Tag Archives: Standard of review

Effective assistance of counsel, Sentencing, Standard of review

Case 000573

Posted on by Gary McCurdy

Error and/or relief

A remand for resentencing is required because the defendant received ineffective assistance of counsel by reason of defense counsel’s failure to raise his mental health issues as a mitigating factor at the time of sentencing, despite there having been considerable evidence introduced during pretrial proceedings that the defendant had mental health issues, including a finding under section 1372 that he was incompetent to stand trial, whereupon he was committed to a state hospital until his competency was deemed restored three months later.

First Holding:

Defense counsel should have pointed out that there was evidence suggesting that, at least at the time of the offense, he was struggling with mental health issues. Under rule 4.423, mental illness is a mitigating factor at sentencing. Section 1385(c)(5) defines mental illness as a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders.

That subdivision further provides that a court may conclude that a defendant’s mental illness was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant’s mental illness substantially contributed to the defendant’s involvement in the commission of the offense.

The Diagnostic and Statistical Manual of Mental Disorders (5th ed. text rev. 2022) defines an overarching new category of substance use disorders—with the specific substance used defining the specific disorders. It states that the essential feature of a substance use disorder is a cluster of cognitive, behavioral, and physiological symptoms indicating that the individual continues using the substance despite significant substance-related problems.

Authority:

Rules of Court, rule 4.423

PEN 1385(c)(5)

Second Holding:

Despite considerable evidence, defense counsel remained silent at the sentencing hearing when the trial court remarked that no mitigating circumstances had been presented.

To demonstrate ineffective assistance of counsel, the defendant must show counsel’s performance was deficient and resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the outcome of the proceeding would have been different.

We can conceive of no reasonable tactical purpose for defense counsel’s failure to argue rule 4.423(b)(2) and (b)(4) applied in this case. We further conclude defense counsel’s omission was prejudicial. For the trial court to impose the upper term the court was required to find that there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term.

Had defense counsel raised the applicability of rule 4.423(b)(2) and (b)(4), there is a reasonable probability the court would have balanced the mitigating factors against those in aggravation and would not have imposed the upper term.

Authority:

People v. Mai (2013) 57 Cal.4th 986, 1009

People v. Centeno (2014) 60 Cal.4th 659, 675–676 [where there was no conceivable reasonable tactical purpose for defense counsel’s omission, defense counsel’s failure to object to prosecutorial misconduct was ineffective]

Third Holding:

Defense counsel inexplicably made no arguments regarding any mitigating factors” when arguing the Romero motion to strike his prior convictions. On remand, the defendant is free to make the arguments he believes counsel should have made.

Authority:

People v. Superior Court (Romero) (1996) 13 Cal.4th 497

People v. Dryden (2021) 60 Cal.App.5th 1007, 1029 [both aggravating and mitigating circumstances are relevant considerations in determining whether to strike a prior strike conviction]

People v. Jones (2022) 79 Cal.App.5th 37, 46 [on remand for resentencing, full resentencing is appropriate]

People v. Ramirez (2019) 35 Cal.App.5th 55, 64 [When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme]

Duty of the court, Jury trial, Standard of review

Case 000567

Posted on by Gary McCurdy

Error and/or relief

The defendant’s jury trial waiver was invalid as it was not knowing, intelligent, and voluntary. We reverse his convictions on this basis and remand for a new trial.

First Holding:

A criminal defendant has the constitutional right to a jury trial. The defendant may waive the constitutional right to a jury trial, provided the waiver is knowing, intelligent, and voluntary. A waiver is knowing and intelligent if it is made with full awareness of the nature of the right and the consequences of abandoning it. It is voluntary if it was the product of a free and deliberate choice, rather than intimidation, coercion, or deception. Whether a defendant satisfies that standard must depend upon the unique circumstances of each case. Our Supreme Court has persistently declined to mandate any specific admonitions describing aspects of the jury trial right. We instead examine the totality of circumstances.

Authority:

U.S. Const., 6th Amend.

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

People v. Sivongxxay (2017) 3 Cal.5th 151, 166-167 [Our precedent has not mandated any specific method for determining whether a defendant has made a knowing and intelligent waiver of a jury trial in favor of a bench trial]

People v. Daniels (2017) 3 Cal.5th 961, 992

Second Holding:

A reviewing court’s task is to independently examine the record to determine whether the defendant’s jury waiver was knowing, intelligent, and voluntary. We will uphold the validity of a jury waiver if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. We do not start with a presumption of validity that may only be rebutted by signs of a defendant’s confusion or unwillingness in entering a waiver. Instead, a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent.

