Tag Archives: Standard of review

Sentencing, Sixth Amendment, Standard of review

Case 000783

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred by sentencing defendant to the upper term on his robbery conviction.

First Holding:

On January 1, 2022, SB 567 (2021-2022 Reg. Sess.) went into effect, amending section 1170. Section 1170 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)

Second Holding:

In Erlinger, 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

Third Holding:

In Wiley, the California Supreme Court addressed section 1170(b)(3)’s prior conviction exception in light of Erlinger. To avoid any application that would set section 1170(b)(3) at odds with the high court’s constitutional interpretation, we interpret section 1170(b)(3)’s procedure in a manner that is coextensive with high court dictates. Thus, in accordance with Erlinger, the Wiley court held 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.

Authority:

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

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.

Each of the four aggravating factors found true by the trial court required finding true more than the bare fact of a prior conviction and its elements. Accordingly, the court’s reliance on each of the other four aggravating factors (rule 4.421(b)(2)–(5)) was erroneous. Moreover, we cannot conclude that all of these errors were harmless beyond a reasonable doubt.

Authority:

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

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

People v. Lynch (2024) 16 Cal.5th 730, 743 [a sentence imposed under former 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]

Fifth Holding:

Whether a defendant’s prior convictions are numerous or of increasing seriousness (rule 4.421(b)(2)) is a comparative and qualitative determination 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.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 775 [to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be 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]

Fourth Amendment, Standard of review

Case 000781

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by denying the defendant’s motion to suppress because the police improperly prolonged his detention to conduct a criminal investigation unrelated to the purpose of the initial traffic stop.

First Holding:

Section 1538.5 affords criminal defendants a procedure by which they may seek suppression of illegally seized evidence. Section 1538.5 provides a comprehensive and exclusive procedure for the final determination of search and seizure issues prior to trial. A motion to suppress may be filed independently or at the preliminary hearing.

Authority:

People v. Romeo (2015) 240 Cal.App.4th 931, 940

Second Holding:

When a suppression motion is made before a magistrate in conjunction with a preliminary hearing, as in this case, the magistrate tries the facts, resolving credibility issues and conflicts in the evidence, weighing the evidence, and drawing appropriate inferences.

If the magistrate denies the motion and holds the defendant to answer, the defendant must, as a prerequisite to appellate review, renew his challenge before the trial court by motion to dismiss under section 995 or in a special hearing.

At that stage, the evidence is generally limited to the transcript of the preliminary hearing, testimony by witnesses who testified at the preliminary hearing (who may be recalled by the prosecution), and evidence that could not reasonably have been presented at the preliminary hearing.

Authority:

People v. Romeo (2015) 240 Cal.App.4th 931, 941

Third Holding:

Where a suppression motion is made before a magistrate in conjunction with a preliminary hearing and no new evidence is presented in superior court, we are concerned solely with the findings of the magistrate. After submission on the transcript at the special hearing, the appellate court, like the superior court, is bound by the magistrate’s factual findings so long as they are supported by substantial evidence.

On review of the superior court ruling by appeal or writ, a two-step standard of review applies. In the first step of our review, we in effect disregard the ruling of the superior court and directly review the determination of the magistrate.

At this stage, we consider the record in the light most favorable to the People since all factual conflicts must be resolved in the manner most favorable to the superior court’s disposition on the suppression motion.

Authority:

People v. Tacardon (2022) 14 Cal.5th 235, 242

People v. Romeo (2015) 240 Cal.App.4th 931, 941

Fourth Holding:

In the second step, accepting as established all implied or express factual findings by the magistrate as are supported by substantial evidence, we then proceed to measure those findings against Fourth Amendment standards articulated by the United States Supreme Court. At this stage, we independently apply the law to the factual findings, determining de novo whether the factual record supports the magistrate’s conclusion that the challenged search met the constitutional standard of reasonableness.

Authority:

People v. Romeo (2015) 240 Cal.App.4th 931, 941-942

People v. Macabeo (2016) 1 Cal.5th 1206, 1212 [In California, issues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards.]

