Tag Archives: Sentencing

Amelioration, Appellate Principles, Sentencing, Standard of review, Vicarious liability

Case 000951

Posted on by Gary McCurdy

Error and/or relief

On remand from the Supreme Court, we reconsider our earlier decision denying relief on the defendant’s appeal from the denial of his petition for recall of sentence under section 1172.6. We reverse the lower court’s denial and remand for the court to conduct a full evidentiary hearing under section 1172.6.

(Gary note: The Court of Appeal earlier had concluded that the defendant is not eligible to petition for relief under section 1172.6, because he could have raised the issue on direct appeal. The Supreme Court granted review and held it pending its opinion in People v. Lopez. Once that was decided–holding in a case with a similar procedural posture that Lopez was not ineligible despite not raising the issue on his direct appeal–it returned this case to the Court of Appeal for further proceedings consistent with the Lopez decision.)

First Holding:

In 2018, the Legislature passed SB 1437, effective January 1, 2019, which among other things amended the definition of felony murder in section 189. This amended felony-murder rule restricted culpability for murder to actual killers, aiders and abettors, and anyone who was a major participant in the underlying felony and acted with reckless indifference to human life unless the victim was a peace officer.

SB 1437 also added section 1170.95, later renumbered to section 1172.6, which allows a person convicted of felony murder or murder under the natural and probable consequences doctrine to file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts, if, among other things, the petitioner could not presently be convicted of murder because of the changes to the law wrought by SB 1437.

SB 775 (2021–2022 Reg. Sess.) amended section 1172.6 further to expand eligibility for resentencing to persons convicted of murder pursuant to a theory under which malice is imputed to a person based solely on that person’s participation in a crime.

Authority:

People v. Antonelli (2025) 17 Cal.5th 719, 724

Second Holding:

We review the trial court’s decision at the prima facie stage de novo.

Authority:

People v. Bodely (2023) 95 Cal.App.5th 1193, 1200

Third Holding:

The jury instructions permitted the jury to find the defendant guilty by imputing malice to him as an accomplice rather than finding that he shared the principal’s intent and therefore independently harbored malice. The ambiguous instruction couches direct aiding and abetting liability in terms of the aider and abettor knowing the perpetrator intended to commit the crime, and the aider and abettor of implied malice murder need not intend the commission of the crime of murder. It conveyed that the defendant need only intend the commission of the perpetrator’s act, the natural and probable consequences of which are dangerous to human life, intentionally aid in the commission of that act and do so with conscious disregard for human life.

(Gary note: Presumably because the appellate court had gone through the review of the case law in the proceedings before it went up to the Supreme Court and came back down, there was little full discussion of the problem with the instruction. Powell, relied on by the court, does address the aiding and abetting issue, and Reyes (whose citation I listed below but was not cited in this opinion) approved the reasoning of Powell that, for aiding and abetting murder liability, the relevant act is the act that proximately causes death.

(The court remanded to the lower court to hold an evidentiary hearing, at which it will be determined whether the defendant can be found guilty under current law.)

Authority:

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

People v. Lopez (2026) 19 Cal.5th 639, 658-668

People v. Reyes (2023) 14 Cal.5th 981, 990-992

Abstracts and Minutes, Duty of the court, Sentencing

Case 000950

Posted on by Gary McCurdy

Error and/or relief

(Gary note: this is not necessarily a win, but I included it because it contains authority that might be useful at some point, if it works to the benefit of the defendant. In this instance, the court remanded for a full resentencing, which could be beneficial to the defendant, because the trial court should be able to consider his progress since the initial sentencing. Assuming there has been progress.

(Keep in mind the original section 1170(d)–which is not related to this case at all–that allowed a judge to recall a sentence at any time during the first 120 days after commitment. I think the concept was that maybe a judge could be persuaded to soften a bit once the defendant has some real time under his belt. Now, of course, the appropriate section has been redesigned and renumbered to 1170.1, which is not at issue in this case, either. But my point is that the defendant might be able to convince the judge to soften from the original sentence. On the other hand, the judge might simply add the full sentence allowed for the misdemeanor and run it consecutively. So, ….)

