Tag Archives: Standard of review

Equal protection, Juveniles, Sentencing, Standard of review

Case: 000404

Posted on by Gary McCurdy

Error and/or relief

For criminal conduct committed when he was 17, the imposition of a sentence of a determinate term of nine years plus and indeterminate term of more than 150 years to life was the functional equivalent of a sentence of life without the possibility of parole (LWOP), and as a matter of equal protection, the defendant must be considered eligible to petition for recall and resentencing under section 1170(d)(1).

First Holding:

Statutory interpretation and the application of undisputed facts to a statute are questions of law we review de novo.

Authority:

People v. Salcido (2008) 166 Cal.App.4th 1303, 1311

Second Holding:

A juvenile defendant who was sentenced to imprisonment for life without the possibility of parole is eligible to seek resentencing under section 1170(d). Although the defendant’s sentence does not fall within the statute’s plain language, the constitutional right of equal protection extends section 1170(d) eligibility to juvenile offenders who were sentenced to the functional equivalent of LWOP.

Authority:

PEN 1170(d)(1)(A)

People v. Heard (2022) 83 Cal.App.5th 608, 633–634

Third Holding:

The defendant’s sentence exceeds the sentence in Heard, and the People concede it unquestionably exceeds the juvenile offender’s natural lifespan.

Authority:

People v. Sorto (2024) 104 Cal.App.5th 435, 440, 450–451 [10 years plus 130 years to life constituted functional equivalent of LWOP]

People v. Caballero (2012) 55 Cal.4th 262, 265, 267–268 [40 years plus 70 years to life]

Fourth Holding:

The defendant’s youth offender parole eligibility under section 3051 does not affect his eligibility to seek section 1170(d) resentencing because section 3051 relief became available only after his sentence was imposed. As relevant here, under section 3051, a youth offender sentenced to a life term of 25 years to life or more is eligible for parole after 25 years of incarceration. (PC 3051(b)(3).) Because section 1170(d)(1) refers to what the defendant was sentenced to, what matters is the defendant’s original sentence. We acknowledge that other courts have parted ways with Heard, but we do not.

Authority:

People v. Heard (2022) 83 Cal.App.5th 608, 629

Juveniles, Sentencing, Sixth Amendment

Case: 000402

Posted on by Gary McCurdy

Error and/or relief

The trial court violated section 1170 and the defendant’s right to a jury trial by relying on aggravating factors that were not proven to a jury beyond a reasonable doubt or stipulated to under to section 1170(b). And the court must conduct a Franklin hearing.

First Holding:

On January 1, 2022, SB 567 went into effect, amending section 1170. Section 1170 now authorizes a trial court to impose a sentence exceeding 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. However, 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.

Authority:

PEN 1170(b)(3)

Second Holding:

While not directly addressing section 1170, the United States Supreme Court held that, under the Fifth and Sixth Amendments, virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt or freely admitted in a guilty plea. An exception to this allows a trial court to find only the fact of a prior conviction. Under that exception, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 834, 838

Third Holding:

In accordance with Erlinger, Wiley held that a defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. The court also addressed two specific aggravating factors specified in the Rules of Court–the increasing seriousness of a defendant’s prior convictions and a defendant’s unsatisfactory performance on probation or parole, and held that each must be found true by a jury before it can be used to justify an upper term sentence.

Authority:

Rules of Court rules 4.421(b)(2) and (b)(5)

People v. Wiley (2025) 17 Cal.5th 1069, 1082-108

Fourth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

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

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

Fifth Holding:

In selecting the upper term on count 5, the trial court relied on the defendant’s extensive serious record. While the court did not refer to any specific aggravating factor, it appears the court relied on, at the very least, the increasing seriousness of his prior convictions or sustained juvenile petitions. However, a jury determination is required before a court can rely on this aggravating factor to justify an upper term sentence. Here, there was no jury trial, stipulation, or jury trial waiver on this factor in aggravation. Accordingly, the court’s reliance on this factor to impose an upper term sentence was error.

Authority:

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

Sixth Holding:

The determination of whether these prior convictions are of increasing seriousness is a comparative and qualitative one, which makes it difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. A rational juror may not have been persuaded beyond a reasonable doubt. As we cannot conclude beyond a reasonable doubt that a jury would have found this aggravating factor true, the error was not harmless. As the trial court erred and the error was not harmless, we will vacate the sentence and remand the case for a full resentencing.

