Tag Archives: Standard of review

Discretion, Sentencing, Standard of review

Case 000485

Posted on by Gary McCurdy

Error and/or relief

The court abused its discretion in ordering interest on the restitution award to accrue from the date of the offense.

First Holding:

In every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims” in an amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct.

Authority:

PEN 1202.4(f)

Second Holding:

We review a restitution order for abuse of discretion. A victim’s restitution right is to be broadly and liberally construed. Once the victim makes a prima facie showing of economic losses incurred as a result of the defendant’s criminal acts, the burden shifts to the defendant to disprove the amount of losses claimed by the victim. Sentencing judges are given virtually unlimited discretion as to the kind of information they can consider in determining victim restitution. When there is a factual and rational basis for the amount of restitution ordered, no abuse of discretion will be found.

Authority:

People v. Phu (2009) 179 Cal.App.4th 280, 283, 284

People v. Pittman (2024) 99 Cal.App.5th 1252, 1258

Third Holding:

Section 1202.4(f)(3)(G) provides that a restitution order shall be of a dollar amount that is sufficient to fully reimburse the victim or victims for every determined economic loss incurred as the result of the defendant’s criminal conduct, including interest, at the rate of 10 percent per annum, that accrues as of the date of sentencing or loss, as determined by the court. Here, there was no evidence that the victim incurred losses as early as ordered by the court. For this reason, we reverse the portion of the trial court’s restitution order concerning interest accrual and remand for the court to select an appropriate date from which interest on the restitution award accrues.

Authority:

PEN 1202.4(f)(3)(G)

Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000483

Posted on by Gary McCurdy

Error and/or relief

We find insufficient evidence to support the defendant’s conviction for sexual penetration and remand for resentencing on the remaining counts.

First Holding:

Even considering the evidence in the light most favorable to the judgment, we find no evidence to support the defendant’s unlawful sexual penetration conviction. During the victim’s police interview, she made general statements describing the defendant’s conduct, but they constituted vague, euphemistic language requiring followup questions to prove the required penetration. But the officers did not ask any. The officer’s trial testimony regarding what the victim meant, based on the officer’s experience and training, did not clarify the statements. Nothing indicates that the victim ascribed the same meaning and the officer’s testimony asserted. Nor did the victim clarify the acts in her testimony. Taken together, this evidence does not constitute precise and specific testimony to prove the required penetration beyond a reasonable doubt.

Authority:

People v. Haynes (1998) 61 Cal.App.4th 1282, 1291

People v. Paz (2017) 10 Cal.App.5th 1023, 1038

People v. Jones (1990) 51 Cal.3d 294, 316 [though a child sexual crime victim need not specify precise dates, times and circumstances, she must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct]

People v. Quintana (2001) 89 Cal.App.4th 1362, 1371

Second Holding:

On this record, we must reverse the sexual penetration conviction. We strike his sentence for that count and remand for a full resentencing as to all counts so the trial court can exercise its sentencing discretion in light of the changed circumstances.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893 [trial courts have jurisdiction to modify every aspect of sentence on the counts that were affirmed, including the term imposed as the principal term]

Elements of crime, Juveniles, Standard of review, Sufficiency of and substantial evidence, Vicarious liability

Case 000482

Posted on by Gary McCurdy

Error and/or relief

No substantial evidence supports the juvenile court’s order sustaining allegations relating to property theft. The minor came into the store with two adult males. One of the adults asked the clerk to bring him clothes that matched shoes he had previously purchased. The group took six items into a fitting room. Subsequently, one of the adults asked the clerk for different sizes and she went to the back of the store to get them. When she returned to the fitting room, only the two adults were there. The clerk did not see the minor leave. Security camera footage showed the minor leaving the store about five minutes after the group had entered the fitting room. Shortly thereafter, the two adults came out of the fitting room, returned five items to the clerk, and left. The sixth item, a green sweater, was missing from the store.

The possibility that the minor stole the sweater or otherwise aided and abetted the theft is insufficient. Accordingly, no substantial evidence supports the true findings.

First Holding:

Our review of the minors’ substantial evidence claim is governed by the same standard applicable to adult criminal cases. In reviewing the sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Evidence that merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence, it merely raises a possibility, and this is not a sufficient basis for an inference of fact. The substantial evidence rule mandates consideration of the weight of the evidence before deferring to the conclusions drawn from the evidence by the trier of fact.

In determining whether the record is sufficient the appellate court can give credit only to substantial evidence, i.e., evidence that reasonably inspires confidence and is of solid value. Mere conjecture, surmise, or suspicion is not the equivalent of reasonable inference and does not constitute proof.

Authority:

In re V.V. (2011) 51 Cal.4th 1020, 1026

People v. Collins (2025) 17 Cal.5th 293, 307-308

Second Holding:

An aider and abettor is one who acts with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.