Authority:

People v. Doolin (2009) 45 Cal.4th 390, 453

People v. Daniels (2017) 3 Cal.5th 961, 991

Third Holding:

The record here does not affirmatively show that the defendant’s jury trial waiver was knowing and intelligent under the totality of the circumstances. The court’s advisement addressed only one and a half of the four basic mechanics of a jury trial described in Sivongxxay: that a judge alone would decide guilt if the defendant forwent a jury trial, and that the jury would be composed of people who live in the county.

But the advisement omitted that a jury consists of 12 people, that jurors are selected from a larger pool of prospective jurors in a process in which he could participate through counsel, or that a jury verdict must be unanimous––meaning that the prosecution would have to convince all 12 jurors of his guilt beyond a reasonable doubt, rather than a single judge. Nothing in the record shows the defendant had ever been advised of these omitted mechanics. He had no prior criminal history, and thus no prior occasion to receive such advisements from a court or otherwise. Nor does the record show a written waiver form was used.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 167-168

People v. Weaver (2012) 53 Cal.4th 1056, 1070 [though not required, written waiver form is helpful to establish the adequacy of a jury waiver]

People v. Jones (2018) 26 Cal.App.5th 420

Appellate Principles, Discretion, Probation Parole PRCS, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000563

Posted on by Gary McCurdy

Error and/or relief

The absence in this record of the necessary gang nexus requires the gang conditions of probation ordered here be stricken. The gang conditions were “25. Must not spend time with any person you know, or whom your probation officer tells you, is a gang member”; and “26. Must not wear or display any clothing, tattoos, or signs you know, or your probation officer tells you is evidence of affiliation with or membership in a gang. The word ‘gang’ means a criminal street gang as defined in California Penal Code Section 186.22.”

First Holding:

Crimes need not be gang-related to warrant the imposition of gang terms as conditions of probation.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1120–1121

Second Holding:

On appeal, we review conditions of probation for abuse of discretion. That is, a reviewing court will disturb the trial court’s decision to impose a particular condition of probation only if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Moran (2016) 1 Cal.5th 398, 403

Third Holding:

A condition of probation will not be held invalid unless 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

Authority:

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

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118–1119 [applying the three-part Lent standard to juvenile probation conditions]

Fourth Holding:

Courts may impose conditions that have a relationship to the crime of which the offender was convicted and may also impose conditions to foster rehabilitation and to protect public safety.

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Carbajal (1995) 10 Cal.4th 1114, 1120

Fifth Holding:

The conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise crime as long as they are reasonably directed at curbing an offender’s future criminality. But there must be a strong connection between the burdens imposed by the challenged condition and a probationer’s criminal conduct or personal history. Conditions ordered may be properly based upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. Thus, even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long the condition is reasonably related to preventing future criminality.

Authority:

People v. Moran (2016) 1 Cal.5th 398, 404-405

In re Ricardo P. (2019) 7 Cal.5th 1113, 1120-1122

People v. Olguin (2008) 45 Cal.4th 375, 380

People v. Carbajal (1995) 10 Cal.4th 1114, 1121

Sixth Holding:

Nothing in the record suggests the offenses underlying the minor’s conduct were gang-related. Thus, we examine the record as a whole to determine if the gang conditions were reasonably related to preventing future criminality. In doing so, we find no indication of gang involvement. The record here presents no nexus sufficient to warrant the order of gang conditions

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 379-380

In re Edward B. (2017) 10 Cal.App.5th 1228, 1236 [striking gang conditions because any connection between the minor’s offense and gang activity is speculation]

Seventh Holding:

Though the prosecutor argued in favor of the gangs condition, without a more specific connection to the record, expert opinion, or the minor’s personal circumstances, a district attorney’s non-expert observations cannot reasonably justify the imposition of gang conditions.

Authority:

People v. Stanley (2006) 39 Cal.4th 913, 961 fn. 10 [It is axiomatic that argument is not evidence]

Appellate Principles, Elements of crime, Jury instructions, Sufficiency of and substantial evidence

Case 000561

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction of child endangerment where the child was not near the endangering activity (an insecure location where a firearm was stored in the home).

First Holding:

We generally review allegedly improper jury instructions de novo. Resulting error is reviewed under either Chapman, which requires the prosecution to show federal constitutional error was harmless beyond a reasonable doubt, or under the less strenuous standard of Watson, which requires the defendant to demonstrate the reasonable probability of a more favorable result and generally applies to state-law errors. An instructional error involving a single element will be deemed harmless only in unusual circumstances, such as where the element was undisputed, the defense was not prevented from contesting the omitted element, and overwhelming evidence supports the omitted element.