Authority:

People v. Wiley [(2025)] 17 Cal.5th 1069, 1087, 1090

People v. Buycks (2018) 5 Cal.5th 857, 893

Seventh Holding:

The trial court also misunderstand its responsibility to conduct a Franklin hearing itself, believing that it was a parole matter to be handled by the Parole Board. A Franklin proceeding gives an opportunity for the parties to make an accurate record of the juvenile offender’s characteristics and circumstances at the time of the offense so that the Parole] Board, years later, may properly discharge its obligation to give great weight to youth-related factors in determining whether the offender is fit to rejoin society. On remand, the court must conduct a Franklin hearing.

Authority:

In re Cook (2019) 7 Cal.5th 439, 449

People v. Franklin (2016) 63 Cal.4th 261

Immigration, Standard of review

Case: 000398

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his motion under Penal Code section 1473.7 to vacate his 1991 drug conviction. We conclude the trial court improperly denied his motion as successive. We will reverse and remand with instructions.

First Holding:

Section 1473.7(a)(1) authorizes a person no longer in criminal custody to file a motion to vacate a conviction or sentence that is legally invalid due to prejudicial error damaging person’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. A successful section 1473.7 motion requires a showing, by a preponderance of the evidence, of a prejudicial error that affected the defendant’s ability to meaningfully understand the actual or potential immigration consequences of a plea. Prejudicial error means demonstrating a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 517

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

Second Holding:

We apply independent review to evaluate whether a defendant has demonstrated a reasonable probability that he would have rejected the plea offer had he understood its immigration consequences. Under that standard, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. When the trial court’s findings derive entirely from written declarations and other documents, the trial court and the reviewing court are in the same position, and no deference is owed.

Authority:

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

Third Holding:

Given intervening amendments to section 1473.7 between the defendant’s first and second motions, we agree with the parties that the section motion was not successive of his first. Effective January 1, 2019, Assembly Bill No. 2867 (2017-2018 Reg. Sess.) made it easier to retroactively challenge convictions based on an inadequate immigration advisement. Significantly, the new law eliminated the need to meet the requirements of Strickland v. Washington (1984) 466 U.S. 668 (on ineffective assistance of counsel). Section 1473.7 states that a finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel. Because the new law provides a different standard for challenging and prevailing based on immigration advisement errors, the earlier motion did not bar appellant’s later motion.

Authority:

People v. Ruiz (2020) 49 Cal.App.5th 1061, 1066

Fourth Holding:

Although the trial court erred in denying appellant’s motion as successive, mere judicial error does not establish bias and normally is not a proper ground for disqualification. We find nothing in the record that demonstrates actual bias or the appearance of bias. Thus, we deny the request to appoint a different judicial officer on remand.

Authority:

In re Tuilaepa (2025) 108 Cal.App.5th 1262, 1283

People v. LaBlanc (2015) 238 Cal.App.4th 1059, 108

Amelioration, Appellate Principles, Elements of crime, Sentencing, Standard of review

Case: 000396

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s petition for recall under section 1172.6 because it applied an incorrect definition of reckless indifference to human life.

First Holding:

The trial court erred in defining reckless indifference as meaning there is a foreseeable risk of death. Reckless indifference requires there be a grave or significant risk of death.

Authority:

In re Scoggins (2020) 9 Cal.5th 667, 677

Second Holding:

In criminal cases an appellate court may take into consideration the judge’s statements as a whole when they disclose an incorrect rather than a correct concept of the relevant law, embodied not merely in secondary remarks but in the court’s basic ruling. In the instant case, the trial court’s understanding of the law is set forth in the trial court’s ruling, as opposed to stray remarks. Accordingly, we will review the trial court’s presentation and application of the law of reckless indifference. Because this is a purely legal issue, we will utilize the independent standard of review.