Authority:

People v. Smith (2014) 60 Cal.4th 603, 611

Third Holding:

The possibility that the minor stole the sweater or otherwise aided and abetted the theft is insufficient. Accordingly, no substantial evidence supports the true findings.

Authority:

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

In re Leanna W. (2004) 120 Cal.App.4th 735, 741, 744 [where liquor was missing and property was damaged after the minor hosted a party at her grandmother’s home while her grandmother was away, no substantial evidence supported burglary and vandalism findings because the fact that the minor was present when the liquor was used does not show that she actually consumed it, much less that she had the specific intent to take it when she entered the house and there is no evidence that the minor was the person who damaged or destroyed the property]

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

Case 000481

Posted on by Gary McCurdy

Error and/or relief

Denial of the petition for recall of sentence under section 1172.6 is reversed, and the matter is remanded for the court to redetermine whether petitioner acted with reckless indifference to human life, taking into consideration his youth at the time of the offense. We also conclude substantial evidence does not support the court’s finding that petitioner aided and abetted the murder with intent to kill and the denial of the petition therefore cannot be upheld on this alternative ground.

First Holding:

Although petitioner briefly argued in the superior court that his youth should be considered in the court’s analysis of whether he was a major participant in the underlying felony and acted with reckless indifference to human life, the superior court did not address this argument. Indeed, the superior court may have felt compelled to conclude, based on the state of the law at the time, that petitioner’s youth was not a relevant factor, given that petitioner was a young adult at the time he committed the offense and not a juvenile.

We continue to find there was substantial evidence for the trial court to conclude that the defendant acted with indifference of human life, but pending this appeal, there have been cases that squarely hold that the court should consider youth of a nonjuvenile in that determination.

If we do not address this issue, petitioner may be able to file a second petition for resentencing in the superior court to have the court consider his youth as part of the totality of circumstances bearing on whether he acted with reckless indifference to human life. In the interests of justice and for the sake of judicial economy, we address this argument on the merits. We conclude that petitioner is entitled to a new evidentiary hearing to apply new law relating to the effect, if any, of his youth on the court’s reckless indifference finding.

Authority:

People v. Jimenez (2024) 103 Cal.App.5th 994, 1008

Second Holding:

We review the court’s findings for substantial evidence. Under this standard, we review the 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 beyond a reasonable doubt that petitioner acted with reckless indifference.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 988

People v. Emanuel (2025) 17 Cal.5th 867, 885

Third Holding:

In the first stage of this appeal–before review was granted and the matter was transferred back to this court–petitioner raised the argument (that the court should take into consideration the defendant’s youth) in his reply brief for the first time. Ordinarily, we do not consider issues raised for the first time in a reply brief. As such, this argument was not addressed in our prior opinion.

Authority:

In re Luke H. (2013) 221 Cal.App.4th 1082, 1090

Fourth Holding:

During the pendency of this appeal, the appellate court in Jones addressed the relevance of youth to the reckless indifference finding in a case involving a young adult who was 20 years old at the time of the offense.

Authority:

People v. Jones (2022) 86 Cal.App.5th 1076, 1091–1093

Fifth Holding:

In Oliver, the appellate court assumed, without deciding, that the trial court was required to consider the petitioner’s youth (23 years of age) in reference to the petitioner’s mental state, but held that its failure to do so was harmless under the standard of Watson

Authority:

People v. Oliver (2023) 90 Cal.App.5th 466, 488–489 and fn. 8

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

Sixth Holding:

In Pittman, the court applied the Watson standard and concluded there was a reasonable possibility the failure to consider the petitioner’s youth impacted the trial court’s decision. The court noted inferences of immaturity could be drawn from the fact that the petitioner was 21 years old when he participated in the attack with two peers who were 16 and 17 years old. Additionally, the crime suggested the participants acted impulsively, under the influence of rashness, and while intoxicated. Thus, the court determined the interests of justice were best served by remanding for the court to consider whether youth impacted the petitioner’s ability to form the requisite mental state for second degree murder.

Authority:

People v. Pittman (2023) 96 Cal.App.5th 400, 417-418

Seventh Holding:

In Jiminez, the appellate court agreed that there had been a significant change in the law governing young adult offenders since the ruling on the first petition, and therefore the doctrines of collateral estoppel and law of the case did not apply. In this regard, the court noted that early cases addressing this issue of a petitioner’s youth applied only to juvenile offenders under the age of 18, and only to the major participant and reckless indifference findings.

Thereafter, however, the law was expanded to hold that youth was a consideration for other mental state requirements, including implied malice, and additionally expanded to include young adults who were in their late teens and early 20’s when they committed the crimes. Additionally, the Legislature had enacted similar changes to a variety of statutes to expand youth-related considerations to persons 25 years of age and younger. The court also determined that the error in failing to consider the petitioner’s age was not harmless under the Watson standard.