Fifth Holding:

The Fourth Amendment protects the right of the people to be secure in their persons against unreasonable searches and seizures. A traffic stop for a suspected violation of law is a seizure of the occupants of the vehicle and therefore must be conducted in accordance with the Fourth Amendment. But where the police have probable cause to believe that a traffic violation has occurred, the seizure is constitutionally reasonable.

Authority:

U.S. Const., 4th Amend.

Cal. Const., art. I, sec. 13

Heien v. North Carolina (2014) 574 U.S. 54, 60

People v. Gyorgy (2023) 93 Cal.App.5th 659, 669

Whren v. United States (1996) 517 U.S. 806, 809–810

Sixth Holding:

A seizure for a traffic violation justifies a relatively brief encounter for police investigation of the traffic violation. The tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s mission—to address the traffic violation that warranted the stop and attend to related safety concerns. Because addressing the infraction is the purpose of the stop, it may last no longer than is necessary to effectuate that purpose. Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.

The United States Supreme Court has identified tasks that are part of an officer’s mission during a stop for a traffic violation: Beyond determining whether to issue a traffic ticket, an officer’s mission includes ordinary inquiries incident to the traffic stop. Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.  A temporary detention may sometimes also include a criminal history check, which is done by consulting an incar computer terminal or radioing dispatch.

These tasks are included within the officer’s mission during a traffic stop because they ‘serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly. An officer may also require a lawfully stopped driver to exit the vehicle for officer safety to complete his traffic stop mission.

Authority:

People v. Gyorgy (2023) 93 Cal.App.5th 659, 669-670

Rodriguez v. United States (2015) 575 U.S. 348, 354, 355-356

People v. Lopez (2019) 8 Cal.5th 353, 363, fn. 4

Seventh Holding:

On-scene investigation into other crimes, however, detours from the traffic stop’s mission. So too do safety precautions taken in order to facilitate such detours. Thus, while an officer may conduct certain unrelated checks during an otherwise lawful traffic stop, the officer may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.

Authority:

People v. Gyorgy (2023) 93 Cal.App.5th 659, 670

Rodriguez v. United States (2015) 575 U.S. 348, 355

Eighth Holding:

An investigative stop can grow out of a traffic stop if the officer has reasonable suspicion of criminal activity to expand the investigation, even if those suspicions were unrelated to the underlying traffic offense. Therefore, a stop may be prolonged if the prolongation itself is supported by independent reasonable suspicion.

Authority:

People v. Espino (2016) 247 Cal.App.4th 746, 756–757

People v. Vera (2018) 28 Cal.App.5th 1081, 1088

Ninth Holding:

Under the totality of circumstances, we conclude the detention was unjustifiably prolonged beyond the time reasonably needed to write the defendant a traffic ticket. Nor was the prolonged detention independently justified by reasonable suspicion that the defendant was engaged in criminal activity apart from the broken taillight. The traffic stop occurred mid-morning in broad daylight. There was no evidence that it occurred in a high-crime area; indeed, the magistrate was not sure about [the location] and how tough an area that is. And the defendant complied with all officer commands.

On this record, we conclude that although reasonable suspicion justified the initial traffic stop and removal of the defendant from his vehicle for a weapons pat-down, no reasonable suspicion justified prolonging the detention beyond the time necessary to write a traffic ticket so that the officers could further investigate the defendant for drug offenses unrelated to the mission of the traffic stop.

Authority:

Rodriguez v. United States (2015) 575 U.S. 348, 354 [Authority for the seizure ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.]

People v. Vera (2018) 28 Cal.App.5th 1081, 1088 [a stop may be prolonged if the prolongation itself is supported by independent reasonable suspicion]

People v. Flores (2024) 15 Cal.5th 1032, 1038–1039, 1045–1046 [no reasonable suspicion where the defendant ducked behind a car to hide from police in a high-crime area at night]

People v. Pantoja (2022) 77 Cal.App.5th 483, 487, 490–491 [no reasonable suspicion for a pat-down where a nervous but cooperative person with a history of weapons arrests was detained on vehicle infractions in a high crime area while wearing baggy clothing]

Rodriguez v. United States (2015) 575 U.S. 348, 357 [Highway and officer safety are interests different in kind from the Government’s endeavor to detect crime in general or drug trafficking in particular.]

