Tag Archives: Standard of review

Discretion, Duty of the court, Sentencing, Standard of review

Case: 000168

Posted on by Gary McCurdy

Error and/or relief

In 2024, the Department of Corrections and Rehabilitation (CDCR) sent the trial court a letter providing it with authority to resentence defendant pursuant to section 1172.1 in light of the court’s newfound discretion to dismiss prior serious felony enhancements. The court appointed defendant counsel and set the matter for a hearing. After the hearing, the court stated it was not going to exerciseits discretion, that it was leaving the sentence in play as originally sentenced, and it denied the motion.

The trial court erred in denying recall and resentencing without finding that the defendant currently poses an unreasonable risk of danger to public safety, as defined in section 1170.18(c), as required to overcome the presumption in favor of recall and resentencing provided for in section 1172.1(b)(2). The trial court failed to understand the proper scope of its discretion in light of the mandated presumption in favor of recall and resentencing. Thus, it abused its discretion in rendering its order denying relief. We deem it appropriate, here, to remand the matter to the trial court for reconsideration of the CDCR’s recommendation pursuant to section 1172.1.

First Holding:

A court may at any time upon the recommendation of the secretary [of CDCR] or the Board of Parole Hearings in the case of a defendant incarcerated in state prison recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.

Authority:

PEN 1172.1

Second Holding:

Where such a resentencing request is made, there is now a presumption in favor of recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in 1170.18(c).

Authority:

PEN 1172.1(b)(2)

People v. McMurray (2022) 76 Cal.App.5th 1035, 1040

Third Holding:

“Unreasonable risk of danger to public safety” is defined as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). Those offenses—known as super strikes—include, among others, any homicide and any serious or violent felony offense punishable in California by life imprisonment or death.

Authority:

PEN 1170.18(c)

People v. Braggs (2022) 85 Cal.App.5th 809, 818

People v. Valencia (2017) 3 Cal.5th 347, 351

Fourth Holding:

Where the CDCR recommends recall and resentencing, the court is also now required to hold a hearing (unless the parties otherwise stipulate), state on the record its reasons for its decision, provide notice to the defendant, and appoint counsel for the defendant. Furthermore, when recalling and resentencing pursuant to its provisions, the court shall apply any changes in law that reduce sentences or provide for judicial discretion.

Authority:

PEN 1172.1(a)(6)–(8), (b)(1)

People v. McMurray (2022) 76 Cal.App.5th 1035, 1040

People v. Pierce (2023) 88 Cal.App.5th 1074, 1078

Fifth Holding:

We review a trial court’s resentencing determination for an abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence. An abuse of discretion is shown when the trial court applies the wrong legal standard.

Authority:

People v. Frazier (2020) 55 Cal.App.5th 858, 863

People v. Moine (2021) 62 Cal.App.5th 440, 449

People v. Hall (2016) 247 Cal.App.4th 1255, 1264

People v. Gonzalez (2024) 103 Cal.App.5th 215, 231

People v. Knoller (2007) 41 Cal.4th 139, 156–158 [court abused its discretion in granting motion for new trial based on erroneous legal standards]

In re Charlisse C. (2008) 45 Cal.4th 145, 159–160, 167 [juvenile court abused discretion in applying incorrect standard in disqualifying minor’s counsel]

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000166

Posted on by Gary McCurdy

Error and/or relief

The court imposed separate punishments for an indivisible course of conduct. We conclude that all but one of the offenses was temporally distinct and served an independent objective, separate punishments were appropriate. We agree that the defendant broke down victim’s door as part of the robbery, as he had no separate motive to break it. We direct that the one-year sentence for vandalism of the door be stayed.

First Holding:

An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. Section 654 thus precludes multiple punishments for a single act or indivisible course of conduct. If a single action or course of conduct by a defendant violates multiple laws, the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, but the trial court may impose sentence for only one offense and must stay the sentence for the others.

Authority:

PEN 654

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

People v. Sek (2022) 74 Cal.App.5th 657, 673

Second Holding:

The question of 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. Whether a course of criminal conduct is divisible depends on the intent and objective of the actor. If a defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. Multiple punishments are also permissible where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken and creating a new risk of harm.