Authority:

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

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

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

People v. Merritt (2017) 2 Cal.5th 819, 828

Second Holding:

In evaluating a claim that a conviction lacks sufficient evidence, we review the whole record to determine whether there is substantial evidence to support the verdict such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. Such evidence can include not only circumstantial evidence, but also all reasonable inferences drawn from it. We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence, but we neither reweigh the evidence nor reevaluate the credibility of the witnesses.

Authority:

People v. Wear (2020) 44 Cal.App.5th 1007, 1019

People v. Soriano (2021) 65 Cal.App.5th 278, 286

People v. Ochoa (1993) 6 Cal.4th 1199, 1206

Third Holding:

Failing to deny children access to a loaded firearm is sufficient to constitute circumstances likely to produce great bodily harm and death.

Authority:

People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 91

Amelioration, Sentencing

Case 000559

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s petition for recall of sentence under section 1172.6 at the prima facie stage, because the record did not conclusively demonstrate ineligibility as a matter of law, even though he admitted the personal use of firearm enhancements as part of his plea bargain. Specifically, in his plea colloquy, the defendant did not admit facts or a specific theory of attempted murder liability that would make him ineligible for relief.

First Holding:

Effective 2019, SB 1437 amended sections 188 and 189 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. Under the amended law, malice cannot be imputed to a person based solely on his or her participation in a crime.

In addition to amending sections 188 and 189, SB 1437 created a procedural mechanism, now codified in section 1172.6 for individuals convicted of murder under the former versions of sections 188 and 189 to petition the trial court for resentencing. Two years later, SB 775 expanded section 1172.6 relief to individuals convicted of attempted murder under the natural and probable consequences doctrine and manslaughter. Section 1172.6 applies to individuals who pleaded guilty to attempted murder and would have been subject to prosecution for attempted murder under the natural and probable consequences doctrine.

Authority:

People v. Rivera (2021) 62 Cal.App.5th 217, 227

People v. Patton (2025) 17 Cal.5th 549, 558

People v. Estrada (2024) 101 Cal.App.5th 328, 335, 336

Second Holding:

To be eligible for relief under section 1172.6, a defendant must make a prima facie showing that (1) the complaint or information allowed the People to prosecute the defendant for attempted murder under the natural and probable consequences doctrine; (2) the defendant was convicted of attempted murder or entered a plea to attempted murder, and (3) the defendant could not presently be convicted of attempted murder under the current versions of sections 188 or 189.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 558

Third Holding:

The trial court’s prima facie inquiry is limited. The court must accept the defendant’s allegations as true and assess whether the defendant would be entitled to relief if the allegations were true. If the defendant makes a prima facie showing, the court must issue an order to show cause and hold an evidentiary hearing where the People must prove beyond a reasonable doubt that the defendant could be convicted of attempted murder under the current versions of section 188 or 189.

Authority:

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

People v. Patton (2025) 17 Cal.5th 549, 559

Fourth Holding:

A trial court may deny a resentencing petition at the prima facie stage only if the petitioner is ineligible for relief as a matter of law. In making its determination, the court may examine the record of conviction. At this stage, the court should not reject the factual allegations in the defendant’s petition on credibility grounds or engage in factfinding by weighing the evidence or exercising its discretion.

Authority:

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

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

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

Discretion, Effective assistance of counsel, Elements of crime, Sentencing

Case 000558

Posted on by Gary McCurdy

Error and/or relief

The restitution amount is wrong, and the protective order is unauthorized.

First Holding:

Appellant contends changes to section 1001.36 that went into effect after she was denied pretrial diversion apply to her case. We agree. Appellant further contends this matter should be conditionally reversed and remanded so the trial court can exercise its discretion to determine her motion for pretrial diversion in light of the amendment. We disagree.

Appellant has forfeited this claim. Frahs, decided in 2020, made clear that recently enacted section 1001.36 applied in nonfinal cases. Thus, when the law was amended effective January 1, 2023, appellant should have known the amendments applied retroactively. Once the law was amended, appellant had more than three months before she pled and more than seven months before she was sentenced to seek reconsideration of the trial court’s denial of diversion. She did not.

Authority:

People v. Frahs (2020) 9 Cal.5th 618, 631-632

People v. Doron (2023) 95 Cal.App.5th 1, 6

People v. Trujillo (2015) 60 Cal.4th 850, 856

People v. Brown (2024) 101 Cal.App.5th 113, 128 [failure to seek reconsideration excused where amendment to statute effective after entry of plea but only 10 days before sentencing]

Second Holding:

In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel’s performance was deficient, and that the defendant suffered prejudice as a result of such deficient performance. The record is silent, however, why defense counsel failed to seek reconsideration under the amended law.

