Tag Archives: Standard of review

Amelioration, Retroactivity, Sentencing, Standard of review

Case 000937

Posted on by Gary McCurdy

Error and/or relief

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

First Holding:

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

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

Authority:

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

Second Holding:

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

Authority:

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

Third Holding:

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

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

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

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

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

Authority:

PEN 186.22

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

Fourth Holding:

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

Authority:

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

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

Fifth Holding:

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

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

Authority:

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

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

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

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

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

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

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000936

Posted on by Gary McCurdy

Error and/or relief

The court should have stayed the defendant’s eight-month sentence for count 4 under section 654. The sole objective in possessing the firearm (count 3) and the ammunition (count 4) was to have an operable firearm. Accordingly, the possession offenses were part of an indivisible course of conduct and cannot be separately punished. We otherwise affirm the judgment.

First Holding:

During the defendant’s sentencing hearing, the court concluded that because the .22-caliber ammunition was not loaded into the .22 rifle, section 654 does not prohibit a separate punishment. And because possession of ammunition increases the ability to use the firearms and the danger, the court imposed sentences of one-third the middle term, or eight months, for each of counts 3 and 4.

Section 654(a) protects against multiple punishment where the crimes arise from either (1) the same act or omission or (2) an indivisible course of conduct united by a single intent and objective. Whether a course of conduct is indivisible depends upon the intent and objective of the actor. If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.

On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other, he may be punished for the independent violations committed in pursuit of each objective even though the violations were parts of an otherwise indivisible course of conduct.

A trial court’s implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.

Authority:

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

People v. Perez (1979) 23 Cal.3d 545, 551

People v. Blake (1998) 68 Cal.App.4th 509, 512

Second Holding:

Courts have found section 654 prohibits punishing a defendant for both being a felon in possession of a firearm and unlawful possession of ammunition when all of the ammunition in question was loaded into the firearm or had been fired from it.

Authority:

People v. Broadbent (2020) 47 Cal.App.5th 917, 922

Third Holding:

Here, the .22-caliber rifle giving rise to count 3 and the same-caliber ammunition giving rise to count 4 were found in close proximity to each other. The defendant argues the only difference between this case and Broadbent and similar cases is that he safely stored the firearm separately, but in the same room as the ammunition. He contends that this difference is immaterial and does not demonstrate separate intents and objectives. We agree that drawing a distinction on this basis parses the objectives too finely.

Authority:

People v. Lopez (2004) 119 Cal.App.4th 132, 138

Fourth Holding:

Because the record is devoid of evidence to support the court’s implicit finding that the defendant harbored two different objectives in possessing both a rifle and nearby compatible ammunition, we conclude on this record that section 654 precludes multiple punishment for the defendant’s possession of a firearm as well as several rounds of ammunition just feet away.

Although not raised by the parties, section 1170.1(a)’s one-third the middle term rule does not apply to a sentence stayed under section 654. We therefore modify the stayed 8-month consecutive sentence to a stayed middle term of two years.

Authority:

People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198

Defenses, Jury instructions, Jury trial, Standard of review

Case 000935

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by instructing the jury that a person may lose the right to self-defense if he was the initial aggressor or a mutual combatant (CALCRIM No. 3471), or if he contrived the claim as a pretext to assault the victim (CALCRIM No. 3472). Given the evidence in this case, no reasonable jury could find these instructions applicable.

Although the error was harmless as to the instructions on mutual combat and contrived self-defense—as the jury was readily able to see the irrelevance of these instructions—the record reveals a reasonable likelihood that the jury was misled by the initial aggressor instruction. We therefore reverse the defendant’s murder conviction and remand for retrial.

First Holding:

The prosecution argues that the claim was forfeited by lack of objection. The defendant argues the issue is reviewable insofar as the challenged instructions directly undermined his self-defense claim and thus impaired his substantial rights.

Alternatively, he claims defense counsel rendered ineffective assistance in failing to fully object to both instructions.

We must address the defendant’s contention on its merits to determine whether there was an impairment of his substantial rights or ineffective assistance of counsel.

Authority:

PEN 1259

People v. Anderson (2007) 152 Cal.App.4th 919, 927

Second Holding:

It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.

The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.

The corollary to this mandate is equally well-established: a trial court is not obligated to give an instruction if the evidence presented at trial is such as to preclude a reasonable jury from finding the instruction applicable. Indeed, it is error to give a jury instruction that is legally correct but has no application to the facts of the case.