Authority:

People v. Tessman (2014) 223 Cal.App.4th 1293, 1303

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

Third Holding:

Reckless indifference means knowingly engaging in criminal activities known to carry a grave risk of death. The degree of risk to human life is crucial to the analysis. There must be a significant risk of death. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient. Only knowingly creating a grave risk of death satisfies the statutory requirement. Participation in a garden-variety armed robbery, i.e., one in which the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 883, 884

In re Scoggins (2020) 9 Cal.5th 667, 677

Fourth Holding:

In its ruling, the trial court asserted that recklessness is also determined by an objective standard, namely what a law-abiding person would observe in the actor’s situation. The trial court’s presentation of the law of recklessness failed to include the requirement that there be a significant risk of death, which is a crucial part of the reckless indifference analysis. By omitting a critical part of the law, one can infer that the trial court did not have a full understanding of the meaning of reckless indifference.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

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

Case: 000393

Posted on by Gary McCurdy

Error and/or relief

The evidence presented at trial was insufficient to support a finding that the open beer can in this case was a deadly weapon. The conviction for assault with a deadly weapon is reversed.

First Holding:

We review a claim of insufficient evidence under the substantial evidence standard of review. The test is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. Substantial evidence is evidence that is reasonable, credible and of solid value. We presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. It must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict.

Authority:

In re Ryan N. (2001) 92 Cal.App.4th 1359, 1372

People v. Kraft (2000) 23 Cal.4th 978, 1053

In re I.C. (2018) 4 Cal.5th 869, 892

People v. Manibusan (2013) 58 Cal.4th 40, 87

People v. Conners (2008) 168 Cal.App.4th 443, 453

Second Holding:

Objects may be deadly weapons as a matter of law, such as dirks and blackjacks, because the ordinary use for which they are designed establishes their character as such. On the other hand, pocket knives, canes, hammers and hatchets are not deemed deadly weapons per se.

Authority:

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

People v. Graham (1969) 71 Cal.2d 303, 327, disapproved on other grounds by People v. Ray (1970) 14 Cal.3d 20

Third Holding:

Objects may be determined to be deadly weapons when used in a manner capable of producing and likely to produce great bodily injury. “Likely” means a high probability of occurring with a great probability of serious injury. Rolls of coins, batteries, and bicycle footrests have been determined to be deadly weapons when used in a manner capable of producing and likely to produce great bodily injury. No injury or even physical contact is required to support a conviction of assault with a deadly weapon because the focus is on the use of the weapon in a manner likely to produce great bodily injury.

Authority:

In re B.M. (2018) 6 Cal.5th 528, 533 [the manner of use must by capable of and likely to produce death or great bodily injury – two different concepts]

In re David V. (2010) 48 Cal.4th 23, 30 and fn. 5

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

Fourth Holding:

The use of an object in a manner likely to produce death or great bodily injury requires more than a mere possibility that serious injury could have resulted from the way the object was used. Conjecture as to how the object could have been used is not permitted in the analysis. Rather, the determination of whether an object is a deadly weapon under section 245(a)(1) must rest on evidence of how the defendant actually used the object.

Authority:

In re B.M. (2018) 6 Cal.5th 528, 534

Fifth Holding:

If injury does occur, such injuries and their location are relevant in determining whether the object was used in a manner likely to produce great bodily injury. Great bodily injury means significant or substantial injury. Insignificant, trivial or moderate injury is not significant or substantial. Our inquiry is limited to whether substantial evidence supports the jury’s finding that the defendant used the open beer can as a deadly weapon, that is, in a manner capable of producing and likely to produce great bodily injury.

On this record, the defendant’s use of the beer can, tossed from six feet away in a slight overhand manner or with a slinging or flicking motion was not likely to cause serious bodily injury or death. The victim did not sustain great bodily injury, significant or substantial injury, or even anything greater than minor or moderate harm. There was little or no objective description of the can or its weight, and it was not introduced into evidence. There was no evidence of sharp or jagged edges on the can, other data points that would have been relevant to determining the likelihood of producing great bodily injury.

Without more details, it is speculation that the open beer can, used as it was, was capable of producing and likely to produce great bodily injury. Perhaps the beer can, if wielded differently, may have been likely to cause great bodily injury, but our inquiry is limited to how the beer can was actually used.

