Tag Archives: Standard of review

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

Case 000991

Posted on by Gary McCurdy

Error and/or relief

Insufficient evidence supported the jury’s gang predicate offense findings, and we therefore reverse the true findings on the gang and gang firearm enhancements, as well as the gang special circumstance. We reject the defendant’s other arguments.

First Holding:

The role of the reviewing court in evaluating sufficiency of the evidence claims is a limited one. 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.

The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court, that must be convinced of the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.

When there are two possible grounds for the jury’s verdict, one unreasonable and the other reasonable, we will assume, absent a contrary indication in the record, that the jury based its verdict on the reasonable ground.

Authority:

People v. Ghobrial (2018) 5 Cal.5th 250, 277–278

Second Holding:

To prove the gang allegations true beyond a reasonable doubt, the prosecution had to show (1) the defendant committed the murder for the benefit of, at the direction of, or in association with a criminal street gang, and (2) with the specific intent to promote, further, or assist in criminal conduct by gang members.

A criminal street gang is defined as (1) an ongoing, organized association or group of three or more persons, whether formal or informal, (2) having as one of its primary activities the commission of one or more of the enumerated criminal acts, (3) having a common name or common identifying sign or symbol, and (4) whose members collectively engage in, or have engaged in, a pattern of criminal gang activity.

A pattern of criminal gang activity means (1) the commission of or conviction of, two or more enumerated criminal acts, (2) provided at least one of these offenses occurred after September 26, 1988, and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, (3) the offenses were committed on separate occasions by two or more members, (4) the offenses commonly benefited a criminal street gang, and (5) the common benefit from the offenses is more than reputational.

The acts making up the pattern of gang activity are commonly referred to as predicate offenses.

Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential[,] current or previous witness or informant. The charged offenses cannot be used to satisfy the gang allegation requirements.

Authority:

PEN 186.22(b)(1), (e)(1), (e)(2), (f)

People v. Hin (2025) 17 Cal.5th 401, 460

People v. Shively (2025) 111 Cal.App.5th 460, 465-466

(Gary note:

(Gary note: The balance of this aspect of the opinion deals with the specifics of the evidence and inferences to be drawn, and the appellate court determined that the evidence in support of two of the three predicate offenses alleged by the prosecution were not supported by sufficient evidence. The court then reversed the jury’s true finding on the special circumstance gang allegation under section 190.2(a)(22) and the true findings on the gang enhancements charged under sections 186.22 (b)(1)(C) and 12022.53(d) and (e). It remanded the matter to the trial court for resentencing.

(The defendant unsuccessfully raised many other issues. I have included several as holdings (Third through Eighth) because they do state important legal principles even though unrelated to the sufficiency of evidence successful argument.)

Third Holding:

Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. Prosecutors have wide latitude to present vigorous arguments so long as they are a fair comment on the evidence, including reasonable inferences and deductions from it. When attacking the prosecutor’s remarks to the jury, the defendant must show that, in the context of the whole argument and the instructions, there was a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. In conducting this inquiry, we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.

A prosecutor’s conduct violates a defendant’s constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects ‘ “the trial with unfairness as to make the resulting conviction a denial of due process. Even if the behavior does not reach that level of egregiousness, it may still violate California law if it involves the use of deceptive or reprehensible methods when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. he focus of the inquiry is on the effect of the prosecutor’s action on the defendant, not on the intent or bad faith of the prosecutor.

Authority:

People v. Centeno (2014) 60 Cal.4th 659, 666

People v. Leon (2015) 61 Cal.4th 569, 606

People v. Sanchez (2014) 228 Cal.App.4th 1517, 1528

Fourth Holding:

A claim of prosecutorial misconduct is ordinarily preserved for appeal only if the defendant made a timely and specific objection at trial and requested an admonition. The primary purpose of the requirement that a defendant object at trial to argument constituting prosecutorial misconduct is to give the trial court an opportunity, through admonition of the jury, to correct any error and mitigate any prejudice. Consistent with that purpose, a court will excuse a defendant’s failure to object only if an objection would have been futile, or if an admonition would not have mitigated the harm caused by the misconduct.