Authority:

People v. Jimenez (2024) 103 Cal.App.5th 994, 1001-1004

Appellate Principles, Discretion, Standard of review

Case 000479

Posted on by Gary McCurdy

Error and/or relief

In this People’s appeal from the order of the juvenile court denying its motion to transfer the juvenile matter to adult court, the order retaining jurisdiction in juvenile court is affirmed, even though the respondent is well over 25 years of age.

First 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

Second Holding:

The ultimate question for the juvenile court in a transfer petition is whether a minor is amenable to rehabilitation before the juvenile court’s jurisdiction expires. To order a minor’s transfer to a court of criminal jurisdiction, the juvenile court must find by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court, which for persons 25 years or older extends for up to two years from the date of disposition. the prosecution bears the burden of proving by clear and convincing evidence that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

Authority:

WIC 607(d) [The court may retain jurisdiction over a person who is 25 years of age or older for a period not to exceed two years from the date of disposition if the person is found to be a person described in Section 602 by reason of the commission of an offense listed in subdivision (b) of Section 707. The court shall exercise jurisdiction in conformance with the objectives of the juvenile court.]

WIC 707(a)(3)

In re E.P. (2023) 89 Cal.App.5th 409, 416

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

Third Holding:

In making that determination, the juvenile court must consider five specific factors. The statute also sets forth a nonexhaustive list of relevant factors for the juvenile court to consider with respect to each of the five criteria. If the juvenile court orders a transfer to criminal court, it must recite the basis for its decision in an order entered upon the minutes, which shall include the reasons supporting the court’s finding that the minor is not amenable to rehabilitation while under the jurisdiction of the juvenile court.

Authority:

WIC 707(a)(3)

In re J.S. (2024) 105 Cal.App.5th 205, 212

Fourth Holding:

The language used in a statute or constitutional provision should be given its ordinary meaning, and if the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) or of the voters (in the case of a provision adopted by the voters). Courts generally must accord significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose, and a construction making some words surplusage is to be avoided.

The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. We examine statutory language, not in isolation, but in the context of the statutory framework as a whole to discern its scope and purpose and to harmonize the various parts of the enactment.

Authority:

People v. Valencia (2017) 3 Cal.5th 347, 357

Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735

Dyna-Med, Inc. v. Fair Employment and Housing Com. (1987) 43 Cal.3d 1379, 1387

People v. Prudholme (2023) 14 Cal.5th 961, 975

Fifth Holding:

Language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered. Thus, a decision is authority only for the points actually involved and actually decided.

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 154–155

People v. Brooks (2017) 3 Cal.5th 1, 110

Sixth Holding:

Failure to offer reasoned analysis of an issue constitutes a waiver. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. The People’s failure to develop a legal analysis that is tethered to the issue they raised and is supported by relevant authority compels rejection of their claim of error. We will not develop that analysis for them.

Authority:

Rule 8.204(a)(1)(B) [Each brief must state each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority]

Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1008

Perry v. City of San Diego (2021) 65 Cal.App.5th 172, 188, fn. 8 [It is not this court’s role to connect the dots]

Discretion, Standard of review

Case 000478

Posted on by Gary McCurdy

Error and/or relief

Before jury selection, the defendant requested mental health diversion. The trial court denied the request as untimely. This was error. The judgment is conditionally reversed, and the matter is remanded to the trial court to consider defendant’s application for mental health diversion under section 1001.36. If the trial court grants diversion and defendant successfully completes mental health diversion, the court shall dismiss the charges. If the court denies defendant’s application for mental health diversion, or if defendant does not successfully complete diversion, then the court shall reinstate the judgment and sentence.

First Holding:

Section 1001.36 authorizes pretrial mental health diversion for defendants with qualifying mental health disorders. The trial court must find a defendant is both eligible and suitable for diversion.

Authority:

PEN 1001.36

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

Second Holding:

We review a trial court’s order denying mental health diversion for abuse of discretion and its factual findings for substantial evidence. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 448-449

Third Holding:

In a jury trial, to be timely, a request for diversion must be made before attachment of jeopardy. The defendant is deemed to have been placed in jeopardy when the jurors have been impaneled and sworn. Here, the jury had not been impaneled or sworn when defendant requested mental health diversion. The trial court abused its discretion in denying his unopposed request for mental health diversion solely on the ground that it was untimely.

Authority:

People v. Braden (2023) 14 Cal.5th 791, 819

People v. Fields (1996) 13 Cal.4th 289, 299

Immigration, Standard of review

Case: 000474

Posted on by Gary McCurdy

Error and/or relief

We reverse and remand for the trial court to enter an order granting the defendant’s application under section 1473.7 because he did not understand the immigration consequences of his pleas.