The trial court neglected to sentence the defendant on count 7, misdemeanor possession of a controlled substance. The failure to pronounce sentence on this count was error and that the appropriate remedy is remand for a full resentencing.

First Holding:

A trial court has a duty in both felony and misdemeanor cases to pronounce sentence on every conviction.

Authority:

PEN 12

PEN 1202

PEN 1445

People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1121–1122

People v. Cheffen (1969) 2 Cal.App.3d 638, 641–642

People v. Morrow (1969) 275 Cal.App.2d 507, 514.)

People v. Codinha (2023) 92 Cal.App.5th 976, 994

In re Sandel (1966) 64 Cal.2d 412, 415

Second Holding:

The failure to pronounce sentence on a count is an unauthorized sentence and subject to correction on remand.

Authority:

People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6

People v. Benton (1979) 100 Cal.App.3d 92, 102 [failure to either strike or impose enhancement was analogous to a failure to pronounce sentence on all counts, which is the type of unauthorized sentence that can be corrected by remand on the defendant’s appeal]

Third Holding:

Even if the minute order or the abstract of judgment did reflect a sentence on count 7, failure to pronounce sentence orally renders the sentence unauthorized.

Authority:

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [the record of the oral pronouncement of the court controls over the clerk’s minute order]

People v. Mesa (1975) 14 Cal.3d 466, 471 [rendition of judgment is an oral pronouncement and controls over minutes and abstract of judgment]

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

Fourth Holding:

Under these circumstances, we agree with the parties that the proper remedy is a remand for full resentencing.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 431 [remand is the default unless there is a clear indication from the sentencing court that it would be idle to do so]

People v. Codinha (2023) 92 Cal.App.5th 976, 994–995

People v. Burbine (2003) 106 Cal.App.4th 1250, 1257–1258 [finding full resentencing appropriate given the interlocking nature and inherently integrated nature of felony sentencing for a multiple-count conviction]

Fifth Holding:

Remand is appropriate for the additional reason that the trial court should decide whether section 654 applies to count 7 in the first instance.

(Gary note: The court did not mention it, because it really wasn’t even an issue raised and this mention was strictly in a footnote, but under section 654, the trial court could choose EITHER affected count to sentence the defendant under. So if the misdemeanor and a felony were subject to a single sentence under section 654, the court could impose the misdemeanor sentence and stay the felony sentence. Could happen.)

Authority:

People v. Deegan (2016) 247 Cal.App.4th 532, 545, fn. 4 [the question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination]

People v. Jones (2022) 79 Cal.App.5th 37, 46 [concluding in part that the need to apply section 654 warrants a full resentencing]

Sentencing, Sixth Amendment

Case 000949

Posted on by Gary McCurdy

Error and/or relief

In this third appeal, the defendant points out that the trial court again erred in imposing the upper term on an enhancement based on factors in aggravation that should have been (but were not) submitted to a jury for determination beyond a reasonable doubt. Further, the abstract of judgment does not reflect the credit for time served since the original date of sentencing. The matter is remanded for further resentencing proceedings so that the court can exercise its discretion and recalculate the correct credit for time served.

First Holding:

The trial court imposed the upper term on an enhancement after concluding that the defendant’s crimes were of increasing seriousness, based on the defendant’s admission to previous convictions. This was error. Under Wiley, the determination that a defendant’s prior record constitutes an aggravating factor as showing increasing seriousness must be submitted to and determined by a jury as true beyond a reasonable doubt.

Authority:

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

Second Holding:

The trial court failed to recalculate credit for time served since the date of the original sentencing.

(Gary note: The court did not cite any authority for the credit for time served order, so I have listed authority the court likely relied on. The Attorney General conceded both of these matters–the improper process for imposition of the upper term, and the failure to recalculate credit, so there was no need for the court to expound much further.)

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 23 [At resentencing, the trial court must calculate the actual time the defendant has already served and credit that time against the subsequent sentence]

Elements of crime, Sentencing, Sixth Amendment, Standard of review

Case 000947

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of kidnapping, attempting kidnapping, and false imprisonment, and was sentenced on all three. We vacate the false imprisonment conviction and stay the sentence on the attempted kidnapping under section 654.