Authority:

People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 853

Fifth Holding:

The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense. In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case. However, the trial court should only give instructions supported by substantial evidence.

Evidence is substantial’ for this purpose if it is sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. At the same time, instructions not supported by substantial evidence should not be given. It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case.

Authority:

People v. Merritt (2017) 2 Cal.5th 819, 824

People v. Townsel (2016) 63 Cal.4th 25, 58

People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1950

Sixth Holding:

In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury’s understanding of the case. A claim of instructional error is reviewed de novo. We independently review the wording of a jury instruction to assess whether the instruction accurately states the law. The test is whether there is a reasonable likelihood that the jury understood the charge in a manner that violated the defendant’s rights.

Further, the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction. Moreover, any theoretical possibility of confusion may be diminished by the parties’ closing arguments. Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.

Authority:

People v. Martinez (2010) 47 Cal.4th 911, 953

People v. Cole (2004) 33 Cal.4th 1158, 1210

People v. Posey (2004) 32 Cal.4th 193, 218

People v. Davison (1995) 32 Cal.App.4th 206, 212

People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220, overruled on another ground in People v. Rangel (2016) 62 Cal.4th 1192

Seventh Holding:

The Watson standard of prejudice (i.e., the error is reversible when there is a reasonable probability defendant would have obtained a more favorable result in the absence of the error) applies to an instruction that misdirects the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions. In contrast, the Chapman standard of review (i.e., error is harmless only when it appears beyond a reasonable doubt that the error did not contribute to the verdict obtained) applies when an instruction improperly describes or omits an element of the offense.

Authority:

People v. Campbell (2020) 51 Cal.App.5th 463, 493

People v. Watson (1956) 46 Cal.2d 818, 836

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

Eighth Holding:

When a trial court orally misstates instructions that are legally correct in written form, the jury is presumed to be guided by the written instructions based upon copies of the instructions received for deliberations.

Authority:

People v. Osband (1996) 13 Cal.4th 622, 687

People v. Mills (2010) 48 Cal.4th 158, 200–201 [written instructions control over verbal instructions]

People v. Wilson (2008) 44 Cal.4th 758, 803 [same]

People v. Mills (2012) 55 Cal.4th 663, 680 [we view the record as a whole, and consider the instructions in context]

Amelioration, Elements of crime, Jury instructions, Sentencing, Standard of review

Case 000989

Posted on by Gary McCurdy

Error and/or relief

On retrial of the gang allegations in light of the changes made by AB 333 since the original conviction, the court misinstructed the jury on the relationship between the gang’s predicate offenses and its organizational structure, its primary activities, or its common goals and principles. We reverse and remand for a new trial on the gang enhancements.

First Holding:

We review instructional error claims under an independent or de novo standard of review.

Authority:

People v. Posey (2004) 32 Cal.4th 193, 218

Second Holding:

A trial court has a sua sponte duty to instruct on the essential elements of a special circumstance allegation or a sentence enhancement. Failure to properly instruct on an essential element is constitutional error, warranting reversal unless the error was harmless beyond a reasonable doubt.

Under the Chapman harmless error standard, the burden is on the People, not the defendant, to demonstrate that the violation of the defendant’s federal constitutional right was harmless beyond a reasonable doubt.

The beyond-a-reasonable-doubt standard requires the beneficiary of a federal constitutional error–the People–to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. To say that an error did not contribute to the ensuing verdict is to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 409-410

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

People v. Atkins (2019) 31 Cal.App.5th 963, 981 [the presumption is that we must reverse, unless we find the error harmless beyond a reasonable doubt]

People v. Cutting (2019) 42 Cal.App.5th 344, 349

People v. Pearson (2013) 56 Cal.4th 393, 463

Third Holding:

The California Supreme Court issued its decision in Clark in February 2024. The jury reached its verdicts in the instant case several months later. The CALCRIM instructions defining the gang enhancement allegations and special circumstances were amended a month later to add two sentences, as required by Clark:

“As used here, members collectively engage in or have engaged in a pattern of criminal gang activity when the crimes that make up the pattern of criminal gang activity can be connected to the gang as a whole. Collective engagement requires a connection between the crimes and the gang’s organizational structure or manner of governance, its primary activities, or its common goals and principles.”