Authority:

People v. St. Martin (1970) 1 Cal.3d 524, 531

People v. Schultz (1987) 192 Cal.App.3d 535, 539

People v. Guiton (1993) 4 Cal.4th 1116, 1129

Third Holding:

Giving an inapplicable instruction is subject to the traditional Watson test for prejudice, under which reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred.

Such an error is generally only a technical error that does not constitute ground for reversal because juries are fully capable of analyzing the evidence, determining the facts, and realizing that an instruction does not apply. Juries are routinely told that some of the instructions may not apply, depending on their findings about the facts of the case and are directed to follow the instructions that do apply to the facts as they find them.

That being said, in some cases, the presence of an extraneous instruction may be confusing enough to become prejudicial.

Authority:

People v. Guiton (1993) 4 Cal.4th 1116, 1130

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

People v. Cross (2008) 45 Cal.4th 58, 67

People v. Schultz (1987) 192 Cal.App.3d 535, 539-540

Fourth Holding:

Regarding the instruction on initial aggressor, there are two problems. First, the paragraph the jury received on sudden escalation was written in terms of a defendant initiating an altercation with nondeadly force, the victim responding with deadly force, and then the defendant using deadly force in return.

But the evidence here suggested a different scenario, in which (arguably) the victim initiated with nondeadly force, the defendant responded with deadly force, the victim subsequently used deadly force, and then the defendant used deadly force in return. In other words, the standard language did not quite fit the facts here.

Second, and more to the point, we agree with the defendant that no reasonable jury could find the initial aggressor concept applicable—even with tailored sudden escalation language—given the timelapse between the two encounters. The reason that a defendant forfeits his claim to self-defense when he initiates a deadly attack is because the victim is then legally justified in using deadly force against the defendant. But no one is justified in using deadly force absent fear of imminent death or great bodily injury. 

(Gary note: The appellate court describes the facts as the defendant initially pointing a gun, then the altercation is over, but an hour later the victim shows up and starts throwing rocks at the defendant, who responds with deadly force. “Accordingly, the defendant’s conduct during the first encounter did not limit his self-defense claim; he did not have a duty to withdraw during the second encounter.”)

On this record, we discern a reasonable likelihood that at least one juror would have accepted that the defendant actually believed he needed to defend himself from imminent death or great bodily injury, but was misled into thinking the defendant lost his right to make that claim since he pulled the gun on the victim an hour earlier, and he did not communicate an intent to stop fighting during the second, fatal encounter.

We therefore conclude that giving the initial aggressor instruction was prejudicial, and accordingly reverse the murder conviction.

Authority:

In re Christian S. (2015) 7 Cal.4th 768, 773, fn. 1 [self-defense and imperfect self-defense may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified]

People v. Vasquez (2005) 136 Cal.App.4th 1176, 1179–1180 [imperfect self-defense is available when the victim’s use of force against the defendant is unlawful, even when the defendant set in motion the chain of events that led the victim to attack the defendant]

People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [for either perfect or imperfect self-defense, the fear must be of imminent harm]

Fifth Holding:

To the extent the prosecution contends that any error in instructing the jury on the limits of self-defense was harmless since the jury found the defendant guilty of first degree murder, we note that killing in self-defense is not necessarily inconsistent with premeditation and deliberation.

Authority:

People v. Schuller (2023) 15 Cal.5th 237, 265 (conc. opn. of Liu, J.)

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

Case 000926

Posted on by Gary McCurdy

Error and/or relief

We conclude that the juvenile court erred when it found all five statutory criteria weigh in favor of transferring the minor to criminal court under Welfare and Institutions Code section 707(a)(3)(A)–(E)), and when it found him not amenable to rehabilitation.

(Gary note: After setting out the holdings I have listed below, the opinion goes into great detail analyzing the evidence in the case under the criteria required to be considered by the juvenile court in deciding whether to retain the minor in juvenile court or to transfer the minor to adult court. The analysis is quite extensive and completely fact-heavy. Since an unpublished opinion cannot be cited as authority, the court’s analysis could not be used in any briefing to compare and contrast with any other defendant’s scenario. So I have not included that portion of the opinion.)