First Holding:

The defendant contends that (1) his conviction for the attempted kidnapping must be reversed because the completed kidnapping conviction covers the same conduct; and (2) his conviction for false imprisonment must be reversed because it is a lesser-included offense of the completed kidnapping crime of which he was convicted.

We review de novo these legal questions of whether convictions merge.

Authority:

People v. Chun (2009) 45 Cal.4th 1172

Second Holding:

The crime of kidnapping is a continuing offense that begins once the victim is forcibly moved and continues until such time as the kidnapper releases or otherwise disposes of the victim and has reached a place of temporary safety. Thus, defendant could not stand convicted of two counts of kidnapping based on the uninterrupted, several-hour period where the defendant remained under defendant’s control.

Authority:

People v. Barnett (1998) 17 Cal.4th 1044, 1159

People v. Thomas (1994) 26 Cal.App.4th 1328, 1334-1335

Third Holding:

But the defendant stands convicted of kidnapping and attempted kidnapping.

Attempted kidnapping is no longer viewed as a lesser-included offense to the completed crime of kidnapping because the former requires proof of specific intent and the latter requires proof of asportation.

As a result, the rule that merges a completed crime with its lesser-included offense does not apply to the crimes of kidnapping and attempted kidnapping, and defendant is properly convicted of both crimes—but he cannot be sentenced on both crimes under section 654 given the uninterrupted kidnapping in this case.

Authority:

PEN 654

PEN 663

People v. Fontenot (2019) 8 Cal.5th 57, 76

People v. Medina (2007) 41 Cal.4th 685, 702

People v. Sanders (2012) 55 Cal.4th 731, 7

Fourth Holding:

Courts must determine the proper unit of prosecution for each crime based on whether the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once. This doctrine explains why there could only be a single count of kidnapping, but does not account for the fact that attempted kidnapping and completed kidnapping are separate crimes, and that it is possible for defendant to stand convicted of both crimes.

Authority:

People v. Wilson (2015) 234 Cal.App.4th 193, 199

Fifth Holding:

Unlike attempted kidnapping, the crime of false imprisonment is a lesser included offense of kidnapping. As a result, the lesser-included crime merges upon conviction of the greater offense, and defendant’s false imprisonment conviction based on the same underlying conduct must be vacated.

Authority:

People v. Delacerda (2015) 236 Cal.App.4th 282, 296

People v. Chacon (1995) 37 Cal.App.4th 52, 65

People v. Ratcliffe (1981) 124 Cal.App.3d 808, 820 [if both the false imprisonment count and kidnap[p]ing count relate to the same act, double conviction is prohibited]

People v. Jandres (2014) 226 Cal.App.4th 340, 362 [a defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act]

People v. Milward (2011) 52 Cal.4th 580, 589 [when the jury expressly finds defendant guilty of both the greater and lesser offense the conviction of [the greater offense is controlling, and the conviction of the lesser offense must be reversed]

Amelioration, Retroactivity, Sentencing

Case 000946

Posted on by Gary McCurdy

Error and/or relief

The true findings on the two prior strike allegations must be vacated because of changes under AB 333. The matter is remanded for retrial on those allegations to determine whether the prior convictions still qualify as strikes or serious felonies under the current law.

First Holding:

AB 333 (2021-2022 Reg. Sess.) amended section 186.22 by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

After appellant filed his opening brief in this appeal, Fletcher resolved a conflict of authority regarding whether prior convictions with gang allegations are affected by these amendments. The court concluded that, with regard to prior convictions that are premised on violations of section 186.22, current law applies in determining whether they qualify as prior serious felony convictions under section 1192.7(c)(28).

Authority:

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

People v. Fletcher (2025) 18 Cal.5th 576, 58

Second Holding:

The record here shows defendant’s two pre-2018 convictions included gang enhancements, but provides no information regarding the evidence used to obtain the convictions or the defendant’s underlying conduct. Neither conviction is considered a serious felony within the meaning of section 1192.7 if not for the gang enhancement.

The current law applicable to this nonfinal proceeding includes AB 333’s redefinition of the elements of gang offenses and enhancements under section 186.22. There is no indication that the prior conviction was obtained under AB 333’s more stringent requirements, and the abstract of judgment does not alone prove the elements of the alleged prior serious felony and strike prior enhancements beyond a reasonable doubt.