The trial court used the older versions of CALCRIM No. 1401 (the gang enhancement), and CALCRIM No. 736 (the gang-murder special circumstance), and therefore did not instruct the jury on the required organizational nexus between the predicate crimes and the gang as interpreted and stated in Clark. This was plainly an instructional error committed by the trial court.

Authority:

People v. Clark (2024) 15 Cal.5th 743

Fourth Holding:

Although we have found that there was sufficient evidence to establish the nexus between the gang as an organization and the predicate offenses—a very low threshold—that is not the same as finding that failure to instruct on this element was harmless beyond a reasonable doubt.

In order to find the trial court’s instructional error harmless beyond a reasonable doubt, we must conclude that there is no reasonable possibility that the jury could have rendered different verdicts on the gang allegation and the gang-murder special circumstance absent the error. Because of the narrow focus of the trial, and because of the recent changes to the law, the importance of the People establishing the validity of the gang’s predicate offenses played an outsized role in these proceedings. We are not certain what 12 jurors might have done had they been properly instructed.

Because of the anomalies in this case, we must reverse the jury’s true findings on the gang enhancements because we cannot find that the instructional error was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.

Authority:

People v. Pearson (2013) 56 Cal.4th 393, 463

People v. Atkins (2019) 31 Cal.App.5th 963, 981 [the presumption is that we must reverse, unless we find the error harmless beyond a reasonable doubt]

Juveniles, Sentencing, Standard of review

Case 000987

Posted on by Gary McCurdy

Error and/or relief

We affirm the juvenile court’s restitution order as modified to reduce the amount of restitution by $110.

First Holding:

In calculating restitution a court need not ascertain the exact amount of loss, and a restitution award based upon estimates and averages. A court retains broad discretion to estimate costs incurred by a party seeking restitution.

Authority:

Luis M. v. Superior Court (2014) 59 Cal.4th 300, 309-310

Second Holding:

A restitution order is reviewed under the abuse of discretion standard. The court’s factual findings supporting restitution are reviewed for substantial evidence and a restitution order that is based upon an error in law constitutes an abuse of discretion. A victim’s restitution right to restitution is to be construed broadly and liberally.

Authority:

In re J.L. (2026) 121 Cal.App.5th 355, 361

In re K.F. (2009) 173 Cal.App.4th 655, 661

Third Holding:

A juvenile court does not abuse its discretion if there is a factual and rational basis for the amount of restitution ordered. The court may use any rational method of fixing the amount of restitution, provided it is reasonably calculated to make the victim whole, and provided it is consistent with the purpose of rehabilitation.

There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action. Nonetheless, a juvenile court must use a rational method of calculation and must rely on facts found by a preponderance of the evidence to make the victim whole.

Authority:

In re J.L. (2026) 121 Cal.App.5th 355, 361

In re Alexander A. (2011) 192 Cal.App.4th 847, 853, 855-856

In re S.O. (2018) 24 Cal.App.5th 1094, 1102

Fourth Holding:

Restitution hearings are intended to be informal, and Welfare and Institutions Code section 730.6 does not, by its terms, require any particular kind of proof. A prima facie showing of loss may be based on the victim’s testimony. Once the victim makes a prima facie showing of economic losses incurred as a result of the minor’s delinquent acts, the burden shifts to the minor to disprove the amount of the losses claimed by the victim.

Authority:

People v. Weatherton (2015) 238 Cal.App.4th 676, 684

In re J.L. (2026) 121 Cal.App.5th 355, 362

In re S.O. (2018) 24 Cal.App.5th 1094, 1102

People v. Millard (2009) 175 Cal.App.4th 7, 26

Fifth Holding:

Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trier of fact to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. The minor argues that the victim’s testimony was sometimes internally inconsistent; however, inconsistencies and conflicts in the evidence go to credibility of witnesses and weight of the evidence, which are matters for the trial court.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 202

In re S.A. (2010) 182 Cal.App.4th 1128, 1149

Amelioration, Discretion, Elements of crime, Sentencing, Standard of review

Case 000984

Posted on by Gary McCurdy

Error and/or relief

On resentencing under section 1172.75, the court erred in imposing the firearm enhancement on count 2.