Authority:

In re Brandon T. (2011) 191 Cal.App.4th 1491, 1497

People v. Brown (2012) 210 Cal.App.4th 1, 7

People v. Quinonez (2020) 46 Cal.App.5th 457, 464

In re Manuel G. (1997) 16 Cal.4th 805, 822–825

People v. Hahn (1956) 147 Cal.App.2d 308, 309–310 [assault with a deadly weapon occurred when robbery victim driving a car was struck on the head four times with a beer can by passenger sitting behind him]

People v. Beasley (2003) 105 Cal.App.4th 1078, 1087, 1088 [bruises on arms and shoulders, without further injury, not great bodily injury]

In re Brandon T. (2011) 191 Cal.App.4th 1491, 1497 [small scratch on cheek not great bodily injury]

In re D.T. (2015) 237 Cal.App.4th 693, 696–697 [sharp pocketknife poked into the victim’s back likely to produce great bodily injury]

People v. Page (2004) 123 Cal.App.4th 1466, 1469, 1474 [sharp pencil held to the victim’s neck likely to produce great bodily injury]

People v. Duke (1985) 174 Cal.App.3d 296, 303

Discretion, Duty of the court, Standard of review

Case: 000392

Posted on by Gary McCurdy

Error and/or relief

The trial court applied an incorrect legal standard in ruling on the defendant’s petition seeking mental health diversion. We thus conditionally vacate defendant’s no contest plea, conditionally reverse the judgment, and remand the matter for further proceedings consistent with section 1001.36.

First 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. 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 the law and followed it. But where a court’s ruling clearly expresses the legal and factual basis for its resolution of controverted issues, an appellate court will not imply findings the trial court did not make.

Authority:

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

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

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

Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384

Second Holding:

Section 1001.36(b)(1)(2) provides that a defendant is eligible for mental health diversion if (1) they present evidence that in the last five years they have been diagnosed by a qualified mental health expert with a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, and (2) their mental disorder was a significant factor in the commission of the charged offense.

Authority:

PEN 1001.36(b)

Third Holding:

If a defendant satisfies the eligibility requirements in section 1001.36(b), the court then must consider whether the defendant is suitable for diversion based on the following criteria set forth in section 1001.36(c): (1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder that caused, contributed to, or motivated the defendant’s criminal behavior would respond to mental health treatment; (2) The defendant consents to diversion and waives their right to a speedy trial; (3) The defendant agrees to comply with treatment as a condition of diversion; and (4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community.

Authority:

PEN 1001.36(c)

Fourth Holding:

A diversion order is expressly discretionary with the court, even when all of the criteria are met. However, this residual discretion must be exercised consistent with the principles and purpose of the governing law. The stated purpose of mental health diversion is to keep people with mental disorders from entering and reentering the criminal justice system while protecting public safety, to give counties discretion in developing and implementing diversion across a continuum of care settings, and to provide mental health rehabilitative services. Legislative history confirms there is a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community.

Authority:

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 135

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892

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

Fifth Holding:

The record shows that the trial court’s ruling failed to apply the correct legal standards to defendant’s diversion request. After finding defendant eligible, the court denied him diversion because he was unsuitable based on the determination that he targeted vulnerable people. This ruling rests on a legal error because the court did not apply the four statutory suitability criteria found in section 1001.36(c). Additionally, denial of mental health diversion using a court’s residual discretion should be limited to those situations where the purposes of the statute would not be achieved.

Here, the trial court relied on its observation that defendant targeted vulnerable victims but failed to tie that observation to achieving the purposes of the statute, and the strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community. By applying the wrong legal standard, the trial court abused its discretion in denying defendant’s motion for mental health diversion.

Authority:

Grossmont Union High School Dist. v. Diego Plus Education Corp. (2023) 98 Cal.App.5th 552, 584 [trial court applied an incorrect legal standard when it did not apply one of the essential components for deciding whether fees should be awarded under the applicable fee statute]

Vaughn v. Superior Court (2024) 105 Cal.App.5th 124, 138

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

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

Appellate Principles, Elements of crime, Jury trial, Pleading, Standard of review, Sufficiency of and substantial evidence

Case: 000389

Posted on by Gary McCurdy

Error and/or relief

Consolidation and cross-admission of unrelated charges was improper and prejudicial under the circumstances of this case, and we will therefore reverse the judgment for possible retrial. Due to insufficient evidence of defendant’s guilt under certain murder theories presented to the jury, we will bar the prosecution from pursuing those theories in any retrial.