Authority:

People v. DeVaughn (2014) 227 Cal.App.4th 1092, 1113

People v. Jackson (2016) 1 Cal.5th 269, 354

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Gaynor (2019) 42 Cal.App.5th 794, 800, 804

Third Holding:

We review for substantial evidence the trial court’s express or implied findings regarding the defendant’s intent and objective viewing the trial court’s determination in the light most favorable to the respondent and presuming the existence of every fact the court could reasonably deduce from the evidence. We will uphold the court’s findings in support of its determination if substantial evidence supports them.

Authority:

People v. Vasquez (2020) 44 Cal.App.5th 732, 737

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

People v. Osband (1996) 13 Cal.4th 622, 730–731

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

Appellate Principles, Sentencing, Standard of review

Case: 000156

Posted on by Gary McCurdy

Error and/or relief

On appeal from a resentencing, the defendant seeks a remand to make further requests to dismiss gang enhancements under recently amended Penal Code section 186.22, subdivision (g), which now requires more than reputational benefit to a gang. We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385.

First Holding:

At the resentencing hearing, the trial court erred in believed it had no jurisdiction under the remittitur from the previous appeal (which had remanded the matter for resentencing) to fully resentence the defendant. But the scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396

Second Holding:

Because the trial court determined it had no jurisdiction to consider defendant’s motion to dismiss the gang enhancements, it did not reach the parties’ substantive arguments. Given the lack of a full record on appeal regarding the issues (including the absence of the complete preliminary hearing transcript and evidence), the appropriate course is to permit the trial court to assess, after full consideration of the issue on a proper record, whether changes to section 186.22 require dismissal of the gang enhancements.

We observe that if the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. If defendant elects and is permitted to withdraw from the plea agreement, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges.

[Gary Note: This opinion was issued in December 2025. Effective 1/1/26, Pen. Code, sec. 1171 was amended, and subdivision (c)(3) provides that, with respect to certain postconviction proceedings to modify a sentence or conviction pursuant to an ameliorative statute, a modification of a sentence shall not be a basis for a prosecutor or court to rescind a plea bargain. Does this affect the Stamps solution of remanding for the possible setting aside of the plea bargain if the defendant chooses to pursue amelioration? Good question, Gary!]

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 707-708

People v. Superior Court (1982) 131 Cal.App.3d 256

Mendoza v. Superior Court (2023) 91 Cal.App.5th 42, 58

Third Holding:

We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c). We review associated questions of statutory construction de novo.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1033

People v. Burke (2023) 89 Cal.App.5th 237, 242

Fourth Holding:

Under Penal Code section 1385(c)(1), the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

The trial court denied the defendant’s request to dismiss the firearm enhancment under Penal Code section 1385, subdivision (c). But it decided the motion before Walker clarified how to exercise its authority. Accordingly, we will remand the matter to allow the trial court to determine that question and, if decided in the negative, to further determine whether there is substantial, credible evidence of countervailing factors sufficient to neutralize the great weight of the recognized mitigating circumstances asserted by defendant (including mental illness, prior victimization, and childhood trauma). Notwithstanding the presence of a mitigating circumstance, trial courts retain their discretion to impose an enhancement based on circumstances long deemed essential to the furtherance of justice inquiry.

Authority:

PEN 1385(c)(1)

People v. Walker (2024) 16 Cal.5th 1024 [Specifically, absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.]

Fifth Holding:

On remand, the trial court shall consider defendant’s motion for relief under section 186.22 and reconsider defendant’s motion to dismiss the firearm enhancements under section 1385. If such relief is granted, defendant shall be entitled to full resentencing.

Authority:

People v. Walker (2024) 16 Cal.5th 1024

Amelioration, Elements of crime, Sentencing, Standard of review

Case: 000145

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

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

Authority:

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

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

Second Holding:

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

Authority:

PC 1172.6(c) and (d)

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

Third Holding:

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

Authority:

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

Fourth Holding:

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

Authority:

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

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

Fifth Holding:

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

Authority:

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

Sixth Holding:

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

Authority:

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

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

Seventh Holding:

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

Authority:

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

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

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

Case: 000144

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

Authority:

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

Second Holding:

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

Authority:

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

Third Holding:

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

Authority:

PEN 243.4(e)(1)

PEN 242

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

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

Fourth Holding:

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

Authority:

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

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

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

Fifth Holding:

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

Authority:

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

Discretion, Juveniles, Standard of review, Statutory interpretation

Case: 000133

Posted on by Gary McCurdy

Error and/or relief

In 2000, appellant was sentenced to life in prison without the possibility of parole after being tried as an adult for two murders he committed when he was 17. In 2021, his sentence was recalled under Penal Code section 1170, subdivision (d). The prosecution filed a motion to again transfer appellant’s case from juvenile court to criminal court. The court granted the motion, and appellant challenges that ruling on appeal. We conclude that the court misapprehended one aspect of its discretion, reverse the order transferring appellant to criminal court, and remand for reconsideration of the issue.