First Holding:

In affirming the trial court’s decision to deny the defendant’s request for dismissal of the firearm enhancement attached to count 1, we review the trial court’s sentencing decision at a section 1172.75 resentencing for an abuse of discretion, including a court’s determination of dangerousness. Section 1172.75(d) vests the superior court with broad discretion based on an inherently factual inquiry.

Under an abuse of discretion standard, we 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.

A court also abuses its discretion if the decision is made without the sentencing court’s informed discretion or if the court is unaware of the scope of its discretionary powers.

The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary.

A defendant’s citation to a silent record is insufficient to meet his burden to demonstrate an abuse of discretion. We assume the trial court was aware of and followed applicable law.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

People v. Garcia (2024) 101 Cal.App.5th 848, 856–857

People v. Fredrickson (2023) 90 Cal.App.5th 984, 988

People v. Carmony (2004) 33 Cal.4th 367, 376

People v. Coleman (2024) 98 Cal.App.5th 709, 725

People v. Calhoun (1983) 141 Cal.App.3d 117, 126 [a court’s sentencing decision implies requisite subsidiary findings]

Second Holding:

On count 2, the defendant had been convicted of section 246 (shooting at an occupied vehicle), enhanced under section 12022.53(d) for an additional 25 years to life. (In the prior appeal from the conviction, the appellate court struck the enhancements on count 2 under sections 12022.53(b) and (c), because section 246 is not one of the crimes listed in 12022.53(a) that subdivisions (b) and (c) can apply to.) At the 1172.75 resentencing hearing, the court imposed the lesser enhancement on count 2, under section 12022.53(c), for an enhancement of a determinate term of 20 years instead of the indeterminate 25 years to life he was serving under section 12022.53(d).

Because section 246 is not a crime listed under section 12022.53(a) to which subdivisions (b) and (c) can be applied, it was error to reduce the section 12022.53(d) enhancement to 12022.53(c).

While the trial court could dismiss the section 12022.53(d), firearm enhancement as to count 2, it could not impose a lesser enhancement under section 12022.53(c). We vacate the sentence as to count 2 and remand for resentencing as to that count only.

(Gary note: The court did not mention it as an option, but the trial court can dismiss the section 12022.53 (as the appellate court stated) and impose an enhancement on a lesser included enhancement, such as section 12022.5.

(Under People v. McDavid (2024) 15 Cal.5th 1015, the Supreme Court extended its holding of Tirado (which held that a court could exercise its discretion to impose a lesser section 12022.53 enhancement to the one that was found true) to expressly permit striking section 12022.53 and imposing a lesser included, uncharged enhancement authorized elsewhere in the Penal Code, outside section 12022.53. Under McDavid, the court in this case could strike the 12022.53(d) enhancement and impose an enhancement under section 12022.5, for example. In other words, the court is not faced with a choice of it’s either all or nothing.)

Authority:

PEN 12022.53(a)

People v. Tirado (2022) 12 Cal.5th 688, 699, fn. 12

(People v. McDavid (2024) 15 Cal.5th 1015)

Discretion, Standard of review, Statutory interpretation

Case 000981

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion by denying diversion after finding that the defendant is NOT likely to commit a super strike offense.

We reverse the judgment and direct the court to vacate its order denying mental health diversion and enter a new order granting the motion unless there is evidence of changed circumstances that provide a basis for denying the motion.

First Holding:

The defendant obtained a certificate of probable cause and appealed the denial of his motion for mental health diversion. Appeal lies from the judgment.

Authority:

PEN 1237.5 [appeal may be taken after a no contest plea if the court issues a certificate of probable cause]

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

Second Holding:

We review the diversion denial order for abuse of discretion, meaning the decision is arbitrary or capricious, applied the wrong legal standard, or is unsupported by substantial evidence.

Authority:

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

People v. Graham (2024) 102 Cal.App.5th 787, 795

Third Holding:

The diversion law promotes increased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety. The potentially ameliorative benefit for criminal defendants who suffer from a qualifying mental disorder is balanced against protecting public safety. The law is intended to apply as broadly as possible.