First Holding:

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. We presume the existence of every fact that the trier of fact could reasonably deduce from the evidence to support the judgment. To overturn a jury’s finding, it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.

Authority:

People v. Bolin (1998) 18 Cal.4th 297, 331

People v. Medina (2009) 46 Cal.4th 913, 919

People v. Redmond (1969) 71 Cal.2d 745, 755

Second Holding:

First degree willful, deliberate, and premeditated murder must be committed with express malice—i.e., willfully. The remaining elements of premeditation and deliberation are generally established through the following types of evidence: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as planning activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a motive to kill the victim, and (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design to take his victim’s life in a particular way for a reason which the jury can reasonably infer from facts of type (1) or (2).

The evidence of premeditation and deliberation is generally sufficient when there is evidence of all three types or at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3). These factors discussed in Anderson, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.

Authority:

PEN 188(a)(1)

People v. Concha (2009) 47 Cal.4th 653, 662

People v. Anderson (1968) 70 Cal.2d 15, 26–27

People v. Perez (1992) 2 Cal.4th 1117, 1125

Third Holding:

Where, as here, offenses in separate cases meet a statutory basis for consolidation, a defendant bears the burden to make a clear showing of prejudice to establish that the trial court abused its discretion in consolidating the cases. In our review, we examine the record before the trial court when it denied defendant’s severance motion and consider: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.

Authority:

PEN 954

People v. Mendoza (2000) 24 Cal.4th 130, 160-161

Fourth Holding:

We first address the charges’ cross-admissibility, because a finding of cross-admissibility generally negates the possibility of prejudice. Evidence of other crimes can be admitted to prove the offender acted according to a certain plan, or acted with a particular motive, if a degree of similarity exists between the past and present crimes so as to permit a reasonable inference that the offender must have entertained the same intent in both instances

Authority:

People v. Merriman (2014) 60 Cal.4th 1, 38

People v. Jones (2013) 57 Cal.4th 899, 926

Fifth Holding:

There exists a hierarchy, or continuum, with respect to the degree of similarity that is needed for cross-admissibility, depending upon the purpose for which introduction of the evidence is sought. To be admissible to demonstrate a distinctive modus operandi, the evidence must disclose common marks or identifiers, that, considered singly or in combination, support a strong inference that the defendant committed the crimes. To be admissible to show intent, however, the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance. To be cross-admissible to establish motive, the offenses need not necessarily be factually similar but must share a direct logical nexus.

Authority:

Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1222

People v. Maury (2003) 30 Cal.4th 342, 392

People v. Yeoman (2003) 31 Cal.4th 93, 121

People v. Demetrulias (2006) 39 Cal.4th 1, 15

People v. Scheer (1998) 68 Cal.App.4th 1009, 1018 [the motive for the charged crime arises simply from the commission of the prior offense]

Sixth Holding:

Disputed identity is a factor to be considered in weighing the probative value of allegedly cross-admissible evidence of intent against the likelihood of undue prejudice due to its admission.

Authority:

People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2

People v. Earle (2009) 172 Cal.App.4th 372, 390–391

People v. King (2010) 183 Cal.App.4th 1281, 1301–1303

People v. Thompson (1988) 45 Cal.3d 86, 109 [to be admitted, evidence of other crimes must not contravene other policies limiting admission, such as those contained in Evidence Code section 352]

Sentencing, Sixth Amendment

Case: 000387

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in using aggravating factors that were neither found true beyond a reasonable doubt by a trier of fact nor admitted by the defendant.

First Holding:

Section 1170(b)(1) through (3) provides the court may impose the upper term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term. As amended, section 1170(b) altered the trial court’s sentencing discretion and created a presumption against the upper term, which may be overcome only if the required facts are properly proven and the trial court concludes the term is justified. Unless a defendant stipulates to the facts, or waives his or her jury trial right, that aggravating factfinding role now resides solely with the jury The trial court may also consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction. A Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 760, 768, 773

Second Holding:

A violation is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. Accordingly, a defendant is entitled to reversal and remand unless we can conclude that the omission of a jury trial was harmless beyond a reasonable doubt under Chapman as to every aggravating fact the trial court used to justify an upper term sentence. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768, 775

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

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

Due process, Duty of the court, Standard of review

Case: 000380

Posted on by Gary McCurdy

Error and/or relief

We review an order denying the defendants motion to vacate his conviction based on newly discovered evidence of factual innocence, pursuant to Penal Code section 1473.7(a)(2). We reverse the order because the defendant was entitled to a hearing in the trial court to consider his eligibility for relief under section 1473.7(d).