First Holding:

With respect to whether the minor can be rehabilitated within the two-year period the juvenile court may exercise jurisdiction over him given his age and the success of previous attempts by the juvenile court to rehabilitate the minor, the prosecution failed to meet its burden of proving these criteria favor transfer to criminal court and, therefore, there is insufficient evidence to support the juvenile court’s findings in the prosecution’s favor on these issues.

Although the weight to be given each of the five criteria is within the juvenile court’s discretion, and the court has the discretion to conclude that one or more of the five criteria predominate so as to determine the result, even though some or all of the other criteria might point to a different result, the juvenile court’s ultimate finding that the minor is not amenable to rehabilitation is unsupported by substantial evidence.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 159

In re E.P. (2023) 89 Cal.App.5th 409, 417

Second Holding:

Where, as here, the juvenile court has abused its discretion in evaluating the evidence and applying the operative legal standards, it is appropriate to remand the matter so the court may reconsider the evidence and its ultimate determination through the lens of amenability to rehabilitation.

Authority:

In re O.F. (2026) 119 Cal.App.5th 133, 162

In re S.S. (2023) 89 Cal.App.5th 1277, 1288

J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 714–715 [exercises of discretion must be guided by applicable legal principles]

Third Holding:

When a minor age 16 or older is alleged to have committed a felony, the prosecution may move to transfer the minor to criminal court. Upon the motion, the juvenile court must order the probation officer to submit a report on the minor’s behavioral patterns and social history. The parties may submit other relevant evidence’ in connection with the transfer motion. In determining whether to transfer a minor to criminal court, the juvenile court shall consider the criteria specified in subparagraphs (A) to (E) of section 707, subdivision (a)(3).

These criteria are: (1) the degree of criminal sophistication by the minor; (2) whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction; (3)the minor’s previous delinquent history; (4) the success of previous attempts by the juvenile court to rehabilitate the minor; and (5) the circumstances and gravity of the offense alleged in the petition to have been committed by the minor.

Section 707 also sets forth a nonexhaustive list of factors relevant to each of the five criteria. And consideration of these factors is now mandatory rather than discretionary.

Authority:

WIC 707

In re O.F. (2026) 119 Cal.App.5th 133, 158-159, 160

In re Miguel R. (2024) 100 Cal.App.5th 152, 164-165

Fourth Holding:

As amended by AB 2361, section 707 now provides that in order to find that the minor should be transferred to a court of criminal jurisdiction, the court shall find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

This changed the finding a juvenile court must make before ordering a transfer in two ways: (1) raising the standard of proof; and (2) requiring a new specific finding regarding amenability to rehabilitation.

It also amended section 707 to require the court to recite the basis for its decision in an order that includes the reasons supporting the court’s finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

Authority:

In re S.S. (2023) 89 Cal.App.5th 1277, 1284

Fifth Holding:

The weight to be given to each of these criteria is within the court’s discretion. However, to transfer a minor to criminal court, the juvenile court must ultimately find, by clear and convincing evidence, that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

The prosecution bears the burden of proof. Nothing in section 707 indicates that the court is required to give equal weight to each of the five criteria or that it would necessarily be an abuse of discretion to find that one criterion outweighed the other criteria.

This standard requires a finding of high probability The evidence must be so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable mind.

Authority:

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 186

D.W. v. Superior Court (2019) 43 Cal.App.5th 109, 116

In re O.F. (2026) 119 Cal.App.5th 133, 159, 161

C.S. v. Superior Court (2018) 29 Cal.App.5th 1009, 1035

In re Miguel R. (2024) 100 Cal.App.5th 152, 167

In re E.P. (2023) 89 Cal.App.5th 409, 417

Conservatorship of O.B. (2020) 9 Cal.5th 989, 998, fn. 2

In re S.S. (2023) 89 Cal.App.5th 1277, 1286

Sixth Holding:

We review the juvenile court’s ruling on a transfer motion for abuse of discretion. The court’s factual findings are reviewed for substantial evidence, and its legal conclusions are reviewed de novo.

A decision based on insufficient evidence or the court’s erroneous understanding of applicable law is subject to reversal. But we do not reweigh the evidence and we do not substitute our discretion for the discretion exercised by the trial court.

We draw all reasonable inferences in support of the court’s findings, not against them. We are concerned only with whether the circumstances reasonably justify the trier of fact’s findings. When evidence reasonably justifies 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.