The appropriate remedy is reversal of the findings on these enhancements for retrial under the correct law.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 606-607

Third Holding:

The true findings on the strike and the prior serious felony enhancement are reversed pursuant to Fletcher. Appellant’s sentence is vacated. The matter is remanded for retrial on the prior serious felony and strike convictions. If appellant is not timely retried regarding the prior strikes or one or both of the prior strikes are not proven, the trial court shall resentence appellant without the strikes. We also remand the matter for a full resentencing.

Authority:

PEN 1382(a)(2)

People v. Fletcher (2025) 18 Cal.5th 576, 607-608

People v. Watts (2006) 131 Cal.App.4th 589, 597-598

Amelioration, Retroactivity, Sentencing

Case 000945

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by finding the defendant’s prior conviction for gang participation constituted a prior strike conviction within the meaning of the Three Strikes law. The true findings on the prior strike conviction and prior serious felony conviction are vacated and the case is remanded.

First Holding:

The trial court agreed with the prosecution that AB 333 was not before the court for consideration at the trial on whether the defendant suffered a prior strike conviction and a serious felony conviction. he court declined to consider the effect of AB 333 on the prior conviction and found true that the defendant had suffered a prior strike conviction and a prior serious felony conviction.

This was error. AB 333 applies to the determination of whether a prior conviction qualifies as a serious or violent felony. The true findings that the defendant suffered a prior strike conviction and a prior serious felony conviction are vacated and the matter is remanded.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 608

Second Holding:

On remand, if the People decide not to retry the enhancements, or at the conclusion of such a retrial, Jones will be entitled to a full resentencing. The court has a duty to ensure that all components of a sentence are authorized by the law and the facts at the time any new sentence is imposed.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [When part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.]

People v. Walker (2021) 67 Cal.App.5th 198, 206

 

Sentencing

Case 000944

Posted on by Gary McCurdy

Error and/or relief

The jury convicted the defendant of grand theft of personal property and embezzlement by a clerk for stealing money from his employer. One of the convictions must be vacated, because they constitute different statements of the same offense.

First Holding:

The was improperly convicted of two theft offenses (grand theft and embezzlement by a clerk) in violation of section 954 because they were different statements of the same offense. Convictions for both grand theft by larceny (sec. 484(a)) and embezzlement (sec. 503) based on the same course of conduct cannot stand under section 954.

Authority:

People v. Vidana (2016) 1 Cal.5th 632, 635, 649-651

Second Holding:

Appellate courts have employed different approaches for remedying a section 954 violation.

Under the circumstances of this case, we deem it appropriate to follow the Shiga approach. We will therefore reverse the judgment and remand the matter to the trial court with instructions to reinstate the conviction on one of the two counts to be selected by the People, then resentence the defendant on only a single count of conviction.

At the resentencing, any fees imposed by the court must also reflect the appropriate amounts for only a single count of conviction.

Authority:

People v. Shiga (2019) 34 Cal.App.5th 466, 481, 483–484 (Shiga) [reversing two duplicative arson convictions and remanding for resentencing with instructions to trial court to reinstate the conviction on the one selected by the People]

People v. Coyle (2009) 178 Cal.App.4th 209, 217–218, 219 [consolidating three duplicative special circumstance murder counts into single count, reversing and vacating the other two murder convictions, and affirming the judgment as modified]

Amelioration, Sentencing

Case 000943

Posted on by Gary McCurdy

Error and/or relief

The defendant is entitled to a remand for the trial court to determine whether his strike prior is valid under current law, in light of the AB 333 changes to the gang activity law since the convictions of the purported strike offenses.

First Holding:

The defendant is entitled to a remand for the trial court to determine whether one of his strike priors satisfies the current requirements of the gang statute.

Authority:

AB 333

People v. Fletcher (2025) 18 Cal.5th 576, 583

Second Holding:

AB 333 amended section 186.22 to provide, among other things, that an offense committed on behalf of a gang may support a substantive gang offense, gang enhancement, or, by definition, a gang special circumstance finding, only if the common benefit to members of a gang is more than reputational. AB 333 applies retroactively to cases pending on appeal

Authority:

PEN 186.22

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

Third Holding:

Where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

If the record contains no indication that the defendant’s prior conviction was obtained under AB 333’s more stringent requirements, and the evidence used to prove the existence of the strike prior does not alone prove the elements of the alleged prior serious felony and strike prior enhancements beyond a reasonable doubt, the remedy is to provide the People an opportunity to retry the strike allegation under the current law.