It is possible that counsel was unaware of the newly passed statute. It is also possible, however, that counsel had sound reasons not to pursue the issue. For example, appellant may have changed her mind and decided to refuse to accept the treatment required for participation in the diversion program. Because trial counsel’s reasons for not raising the issue are not readily apparent, the issue is more appropriately considered in a habeas corpus proceeding.

Authority:

People v. Mickel (2016) 2 Cal.5th 181, 198

Strickland v. Washington (1984) 466 U.S. 668, 687-692

People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267

People v. Wilson (1992) 3 Cal.4th 926, 936

Third Holding:

We review the trial court’s restitution order for abuse of discretion. We apply the substantial evidence standard in a challenge to the sufficiency of evidence to support a factual finding necessary for a victim restitution order. Sentencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. The court may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole. It may make a restitution order based on truncated evidence such as declarations or probation reports, business records, and checks.

Authority:

People v. Giordano (2007) 42 Cal.4th 644, 663

People v. Jessee (2013) 222 Cal.App.4th 501, 507

People v. Hove (1999) 76 Cal.App.4th 1266, 1275

People v. Plains All American Pipeline L.P. (2024) 101 Cal.App.5th 872, 898-899

Fourth Holding:

The total restitution awarded to the victim includes two computational errors. The court erroneously included a $4,520 attorney fees bill twice and included $880 for an unknown reason. We will correct those errors.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 854

Fifth Holding:

Section 136.2(i) authorizes a court to issue an order restraining a defendant for up to 10 years when the defendant has been convicted of a qualifying crime. Appellant’s conviction for assault with a deadly weapon under section 245 is not a qualifying crime under section 136(i). The court did not have statutory authority to issue the protective order, therefore, the order must be stricken.

Authority:

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Appellate Principles, Discretion, Duty of the court, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000556

Posted on by Gary McCurdy

Error and/or relief

The court erred by imposing consecutive terms on counts 1 through 3 because the underlying offenses did not occur on separate occasions under Penal Code section 667.6(d), and the court did not make findings on whether it was exercising its discretion to impose a consecutive sentence. We reverse and remand for resentencing.

First Holding:

Section 669(a) provides that when a person is convicted of two or more crimes, the trial court must determine whether the terms of imprisonment shall run concurrently or consecutively. For certain sex offenses the Penal Code establishes alternative sentencing frameworks, including section 667.6.

Authority:

People v. Catarino (2023) 14 Cal.5th 748, 752

Second Holding:

Under section 667.6(c), a full, separate, and consecutive term may be imposed for each violation of an offense specified in subdivision (e) if the crimes involve the same victim on the same occasion. Section 667.6(d)(1) provides a full, separate, and consecutive term shall be imposed for each violation of an offense specified in subdivision (e) if the crimes involve separate victims or involve the same victim on separate occasions. Although section 269 is not listed in section 667.6(e), section 269(c) provides that the court shall impose a consecutive sentence for each offense that results in a conviction on this section if the crimes involve the same victim on separate occasions as defined in section 667.6(d).

Authority:

PEN 667.6(c)

PEN 667.6(d)

PEN 269

Third Holding:

The One Strike law in section 667.61 provides an alternative sentencing scheme for certain forcible sex offenses and mandates an indeterminate sentence of 15 or 25 years to life in prison when the jury has convicted the defendant of a specified felony sex crime and has also found certain factual allegations to be true.

Authority:

People v. Carbajal (2013) 56 Cal.4th 521, 534

Fourth Holding:

In determining whether crimes against a single victim were committed on separate occasions under section 667.6(d), the court shall consider whether, between the commission of one sex crime and another, the defendant had a reasonable opportunity to reflect upon the defendant’s actions and nevertheless resumed sexually assaultive behavior. Neither the duration of time between crimes, nor whether or not the defendant lost or abandoned the opportunity to attack, shall be, in and of itself, determinative on the issue of whether the crimes in question occurred on separate occasions.

Further, a finding that a defendant committed sex crimes on separate occasions does not require there be a break of any specific duration or any change in physical location. In applying this standard, courts have held the offenses of placing a finger in the victim’s private area, kissing her private area and then placing his private part in her private area were but a single occasion. In contrast, where the offenses are interrupted by the defendant’s nonsexual activity, courts have found they occur on a separate occasion.

Authority:

PEN 667.6(d)(2)

People v. Jones (2001) 25 Cal.4th 98, 104

People v. King (2010) 183 Cal.App.4th 1281, 1325

People v. Dearborne (2019) 34 Cal.App.5th 250, 265-266

People v. Corona (1988) 206 Cal.App.3d 13, 15-16, 17-18

Fifth Holding:

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. A court that is unaware of the scope of its discretionary powers can no more exercise that informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record. In such circumstances, we have held that the appropriate remedy is to remand for resentencing 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.

