.5th 830, 842-843, 846-847

People v. Strong (2022) 13 Cal.5th 698, 708

Third Holding:

SB 1437 also created a procedure for offenders previously convicted of felony murder or murder under the natural and probable consequences doctrine to seek retroactive relief if they could no longer be convicted of murder under the new law.

The process begins with the filing of a petition containing a declaration that all requirements for eligibility are met, including that the petitioner could not presently be convicted of murder or attempted murder because of changes to section 188 or 189 made effective January 1, 2019.

When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition to determine whether the petitioner has made a prima facie case for relief. If the defendant makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing to determine whether relief should be granted.

Authority:

PEN 1172.6

People v. Gentile (2020) 10 Cal.5th 830, 843

People v. Lewis (2021) 11 Cal.5th 952, 959

People v. Strong (2022) 13 Cal.5th 698, 708

Fourth Holding:

Because the standard under section 189(e)(3) for holding a defendant liable for felony murder is the same as the standard for finding a special circumstance under section 190.2(d), death penalty cases interpreting section 190.2(d), including Banks and Clark, are controlling here.

Authority:

People v. Banks (2015) 61 Cal.4th 788

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

People v. Guiffreda (2023) 87 Cal.App.5th 112, 123

Fifth Holding:

To determine whether a defendant exhibited reckless indifference to human life under section 190.2(d), courts consider a list of considerations, including use of or awareness of the presence of a weapon or weapons, physical presence at the scene and opportunity to restrain confederates or aid victims, the duration of the crime, knowledge of any threat the confederates might represent, and efforts taken to minimize risks.

This list of factors is nonexhaustive. None of them is necessary, nor is anyone one of them necessarily sufficient. Instead, the totality of the circumstances must be analyzed to determine whether the defendant acted with reckless indifference.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

People v. Banks (2015) 61 Cal.4th 788, 803

People v. Clark (2016) 63 Cal.4th 522, 618

Sixth Holding:

Reckless indifference to human life has a subjective and an objective element. As to the subjective element, the defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, and he or she must consciously disregard the significant risk of death his or her actions create.

As to the objective element, the risk of death must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him or her, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

Authority:

In re Scoggins (2020) 9 Cal.5th 667, 677

Seventh Holding:

On appeal from an order denying a petition under section 1172.6, we review the trial court’s factual findings for substantial evidence. We examine the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value that would support a rational trier of fact in finding the defendant guilty beyond a reasonable doubt.

Our job on review is different from the trial judge’s job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder’s findings beyond a reasonable doubt. Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.

Authority:

People v. Richardson (2022) 79 Cal.App.5th 1085, 1090

People v. Clements (2022) 75 Cal.App.5th 276, 298

People v. Guiffreda (2023) 87 Cal.App.5th 112, 1225

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

Eighth Holding:

As the passenger in the car driven by another who drove dangerously and recklessly in an effort to evade capture, the defendant had no meaningful opportunity to interfere with the driving. The driving resulted in a collision with the victim’s car, killing her. There is insufficient evidence that the defendant knowingly created a grave risk to the life of that person.

Instead, the record shows that the defendant was, at worst, a passive passenger as the codefendant drove recklessly, which is insufficient to support a finding that the defendant acted with reckless indifference to the victim’s life.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 896

Discretion, Duty of the court, Pleading, Probation Parole PRCS, Sentencing, Standard of review

Case 001023

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in summarily denying the defendant’s motion filed under Franklin and Penal Code section 1203.01 for a hearing to set forth youth-related evidence for consideration at future parole hearings.

We conclude that the trial court erred by denying the defendant’s motion absent evidence that the defendant had past opportunities to present youth-related evidence and absent information regarding the substance of the evidence that the defendant intended to present.

We decline to issue an order that the trial court grant the request for a Franklin hearing. We simply direct the court to hold a proper hearing on the motion to determine whether a Franklin hearing is warranted.

First Holding:

Section 3051(a)(1) provides for a youth offender parole hearing by the Board of Parole Hearings for the purpose of reviewing the parole suitability of any prisoner who was 25 years of age or younger at the time of his or her controlling offense.

Section 4801(c) provides that, when a prisoner committed his or her controlling offense, as defined in section 3051(a), when he or she was 25 years of age or younger, the board, in reviewing a prisoner’s suitability for parole pursuant to section 3041.5, shall give great weight to the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.

Authority:

PEN 3051

PEN 4801(c)

Second Holding:

In Franklin, the Supreme Court held a defendant who did not have an opportunity to make a record of mitigating youth-related factors relevant to a later youth offender parole hearing should have an opportunity to make a record on remand.

The court explained that sections 3051 and 4801 contemplate that information regarding the juvenile offender’s characteristics and circumstances at the time of the offense will be available at a youth offender parole hearing to facilitate the Board’s consideration. Assembling such statements about the individual before the crime is typically a task more easily done at or near the time of the juvenile’s offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away.