First Holding:

In determining at a transfer hearing whether a juvenile should be tried as an adult, the court must consider five statutory factors, one of which is whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction. The court stated that juvenile jurisdiction would have ended when appellant turned 25 years old. The court was quite clear that its consideration of the relevant factor was always directed at determining whether appellant would have been rehabilitated by the age of 25.

However, the court was incorrect. The juvenile court may retain jurisdiction over a person who is 25 years of age or older for a period not to exceed two years from the date of disposition if the person is found to be a person described in Section 602 by reason of the commission of an offense listed in subdivision (b) of Welfare and Institutions Code, Section 707. In this instance, the defendant would have been in his 40s two years after disposition hearing held in this case.

Authority:

WIC 707(d)

Second Holding:

When the appellant presents an issue of statutory interpretation, we review it de novo.

Authority:

In re Noah S. (2021) 67 Cal.App.5th 410, 414

Third Holding:

Reversal is required unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion. Here, the court did not express how it would have ruled had it known juvenile jurisdiction could have lasted longer. One of the few comments the court made about the defendant’s post-age 25 conduct cuts against a finding of harmlessness. Paraphrased, the court stated that there was no question before it that the defendant has grown as an adult, but that the question was whether or not that growth would have occurred before age 25. It stated that the evidence it considered at the hearing indicates his growth occurred well past the age of 25.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 139

Fourth Holding:

In order to transfer a minor from juvenile court to criminal court, the court must find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

Authority:

WIC 707(a)(3)

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

Case: 000132

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

In considering the sufficiency of evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We review the record in the light most favorable to the judgment, presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. We also accept logical inferences that the jury might have drawn from the circumstantial evidence. We do not resolve credibility issues or evidentiary conflicts.

Authority:

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

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

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

Second Holding:

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

Authority:

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

Third Holding:

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

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

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

Authority:

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

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

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

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

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

Fourth Holding:

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

Authority:

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

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

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

Fifth Holding:

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

Authority:

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

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

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

Sixth Holding:

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

Authority:

PEN 1181

PEN 1260

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

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

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

Seventh Holding:

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

Authority:

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

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

Amelioration, Appellate Principles, Discretion, Plea bargains, Retroactivity, Sentencing, Standard of review

Case: 000130

Posted on by Gary McCurdy

Error and/or relief

Following remand from the defendant’s prior appeal, the trial court declined to strike a firearm enhancement. The court did not realize the impact of recent changes in the law on gang criminal activity, asserting that its jurisdiction was limited to the scope defined in the remittitur (which remanded for reconsideration of the request to dismiss the firearm enhancement). We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385 under the standard more recently articulated by the Supreme Court.

First Holding:

The scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws. We review associated questions of statutory construction de novo. Whether a statute applies retroactively is a question of statutory construction we review de novo. We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c).

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396

People v. Burke (2023) 89 Cal.App.5th 237, 242

People v. Brown (2012) 54 Cal.4th 314, 319

People v. Walker (2024) 16 Cal.5th 1024, 1033

Second Holding:

Section 1385(c)(1) provides that, notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the nine mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

Authority:

PEN 1385(c)

Third Holding:

Absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Authority:

People v. Walker (2024) 16 Cal.5th 1024

Fourth Holding:

The Legislature amended PC 186.22(g) to redefine the phrase “benefit, promote, further, or assist” a criminal street gang for the purposes of section 186.22. The phrase now means “to provide a common benefit to members of a gang where the common benefit is more than reputational.” Those elemental changes apply retroactively to all nonfinal cases such as this one.

Authority:

PEN 186.22(e)(1)

PEN 186.22(g)

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

In re Estrada (1965) 63 Cal.2d 740, 745

Fifth Holding:

Where a statute is silent regarding retroactivity, we employ the ordinary presumptions and rules of statutory construction to discern the Legislature’s intent. Ordinarily, statutes are presumed to apply only prospectively, unless the Legislature expressly declares otherwise. Estrada, however, held that an amendment to a statute that lessened punishment for a crime gave rise to an inference of contrary legislative intent; that is, that the Legislature must have intended that the amendment mitigating punishment would apply retroactively to every case to which it constitutionally could apply. The Estrada rule rests on an inference that the Legislature intends an amendment reducing punishment under a criminal statute to apply as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.