Authority:

People v. Salazar (2023) 15 Cal.5th 416, 419, 424

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

Sixth Holding:

The trial court was aware of its discretion. The general rule is that a trial court is presumed to have been aware of and followed the applicable law.

Authority:

People v. Shiga (2016) 6 Cal.App.5th 22, 40

People v. Brown (2007) 147 Cal.App.4th 1213, 1229

Seventh Holding:

When a trial court imposes consecutive sentences based on a finding under section 667.6(d), we may reverse only if there is no substantial evidence that the offenses were committed on separate occasions, that is, only if no reasonable trier of fact could have decided the defendant had a reasonable opportunity for reflection after completing an offense before resuming his assaultive behavior.

Authority:

People v. King (2010) 183 Cal.App.4th 1281, 1325

People v. Garza (2003) 107 Cal.App.4th 1081, 1092

Eighth Holding:

Regardless of whether section 667.6(c), applies to sentencing for a one strike offense under section 667.61 (which is not clear), under section 669, a trial court has discretion to impose concurrent or consecutive sentences when a defendant is convicted of multiple crimes with indeterminate sentences.

Authority:

PEN 669(a)

People v. Midell (2025) 113 Cal.App.5th 1060, 1085

People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262

Ninth Holding:

It is well settled that in making sentencing choices pursuant to section 667.6(c), the trial court must state a reason for imposing a consecutive sentence in deciding whether to impose a consecutive or concurrent sentence.

Authority:

People v. Osband (1996) 13 Cal.4th 622, 729

Amelioration, Elements of crime, Evidence, Jury instructions, Jury trial, Sentencing, Sixth Amendment, Standard of review, Statutory interpretation

Case 000555

Posted on by Gary McCurdy

Error and/or relief

Because we are unable to conclude beyond a reasonable doubt that the omission of an instruction on the organizational nexus element of the gang allegations did not contribute to the verdict obtained, we reverse all gang enhancements under section 186.22(b), the gang-related firearm enhancement on count 1 under section 12022.53,(d) and (e)(1), and the gang-related indeterminate sentence imposed on count 13 under section 186.22(b)(C)(4). We remand for resentencing and for further proceedings consistent with this opinion.

First Holding:

All gang-related enhancements must be reversed because the jury was not instructed on the organizational nexus element of the gang enhancement under amended Penal Code section 186.22(b).

Authority:

People v. Clark (2024) 15 Cal.5th 743, 749

Second Holding:

AB 333 substantially narrowed the definition of a criminal street gang and made numerous amendments to the statutory language. The specific amendment relevant here concerns the definition of criminal gang activity. Under the amended language, the prosecution must now present evidence that the members of the gang collectively engaged in a pattern of criminal activity, as opposed to the former language under which individual criminal action by members was sufficient.

While the evidence necessary to establish an organizational nexus might often overlap with the evidence used to demonstrate how a predicate offense commonly benefitted the gang, the inquiries are nonetheless conceptually distinct. The phrase collective engagement calls for an inquiry not just into how the predicate offenses benefited the gang, but also how the gang works together as a gang. It calls for a showing of a connection, or nexus, between an offense committed by one or more gang members and the organization as a whole.

Authority:

PEN 186.22

People v. Clark (2024) 15 Cal.5th 743, 752, 762

People v. Cooper (2023) 14 Cal.5th 735, 738

Third Holding:

Section 186.22 now requires evidence demonstrating a nexus between the individual predicate offenses and the gang as an organized, collective enterprise. This organizational nexus requirement is satisfied by showing a connection between the predicate offenses and the organizational structure, primary activities, or common goals and principles of the gang. Defendant’s trial took place several months before the Supreme Court issued its decision in Clark and before CALCRIM No. 1401 was amended. The jury was therefore not instructed on the organizational nexus element as interpreted in Clark. The pre-Clark instruction given below was adequate.

Authority:

People v. Clark (2024) 15 Cal.5th 743, 749

Fourth Holding:

When a jury instruction omits an element of an offense or special allegation, it impermissibly lessens the prosecution’s burden of proof and implicates the defendant’s federal due process rights. When such an instructional error occurs, we assess prejudice under the federal harmless error standard of Chapman In this context, our review under Chapman requires an examination of the record in its totality. If, at the end of that examination, we cannot conclude beyond a reasonable doubt the jury verdict would have been the same absent the error, the instructional error was not harmless. Put another way, the error was prejudicial if we determine the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742 [concluding Chapman applied in assessing prejudice where instructions omitted new element of gang enhancement that common benefit to gang must be more than reputational]

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

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

Fifth Holding:

Defendant had the right to cross-examine a witness about whether he had been offered inducements to testify, expected benefits from giving his testimony, or otherwise had a motive to lie. Exposing a witness’s potential for bias and fabrication has long been recognized as one of the most important functions of cross-examination.