First Holding:

Section 1473.7 allows noncitizens who have served their sentences to vacate their convictions if they can establish that their convictions are invalid due to prejudicial error impairing their ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequences of their conviction. To show prejudicial error, the noncitizen must demonstrate a reasonable probability that the noncitizen would have rejected the plea if the noncitizen had correctly understood the immigration consequences. In making this determination, we consider the totality of the circumstances. Any assertions by the noncitizen must be corroborated with objective evidence. Objective evidence can include facts in declarations, contemporaneous documentation of the noncitizen’s immigration concerns, and the charges the noncitizen faced.

Authority:

PEN 1437.7(a)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 316, 320-321

Second Holding:

We review independently whether noncitizens have demonstrated a reasonable probability they would have rejected a plea offer had they understood its immigration consequences. Where the trial court has based its rulings on a cold record, or, in other words, only documentary evidence, we need not defer to trial court fact finding.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

Third Holding:

The noncitizen’s subjective misunderstanding qualifies as sufficient error under the statute.

Authority:

People v. Manzanilla (2022) 80 Cal.App.5th 891, 909–910 [focus is on noncitizen’s own error in not understanding the plea would subject him to mandatory deportation and permanent exclusion]

Fourth Holding:

There is a critical difference between (1) being notified the plea may have immigration consequences and (2) being told the plea will make one immediately deportable. When counsel provides only the first advisement in a situation calling for the second, the advisement is insufficient.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 523, 533 [failure to advise of certain immigration consequences of plea rendered representation constitutionally deficient; advisement that plea might have adverse immigration effects insufficient where deportation would be mandatory]

Fifth Holding:

At the time of the plea in 1996, the defendant’s counsel did not have a duty to discuss mandatory immigration consequences as they would now. That duty arose only with the decision in Padilla. When counsel had no professional obligation, we cannot infer that counsel in 1996 told the defendant of the mandatory immigration consequences. The lack of any proper advisement in the record corroborates the defendant’s claim.

Authority:

Padilla v. Kentucky (2010) 559 U.S. 356

People v. Manzanilla (2022) 80 Cal.App.5th 891, 905-906 [where immigration consequences clear and virtually certain, after 2010 counsel now must advise client of those consequences]

People v. Bravo (2021) 69 Cal.App.5th 1063, 1073-1074 [advisement given in 1997 insufficient to satisfy section 1473.7]

Sixth Holding:

The defendant’s ties to the United States are sufficient evidence that the defendant would have focused on mandatory immigration consequences.

Authority:

People v. Alatorre (2021) 70 Cal.App.5th 747, 771 [deep ties to the United States constitute contemporaneous evidence that avoiding deportation would have been a primary concern]

Seventh Holding:

Where a noncitizen is no longer in custody and triggering events in the statute have not occurred, the motion is timely.

Authority:

People v. Perez (2021) 67 Cal.App.5th 1008, 1016

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

Case 000468

Posted on by Gary McCurdy

Error and/or relief

The trial court applied an incorrect legal standard in ruling on the defendant’s petition for mental health diversion, and substantial evidence does not support its ineligibility finding. The court also erred by accepting a guilty to plea to conduct that is not criminal. We reverse defendant’s possession of marijuana conviction, conditionally vacate the remainder of defendant’s guilty pleas, conditionally reverse the judgment, and remand the matter for further proceedings consistent with section 1001.36 and this opinion.

First Holding:

Section 1001.36 authorizes pretrial diversion for criminal defendants suffering from certain recognized mental disorders. To qualify, criminal defendants must show they are both eligible and suitable for the program. A defendant accused of a qualifying offense is eligible for mental health diversion if, within the last five years, a qualified mental health expert has diagnosed the defendant with a qualifying mental health disorder that was a significant factor in the commission of the charged offense.

A qualifying diagnosis creates a rebuttable presumption that the disorder was a significant factor in the commission of the offense, which may only be overcome if there is clear and convincing evidence that the disorder was not a motivating factor, casual factor, or contributing factor to the defendant’s involvement in the alleged offense. For purposes of the diversion statute, a qualified mental health expert includes, but is not limited to, a psychiatrist, psychologist, or a person whose knowledge, skill, experience, training, or education qualifies them as an expert. The statute’s plain language does not limit a qualified mental health expert to a psychiatrist, psychologist, or other medical doctor.

Authority:

PEN 1001.36(b), (f)

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

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 891

People v. Gonzalez (2017) 2 Cal.5th 1138, 1141 [appellate court interprets a statute to effectuate the law’s purpose, applying a plain and commonsense meaning to the statute’s text]

Second Holding:

A substance use disorder registered counselor must complete hundreds of hours of classroom education and supervised training regarding addiction counseling, at least over 2,000 hours of work providing counseling services in an alcohol or drug program, and must pass an examination confirming their skill and ability. Under these circumstances, a substance abuse disorder registered counselor possesses the knowledge, skill, experience, training and education to make a substance use disorder diagnosis under the statute.