Evidence, Fifth Amendment, Jury trial, Standard of review

Case 000780

Posted on by Gary McCurdy

Error and/or relief

We conclude the detectives subjected defendant to a custodial interrogation. Their failure to advise him of his Miranda rights therefore required the suppression of his confession.

First Holding:

Under Miranda, suspects questioned by law enforcement after being taken into custody must first be informed that they have the right to remain silent, that any statements they make may be used against them, and that they have a right to the presence of an attorney. If police interrogate a suspect in custody without providing these advisements, the suspect’s responses cannot be admitted to establish their guilt.

Authority:

Miranda v. Arizona (1966) 384 U.S. 436

People v. NavaAdame (2025) 116 Cal.App.5th 1, 16

Second Holding:

The duty to advise suspects of their Miranda rights applies only if they are in custody. Custody is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In deciding if a person is in custody for Miranda purposes, the question is whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. To answer this question, the court must examine all the circumstances surrounding the interrogation

Authority:

People v. NavaAdame (2025) 116 Cal.App.5th 1, 16

Third Holding:

Relevant considerations include (1) who initiated the contact; (2) whether the person agreed to the interview; (3) whether the person was questioned as a witness or suspect; (4) the interview’s location; (5) whether police said the person was under arrest or in custody (6) conversely, whether they said the person was free to leave at any time; (7) whether the person’s movement was restrained; (7) the length of questioning; (8) the number of officers; (9) the degree of police control over the interrogation; (10) whether officers conveyed a belief in the person’s guilt and suggested they had incriminating evidence; (11) whether the tone was aggressive or accusatory; (12) whether police used interrogation tactics designed to pressure the person; and (13) whether the person was arrested at the end of the interrogation.

Authority:

People v. NavaAdame (2025) 116 Cal.App.5th 1, 16-17

Fourth Holding:

The prosecution has the burden of proving a defendant was not in custody. We review the trial court’s factual findings for substantial evidence but independently decide if the interrogation was custodial.

(GARY Note: the court then described the events in detail that led the court to declare “Based on the totality of the circumstances, we conclude defendant was subjected to a custodial interrogation long before he received Miranda advisements.” Because the opinion is unpublished, it is not useful to recite the circumstances, because you cannot cite this case as an example of a finding that Miranda rights should have been given earlier. If an attorney wants to read the full opinion, I can provide it on request.)

Authority:

In re Anthony L. (2019) 43 Cal.App.5th 438, 445

Fifth Holding:

A confession held inadmissible by reason of having been obtained in violation of the prophylactic Miranda requirements is subject to a harmless-error standard of review specified in Chapman. Under that standard, we ask whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. To say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the jury considered on the issue in question.

Authority:

People v. NavaAdame (2025) 116 Cal.App.5th 1, 21-22

Chapman v. California (1967) 386 U.S. 18, 24

Sixth Holding:

The erroneous admission of defendant’s confession cannot be regarded as unimportant. A confession is like no other evidence. Indeed, the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. Confessions often operate as a kind of evidentiary bombshell which shatters the defense and are thus much more likely to be prejudicial.

Authority:

Arizona v. Fulminante (1991) 499 U.S. 279, 296

People v. Neal (2003) 31 Cal.4th 63, 86

Seventh Holding:

We decline to consider defendant’s testimony at trial in assessing harmlessness. When an illegally obtained confession is erroneously admitted, the defendant’s testimony will not render the error harmless unless it is shown beyond a reasonable doubt that the defendant did not take the stand in an attempt to mitigate the explosive impact of a confession which had left his case in ruin.