And, if the People elect not to retry the strike prior or fail to prove beyond a reasonable doubt that it satisfies the requirements of AB 333, the trial court must dismiss the allegation and conduct a full resentencing.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583, 607

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

Appellate Principles, Juveniles, Probation Parole PRCS, Sentencing, Standard of review

Case 000941

Posted on by Gary McCurdy

Error and/or relief

The minor challenges several conditions of probation. We modify two of them.

First Holding:

The juvenile court has wide discretion to select appropriate probation conditions and may impose any reasonable condition that is fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. The juvenile court’s discretion, while broad, is not unlimited.

A probation condition is invalid if it: (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.

In order to invalidate a condition of probation under this Lent test, all three factors must be found to be present. A condition of probation that would be unconstitutional or otherwise improper for an adult probationer may be permissible for a minor under the supervision of the juvenile court.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 889

In re J.B. (2015) 242 Cal.App.4th 749, 754

People v. Lent (1975) 15 Cal.3d 481, 486

Second Holding:

We review a juvenile court’s imposition of a probation condition for an abuse of discretion.

Authority:

In re Daniel R. (2006) 144 Cal.App.4th 1, 6

Third Holding:

Hearsay can at least sometimes be considered at dispositional hearings, and courts may base probation conditions upon information in probation reports.

Authority:

In re Vincent G. (2008) 162 Cal.App.4th 238, 243–244

In re Ricardo P. (2019) 7 Cal.5th 1113, 1122

Fourth Holding:

Probation conditions are to be given the meaning that would appear to a reasonable reader. We modify the probation condition that the minor not be around anyone known to him to be in possession of any dangerous or deadly weapons by inserting “known to him to be unlawfully in possession of the same.”

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 382

(Gary note: Olguin supports the first sentence of that summary of the holding. The court did not cite any specific authority in the paragraphs in which it modified the language of that condition itself. However, In re Sheena K. (2007) 40 Cal.4th 875, 889, authorizes an appellate court to modify conditions of probation to render them constitutional.)

Fifth Holding:

A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights.

People have a constitutional right to self-defense. The condition that “The minor shall not commit any act of violence against anyone” must be tailored to, “The minor shall not commit any act of violence against anyone, except for acts of lawful self-defense.”

Authority:

Cal. Const., art. I, sec. 1

In re Carlos C. (2018) 19 Cal.App.5th 997, 1002, 1004

People v. McDonnell (1917) 32 Cal.App. 694, 704

Amelioration, Appellate Principles, Sentencing

Case 000940

Posted on by Gary McCurdy

Error and/or relief

The defendant filed a petition for recall under section 1172.6, challenging his convictions for murder. The petition was denied, and the denial was affirmed on appeal. The opinion noted that the defendant had not challenged his convictions for attempted murder. The defendant then filed a section petition to challenge his convictions of attempted murder in light of legislation enacted to encompass attempted murder under section 1172.6. The trial court summarily denied that petition on the grounds that he had already filed a petition that had been denied.

That was error.

First Holding:

On January 1, 2019, SB. 1437 eliminated the natural and probable consequences doctrine as a basis for murder and limited the scope of the felony murder rule. SB 1437 also created the resentencing procedure at issue here. The defendant filed his first section 1172.6 petition seeking resentencing of his conviction for second degree murder pursuant to the changes to the law effectuated by SB 1437.

On January 1, 2022, while the defendant’s first petition was pending, SB 775 further amended the Penal Code to eliminate the natural and probable consequences doctrine as a theory of liability for attempted murder.

Authority:

SB 1437

SB 775

PEN 1172.6

Second Holding:

The defendant’s first petition sought resentencing of the murder conviction only. This court expressly did not consider the attempted murder convictions as they had not been presented for resentencing in the trial court.