Authority:

EVID 780(f)

People v. Pearson (2013) 56 Cal.4th 393, 455

Delaware v. Van Arsdall (1986) 475 U.S. 673, 678–679

Sixth Holding:

The trial court is vested with broad discretion to impose reasonable limitations on defendant’s cross-examination without offending the constitution. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. The Sixth Amendment guarantees a defendant an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.

Authority:

People v. Contreras (2013) 58 Cal.4th 123, 152

Delaware v. Van Arsdall (1986) 475 U.S. 673, 679

People v. Harris (2008) 43 Cal.4th 1269, 1292

Seventh Holding:

We review the trial court’s evidentiary rulings in this context under the deferential abuse of discretion standard. Moreover, as a general rule, the application of the ordinary rules of evidence do not impermissibly infringe on a defendant’s right to present a defense.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 9–10 [discretion abused only where exercised in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice]

People v. Gurule (2002) 28 Cal.4th 557, 620

Eighth Holding:

In order to establish a prejudicial abuse of discretion that violated the Sixth Amendment right to confrontation, a defendant is required to affirmatively show the trial court’s order limiting or precluding cross-examination left the jury with a significantly different impression of the witness’ credibility. Otherwise, the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.

Authority:

People v. Pearson (2013) 56 Cal.4th 393, 455-456

Delaware v. Van Arsdall (1986) 475 U.S. 673, 680

People v. Gonzalez (2021) 12 Cal.5th 367, 406

Ninth Holding:

The record reflects the trial court failed to impose sentence on counts 14 and 15, two of the extortion counts on which the jury found defendant guilty. As defendant concedes in his reply brief, the appropriate course of action in such circumstances is a remand for the purpose of pronouncement of a judgment in accordance with the verdict. In light of the reversal of all gang enhancements, the gang-related firearm enhancement on count 1 and the gang-related indeterminate term on count 13, the superior court, on remand, shall conduct a full resentencing at which it may consider all of its sentencing choices anew.

Authority:

People v. Taylor (1971) 15 Cal.App.3d 349, 353

Discretion, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000541

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of assault with a deadly weapon and evading an officer with reckless driving. There was insufficient evidence to support a finding that the two crimes had separate objectives and remand the matter to the trial court with instructions to exercise its discretion under section 654 to stay the sentence on either count.

First Holding:

Section 654(a) provides that 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. A defendant may be charged with—and in some cases convicted of—multiple crimes arising out of the same conduct but cannot receive multiple punishments for the same act or omission. When section 954 permits multiple conviction[s], but section 654 prohibits multiple punishment[s], the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited.

Authority:

PEN 654

PEN 954

People v. Reed (2006) 38 Cal.4th 1224, 1226−1227

Second Holding:

Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective. If we conclude that the case involves more than a single act—i.e., a course of conduct we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

Third Holding:

The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence.

Authority:

People v. Saffle (1992) 4 Cal.App.4th 434, 438

People v. Vang (2010) 184 Cal.App.4th 912, 916

Fourth Holding:

Because the trial court sentenced the defendant on both counts, we presume the trial court made an implied finding that section 654 did not apply, and that the two crimes had separate objectives.

Authority:

People v. Kelly (2018) 28 Cal.App.5th 886, 904 [When there is no explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed.]

Fifth Holding:

We conclude there was insufficient evidence to support a conclusion that the two crimes had separate objectives.

Authority:

In re L.J. (2021) 72 Cal.App.5th 37 [The evidence does not support a finding that the minor’s assaults on the officers were based on different intents and objectives than the minor’s overall purpose of trying to evade the police officers.]

People v. Jimenez (2019) 32 Cal.App.5th 409, 426 [defendant had a different intent and objection when driving “head on” towards an officer]

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

Case 000540

Posted on by Gary McCurdy

Error and/or relief

The defendant was convicted of five offenses arising from a violent, domestic-violence-related altercation. The trial court erred when it failed to instruct the jury on a lesser included offense. The court issued a protective order outside of its jurisdiction under Penal Code section 136.2. The court miscalculated the total assessment due from the defendant pursuant to Government Code section 70373(a). We vacate the protective order and reverse the judgment, remanding for a possible retrial on one conviction and for a full resentencing.

First Holding:

We review de novo a claim that the trial court failed to properly instruct the jury on the applicable principles of law.

