Tag Archives: Standard of review

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

Case: 000432

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the petition for recall of sentence for attempted murder under section 1172.6 because there was insufficient evidence of intent to kill. We reverse the order denying the petition and remand the matter with directions for the trial court to grant the resentencing petition, vacate the attempted murder conviction, and resentence on the remaining charges.

First Holding:

The Legislature enacted SB 1437 (2017–2018 Reg. Sess.) to eliminate the natural and probable consequences doctrine and to limit application of the felony murder rule. Except in cases of felony murder, a principal must act with malice aforethought to be convicted of murder, and malice shall not be imputed to a person based solely on his or her participation in a crime. A defendant convicted of murder or attempted murder under a now-invalid theory may petition the sentencing court to have his or her conviction vacated and to be resentenced on any remaining counts under section 1172.6.

Authority:

PEN 188(a)(3)

People v. Curiel (2023) 15 Cal.5th 433, 448–449

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

Second Holding:

At the evidentiary hearing, the prosecution bears the burden to prove beyond a reasonable doubt that the defendant is guilty of murder or attempted murder under a currently valid theory. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.

Authority:

PEN 1172.6(d)(3)

Third Holding:

We review the trial court’s factual findings following a section 1172.6(d) hearing for substantial evidence. We review the entire record in the light most favorable to the court’s order to determine whether any rational trier of fact could find the defendant guilty beyond a reasonable doubt.

Authority:

People v. Clements (2022) 75 Cal.App.5th 276, 298

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

Fourth Holding:

To prove the crime of attempted murder, the prosecution must establish ‘the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. To be guilty of attempted murder, the defendant must intend to kill the alleged victim, not someone else. A defendant cannot be convicted of attempting to kill someone if the defendant is not aware that person is present. Because direct evidence of a defendant’s intent is rare, intent to kill may be inferred from the defendant’s acts and the circumstances of the crime.

Authority:

People v. Canizales (2019) 7 Cal.5th 591, 602

People v. Mumin (2023) 15 Cal.5th 176, 191

People v. Ibarra (2024) 106 Cal.App.5th 1070, 1079

People v. Smith (2005) 37 Cal.4th 733, 741

Fifth Holding:

A defendant may be convicted of attempted murder as a direct aider and abettor. To be convicted under such a theory, the defendant must give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill.

Authority:

People v. Nguyen (2015) 61 Cal.4th 1015, 1054

Sixth Holding:

Without any evidence that someone inside the co-defendant’s car targeted or otherwise shot at another person when they fired the underlying shots, we can only speculate as to whether the defendant acted with the intent to kill. Speculation is not substantial evidence.

Authority:

People v. Waidla (2000) 22 Cal.4th 690, 735

Seventh Holding:

The trial court also improperly relied on its own experience as a former gang prosecutor when it denied the petition, noting that it had prosecuted several cases against members of a gang in the 1990’s in explaining why it found that the defendant acted with the intent to kill. The court’s personal experience is not evidence.

Authority:

Abatti v. Imperial Irrigation Dist. (2020) 52 Cal.App.5th 236, 286

Eighth Holding:

When admitting a sentencing enhancement, the defendant admits only the facts necessary to establish the enhancement’s elements.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 338

Abstracts and Minutes, Sentencing

Case: 000426

Posted on by Gary McCurdy

Error and/or relief

It was error for the jury to convict defendant of counts 1 and 2, which appeared to be based on the same facts. The conviction on count 2 should be stricken. Further, counts 1 and 3 were part of an indivisible course of conduct with the same intent and objective, and section 654 therefor applies. And the abstract of judgment must be amended to reflect the correct count number for one of the counts.

First Holding:

The record shows that defendant was charged with kidnapping for ransom (PC 209(a)) in count 1 and kidnapping (sec. 207(a)) in count 2. The jury acquitted him of counts 1 and 2 as charged and found him guilty of false imprisonment (sec. 237(a)) as a lesser included offense on both counts. During closing argument and again at sentencing, the prosecutor acknowledged that counts 1 and 2 were charged in the alternative and were based on the same facts. Section 954 authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct. The conviction on count 2 should be stricken.

Authority:

PEN 954

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

Second Holding:

Section 654(a) provides, in pertinent part, that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. It precludes multiple punishments for a single act or indivisible course of conduct.The purpose of section 654 is to prevent multiple punishment for a single act or omission or indivisible course of conduct, even though that act or omission or indivisible course of conduct violates more than one statute and thus constitutes more than one crime.