Authority:

PEN 1001.35(a)

People v. Frahs (2020) 9 Cal.5th 618, 630-631

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149

Fourth Holding:

A defendant charged with a felony may be referred to a program of mental health treatment utilizing existing inpatient or outpatient mental health resources” for up to two years. If the defendant performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.

In other words, the arrest upon which the diversion was based shall be deemed never to have occurred. If the defendant performs unsatisfactorily in a treatment program or engages in criminal conduct, the court may reinstate criminal proceedings.

Authority:

PEN 1001.36(f)(1)(A)(ii) and (C)(i), (g), and (h)

People v. Frahs (2020) 9 Cal.5th 618, 631

Fifth Holding:

A defendant is eligible for diversion if a mental health expert diagnoses the defendant with a qualifying mental disorder that was a significant factor in commission of the charged offense. A defendant is suitable for diversion if

(1) the expert opines that the defendant would respond to treatment;

(2) the defendant consents to diversion and waives the right to a speedy trial;

(3) the defendant agrees to comply with treatment; and

(4) the defendant will not pose an unreasonable risk of danger to public safety.

Authority:

PEN 1001.36(b) and (c)

People v. Tourville (2026) 120 Cal.App.5th 439, 452

Sixth Holding:

The only disputed issue in this appeal is public safety. The Legislature defined “unreasonable risk of danger to public safety” by incorporating section 1170.18. Section 1170.18(c) defines “unreasonable risk of danger to public safety” as an unreasonable risk that the petitioner will commit a new violent felony listed in section 667. The relevant violent felonies in section 667 are super strikes. Burglary–the charge the defendant faced–is not a super strike.

Courts limit discretion to deny diversion on “public safety” grounds to instances where a defendant is likely to commit a super strike.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 449–450

People v. Williams (2021) 63 Cal.App.5th 990, 1001

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1151

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896

People v. Brown (2024) 101 Cal.App.5th 113, 121

People v. Graham (2024) 102 Cal.App.5th 787, 798–799

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 690–691

Siam v. Superior Court (2026) 118 Cal.App.5th 67, 83, 87–88

People v. Tourville (2026) 120 Cal.App.5th 439, 454–455

Seventh Holding:

The Legislature is presumed to know about existing case law when it amends a statute. The Legislature amended section 1001.36 seven times between 2022 and 2026 without eliminating the reference to section 1170.18, despite the decisions cited above, which require a finding that the defendant poses a risk of committing super strikes.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1062

People v. Mitchell (2026) 19 Cal.5th 729, 743

People v. Frahs (2020) 9 Cal.5th 618, 634

Eighth Holding:

Beginning in 2027, courts applying section 1001.36 will no longer use the old definition of “unreasonable risk of danger to public safety” from section 1170.18. Instead, they will apply a new standard: “substantial and undue risk to the physical safety of another person.” Regardless of the forthcoming changes to section 1001.36, the version of the law applying to this defendant required a super strike finding.

The trial court found he did not pose a risk of committing super strikes, only that he poses an unreasonable risk of committing further residential burglaries. The court could not deny diversion based on a risk the defendfant will commit burglaries, thereby discounting the need to find public safety is imperiled by likely super strike offenses. The Legislature has specifically defined what constitutes ‘an unreasonable risk of danger to public safety’ under the statute, limiting it to the danger the defendant will commit a super strike.

Authority:

People v. Tourville (2026) 120 Cal.App.5th 439, 455

Ninth Holding:

Courts recognize “residual discretion” to deny diversion. However, while it is clear a trial court retains residual discretion to deny diversion even if all the threshold requirements are met, that does not mean, as the court suggested here, that it could reject a request for diversion based on an alternative meaning of public safety inconsistent with the specific statutory definition in section 1001.36(c)(4). In the guise of exercising its residual discretion, a court is not permitted to redefine public safety in a manner inconsistent with the Legislature’s expressed intent.

Authority:

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896

Tenth Holding:

Reasons the court might exercise discretion to deny diversion include lack of a treatment program; a defendant’s history of failed treatment or misconduct in prior programs; or the availability of a better program for the defendant’s needs.

Authority:

People v. Tourville (2026) 120 Cal.App.5th 439, 457

People v. Qualkinbush (2022) 79 Cal.App.5th 879, 889–890