Authority:

People v. Lueth (2012) 206 Cal.App.4th 189, 195

Second Holding:

In a criminal case, a jury verdict must be unanimous. When an accusatory pleading charges the defendant with a single criminal act, and the evidence presented at trial tends to show more than one such unlawful act, either the prosecution must elect the specific act relied upon to prove the charge to the jury, or the court must instruct the jury that it must unanimously agree that the defendant committed the same specific criminal act. The unanimity instruction requirement is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. If required, the instruction must be given sua sponte.

Authority:

People v. Russo (2001) 25 Cal.4th 1124, 1132

People v. Melhado (1998) 60 Cal.App.4th 1529, 1534

People v. Riel (2000) 22 Cal.4th 1153, 1199

Third Holding:

If a prosecutor elects to rely upon a specific act to prove a charged crime, then the trial court has no duty to give the jury an instruction that it must unanimously agree on the act that constituted the crime charged.

Authority:

People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455

Fourth Holding:

The trial court instructed the jury with the elements of assault with a deadly weapon, but did not instruct them with the elements of simple assault. We conduct an independent review of the question of whether this was error.

Authority:

People v. Avila (2009) 46 Cal.4th 680, 705

Fifth Holding:

We conclude that it was error for the to not instruct the jury with the elements of simple assault. A trial court must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. Simple assault is a lesser included offense of aggravated assault The trial court, accordingly, was required to instruct the jury on the lesser included offense of simple assault if a reasonable jury could have found that the defendant committed only a simple assault and not an assault with a deadly weapon.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 645

People v. McDaniel (2008) 159 Cal.App.4th 736, 747

Sixth Holding:

Under section 245 (assault with a deadly weapon), an object may be a deadly weapon in two ways. First, objects are considered deadly weapons as a matter of law, or deadly per se, when the ordinary use for which they are designed establishes their character as such. Typical examples include dirks and blackjacks. Second, if an object is not inherently deadly, the prosecution must prove to the trier of fact that the object was used in such a manner as to be capable of producing and likely to produce, death or great bodily injury. Objects which have been found to be a deadly weapon based on the way they were used include a pillow, an automobile, a large rock, a razor blade, and a fingernail file. A wrench is not inherently deadly as a matter of law. It is designed and typically used for innocent purposes.

Authority:

People v. Aguilar (1997) 16 Cal.4th 1023, 1028-1029

People v. Montes (1999) 74 Cal.App.4th 1050, 1054

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

Seventh Holding:

Based on the evidence, we conclude reasonable jurors could have decided the evidence was sufficient to prove the defendant assaulted the victim with the wrench but was insufficient to prove he did so in a manner likely to cause death or great bodily injury. And so we must reverse the judgment and conviction for assault with a deadly weapon. Under settled law, the judgment will be modified unless the People elect to retry the defendant on the greater charge and are successful.

Authority:

People v. Edwards (1985) 39 Cal.3d 107, 118

Eighth Holding:

Whether section 136.2(i)(1) authorized the court to issue a protective order against a defendant is an issue of statutory interpretation we review de novo.

Authority:

People v. Pena (2025) 113 Cal.App.5th 640, 645

Ninth Holding:

Under section 136.2(i)(2), trial courts, generally speaking, are authorized to issue postconviction orders restraining a criminal defendant who has been convicted of a crime involving domestic violence from any contact with a percipient witness to the crime who has been harassed by the defendant. It was improper to issue a protective order under section 136.2(i) where the person was not a percipient witness. The broader protective orders under section 136.2 are limited to the time frame during the pendency of the criminal action. It does not apply to postconviction orders.

Authority:

PEN 136.2

People v. Beckemeyer (2015) 238 Cal.App.4th 461, 465 and fn. 4, 466

People v. Walts (2025) 112 Cal.App.5th 127, 140–144

Tenth Holding:

The court imposed $180 as the court facilities funding assessment for the five counts. However, at $30 for each count, the assessment should have been $150, not $180.

Authority:

GOV 70373(a)

Sentencing, Sixth Amendment, Standard of review

Case 000539

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred when it found the aggravating factors true and sentenced him to the upper term without first obtaining an express waiver of his right to a jury trial or a stipulation to the aggravating factors.

First Holding:

We review questions about whether a defendant’s constitutional rights were violated de novo. If we determine that a defendant’s right to a jury trial has been violated, we apply the harmless error standard in Chapman. Under the Chapman standard, we must reverse and remand a sentence imposed under section 1170(b), unless we 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.

Authority:

People v. Palmer (2020) 49 Cal.App.5th 268, 280

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

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

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

Second Holding:

Any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.