Authority:

Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230

People v. Burgos (2024) 16 Cal.5th 1, 7

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

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308

Sixth Holding:

If the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. In that event, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges.

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 707-708

People v. Superior Court (Garcia) (1982) 131 Cal.App.3d 256

Mendoza v. Superior Court (2023) 91 Cal.App.5th 42

Seventh Holding:

Penal Code section 1016.7 provides that, in the interest of justice and to reach a just resolution during plea negotiations, the prosecutor shall consider whether the defendant has experienced psychological, physical, or childhood trauma, whether the defendant is or was a youth at the time of the commission of the offense, and whether any of those considerations contributed to the commission of an alleged offense. The statute defines youth as any person under 26 years of age on the date of the offense. But it is not retroactive. It does not reduce punishment for a criminal offense, create discretion to reduce punishment, narrow the scope of criminal liability, or create a concrete avenue for certain individuals charged with a criminal offense to be treated more leniently or avoid punishment altogether.

Authority:

People v. Burgos (2024) 16 Cal.5th 1, 13

Duty of the court, Probation Parole PRCS, Standard of review

Case: 000128

Posted on by Gary McCurdy

Error and/or relief

We find that the nature of the required program is impermissibly vague in the condition of probation that the defendant “enter into and continue such education, psychological, psychiatric, drug, alcohol, or other rehabilitation program as directed by the probation officer or as specifically ordered as a term of probation, and shall not leave or terminate such programs without the permission of the probation officer.”

First Holding:

Applying de novo review, we address each challenge to a probation condition separately.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902

Second Holding:

It is the court’s duty to determine the nature of the requirements imposed on the probationer. Although a probation condition need not be set forth with mathematical certainty, the language used must have reasonable specificity. Here, such specificity is lacking. The program choices for the probation officer are open-ended, ranging from education to psychological and psychiatric to drug, alcohol, or other rehabilitation. This is too vague to pass muster, and we cannot interpret it more narrowly in light of other probation conditions, the probation report, or the trial court’s commentary. Without meaningful guidance from the record, the open-ended program condition cannot be saved by permitting the probation department to provide the necessary specificity.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902

Sheena K. (2007) 40 Cal.4th 875, 890

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358

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

Case: 000123

Posted on by Gary McCurdy

Error and/or relief

A jury convicted the defendant of two counts of assault with a deadly weapon and found true that he personally inflicted great bodily injury in the commission of those counts. We conclude the injury to the victim in count 2, which the emergency room doctor described as a “superficial laceration,” is not sufficient to support the enhancement under section 12022.7(a). Consequently, we reverse the true finding, strike the one year imposed under section 12022.7(a), associated with count 2, and remand for resentencing to allow the trial court to exercise its discretion anew with the changed circumstance.

First Holding:

Great bodily injury is an injury that is greater than minor or moderate harm.

Authority:

People v. Wyatt (2012) 55 Cal.4th 694, 702

People v. Sandoval (2020) 50 Cal.App.5th 357, 361 [noting that great bodily injury is significant or substantial physical injury that is more than minor or moderate]

People v. Martinez (1985) 171 Cal.App.3d 727, 735–736 [evidence of superficial lacerations held not sufficient to prove great bodily injury]

Second Holding:

We review a challenge to the sufficiency of the evidence supporting a jury’s true finding on a section 12022.7(a) enhancement under the same standard that applies to a challenge to the sufficiency of the evidence to support a conviction. In considering a sufficiency of the evidence claim, we 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. Substantial evidence is evidence that reasonably inspires confidence and is of solid value.

Authority:

People v. Escobar (1992) 3 Cal.4th 740, 750

People v. Collins (2025) 17 Cal.5th 293, 307

Third Holding:

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.

Authority:

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

People v. Burbine (2003) 106 Cal.App.4th 1250, 1259 [upon remand for resentencing after the reversal of one or more subordinate counts of a felony conviction, the trial court has jurisdiction to modify every aspect of the defendant’s sentence on the counts that were affirmed, including the term imposed as the principal term]