Authority:

Cal. Code Regs., tit. 9, sec. 13040(a)-(d)

Third Holding:

Where there has been a qualifying diagnosis, it is the People’s burden to overcome by clear and convincing evidence the statutory presumption that the disorder was a significant factor in the commission of the offense. Here, the People did not present any evidence to support a finding that defendant’s substance use disorders were not a motivating, causal, or contributing factor to his commission of the charged drug and firearm possession offenses. Argument by counsel is not evidence in the case and cannot be relied upon to support the trial court’s order.

Despite the lack of evidence, the trial court ruled, based on “common sense,” that possession for sale offenses like defendant’s could not be causally connected to a substance use disorder and that the Legislature could not have intended section 1001.36 to apply to possession of narcotics for sale cases because a vast majority of the felony cases before the court involved drugs. In essence, the trial court carved out a wholesale exception to mental health diversion for possession for sale offenses that does not appear in the plain text of the statute. This was error. It is a corollary to fundamental principles of separation of powers that courts must apply the statutes as written unless doing so would yield absurd results.

Authority:

People v. Harlow (2025) 113 Cal.App.5th 485, 491

Fourth Holding:

The absence of evidence showing defendant’s mental disorder was a factor in the commission of the offenses cannot satisfy the People’s burden to rebut the statutory presumption by clear and convincing evidence.

Authority:

Lacour v. Superior Court (2025) 110 Cal.App.5th 391,404 [the absence of evidence proving that a petitioner’s mental disorder was a factor in the commission of the offenses is not substantial evidence supporting a finding by clear and convincing evidence that the petitioner’s mental disorder was not a factor in the commission of the offenses]

Gomez v. Superior Court (2025) 113 Cal.App.5th 671, 687-689 [By finding the statutory presumption had been overcome by the lack of indication in the police reports that the defendant was suffering from the mental disorder at the time of a robbery, the trial court improperly shifted the burden to the defendant to affirmatively prove that her mental disorder contributed to the offense.]

Fifth Holding:

We review a trial court’s order denying mental health diversion for abuse of discretion and its factual findings for substantial evidence. When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence. We presume a trial court’s order is correct and indulge all intendments and reasonable inferences to support it. Absent evidence to the contrary, we presume a trial court knew and applied the law.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 448-449

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 401

People v. Giordano (2007) 42 Cal.4th 644, 666

People v. Ramirez (2021) 10 Cal.5th 983, 1042

Sixth Holding:

It was error for the court to accept the defendant’s guilty plea to an act that was not criminal. The information alleged that he was in possession of not more than 28.5 grams of marijuana. Possession of marijuana is not criminal unless it is of more than 28.5 grams. By accepting defendant’s guilty plea to conduct that is not criminal, and sentencing him for that offense, the trial court exceeded its jurisdiction. Accordingly, we shall modify the judgment to vacate defendant’s conviction and sentence on that count.

Authority:

People v. Mutch (1971) 4 Cal.3d 389, 395-396, 399 [conviction for conduct not prohibited by statute is void]

People v. Soriano (1992) 4 Cal.App.4th 781, 784-785 [the defendant could not have been guilty of violating Penal Code section 115 by attempting to file a forged instrument because, as a matter of law, the writing he was charged with and admitted forging, a death certificate, is not an instrument within the meaning of section 115]

Effective assistance of counsel, Sixth Amendment, Standard of review

Case 000464

Posted on by Gary McCurdy

Error and/or relief

We conclude the prosecutor prejudicially misstated the law in closing arguments and defense counsel was ineffective for failing to object. We therefore reverse the judgment as to the murder conviction and accompanying sentence. The prosecutor prejudicially misstated the law during closing arguments, andt defense counsel’s failure to object to the prosecutor’s misstatements constituted ineffective assistance of counsel. However, because we additionally conclude that substantial evidence supported the conviction, the defendant may be retried.

First Holding:

The defendant forfeited any objection to the jury instructions by failing to object in the trial court. Generally, failure to object to a jury instruction forfeits a claim of error on appeal. Generally, a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety. The defendant’s failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct. The defendant’s claims are forfeited.

Authority:

People v. Mora and Rangel (2018) 5 Cal.5th 442, 471

People v. Centeno (2014) 60 Cal.4th 659, 674

Second Holding:

The defendant also asserts that his trial attorney’s failure to object to the instruction or the prosecutor’s argument constituted ineffective assistance of counsel. We therefore address the underlying claims of error in the context of ineffective assistance of counsel. The Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee a criminal defendant the right to the effective assistance of counsel at trial. The ultimate purpose of this right is to protect the defendant’s fundamental right to a trial that is both fair in its conduct and reliable in its result.