The denial of the first petition did not prevent the defendant from subsequently seeking resentencing of the attempted murder convictions once that relief became available due to changes in the law. The second petition was not the same as the first.

We therefore reverse the trial court order denying the defendant’s second petition for resentencing. On remand, the trial court must appoint counsel for the defendant and conduct further proceedings under section 1172.6 as to his attempted murder convictions.

Authority:

People v. Farfan (2021) 71 Cal.App.5th 942, 949–951

Fines and fees, Sentencing

Case 000938

Posted on by Gary McCurdy

Error and/or relief

We modify the judgment to vacate the booking fee imposed pursuant to former Government Code section 29550.2.

Holding:

The main jail booking fee (former Gov. Code, sec. 29550.2), imposed by the trial court at the early 2021 sentencing hearing and reimposed at the 2025 hearing, was repealed by the passage of AB 1869, effective July 1, 2021 AB 1869 enacted Government Code section 6111, which provides that on and after July 1, 2021, the unpaid balance of any court-imposed costs pursuant to section 29550.2 is unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated. (Gov. Code, sec. 6111(a).) Accordingly, the main jail booking fee reimposed at the 2025 sentencing hearing must be vacated.

Authority:

GOV 6111(a)

Former GOV 29550.2

Amelioration, Retroactivity, Sentencing, Standard of review

Case 000937

Posted on by Gary McCurdy

Error and/or relief

In this appeal by the People following the resentencing of the defendant under section 1172.75, we affirm the lower court’s granting of a new trial on the gang-related special circumstances and gang enhancement allegations in light of AB 333.

First Holding:

The People contend the trial court erred in granting respondent’s motion for new trial because the evidence at trial demonstrated, beyond a reasonable doubt, that the jury would have rendered the same verdict absent the instructional error created by the passage of AB 333.

The trial court has broad discretion in ruling on a new trial motion, and its decision will be disturbed only for clear abuse of that discretion. The People recognize this general rule, but contend independent review is more fitting given that the court below was not the original trial judge and based its review on a cold transcript and exhibits.

Authority:

People v. Ault (2004) 33 Cal.4th 1250, 1260

Second Holding:

Presumptions on appeal are in favor of the order, and the appellate court does not independently redetermine the question whether an error was prejudicial. As our Supreme Court explained in Ault, the trial court’s order granting a new trial will not be disturbed if fairly debatable, even if a reviewing court itself, addressing the issues de novo, would not have found a basis for reversal. We will review the trial court’s order for abuse of discretion.

Authority:

People v. Ault (2004) 33 Cal.4th 1250, 1262-1263

Third Holding:

In 2021, the Legislature passed AB 333, which became effective January 1, 2022. The new legislation made several changes to the definition of section 186.22 gang enhancements.

First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern have been collectively engaged in by members of the gang. (

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be ‘more than reputational.

Authority:

PEN 186.22

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

Fourth Holding:

Although AB 333 does not expressly address the gang-murder special circumstance set forth in section 190.2(a)(22), the latter statute defines criminal street gang by express cross-reference to section 186.22(f). The same is true for a firearm enhancement alleged pursuant to section 12022.53(e)(1).

Authority:

People v. Hin (2025) 17 Cal.5th 401, 461

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

Fifth Holding:

When a substantive change occurs in the elements of an offense and the jury is not instructed as to the proper elements, the omission implicates the defendant’s right to a jury trial under the Sixth Amendment, and reversal is required unless it appears beyond a reasonable doubt that the jury verdict would have been the same in the absence of the error. To prove harmless error under the Chapman standard, it is not enough to show that substantial or strong evidence existed to support a conviction under the correct instructions. Rather, the question is whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

(Gary note: The court then proceeded to examine the written opinion of the trial judge, and discussed the judge’s reasoning and statements of findings that led the trial court to the conclusion that a new trial was warranted. Those facts and that analysis are beyond what these summaries are designed to present, because the facts relied on in an unpublished opinion cannot be related to control a result in another case, and neither can the trial court’s reasoning be cited as authority, persuasitive or otherwise.)

Authority:

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

People v. Flood (1998) 18 Cal.4th 470, 504

People v. Sek (2022) 74 Cal.App.5th 657, 668

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

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

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