Tag Archives: Standard of review

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]

Sentencing, Sixth Amendment, Standard of review

Case: 000365

Posted on by Gary McCurdy

Error and/or relief

We affirm the conviction. The defendant is entitled to remand for resentencing under AB 518 because of the amendment to section 654, which formerly required the trial court to select as the principal term the offense with the longest potential sentence; and under SB 567 because the trial court imposed an upper term for the attempted murder of the victim based on unpleaded and unproven aggravating factors.

First Holding:

In addressing a claim of insufficient evidence to support a conviction, this court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. Reversal for insufficiency of the evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. We review the sufficiency of the evidence to support a firearm enhancement using the same standard we apply to a conviction.

Authority:

People v. Jackson (2016) 1 Cal.5th 269, 345

People v. Campbell (2020) 51 Cal.App.5th 463, 484

People v. Manriquez (2005) 37 Cal.4th 547, 577

People v. Bryant (2011) 191 Cal.App.4th 1457, 1472

Second Holding:

The ameliorative changes effected by AB 518 and SB 567 apply retroactively to defendant’s nonfinal judgment on appeal.

Authority:

People v. Fugit (2023) 88 Cal.App.5th 981, 995-996

People v. Mani (2022) 74 Cal.App.5th 343, 379

Third Holding:

Effective January 1, 2022, AB 518 amended section 654 to authorize trial courts to punish an act or omission that is punishable in different ways by different provisions of law under either of such provisions. Before the enactment of Assembly Bill No. 518, and when the trial court sentenced defendant, section 654 required the court to punish an act that was punishable in different ways by different laws only under the provision that provides for the longest potential term of imprisonment.

Thus, section 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence. Because the court imposed the sentence on count three on the basis that it had a longer maximum exposure than that of count four, as was required by section 654 at the time of sentencing, we will vacate the sentence and remand for a full resentencing hearing based on current law.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379

Fourth Holding:

Effective January 1, 2022, section 1170(b) was amended by SB 567. The amended statute created a presumption in favor of a low prison term when a defendant is under 26 years of age at the time of the offense. Section 1170(b)(6) provides that unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of specified factors was a contributing factor in the commission of the offense, including that the person is a youth, or was a youth as defined under section 1016.7(b) at the time of the commission of the offense.

Authority:

PEN 1170(b)(6)

PEN 1016.7

People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1039

Fifth Holding:

Additionally, SB 567 amended section 1170(b)(2) to provide that a trial court may 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. With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury’ and ‘established beyond a reasonable doubt. Under section 1170(b), 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, 747

Sixth Holding:

A 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, but the prior conviction exception to the Sixth Amendment permits a trial court to do no more than determine of what crime, with what elements, defendant was convicted

Authority:

PEN 1170(b)(3)

Erlinger v. United States (2024) 602 U.S. 821, 837-838

Seventh Holding:

Because the court did not apply the presumption in favor of a low term due to defendant’s youth, and imposed the upper term based on aggravating factors that had not been pleaded or found true beyond a reasonable doubt at trial by the jury, the court’s imposition of the upper term was improper. As we are already remanding for a full resentencing, we need not and do not consider whether the error was harmless beyond a reasonable doubt. But reliance on aggravating circumstances not found in accordance with section 1170(b) 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.

Authority:

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

Eighth Holding:

At resentencing, the trial court must revisit all its sentencing choices in light of all applicable legislation. That includes, but is not limited to, AB 518, SB 567, and SB 81 (2021-2022 Reg. Sess.), which became effective January 1, 2022, and amended section 1385 to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant’s sentence in the interest of justice.

Authority:

PEN 654

PEN 1170

PEN 1385

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

People v. Sek (2022) 74 Cal.App.5th 657, 674

Fourth Amendment, Standard of review

Case: 000364

Posted on by Gary McCurdy

Error and/or relief

The police violated the defendant’s Fourth Amendment rights by announcing an intent to frisk him without reasonable suspicion. The defendant revealed the presence of the weapon he was carrying only when the officer threatened to frisk him. The threatened frisk was unwarranted and required suppressing certain evidence.

First Holding:

On appeal from the denial of a motion to suppress, we defer to the trial court’s factual findings if supported by substantial evidence but independently apply constitutional principles to those findings.

Authority:

People v. Session (2023) 93 Cal.App.5th 723, 730

Second Holding:

The Fourth Amendment protects individuals from unreasonable searches and seizures. An officer may briefly detain a person for investigation based on a reasonable suspicion of criminal activity. If the officer further reasonably suspects that the person is armed and presently dangerous, the officer may also frisk him for weapons. A frisk is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.

Authority:

Terry v. Ohio (1968) 392 U.S. 1, 17, 21, 30

Third Holding:

When the suspected offense is violent or otherwise serious enough, this alone may support a reasonable suspicion that the suspect is armed and dangerous. But for lesser offenses, like unlawful possession of marijuana, more is needed. Some unusual circumstances—like a suspect’s admission that he is armed, visible signs of a concealed weapon, or suspicious movements—will typically be sufficient even on their own. Knowledge of a suspect’s recent, violent criminal history may also be enough.

Authority:

State v. Valentine (N.J. 1994) 636 A.2d 505, 509

4 LaFave, Search and Seizure (6th ed. 2025) sec. 9.6(a), fns. 57–64 [collecting cases]

People v. Bush (2001) 88 Cal.App.4th 1048, 1052

Fourth Holding:

Penal Code section 1538.5(m), allows a defendant who pleaded guilty to appeal the denial of a motion to suppress the evidence obtained through an allegedly unlawful search or seizure. This includes defendant’s attempt to exclude a statement, in addition to other kinds of evidence.

Authority:

People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 6

Fifth Holding:

More mundane circumstances—like the time or location of the stop—may be insufficient on their own, or even in combination with other weak indications. For example, a frisk was not justified where the suspect (1) had no identification, (2) did not consent to a search, (3) was nervous and sweating, and (4) possessed baking powder (which could be used to dilute drugs) in a film canister. Nor was it justified during a late-night detention of robbery suspects, where the officers had no information that the robbery involved weapons and the suspects fully cooperated and made no furtive or unusual movements. Nor following a 1:30 a.m. traffic stop where the suspect had an old arrest for weapons possession.

Authority:

People v. Dickey (1994) 21 Cal.App.4th 952, 956

In re Jeremiah S. (2019) 41 Cal.App.5th 299, 306–307

People v. Pantoja (2022) 77 Cal.App.5th 483, 490–491