Authority:

People v. Lopez (2008) 42 Cal.4th 960, 966 [a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent and conscientious advocate]

In re Lucas (2004) 33 Cal.4th 682, 721

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

People v. Ledesma (1987) 43 Cal.3d 171, 215

In re Long (2020) 10 Cal.5th 764, 773

Third Holding:

To prevail on his claim, the defendant must show that defense counsel’s omission fell below an objective standard of reasonableness in light of the professional norms prevailing when the representation took place. The defendant must also show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case. It is enough to show a probability sufficient to undermine confidence in the outcome.

The standard for judging counsel’s representation is a most deferential one. We must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. Accordingly, we must reconstruct the circumstances of counsel’s challenged conduct, and evaluate the conduct from counsel’s perspective at the time.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 688, 689, 693-694

In re Long (2020) 10 Cal.5th 764, 773-774

Fourth Holding:

Where the prosecutor is alleged to have misstated the law to the jury, this constitutes error only if (1) the prosecutor misstated the law, and (2) there is a reasonable likelihood the jury understood or applied the prosecutor’s remarks in an improper or erroneous manner. We objectively examine how a reasonable juror would likely interpret the prosecutor’s remarks, bearing in mind that we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.

Authority:

People v. Collins (2021) 65 Cal.App.5th 333, 340

Fifth Holding:

Where the prosecutor is alleged to have misstated the law to the jury, this constitutes error only if (1) the prosecutor misstated the law, and (2) there is a reasonable likelihood the jury understood or applied the prosecutor’s remarks in an improper or erroneous manner. We objectively examine how a reasonable juror would likely interpret the prosecutor’s remarks, bearing in mind that we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.

Authority:

People v. Collins (2021) 65 Cal.App.5th 333, 340

Sixth Holding:

Defense counsel did not object to the prosecutor’s repeated misstatements of the law. In general, if the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim on appeal must be rejected.

Moreover, because, in general, it is inappropriate for an appellate court to speculate as to the existence or nonexistence of a tactical basis for a defense attorney’s course of conduct when the record on appeal does not illuminate the basis for the attorney’s challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct. Additionally, the decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one and a mere failure to object to evidence or argument seldom establishes counsel’s incompetence.

Here, however, we are constrained to conclude that there could be no satisfactory explanation for defense counsel’s failure to object to the prosecutor’s repeated misstatements of the law during closing arguments. The defendant has established that defense counsel’s failure to object fell short of prevailing professional standards of reasonableness. We also conclude that he has demonstrated a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Authority:

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

People v. Centeno (2014) 60 Cal.4th 659, 675

People v. Stratton (1988) 205 Cal.App.3d 87, 93

Appellate Principles, Discretion, Sixth Amendment, Standard of review

Case 000462

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially violated the Confrontation Clause (U.S. const., amend. VI) by overly restricting defendant’s cross-examination of two sheriff’s deputies, whose testimony was the only prosecution evidence presented on counts 2 and 4. And although our reversal on counts 2 and 4 likewise moots defendant’s Pitchess request, we exercise our discretion to address the issue and find that the trial court should have ordered the production of two civilian complaints.

Given this disposition, we need not address defendant’s claim that the abstract of judgment is incorrect, since the trial court must enter a new judgment on remand. Defendant’s sentence is therefore vacated. On remand, if the People do not timely retry defendant on counts 2 and 4, the trial court shall resentence him on counts 1, 3, and 5 accordingly. If the People timely retry defendant on counts 2 and 4, the trial court is directed to disclose the Pitchess records consistent with this opinion and afford defendant a reasonable opportunity to investigate the disclosed material before retrial.

First Holding:

Defendants have a Sixth Amendment right to cross-examine witnesses. But they have a right only to reasonable cross-examination. Trial courts therefore have wide discretion in determining the appropriate scope of cross-examination.

Authority:

People v. Royal (2019) 43 Cal.App.5th 121, 149

Olden v. Kentucky (1988) 488 U.S. 227, 231

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

Second Holding:

Although trial courts may reasonably limit a defendant’s cross-examination of a witness’s bias, the Sixth Amendment’s Confrontation Clause restricts the court’s discretion. A criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness.

The trial court’s restrictions on a defendant’s cross-examination of a witness for bias does not violate the Sixth Amendment unless the defendant shows that a reasonable jury might have received a significantly different impression of the witness had the defendant been permitted to pursue his proposed line of cross-examination. However, excluding evidence of marginal impeachment value generally does not violate the Confrontation Clause.

Authority:

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

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

People v. Quartermain (1997) 16 Cal.4th 600, 623

People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1282

Third Holding:

We review the trial court’s order restricting defendant’s cross-examination of the deputies for an abuse of discretion. We likewise review the trial court’s denial of defendant’s motion for a new trial for an abuse of discretion.

Authority:

People v. Peoples (2016) 62 Cal.4th 718, 765

People v. Hoyt (2020) 8 Cal.5th 892, 957

Fourth Holding:

The tactical decision (which was defendant’s to make) has no bearing on whether the trial court properly limited defendant’s cross-examination of the deputies. The issue is whether defendant had a reasonable opportunity to cross-examine the deputies’ potential bias, not whether that cross-examination might benefit the prosecution.

Authority:

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

Fifth Holding:

That defendant could have asked other witnesses about the 2015 incident to attack the deputies’ credibility is beside the point. Defendant had a Sixth Amendment right to reasonably probe the deputies’ credibility by cross-examining the deputies. The issue here is, again, whether the trial court’s limitation on defendant’s cross-examination of the deputies violated the Confrontation Clause, not whether defendant had other available means to explore the deputies’ bias beyond cross-examining them.

Authority:

People v. Smith (2007) 40 Cal.4th 483, 513 [Confrontation Clause allows appropriate cross-examination designed to show a prototypical form of bias on the part of the witness]

People v. Quartermain (1997) 16 Cal.4th 600, 623 [The right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility]

Sixth Holding:

The testimony of the deputies was effectively the only evidence presented on the assault on an officer and felony evading charges, since they were the only witnesses to those offenses. Evidence about the deputies’ knowledge of the earlier incident was thus not of marginal impeachment value, nor was it not relevant, as the trial court incorrectly concluded. This was the only evidence that showed the deputies might have been biased against defendant, despite their denials, and could have influenced the jury’s view of their testimony.

Given that defendant’s guilt on the two counts hinged on the deputies’ testimony, their credibility was a critical issue on those counts. The trial court’s ruling allowed defendant to ask the deputies only whether they knew defendant and whether they were biased against him. When both deputies said they were not biased against him, defendant could not then probe any potential bias stemming from the 2015 incident, even though the jury might have reasonably found that the incident gave the deputies a motive for favoring the prosecution. In our view, the trial court’s ruling made defendant’s cross-examination of the deputies an exercise in futility.

Authority:

United States v. Abel (1984) 469 U.S. 45, 52 [Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony]

People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1280-1282[Bias has traditionally been viewed as especially powerful.]

Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 52 [Impeachment of a witness can make the difference between acquittal and conviction, especially where credibility is the major issue in a case and evidence at trial will consist of opposing stories presented by the defense and the prosecution witnesses.]

Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [“blanket” ruling prohibiting all inquiry into a witness’s potential bias violated Confrontation Clause]

Seventh Holding:

The second step of the analysis asks whether a reasonable jury might have received a significantly different impression of the challenged witness’s credibility if the proposed line of cross-examination had been permitted. This requires us to focus on the witness’s cross-examination rather than the outcome of the trial as a whole, examining whether the defense had other means of impeachment of the witness during cross-examination. We review the issue de novo.

Authority:

People v. Castaneda-Prado (2023) 94 Cal.App.5th 1260, 1282

Eighth Holding:

In Davis, the United States Supreme Court reasoned: “While counsel was permitted to ask [the witness] whether he was biased, counsel was unable to make a record from which to argue why the witness might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness.”

So too here. Because we conclude the trial court’s ruling violated defendant’s Confrontation Clause right to cross-examine the deputies, we must reverse the convictions on counts 2 and 4 unless the People show the error was harmless beyond a reasonable doubt. The People have not done so.

Authority:

Davis v. Alaska (1974) 415 U.S. 308, 317-318

Delaware v. Van Arsdall (1986) 475 U.S. 673, 684

Ninth Holding:

A review of the Pitchess materials reveals that complaints had previously been filed against the deputies. Those materials should have been released to the defendant. The fact that the complaints were found by the internal police investigation to be unfounded is immaterial because unsustained complaints are discoverable. This is because “the burden for preparing a criminal defendant’s case rests with his counsel, not with the police department. That burden cannot be properly discharged unless counsel has direct access to potential witnesses, for it is counsel who must decide if they can aid his client, not the police department’s internal affairs division, however sincere and well motivated the latter may be.

Authority:

Pitchess v. Superior Court (1974) 11 Cal.3d 531

People v. Gaines (2009) 46 Cal.4th 172, 182

People v. Zamora (1980) 28 Cal.3d 88, 93 fn. 1, 101

Kelvin L. v. Superior Court (1976) 62 Cal.App.3d 823, 829

Elements of crime, Sentencing, Standard of review

Case 000461

Posted on by Gary McCurdy

Error and/or relief

We direct the trial court to modify the judgment to correct a sentencing error on the defendant’s sentence for attempted kidnapping.

First Holding:

We review unauthorized sentences de novo. A computational error that leads to an unauthorized sentence can be corrected at any time.