Authority:

In re Miguel R. (2024) 100 Cal.App.5th 152, 165, 169

Kevin P. v. Superior Court (2020) 57 Cal.App.5th 173, 187

In re J.S. (2024) 105 Cal.App.5th 205, 211

Abstracts and Minutes, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000924

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect that, in orally pronouncing sentence, the trial court stayed execution of the sentence imposed on count three pursuant to section 654. Further, the court orally pronounced that count four is the principal determinate term, whereas the abstract lists count three.

First Holding:

In orally pronouncing judgment, the trial court ordered execution of the sentence imposed on count three stayed under section 654. The abstract of judgment, however, does not reflect this pronouncement. The oral pronouncement of judgment controls over any discrepancy with the minutes or the abstract of judgment.

Authority:

People v. Sharret (2011) 191 Cal.App.4th 859, 864

Second Holding:

Section 654 provides, in pertinent part 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. There is a multiple victim exception to section 654 which allows separate punishment for each crime of violence against a different victim, even though all crimes are part of an indivisible course of conduct with a single principal objective.

Authority:

PEN 654

People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631

Third Holding:

The People did not raise in the trial court their argument that the court could not stay execution of the sentence on count three based on the multiple victim exception. In any event, whether section 654 applies is a factual question, and we review the trial court’s decision for substantial evidence.

In analyzing whether section 654 bars the imposition of multiple sentences, we consider the evidence in the light most favorable to the judgment and affirm the trial court’s sentencing decision—whether express or implied—if it is supported by substantial evidence.

Under this standard, this court must view the evidence in the light most favorable to the trial court’s finding and presume the existence of every fact the trial court could reasonably deduce from the record.

Because the trial court stayed execution of the sentence imposed on count three, we presume that the court implicitly found the multiple victim exception to section 654 inapplicable. The court’s implicit finding (that two others present at the shooting were not victims of the shooting) is supported by substantial evidence.

Authority:

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

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

People v. Ramirez (2021) 10 Cal.5th 983, 1042 [Absent evidence to the contrary, we presume that the trial court knew the law and followed it]

Fourth Holding:

The abstract of judgment must be corrected to reflect the oral judgment.

(Gary note: The court did not cite authority for this order, but there is plenty to be had. I have listed some that the court could have cited.)

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Error and/or relief

The abstract of judgment must be corrected to reflect that, in orally pronouncing sentence, the trial court stayed execution of the sentence imposed on count three pursuant to section 654. Further, the court orally pronounced that count four is the principal determinate term, whereas the abstract lists count three.

First Holding:

In orally pronouncing judgment, the trial court ordered execution of the sentence imposed on count three stayed under section 654. The abstract of judgment, however, does not reflect this pronouncement. The oral pronouncement of judgment controls over any discrepancy with the minutes or the abstract of judgment.

Authority:

People v. Sharret (2011) 191 Cal.App.4th 859, 864

Second Holding:

Section 654 provides, in pertinent part 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. There is a multiple victim exception to … section 654 which allows separate punishment for each crime of violence against a different victim, even though all crimes are part of an indivisible course of conduct with a single principal objective.

Authority:

PEN 654

People v. Felix (2009) 172 Cal.App.4th 1618, 1630-1631

Third Holding:

The People did not raise in the trial court their argument that the court could not stay execution of the sentence on count three based on the multiple victim exception. In any event, whether section 654 applies is a factual question, and we review the trial court’s decision for substantial evidence.

In analyzing whether section 654 bars the imposition of multiple sentences, we consider the evidence in the light most favorable to the judgment and affirm the trial court’s sentencing decision—whether express or implied—if it is supported by substantial evidence.

Under this standard, this court must view the evidence in the light most favorable to the trial court’s finding and presume the existence of every fact the trial court could reasonably deduce from the record.

Because the trial court stayed execution of the sentence imposed on count three, we presume that the court implicitly found the multiple victim exception to section 654 inapplicable. The court’s implicit finding (that two others present at the shooting were not victims of the shooting) is supported by substantial evidence.

Authority:

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

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

People v. Ramirez (2021) 10 Cal.5th 983, 1042 [Absent evidence to the contrary, we presume that the trial court knew the law and followed it]

Fourth Holding:

The abstract of judgment must be corrected to reflect the oral judgment.

(Gary note: The court did not cite authority for this order, but there is plenty to be had. I have listed some that the court could have cited.)

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

Fifth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Sixth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE