Tag Archives: Standard of review

Elements of crime, Fifth Amendment, Standard of review

Case 000663

Posted on by Gary McCurdy

Error and/or relief

Substantial evidence does not support the defendant’s conviction for exhibiting harmful matter to a minor.

First Holding:

The law governing sufficiency-of-the-evidence challenges is well established. In reviewing a claim for 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. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt.

We neither reweigh the evidence nor reevaluate the credibility of witnesses. We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict.

Authority:

People v. Jennings (2010) 50 Cal.4th 616, 638-639

People v. Zamudio (2008) 43 Cal.4th 327, 357

Second Holding:

Under section 288.2(c), “harmful matter” is defined in section 313. Section 313(a) states that harmful matter means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

This definition is virtually identical to the constitutional standard of obscenity set forth in Miller. We conclude the record does not contain evidence from which a jury could reasonably find the video the defendant showed them minor was harmful matter within the meaning of section 288.2(a)(2) and section 313. Therefore, substantial evidence does not support the defendant’s conviction, and we will reverse the judgment and remand for resentencing.

Authority:

Miller v. California (1973) 413 U.S. 15, 24

People v. Dyke (2009) 172 Cal.App.4th 1377, 1383

Third Holding:

Nudity or depictions of sexual intercourse or other sexual activity do not, by themselves, make a movie obscene.

Authority:

People v. Powell (2011) 194 Cal.App.4th 1268, 1291

Fourth Holding:

The defendant may not be retried on this count.

Authority:

United States v. DiFrancesco (1980) 449 U.S. 117, 131

Discretion, Standard of review

Case 000661

Posted on by Gary McCurdy

Error and/or relief

The trial court applied an improper legal standard when determining whether the defendant was eligible for mental health diversion, made findings regarding his eligibility that were not supported by the evidence, and failed to provide a basis for the exercise of its residual discretion to deny his motion. We accordingly conditionally reverse the judgment and remand for further proceedings on the defendant’s motion for mental health diversion.

First Holding:

Section 1001.36 states that a trial court may, in its discretion, and after considering the positions of the defense and prosecution, grant pretrial diversion to a defendant pursuant to this section if the defendant satisfies the eligibility requirements for pretrial diversion set forth in subdivision (b) and the court determines that the defendant is suitable for that diversion under the factors set forth in subdivision (c).

Authority:

PEN 1001.36(a)

Second Holding:

The statute identifies two eligibility requirements: (1) in the last five years the defendant has been diagnosed with or treated for “a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder and pedophilia” (§ 1001.36, subd. (b)(1)); and (2) the defendant’s mental disorder was a significant factor in the commission of the charged offense.

Authority:

PEN 1001.36(b)(2)

Third Holding:

The statute identifies four suitability criteria: (1) a qualified mental health expert has opined that 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 (if mentally competent) consents to diversion and waives the right to a speedy trial; (3) the defendant (if mentally competent) 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:

If the defendant is both eligible and suitable, the trial court must also be satisfied that the recommended inpatient or outpatient program of mental health treatment will meet the specialized mental health treatment needs of the defendant. This is not an additional eligibility or suitability requirement the defendant must meet. Rather, section 1001.36f)(1) read as a whole appears to contemplate an ongoing assessment to assure that defendants will receive appropriate treatment for their particular conditions as part of the diversion program.

Authority:

PEN 1001.36(f)(1)(A)(i)

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

Fifth Holding:

Even where defendants make a prima facie showing that they meet all the express statutory requirements, the court may still exercise its discretion to deny diversion. But this residual discretion must be exercised consistent with the principles and purpose of the governing law.

That purpose 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. Where the court chooses to exercise this residual discretion to deny diversion, its statement of reasons should reflect consideration of the underlying purposes of the statute and explain why diversion would not meet those goals.

Authority:

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

Sixth Holding:

We review a trial court’s ruling on 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. Graham (2024) 102 Cal.App.5th 787, 795

Seventh Holding:

If the defendant has been diagnosed with a mental disorder, the court shall find that the defendant’s mental disorder was a significant factor in the commission of the offense unless there is clear and convincing evidence that it was not a motivating factor, causal factor, or contributing factor to the defendant’s involvement in the alleged offense.

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. The issue before us is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the defendant’s mental disorder was not a motivating factor, causal factor, or contributing factor to his involvement in the alleged offense.