Authority:

People v. Tua (2018) 18 Cal.App.5th 1136, 1140

People v. Turrin (2009) 176 Cal.App.4th 1200, 1205

Second Holding:

Kidnapping is punishable by three, five, or eight years in state prison. The sentence for an attempted offense is one-half of the sentence for the completed offense. Thus, attempted kidnapping would be punishable by 18 months, 30 months, or four years. However, any subordinate counts to be served consecutively are only given one-third of the middle term. Here, the trial court used count 2 (assault with a deadly weapon) as the principal count for the determinate term.

This made count 3, the attempted kidnapping, a subordinate term. Since the court imposed a consecutive sentence for this count, the court was only authorized to impose one-third of the middle term, which is 10 months. However, the court stated one-third the middle term was two years and six months. The court clearly intended to pronounce the correct sentence but miscalculated or misspoke as to the actual length of the term. The abstract of judgment reflects the incorrect calculation and should be amended to reflect 10 months for count 3.

Authority:

PEN 208

PEN 664

PEN 1170.1(a)

People v. Felix (2000) 22 Cal.4th 651, 655

People v. Wilson (2013) 219 Cal.App.4th 500, 518 [reviewing court has authority to correct unauthorized sentence]

Third Holding:

As to his convictions and punishment for murder and robbery, section 654 prohibits punishment for both murder and the target offense when the prosecution relies only on a theory of first degree felony murder. However, if the prosecution offers an alternate theory such as premeditation, and there is evidence to support the alternate theory, then the court may properly impose separate sentences for the murder and the underlying felony.

Authority:

People v. Carter (2019) 34 Cal.App.5th 831, 841

Fourth Holding:

We use the substantial-evidence standard to assess the trial court’s factual findings, implicit or explicit, of whether there was a course of conduct with a single criminal objective. We review the trial court’s legal conclusions de novo. We look at the entire record in the light most favorable to the verdict.

Authority:

People v. Moseley (2008) 164 Cal.App.4th 1598, 1603

People v. Perry (2007) 154 Cal.App.4th 1521, 1524

Fifth Holding:

Section 654(a) prohibits multiple punishments for actions that fall within the same course of conduct in which the perpetrator had a single intent and objective. A defendant may be punished only once if all the crimes were merely incidental to or were the means of accomplishing a single objective. If a defendant had multiple, independent criminal objectives, he or she may be punished for each crime, even if the crimes had common acts or were parts of an otherwise indivisible course of conduct. The applicability of section 654 turns on whether the defendant had multiple criminal objectives, not whether an act occurred during the commission of a crime.

Authority:

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

People v. Perry (2007) 154 Cal.App.4th 1521, 1525

People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1007

Sixth Holding:

We review instructional error de novo. We view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction impermissibly. We assume jurors are intelligent and capable of understanding and correlating instructions.

Authority:

People v. Ocegueda (2023) 92 Cal.App.5th 548, 557

Elements of crime, Sentencing, Standard of review

Case 000458

Posted on by Gary McCurdy

Error and/or relief

The evidence showed the defendant possessed the firearm on each of the dates alleged in the information, but there was no evidence his possession of the firearm was anything but continuous over this period of time. One of the two counts must be stayed.

First Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct. Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense.

Authority:

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

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

Second Holding:

A trial court’s express or implied determination that two crimes were separate, involving separate objectives, must be upheld on appeal if supported by substantial evidence. The trial court has broad latitude in determining whether section 654(a) applies in a given case. 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 court could reasonably deduce from the record.

Authority:

People v. Brents (2012) 53 Cal.4th 599, 618

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

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

Third Holding:

Though the trial court did not provide specific reasoning for its decision not to stay the sentence for felon in possession of a firearm, we review the record to determine whether there exists substantial evidence in support of the court’s finding of multiple criminal intents.

Authority:

People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312–1313

Fourth Holding:

We conclude the sentence for one of the counts for being a felon in possession of a firearm should be stayed pursuant to section 654. That is, we find no substantial evidence to support a conclusion defendant harbored multiple criminal intents in possessing the firearm on the two charged dates. To the contrary, the evidence only supported a conclusion that the gun possessed on July 11 was the same gun used in the charged shooting on July 7. However, there was no evidence defendant’s firearm possession was anything but continuous and pursuant to a single criminal objective. The prosecution did not present evidence, for example, showing defendant relinquished possession of the gun for a period between the specified dates.

Authority:

People v. Spirlin (2000) 81 Cal.App.4th 119, 129–131 [Where no evidence was presented that the defendant did not maintain constructive possession of the gun the entire time, it could be inferred he had continuous constructive possession of the gun with a singular intent to possess the weapon as a felon, and thus was a single act with a single objective]

People v. Mason (2014) 232 Cal.App.4th 355, 366

Fifth Holding:

One of the sentences on the two counts should be stayed pursuant to section 654. Remand is necessary for the trial court to exercise its discretion in modifying defendant’s sentence.

Authority:

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