Authority:

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

Third Holding:

In 2022, the Legislature amended section 1170(b) to limit a court’s discretion to impose the upper term of a sentencing triad. Under the current version of section 1170, trial courts may impose a sentence that exceeds the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

Authority:

PEN 1170(b)(2)

People v. Lynch (2024) 16 Cal.5th 730, 757, 773

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

Fourth Holding:

Section 1170(b)(3) provides that the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. This provision is considered the state counterpart to the exception the United States Supreme Court recognized in Almendarez-Torres for findings regarding a defendant’s prior convictions. Recently, the United States Supreme Court clarified in Erlinger that the Almendarez-Torres exception to the jury trial requirement permits a judge to make findings regarding the fact of a defendant’s prior conviction and the elements of the offense alone, nothing else.

Authority:

Almendarez-Torres v. United States (1998) 523 U.S. 224

People v. Wiley (2025) 17 Cal.5th 1069, 1085-1086

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

Fifth Holding:

Virtually any fact that increases a defendant’s exposure to punishment must be submitted to a jury and found unanimously and beyond a reasonable doubt. This jury trial guarantee retains its vitality even if the inquiry is straightforward. Therefore, unless a defendant waives the right to a jury trial or stipulates that the aggravating factors are true, under section 1170(b), the People must prove to a jury the facts relied on to justify an upper term sentence beyond a reasonable doubt.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 761-762

People v. Wiley (2025) 17 Cal.5th 1069, 1084, 1086

Erlinger v. United States (2024) 602 U.S. 821, 842

Sixth Holding:

A defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence. The inquiry into whether defendant’s prior convictions were extensive or numerous is a comparative and qualitative one. The qualitative and comparative nature of the inquiry, which could allow a jury to focus on different aspects of defendant’s history than the trial court did, makes it difficult to conclude with confidence that the jury would have assessed the facts in the same manner as did the trial court. Thus, we find the error to be not harmless beyond a reasonable doubt.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1085, 1090

Amelioration, Discretion, Jurisdiction, Sentencing

Case 000531

Posted on by Gary McCurdy

Error and/or relief

The defendant, whose original sentencing occurred prior to 1/1/2020, is eligible for full resentencing under section 1172.75 where his original sentence imposed sentence (whether or not stayed) on now-invalid prior prison term enhancements, even if later his sentence was modified on other grounds after 1-1-2020.

[GARY NOTE: The court, in this unpublished case, concluded that section 1172.75 applies to the original judgment, which was before 1/1/2020, and therefore the defendant was eligible despite any subsequent resentencing under section 1172.1. The decision rested on the Court of Appeals logic in interpreting the statutes, however, and did not otherwise cite any published case law. Since an unpublished decision cannot be cited as authority, the gold extracted in this summary does not specifically address the question reached by the court in this case.]

First Holding:

Section 1172.75 provides that any sentence enhancement that was imposed prior to January 1, 2020, pursuant to section 667.5(b), except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in section 6600(b) of the Welfare and Institutions Code is legally invalid. It requires the court to vacate the entire sentence and hold a full resentencing hearing, applying any applicable ameliorative changes in the law since the original sentencing. By its plain terms, section 1172.75 requires a full resentencing, not merely that the trial court strike the newly invalid enhancements.

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050, 1054

People v. Dixon (2025) 112 Cal.App.5th 236, 243

Second Holding:

Section 1172.1 authorizes the Secretary of the Department of Corrections and rehabilitations (CDCR) [as well as “the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case”] to recommend to the superior court that the court recall a previously imposed sentence and resentence the defendant.

The CDCR recommendation furnishes the court with jurisdiction it would not otherwise have to recall and resentence and is an invitation to the court to exercise its equitable jurisdiction. The court may, on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law, 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. Whether recall on the invitation of the CDCR et al. or on its own motion, the new sentence, if any, cannot be greater than the initial sentence.

Authority:

PEN 1172.1

People v. McMurray (2022) 76 Cal.App.5th 1035, 1

Third Holding:

If the resentencing request is from the Secretary of CDCR, the Board of Parole Hearings, a county correctional administrator, a district attorney, or the Attorney General, there shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant currently poses an unreasonable risk of danger to public safety, as defined in section 1170.18(c) (an unreasonable risk that the defendant will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv)).

Authority:

PEN 1172.1(b)

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

Fourth Holding:

We review a trial court’s sentencing decisions in a section 1172.75 resentencing proceeding for abuse of discretion. However, where the appeal from a resentencing order raises questions of law, our review is de novo.

Authority:

People v. Mathis (2025) 111 Cal.App.5th 359, 366, review granted Aug. 13, 2025, S291628

People v. Garcia (2024) 101 Cal.App.5th 848, 855-856

People v. Braden (2023) 14 Cal.5th 791, 804 [the interpretation of a statute presents a question of law that this court reviews de novo]