Authority:

PEN 1001.36(b)

Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011

Lacour v. Superior Court (2025) 110 Cal.App.5th 391, 402

Eighth Holding:

Reviewing courts have consistently made clear that the legislation’s aim is for diversion to apply as broadly as possible so as to increase the provision of mental health treatment for the betterment of individuals and society as a whole. “A trial court’s denial of mental health diversion using its residual discretion should be limited to those situations where the purposes of the statute would not be achieved.”

Authority:

People v. Cabalar (2025) 117 Cal.App.5th 41, 58

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

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing, Standard of review

Case 000658

Posted on by Gary McCurdy

Error and/or relief

It was an improper delegation of authority to impose a condition of probation that left it up to the probation officer to decide whether treatment should be residential or outpatient. There was also error regarding imposition of fees.

First Holding:

Though the defendant did not object to the condition at the time, the issue is not forfeited on appeal. His claim is cognizable because it is a facial constitutional challenge presenting a pure question of law that does not depend on the underlying factual record. We thus address defendant’s constitutional challenge on the merits, which we review de novo.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 901 [a facial constitutional challenge may be considered for the first time on appeal because it does not depend on the underlying factual record]

In re Sheena K. (2007) 40 Cal.4th 875, 884–886

Second Holding:

Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.

A court may dictate the basic policy of a condition of probation, leaving specification of details to the probation officer, but the court’s order cannot be entirely open-ended. It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation. By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer.

Authority:

Cal. Const., art. III, sec. 3

People v. Smith (2022) 79 Cal.App.5th 897, 902

In Victor L. (2010) 182 Cal.App.4th 902, 919

Third Holding:

A condition requiring the defendant to enter a residential drug treatment program but authorizing probation to select which residential program may be upheld. We remand for the trial court to either strike the condition, or modify it to specify the type of treatment program in which defendant is directed to participate, including whether it requires defendant to undergo residential treatment. The court’s decision may be informed by the results of any assessment and additional information provided by the parties.

Authority:

People v. Penoli (1996) 46 Cal.App.4th 298, 307–308

People v. Smith (2022) 79 Cal.App.5th 897, 903, 905,

People v. O’Neil (2008) 165 Cal.App.4th 13

Fourth Holding:

Appellants implicitly concede a respondent’s argument by failing to respond in their reply brief to the respondent’s argument on that point. A court may assume respondent’s claim was correct if the defendant did not dispute respondent’s claim in his reply.

Authority:

Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89–90

Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 519 and fn. 4

Fifth Holding:

An order of probation, like an abstract of judgment, must specify the statutory basis of each fine or fee imposed.

Authority:

People v. Eddards (2008) 162 Cal.App.4th 712, 716

Sixth Holding:

In general costs of prosecuting and rehabilitating criminals are not recoverable absent express statutory authority to the contrary. The Legislature repealed section 1203.1b (which authorized to court to impose an order for the cost of probation services, depending on ability to pay, and it could not be a condition of probation) and enacted section 1465.9, which states in relevant part, that on after July 1, 2021, the balance of any court-imposed costs pursuant to section 1203.1b [among numerous other statutes] shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

PEN 1465.9

People v. Baker (1974) 39 Cal.App.3d 550, 559–560

Seventh Holding:

The abstract of judgment contains an error. It states that the jury found true the enhancement for great bodily injury under section 12022.7. This conflicts with the actual oral statement of the judge (who conducted a court trial on the enhancement), in which the judge stated “I am not going to find true the allegation of great bodily injury.”

Where, as here, discrepancies exist between the court’s oral pronouncement of judgment and the minute order, the oral pronouncement controls. The trial court should thus modify the probation order to conform to its oral pronouncement.

Authority:

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

Appellate Principles, Discretion, Due process, Elements of crime, Pleading, Sentencing, Standard of review

Case 000654

Posted on by Gary McCurdy

Error and/or relief

The court imposed the wrong sentence for the consecutive term.

First Holding:

In one count, the defendant was convicted of second degree robbery (sec. 211). At sentencing, the trial court imposed an aggravated term of five years, which was ordered to be served consecutively at a subordinate term of one year four months. Because the robbery was a second degree felony, the middle term is three years in prison. As such, the consecutive subordinate term must be one-third the middle term, or one year. Thus, the sentence on that count must be reduced from 16 months to one year. We may correct this unauthorized sentence on appeal without remanding for a full resentencing.

Authority:

PEN 1170.1(a)

PEN 1260

People v. Lawley (2002) 27 Cal.4th 102, 171–172

Second Holding:

The defendant argues that he should have been charged with only one count of attempting to dissuade a witness rather than the 10 charged and found true. The ten calls all occurred on the same day over a span of six hours. The issue is whether appellant may be lawfully subject to multiple convictions. We review this claim de novo.