Authority:

PEN 654

People v. Hester (2000) 22 Cal.4th 290, 294-295

People v. Liu (1996) 46 Cal.App.4th 1119, 1135

Third Holding:

It is defendant’s intent and objective, not the temporal proximity of his offenses, which determine whether the transaction is indivisible. If all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, the defendant may be found to have harbored a single intent and therefore may be punished only once. But if the defendant acts with multiple criminal objectives that are independent of, and not merely incidental to, each other, he may be punished for separate violations, even though the violations shared common acts or were part of an otherwise indivisible course of conduct. Thus, the principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple. Each case must be determined on its own facts. The trial court has broad latitude in determining whether section 654(a) applies in a given case.

Authority:

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

People v. Richardson (2025) 108 Cal.App.5th 1203, 1214

People v. Liu (1996) 46 Cal.App.4th 1119, 1135-1136

People v. Garcia (2008) 167 Cal.App.4th 1550, 15

Fourth Holding:

A court’s determination, express or implied, that two crimes were separate, involving separate objectives, under section 654 is a question of fact we review for substantial evidence. We review the evidence in the light most favorable to the judgment and will affirm the court’s sentencing decision if it is supported by substantial evidence.

Authority:

People v. Richardson (2025) 108 Cal.App.5th 1203, 1214

Fifth Holding:

Gratuitous violence against a helpless and unresisting victim has traditionally been viewed as not incidental to robbery for purposes of section 654. Section 654 cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense.

Authority:

People v. Nguyen (1988) 204 Cal.App.3d 181, 190-191

Sixth Holding:

So long as some substantial evidence to support the implied finding exists, there can be no reversal. Where the court made no express findings on the issue, a finding that the crimes were divisible is implicit in the judgment and must be upheld if supported by substantial evidence. Under this standard, the appellate court must view the evidence in the light most favorable to the trial court’s finding and presume the existence of every fact the trial court could reasonably deduce from the record.

Authority:

People v. Ibarra (2024) 106 Cal.App.5th 1070, 1083

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

Seventh Holding:

We note a clerical error. Generally, a clerical error is one inadvertently made. Clerical errors can be made by a clerk, by counsel, or by the court itself. A court has the inherent power to correct clerical errors in its records at any time so as to make these records reflect the true facts. The abstract of judgment for the indeterminate term lists the assault with a deadly weapon as count 5; however, the assault was count 4 and should be listed as such.

Authority:

People v. Schultz (1965) 238 Cal.App.2d 804, 808

In re Candelario (1970) 3 Cal.3d 702, 705

Immigration, Sentencing, Standard of review

Case: 000422

Posted on by Gary McCurdy

Error and/or relief

It was error to deny the defendant’s motion to vacate his guilty plea under section 1473.7. We reverse the judgment. The superior court shall enter an order vacating the defendant’s conviction pursuant to Penal Code section 1473.7(a)(1).

First Holding:

Penal Code section 1473.7 allows those no longer in custody to vacate a conviction if it is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of the conviction.

Authority:

PEN 1473(a)(1)

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

Second Holding:

The superior court denied the defendant’s motion. It concluded that the defendant’s prosecution had no adverse immigration consequences because the charge he pleaded to did not name cocaine as the controlled substance. It also concluded that because he had completed the Deferred Entry of Judgment (DEJ) arrangement and achieved a dismissal, there was no conviction left to vacate. The court erred. In fact, a DEJ disposition can result in adverse immigration consequences.

Authority:

PC 1203.43

Third Holding:

We apply independent review when the record indicates there was no evidentiary hearing.

Authority:

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

Fourth Holding:

A conviction of Health and Safety Code section 11350 involving cocaine can have adverse immigration consequences. And in federal immigration tribunals and the Ninth Circuit, a police report forming the factual basis of a plea can furnish details, otherwise missing from charging documents, that allow the imposition of adverse immigration consequences.

Authority:

Lazo v. Wilkinson (9th Cir. 2021) 989 F.3d 705, 714

Matter of Milian-Dubon (B.I.A. 2010) 25 I. & N. Dec. 197, 201,

United States v. Almazan-Becerra (9th Cir. 2008) 537 F.3d 1094, 1097–1100

Suazo Perez v. Mukasey (9th Cir. 2008) 512 F.3d 1222, 1226

In re Sanudo (B.I.A. 2006) 23 I. & N. Dec. 968, 975,

Parrilla v. Gonzales (9th Cir. 2005) 414 F.3d 1038, 1044

United States v. Ramos-Medina (9th Cir. 2013) 706 F.3d 932, 939–940

Fifth Holding:

Under the totality of circumstances in this conceded case, we agree with the parties that the misinformation the defendant received regarding his plea was prejudicial and that reversal to ensure prompt relief under Penal Code section 1473.7(a)(1), rather than remand, is appropriate.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 321, 325–326

People v. Martinez (2013) 57 Cal.4th 555, 559

Immigration, Sentencing, Standard of review

Case: 000421

Posted on by Gary McCurdy

Error and/or relief

The superior court denied the defendant’s motion to vacate his conviction under section 1473.7 because he did not provide a declaration from his defense counsel at the time of his plea or his counsel’s case file, despite the defendant’s diligent efforts in attempting to contact his prior counsel, who had retired since representing him. After independent review, we conclude the defendant met his burden of establishing, by a preponderance of the evidence, error affecting his ability to meaningfully understand, defend against, or knowingly accept the immigration consequences of his plea and reverse the denial of his motion.

First Holding:

Under federal law, a noncitizen convicted of a crime of domestic violence is deportable. This includes an offense under section 273.5(a). A section 273.5 conviction is also a crime of violence under federal immigration law. If a defendant is sentenced to a term of imprisonment of at least 365 days for a crime of violence, the offense qualifies as an aggravated felony conviction. This designation carries even harsher consequences. A noncitizen who is convicted of an aggravated felony at any time after admission is conclusively presumed deportable and is subject to mandatory removal. An aggravated felony conviction renders a noncitizen ineligible for cancellation of removal, a form of discretionary relief allowing some deportable aliens to remain in the country. Accordingly, removal is a virtual certainty for a noncitizen found to have an aggravated felony conviction, no matter how long he has previously resided here.

Authority:

8 U.S.C. sec. 1227(a)(2)(E)(i)

8 U.S.C. sec 1227(a)(2)(A)(iii)

8 U.S.C. sec. 1228(c)

8 U.S.C. sec.1229b(a)(3), (b)(1)(C)

18 U.S.C. sec. 16(a)

People v. Villalba (2023) 89 Cal.App.5th 659, 666-667

People v. Manzanilla (2022) 80 Cal.App.5th 891, 903-904

Banuelos-Ayon v. Holder (9th Cir. 2010) 611 F.3d 1080, 1083

Second Holding:

Penal Code section 1473.7 allows noncitizens who have served their sentences to vacate a conviction if they can establish by a preponderance of the evidence that their conviction is legally invalid due to prejudicial error damaging their ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. To establish a prejudicial error under section 1473.7, a person need only show by a preponderance of the evidence: 1) he did not meaningfully understand or knowingly accept the actual or potential adverse immigration consequences of the plea; and 2) had he understood the consequences, it is reasonably probable he would have instead attempted to defend against the charges.

Authority:

PEN 1473.7

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

People v. Mejia (2019) 36 Cal.App.5th 859, 862

Third Holding:

The focus of the first prong of the inquiry is on the defendant’s own error in not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States. There is no additional need to establish the petitioner’s mistake was caused by some third party. A defendant may show, but is not required to show, that he received ineffective assistance of counsel. The error supporting section 1473.7 relief need not be one made by defense counsel or the court but may be one made by the moving party herself if supported by contemporaneous evidence.

Authority:

People v. Mejia (2019) 36 Cal.App.5th 859, 871

People v. Padron (2025) 109 Cal.App.5th 950, 958-959

People v. Lopez (2022) 83 Cal.App.5th 698, 713-714 [At the heart of the prejudicial error analysis is the mindset of the defendant and what he or she understood—or didn’t understand—at the time the plea was taken]

People v. Alatorre (2021) 70 Cal.App.5th 747, 769

People v. Carrillo (2024) 101 Cal.App.5th 1, 16

People v. Ruiz (2020) 49 Cal.App.5th 1061, 1067

People v. Camacho (2019) 32 Cal.App.5th 998, 1008 [ineffective assistance of counsel not required for relief]

People v. Rodriguez (2021) 68 Cal.App.5th 301, 311

Fourth Holding:

A party seeking relief under section 1473.7 is not required to provide the declaration of plea counsel or to submit contemporaneous documentation from the time of the plea. Rather, the inquiry under section 1473.7 requires consideration of the totality of the circumstances, which necessarily involves case-by-case examination of the record, and no specific kind of evidence is a prerequisite to relief. Even a court’s advisement that a guilty plea will result in immigration consequences does not preclude a petitioner from demonstrating that he did not meaningfully understand the immigration consequences of his plea. Depending on the surrounding circumstances, even a warning that deportation will result is not a categorical bar to relief. A general advisement under section 1016.5 does not establish meaningful understanding of immigration consequences.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 320, 325

People v. Curiel (2023) 92 Cal.App.5th 1160, 1175

People v. Lopez (2021) 66 Cal.App.5th 561, 577

People v. Padron (2025) 109 Cal.App.5th 950, 962

People v. Camacho (2019) 32 Cal.App.5th 998, 1011 [petitioner may present sufficient evidence of his lack of understanding such that the court’s advisement cannot be taken as irrebuttable proof that defendant likely would have entered his plea notwithstanding adverse immigration consequences]

Fifth Holding:

As to the prejudice prong, a defendant must demonstrate a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences and must corroborate any assertions with objective evidence. A reasonable probability does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.