First Holding:

The construction and interpretation of a statute is a question of law that we consider de novo on appeal.

Authority:

People v. Fryhaat (2019) 35 Cal.App.5th 969, 975

Second Holding:

Section 1473.7 expressly provides that a person who is no longer in criminal custody may file a motion to vacate a conviction or sentence based on newly discovered evidence of actual innocence that requires vacation of the conviction or sentence as a matter of law or in the interests of justice. Persons who file a section 1473.7 motion are entitled to a hearing on the merits of the motion, per subdivision (d): “All motions shall be entitled to a hearing.” The plain language of section 1473.7 also entitles the moving party to be personally present at the hearing. However, upon the request of the moving party, the court may hold the hearing without the personal presence of the moving party provided that it finds good cause as to why the moving party cannot be present.

Authority:

PEN 1473.7

Third Holding:

As to appointment of counsel on the defendant’s behalf, the trial court was required to determine whether his petition stated a prima facie case for relief. If a prima facie case has been made, appointment of counsel is demanded by due process concerns. Here, the trial court summarily denied the petition without addressing entitlement to counsel and whether the defendant had presented a prima facie case for relief. The court reviewed only a handwritten one-page motion that it determined fails to cite to a basis for the relief without reviewing the entirety of the defendant’s 42-page motion.

Authority:

People v. Fryhaat (2019) 35 Cal.App.5th 969, 981, 983

Amelioration, Elements of crime, Sentencing, Standard of review, Vicarious liability

Case: 000374

Posted on by Gary McCurdy

Error and/or relief

The defendant was not the actual killer in the 1995 crime, but the trial court denied his 1172.6 petition based on finding that he was a substantial participant in the underlying felony and thus could be convicted of felony murder even under current law. We do not find substantial evidence to support a finding that the defendant subjectively appreciated (knew) that his actions would likely result in the victim’s death death (i.e., reckless indifference to human life). Thus, we reverse the order of the trial court denying the defendant’s section 1172.6 petition. On remand, the trial court is directed to grant the petition, vacate the murder conviction, and resentence the defendant.

First Holding:

A person who did not kill or act with the intent to kill cannot be liable under a first degree felony-murder theory unless there is substantial evidence that the person was a major participant in the underlying felony and that they subjectively appreciated that their acts were likely to result in the taking of innocent life.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 893

Second Holding:

We accept the trial court’s findings to the extent they are supported by substantial evidence. Substantial evidence means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.

Authority:

People v. Breslin (2012) 205 Cal.App.4th 1409, 1415–1416

People v. Lehman (2016) 247 Cal.App.4th 795, 804

 

Third Holding:

Except for strict liability offenses, every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea. As to murder, the actus reus is the perpetrator’s act causing death, and the mens rea is malice aforethought. Effective January 1, 2019, the Legislature passed SB 1437, which amended sections 188 and 189. The legislation effectively eliminated the natural and probable consequences doctrine as it relates to murder, and narrowed the scope of the felony-murder rule. The legislation also created a procedure by which a defendant previously convicted of murder under either of those former theories could file a petition for resentencing.

The Legislature’s current version of the felony-murder rule now provides that a participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer; (2) the person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Authority:

PEN 189

PEN 1172.6.

People v. McCoy (2001) 25 Cal.4th 1111, 1117

Fourth Holding:

For felony-murder, the required act is being a major participant in the underlying felony, and the required mental state is a reckless indifference to human life.

Authority:

PEN 189

Fifth Holding:

Ordinarily, the United States Supreme Court has held that the prohibition against cruel and unusual punishments requires a defendant to have either an express or implied intent to kill in order for the death penalty to apply. But as an exception, the Court held that major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.