Authority:

PEN 954

People v. Duffy (2020) 51 Cal.App.5th 257, 261

Third Holding:

Section 954 defines what charges can be joined in one action. This statute does not permit multiple convictions for the same offense based on the same act or course of conduct. However, section 954 authorizes multiple convictions for different or distinct offenses. As a result, a defendant may be convicted of multiple counts of the same crime, such as grand theft, based on separate and distinct criminal acts, even if the acts were all part of a single overarching scheme.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 650

People v. Whitmer (2014) 59 Cal.4th 733, 74

Fourth Holding:

Determining whether a defendant has committed one or more criminal acts requires identifying what the Legislature intended to punish as a single offense under the relevant statute. Courts refer to this inquiry as determining the statute’s unit of prosecution. Courts should look to the characteristics of the crime, including both (1) the factual circumstances of the defendant’s criminal conduct and (2) the elements of the crime as defined by the Legislature in the relevant statute.

Authority:

Moore v. Superior Court (2020) 57 Cal.App.5th 441, 461

People v. Wilson (2015) 234 Cal.App.4th 193, 199-200

People v. Whitmer (2014) 59 Cal.4th 733, 744 (conc. opn. of Liu, J.)

Fifth Holding:

Section 136.1(a)(2) makes it a crime to knowingly and maliciously attempt to prevent or dissuade a witness from attending or giving testimony at a trial, proceeding or inquiry authorized by law. In relevant part, malice is defined under this statute as an intent to thwart or interfere in any manner with the orderly administration of justice. This crime is completed upon any attempt.

Authority:

PEN 136.1

People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519

Sixth Holding:

A trial court’s decision whether to impose consecutive or concurrent sentences is reviewed for an abuse of discretion. A defendant bears the burden to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, a reviewing court presumes the trial court acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on appeal. Moreover, a decision will not be reversed merely because reasonable people might disagree. Instead, the decision must be so irrational or arbitrary that no reasonable person could agree with it.

Authority:

PEN 669(a)

People v. Giminez (1975) 14 Cal.3d 68, 71–72

People v. Carmony (2004) 33 Cal.4th 367, 376–377

Seventh Holding:

Once a trial court lawfully decides to impose consecutive sentences on convictions for violating section 136.1, section 1170.15 applies. If a person is convicted of a felony, and of an additional felony that is a violation of section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony the Penal Code provides that those subordinate terms shall consist of the full middle term.

Authority:

PEN 1170.15

Eighth Holding:

In relevant part, the rule against the dual use of facts prohibits a trial court from relying on the same fact “to impose both the upper term and a consecutive sentence. Only a single factor in aggravation is needed to support imposition of an upper term. Likewise, only one relevant and sustainable fact may explain a series of consecutive sentences. We presume the trial court acted to achieve legitimate sentencing objectives

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12

People v. Osband (1996) 13 Cal.4th 622, 730

People v. Carmony (2004) 33 Cal.4th 367, 376-377

Ninth Holding:

There is a developing split of authority regarding application of the forfeiture doctrine regarding the low term presumption under section 1170(b)(6). We need not decide that issue. Although the court did not specifically mention subdivision (b)(6), we presume it knew of that provision.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1039, 1044 [forfeiture doctrine applied when defendant failed to raise in the trial court the presumption in favor of a lower term]

People v. Fredrickson (2023) 90 Cal.App.5th 984, 994, fn. 8 [sec. 1170 mandates application of the lower term presumption and is not subject to forfeiture]People v. Caparrotta (2024) 103 Cal.App.5th 874, 905

Tenth Holding:

Under the cumulative error doctrine, errors that are individually harmless may nevertheless have cumulative prejudice. A claim of cumulative error is essentially a due process challenge. The issue is whether the defendant received a fair trial. Here, appellant’s claim of cumulative prejudice is without merit because we have rejected the individual claims. After reviewing the entire record, we are confident that appellant received due process throughout the entire proceeding, including sentencing.

Authority:

In re Avena (1996) 12 Cal.4th 694, 772, fn. 32

People v. Rivas (2013) 214 Cal.App.4th 1410, 1436

People v. Bradford (1997) 14 Cal.4th 1005, 1057

People v. Cunningham (2001) 25 Cal.4th 926, 1009 [a defendant is “entitled to a fair trial but not a perfect one”]

Amelioration, Sentencing, Standard of review, Vicarious liability

Case 000645

Posted on by Gary McCurdy

Error and/or relief

As to the section 1172.6 petition, the trial court denied the petition. This ruling was in error because the record of conviction does not establish as a matter of law that the defendant is ineligible for relief.