Authority:

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

People v. Vivar (2021) 11 Cal.5th 510, 530

People v. Lopez (2022) 83 Cal.App.5th 698, 714

People v. Padron (2025) 109 Cal.App.5th 950, 959

People v. Soto (2022) 79 Cal.App.5th 602, 610

Sixth Holding:

We independently review the denial of a section 1473.7 motion. Under independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. If the superior court heard testimony, we give particular deference to any factual findings based on the trial court’s personal observations of witnesses. But where, as here, the facts derive entirely from written declarations and other documents, there is no reason to conclude the trial court has the same special purchase on the question at issue; as a practical matter, the trial court and this court are in the same position in interpreting written declarations when reviewing a cold record in a section 1473.7 proceeding. Ultimately it is for the appellate court to decide, based on its independent judgment, whether the facts establish prejudice under section 1473.7.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 527-528

People v. Padron (2025) 109 Cal.App.5th 950, 959

Discretion, Duty of the court, Juveniles, Standard of review

Case: 000415

Posted on by Gary McCurdy

Error and/or relief

The court failed to show it recognized and exercised its discretion to designate second degree burglary as a felony or a misdemeanor, and the program condition of probation delegated impermissibly broad discretion to the probation officer

First Holding:

Second degree burglary is a “wobbler,” that is, an offense that may be punished as either a felony or a misdemeanor. This determination is important not only because felonies are subject to longer periods of confinement, but also because felony convictions have additional adverse consequences, including use without limitation for impeachment under Proposition 8 in subsequent criminal proceedings, enhancement of sentences, and the general blight upon the character of persons convicted of felonies. To ensure that juvenile courts are aware of their discretion to charge wobblers as misdemeanors and that they consciously choose to treat wobblers committed by juveniles as felonies, juvenile courts are required to expressly declare how they are treating such offenses. If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.

Authority:

WIC 707

People v. Williams (2010) 49 Cal.4th 405, 461, fn. 6

In re Manzy W. (1997) 14 Cal.4th 1199, 1207, 1209

In re Kenneth H. (1983) 33 Cal.3d 616, 619, fn. 3

Second Holding:

Although remand is not automatically required when a juvenile court fails to expressly declare that a wobbler is a felony or misdemeanor, to establish prejudice a juvenile need not show a reasonable probability of a more favorable outcome. Also, challenges under Welfare and Institutions Code section 702 are not forfeited by failure to object at trial. Instead, in this context, the key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit. The record in this case does not reflect that the court was aware of its discretion to properly exercise it. A minute order may not substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or a felony.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 704, 711-714, 717

In re Manzy W. (1997) 14 Cal.4th 1199, 1209

Third Holding:

We review juvenile placement decisions for abuse of discretion. It was not an abuse of discretion to order the minor to be placed in a secure facility.

Authority:

In re Nicole H. (2016) 244 Cal.App.4th 1150, 1154

Fourth Holding:

In placing the minor in a secure facility, the juvenile court imposed a number of terms and conditions, including a requirement that he participate in and complete any appropriate programs as directed by [his] Probation Officer. We review orders of this nature de novo. This condition is an improper delegation of judicial authority. Probation conditions may be challenged for the first time on appeal if they are challenged as unconstitutional on their face and the challenge therefore presents a pure question of law.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 888

Fifth Holding:

Although juvenile courts have greater discretion to formulate probation terms than adult criminal courts, their discretion to delegate authority is restricted by the separation-of-powers doctrine. Under the California Constitution, separation of powers does not mean an entire or complete separation of powers or functions, which would be impracticable, if not impossible. Thus, a court may delegate to a probation officer authority to specify the details necessary to effectuate the court’s probation conditions. However, the separation-of-powers doctrine limits the delegation of judicial authority to nonjudicial officers, especially in the absence of judicial supervision and review of the exercise of that authority. Consequently, a court may not delegate complete discretion over a significant aspect of the court’s legal control. To satisfy the separation-of-powers doctrine, a court delegating judicial authority to a probation officer must dictate the basic policy of a condition of probation.

Authority:

In re Victor L. (2010) 182 Cal.App.4th 902, 910, 919

In re D.N. (2022) 14 Cal.5th 202, 208-209, 212

People v. Smith (2022) 79 Cal.App.5th 897, 902, 903 [holding impermissible delegation of authority permitting probation officer to choose between residential and outpatient substance abuse programs]

People v. O’Neal (2008) 165 Cal.App.4th 1351, 1359 [the court’s order cannot be entirely open-ended]

People v. Leon (2010) 181 Cal.App.4th 943, 952 [holding impermissible delegation of authority permitting probation officer to authorize probationer to attend court proceedings and otherwise barring probationer from attending court proceedings unless a party or witness]