Authority:

Enmund v. Florida (1982) 458 U.S. 782, 797 [wheelman who did not participate in killing during armed robbery could not receive the death penalty]

Tison v. Arizona (1987) 481 U.S. 137, 158

Sixth Holding:

In Banks, the California Supreme Court later identified a nonexclusive list of factors that are relevant in deciding whether a person was a major participant under the felony-murder special circumstance. The major participant factors identified in Banks are these: What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?

No one of these considerations is necessary, nor is any one of them necessarily sufficient. All may be weighed in determining the ultimate question, whether the defendant’s participation in criminal activities known to carry a grave risk of death was sufficiently significant to be considered major.

Authority:

People v. Banks (2015) 61 Cal.4th 788, 803

Seventh Holding:

In Clark, the Court identified a nonexclusive list of factors that are relevant in deciding whether a person acted with reckless indifference to human life: the defendant’s knowledge, and the use and number of weapons; the defendant’s proximity to the crime and opportunity to stop the killing or aid the victim; the duration of the conduct, that is, whether a murder came at the end of a prolonged period of restraint of the victims by defendant; the defendant’s awareness his or her confederate was likely to kill; and the defendant’s efforts to minimize the possibility of violence during the crime.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618-623

Eighth Holding:

Reckless indifference encompasses both subjective and objective elements. As to the subjective element, the defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, and he or she must consciously disregard the significant risk of death his or her actions create. As to the objective element,the risk of death must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him or her, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

Ninth Holding:

The degree of risk to human life is crucial to the analysis. The possibility of bloodshed is inherent in the commission of any violent felony, such that one who perpetrates or attempts to perpetrate such a crime may well anticipate the use of lethal force as a possibility. Were that degree of culpability sufficient, however, it would amount to little more than a restatement of the former felony-murder rule that the Legislature retired. Awareness of no more than the foreseeable risk of death inherent in any violent felony is insufficient to establish reckless indifference to human life; only knowingly creating a grave risk of death satisfies the statutory requirement.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

Tenth Holding:

Participation in a “garden-variety armed robbery,” i.e., one in which the only factor supporting a reckless indifference finding is that a participant was armed with a gun, is insufficient without more to establish reckless indifference. Although any person who plans or participates in an armed robbery can be said to anticipate that lethal force might be used, only about 1 in 200 armed robberies result in death.

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 884

Eleventh Holding:

Courts must conduct a fact-intensive, individualized inquiry into where a defendant’s conduct falls on the spectrum of culpability between Enmund (the wheelman who merely participated in the underlying felony) and Tison (the defendants who armed escaped convicts and whose actions over a prolonged period demonstrated that they knew that the escapees were likely to kill).

Authority:

People v. Emanuel (2025) 17 Cal.5th 867, 882-883

Abstracts and Minutes, Sentencing, Sixth Amendment

Case: 000373

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it imposed the upper term based on aggravating facts that did not conform with the jury trial requirements under section 1170(b).

First Holding:

The Sixth Amendment provides that those accused of a crime have the right to a trial by an impartial jury. This right, in conjunction with the due process clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Authority:

Apprendi v. New Jersey (2000) 530 U.S. 466, 476

People v. Lynch (2024) 16 Cal.5th 730, 742

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

Second Holding:

In 2022, section 1170(b) was amended to prohibit imposition of an upper term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, 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. Section 1170(b)(3) states 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.

Authority:

PEN 1170

People v. Lynch (2024) 16 Cal.5th 730, 742

Third Holding:

In considering a prior conviction, a judge may do no more than determine what crime, with what elements, the defendant was convicted of. Any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term.

Absent an admission or a jury trial waiver, a trial court cannot determine whether a defendant’s prior convictions were of increasing seriousness or that his probation or parole performance was poor. The defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1083-1086

Erlinger v. United States (2024) 602 U.S. 82

Fourth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. A sentence imposed under section 1170(b)] must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

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

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

Fifth Holding:

Although the minute order indicates defendant entered into a valid waiver to a jury trial, the reporter’s transcript does not reflect that the trial court advised defendant of his right to a jury trial and did not obtain a valid and informed waiver of that right. The People concede the court erred by not obtaining defendant’s waiver to a jury trial or stipulation to the aggravating facts. We agree that the court erred when it found both aggravating facts true without obtaining defendant’s stipulation or waiver of his right to a jury trial.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 169 [defendant’s waiver of the right to jury trial must be expressed in words and will not be implied from a defendant’s conduct]

People v. Washington (1949) 95 Cal.App.2d 454, 458–459 [a defendant’s waiver of the right to jury trial must be personally expressed in open court; an entry in the clerk’s minutes is not enough]

Discretion, Standard of review

Case: 000371

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly denied the defendant’s request for pretrial mental health diversion under Penal Code section 1001.36 by applying the wrong standard in determining that he did not satisfy the statute’s public safety requirement. Accordingly, we conditionally reverse the judgment and remand to the trial court.