First Holding:

Under Penal Code section 1172.6, a defendant is entitled to an evidentiary hearing unless the record of conviction at the prima facie stage conclusively refutes—as a matter of law—defendant’s claim that he was convicted of a homicide offense under a now invalid legal theory.

Authority:

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

Second Holding:

In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

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

Third Holding:

On the plea form in 1994, the defendant stated that he was both an aider and abettor and the shooter. These statements are internally inconsistent. A defendant cannot be both an aider and abettor, and a direct perpetrator (the shooter). The defendant’s admission to the personal use of a firearm does not resolve the issue because a defendant can personally use a firearm without shooting it (e.g., brandishing a firearm).

Authority:

PEN 31

People v. Arzate (2003) 114 Cal.App.4th 390, 400

Fourth Holding:

While we could reject his statement that he was an aider and abettor and accept his statement that he was the shooter, we cannot engage in judicial discretion at the prima facie stage.

Authority:

People v. Garcia (1995) 32 Cal.App.4th 1756, 1771 [an exercise of discretion means different courts may reasonably arrive at different decisions, even on the same facts]

Fifth Holding:

We review de novo a trial court’s denial of a section 1172.6 petition at the prima facie stage. Appellate courts also interpret statutes under a de novo standard.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

John v. Superior Court (2016) 63 Cal.4th 91, 95

Sixth Holding:

Generally, a person may be liable for a crime either as a direct perpetrator or as an aider and abettor. A person can be held liable for crimes that were intentionally aided and abetted (target offenses); a person can also be held liable for any crimes that were not intended but were reasonably foreseeable (nontarget offenses). Liability for an intentional, target offense is known as direct aider and abettor liability; liability for an unintentional, nontarget offense is known as the natural and probable consequences doctrine.

Authority:

PEN 31

People v. Laster (1997) 52 Cal.App.4th 1450, 1462–1463

People v. Montes (1999) 74 Cal.App.4th 1050, 1055

Seventh Holding:

Effective January 1, 2019, the Legislature narrowed accomplice liability theories for murder and attempted murder.The Legislature eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. The Legislature also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 957

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

Eighth Holding:

Direct aider and liability is still a valid legal theory for homicide offenses after the Legislature amended sections 188 and 189. We have generally described the requisite mens rea for direct aiding and abetting as knowledge of the direct perpetrator’s unlawful intent and an intent to assist in achieving those unlawful ends.

Authority:

People v. Medrano (2021) 68 Cal.App.5th 177, 183

People v. Curiel (2023) 15 Cal.5th 433, 468

Ninth Holding:

Under section 1172.6, if the petitioner makes a prima facie showing, the trial court must issue an order to show cause and conduct an evidentiary hearing. At the prima facie stage, the trial court examines the underlying record of conviction, but the court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.

Authority:

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

Tenth Holding:

The trial court accepts the petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. The court may consider jury instructions, jury verdicts, and other documents that are part of the record of conviction to determine whether the petitioner satisfies the conditions for relief.

If the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner at the prima facie stage. For example, if the record of conviction irrefutably establishes as a matter of law that the jury determined that the petitioner was the actual killer, the trial court may properly deny the petition at the prima facie stage.

Authority:

People v. Flores (2023) 96 Cal.App.5th 1164, 1170

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

People v. Harden (2022) 81 Cal.App.5th 45, 56, 60

Eleventh Holding:

When a petitioner’s conviction results from a guilty plea, the record of conviction includes facts “the defendant admitted as the factual basis for a guilty plea. And when a defendant pleads guilty, he or she admits every element of the charged offense. However, in a section 1172.6 petition at the prima facie stage, the court may ordinarily only consider the facts the defendant has stipulated to as part of the guilty plea to determine the theory under which the defendant was convicted.

Authority:

People v. Gallardo (2017) 4 Cal.5th 120, 136

People v. Rivera (2021) 62 Cal.App.5th 217, 234

People v. Davenport (2021) 71 Cal.App.5th 476, 484

Twelfth Holding:

The defendant’s ambiguous statement in his felony plea form that he was both an aider and abettor and the shooter does not refute as a matter of law his later averment in his section 1172.6 petition that he was convicted as an aider and abettor under the natural and probable consequences doctrine. In order to resolve the defendant’s factual claim there must be an evidentiary hearing.

Authority:

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