The Supreme Court remanded the matter to determine whether the defendant was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing, and if not, to allow the defendant to place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.

Authority:

People v. Franklin (2016) 63 Cal.4th 261, 283-284

Third Holding:

In Cook, the Supreme Court held that a juvenile offender with a final judgment could move for a postjudgment proceeding under section 1203.01, to present evidence of youth-related factors. The Cook court reasoned that recognizing the court’s authority under section 1203.01 to gather youth offender evidence effectuates sections 3051 and 4801.

For inmates who seek to preserve evidence following a final judgment, the proper avenue is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and the Cook decision that establishes the inmate’s entitlement to a youth offender parole hearing and indicates when such hearing is anticipated to take place, or if one or more hearings have already occurred.

Consistent with Franklin and the court’s inherent authority, the offender shall have the opportunity to place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender’s culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors.

Neither the passage of significant time, nor the fact that the defendant has had prior parole hearings is a bar to the court granting a Franklin hearing. The Legislature intended that the benefits of youth offender parole hearings be available even to those prisoners with decades-old convictions.

Authority:

PEN 1203.1

In re Cook (2019) 7 Cal.5th 439, 453, 458-459

People v. Benzler (2021) 72 Cal.App.5th 743, 751

Fourth Holding:

We review the trial court’s denial of a Franklin proceeding for abuse of discretion. In deciding whether the trial court has abused its discretion we are required to ask whether the trial court’s findings of fact are supported by substantial evidence, whether its rulings of law are correct, and whether its application of the law to the facts was neither arbitrary nor capricious.

Critical to the resolution of this case, we note that when a trial court’s decision rests on an error of law, that decision is an abuse of discretion.

Authority:

People v. Benzler (2021) 72 Cal.App.5th 743, 749

Fifth Holding:

The defendant’s motion contained sufficient information. Nothing in Cook indicates the motion bust describe with precision the vidence the offender seeks to introduce. The court’s commentary in Cook about what a motion should include is not the same as creating mandatory pleading requirements.

Courts have found there are no mandatory pleading requirements for a Franklin motion, and the required showing to initiate the process for a Franklin proceeding is minimal: due to the limited resources generally available to inmates, the Cook court reasonably envisioned a simple pleading mechanism to get the process started.

Authority:

People v. Howard (2021) 74 Cal.App.5th 141, 150

People v. Lipptrapp (2021) 59 Cal.App.5th 886, 896

Abstracts and Minutes, Sentencing

Case 001021

Posted on by Gary McCurdy

Error and/or relief

There is an error in the abstract of judgment that requires correction.

Holding:

The trial court imposed and stayed section 12022.1 bail enhancements as to counts 4, 5, 6, and 7. The determinate abstract of judgment erroneously omits the section 12022.1 enhancement as to count 5.

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The abstract of judgment must be corrected to reflect the sentence for the section 12022.1 enhancement on count 5, which the trial court stayed.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Jones (2012) 54 Cal.4th 1, 89

Abstracts and Minutes, Sentencing

Case 001020

Posted on by Gary McCurdy

Error and/or relief

There is an error in the abstract of judgment that requires correction.

Holding:

The abstract reflects the sentence as 60 years to life, but the court pronounced the sentence as 50 years to life on the crime plus 10 years for the use of a firearm. The abstract must be corrected to reflect the oral pronouncement of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Elements of crime, Sentencing

Case 001019

Posted on by Gary McCurdy

Error and/or relief

Because their was no requisite relationship between the defendant and the victim, it was error for the court to impose a protective order.

First Holding:

Section 136.2(i)(1) and (i)(2) provide in relevant part that when a criminal defendant has been convicted of a crime involving domestic violence, as defined in Penal Code section 13700 or in Family Code section 6211, the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim or percipient witness of the crime.

Authority:

PEN 136.2(i)

Second Holding:

Penal Code section 13700 defines domestic violence to mean, in relevant part, abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship.

Authority:

PEN 13700

Third Holding:

Family Code section 6211 defines domestic violence to mean, in relevant part, abuse perpetrated against:

(a) A spouse or former spouse;

(b) A cohabitant or former cohabitant;

(c) A person with whom the respondent is having or has had a dating or engagement relationship;

(d) A person with whom the respondent has had a child;

(e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected; or

(f) Any other person related by consanguinity or affinity within the second degree.

Authority:

FAM 6211

Fourth Holding:

The defendant did not have a relationship with the victim within the meaning of either Penal Code section 13700 or Family Code section 6211. Nor did the defendant’s crimes fall within any of the other offenses enumerated in section 136.2(i), which lists other qualifying offenses including human trafficking, specified sex offenses, and participation in criminal street gang.

Therefore, the post-conviction protective order was unauthorized under section 136.2(i). It must be vacated.

Authority:

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

People v. Delarosarauda (2014) 227 Cal.App.4th 205, 212