First Holding:

A trial court may grant a defendant pretrial mental health diversion if the defendant has a qualifying mental health disorder. The court has discretion to grant pretrial diversion if the defendant satisfies the eligibility requirements for pretrial diversion set forth in the statute and the court finds that the defendant is suitable for that diversion under the factors set forth in the statute. A defendant is eligible for pretrial diversion if (1) the defendant has been diagnosed with a qualifying mental disorder; and (2) the defendant’s mental disorder was a significant factor in the commission of the charged offense.

Authority:

PEN 1001.36

People v. Frahs (2020) 9 Cal.5th 618, 626–627

Second Holding:

For any defendant who satisfies the eligibility requirements, the court must then find the defendant is suitable for pretrial diversion if all the following criteria are met: (1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment; (2) The defendant consents to diversion and waives the defendant’s right to a speedy trial; (3) The defendant agrees to comply with treatment as a condition of diversion; (4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community.

Authority:

PEN 1001.36(c)

Third Holding:

Section 1170.18, in turn, defines “unreasonable risk of danger to public safety” as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). Thus, a trial court must determine whether the defendant is likely to commit an offense known colloquially as a “super strike.” Qualifying super strikes include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment.

Authority:

PEN 1170.18(c)

PEN 667(e)(2)(C)(iv)

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149, 1150-1151

People v. Bunas (2022) 79 Cal.App.5th 840, 851, fn. 11

Fourth Holding:

Mental health diversion is discretionary, not mandatory, even if all the requirements are met. But this residual discretion must be exercised consistently with the principles and purpose of the law, which includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community.

Authority:

PEN 1001.36(a)

PEN 1001.35

People v. Gerson (2022) 80 Cal.App.5th 1067, 1080

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892–893

Fifth Holding:

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

Authority:

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

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

Sixth Holding:

The trial court’s comments, coupled with the fact the court did not expressly find a likelihood that the defendant would commit a super strike, suggest the court was expanding the meaning of “public safety” in section 1001.36 beyond the likelihood that the defendant will commit a limited subset of violent felonies. This was improper.

Authority:

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

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896–897 [trial courts cannot create an alternative meaning of ‘public safety’ inconsistent with sec. 1001.36(c)(4)]

Seventh Holding:

We do not find the Watson standard of prejudice applicable here. Under the Watson test, an error is harmless unless it is reasonably probable the outcome would have been different in the absence of the error. The Watson standard is appropriate in circumstances where the trial court understood the nature of its discretion but, for example, relied on an improper factor in exercising that discretion or failed to state its reasoning. It does not apply where the court was unaware of the extent of its lawful authority in a particular context, because determining what choice the trial court is likely to make in the first instance is far more speculative.

Because the record suggests the trial court did not understand that its discretion in deciding the defendant’s motion was constrained by section 1001.36’s narrow definition of public safety, we cannot be confident that the court was aware of the scope of its discretion under section 1001.36. Defendants are entitled to decisions made in the exercise of the informed discretion” of the court. A court that is unaware of the scope of its discretionary powers cannot exercise that informed discretion. The appropriate remedy in such circumstances is to remand 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. The Watson standard is thus inapplicable.

Authority:

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

People v. McDaniels (2018) 22 Cal.App.5th 420, 426

In re F.M. (2023) 14 Cal.5th 701, 716

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

People v. Doron (2023) 95 Cal.App.5th 1, 9–10 [concluding remand was required under Gutierrez where trial court did not apply correct standard in denying defendant’s motion for mental health diversion]

People v. Lynch (2024) 16 Cal.5th 730, 774 [Gutierrez standard applied where trial court was unaware that its discretion to select a prison sentence was constrained by a presumption against the upper term]