Authority:

People v. Marlow (2004) 34 Cal.4th 131, 151

Amelioration, Duty of the court, Sentencing, Standard of review

Case 000779

Posted on by Gary McCurdy

Error and/or relief

We vacate the trial court’s true finding that defendant’s 2012 conviction qualifies as a serious or violent felony for purposes of the strike prior and prior serious felony enhancements and remand the matter to the trial court for any retrial of this finding.

First Holding:

Under the Three Strikes law, defendants previously convicted of serious or violent felonies are subject to increased prison terms: If a defendant has one prior conviction for a serious or violent felony, the defendant’s term of imprisonment is doubled, and if a defendant has two or more such strike priors, the defendant may receive life imprisonment.

The Three Strikes law defines “serious or violent” felony to include any offense defined as a serious felony under section 1192.7(a). Section 1192.7(c) defines “serious felony” to include, among other things, “any felony offense, which would also constitute a felony violation of section 186.22.”

Authority:

PEN 1192.7(c)(28)

Second Holding:

Assembly Bill 333 amended section 186.22. Effective January 1, 2022, this legislation narrowed the definition of a criminal street gang, the definition of a pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang.

First, it narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons.

Second, whereas section 186.22, former subdivision (f) required only that a gang’s members individually or collectively engage in a pattern of criminal activity in order to constitute a criminal street gang, AB 333 requires that any such pattern that have been collectively engaged in by members of the gang.

Third, AB 333 also narrowed the definition of a pattern of criminal activity by requiring that (1) the last offense used to show a pattern of criminal gang activity occurred within three years of the date that the currently charged offense is alleged to have been committed; (2) the offenses were committed by two or more gang members, as opposed to just persons; (3) the offenses commonly benefitted a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be ones other than the currently charged offense.

Fourth, AB 333 narrowed what it means for an offense to have commonly benefitted a street gang, requiring that any common benefit be more than reputational. Moreover, because these changes are ameliorative in nature, they apply to nonfinal judgments on appeal.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

Third Holding:

On appeal, a reviewing court must examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, the reviewing court determines whether a rational trier of fact could have found the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt.

The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. Where the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue.

If the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense.

In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden.

Authority:

People v. Miles (2008) 43 Cal.4th 1074, 1082, 1083

People v. Delgado (2008) 43 Cal.4th 1059, 1065, 1067

Fourth Holding:

In Fletcher, our Supreme Court held that where a defendant has suffered a conviction under the prior version of section 186.22, AB 333 applies to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Accordingly, whether a prior conviction was for an offense that constitutes a felony violation of Section 186.22 is determined by applying the current version of section 186.22. The matter must be remanded to the trial court for any retrial of these allegations, and if required, any resentencing.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

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

Case 000773

Posted on by Gary McCurdy

Error and/or relief

We reverse the juvenile court’s finding that the minor committed murder as an aider and abettor with implied malice.

First Holding:

An aider and abettor of murder must actually aid and abet the lethal act in order to be convicted of murder.

Authority:

People v. Morris (2026) 19 Cal.5th 671, 678

Second Holding:

The trial court announced its finding that, to be liable for an implied malice murder, a direct aider and abettor must, by words or conduct, aid the commission of the life endangering act, not the result of that act. The court treated the robbery as the life-endangering act that resulted in the victim’s death.

The court went on to state that the People have proved beyond a reasonable doubt that the minor was an aider and abettor to the robbery with knowledge that his compatriots intended to commit the robbery; did, in fact, intend to aid the perpetrators in the commission of the robbery or attempted robbery, and had knowledge that the act was dangerous to human life.

The opinion in Morris was issued long after the juvenile court sustained the petition, and under Morris, the court’s reasoning was in error.

Authority:

People v. Morris (2026) 19 Cal.5th 671

Third Holding:

When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

We 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. In so doing, a reviewing court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.

The same standard of review governs our review of the sufficiency of evidence in juvenile delinquency cases.

Authority:

People v. Edwards (2013) 57 Cal.4th 658, 715

In re Roderick P. (1972) 7 Cal.3d 801, 809

In re A.G. (2020) 58 Cal.App.5th 647, 653

In re Matthew A. (2008) 165 Cal.App.4th 537, 540

Fourth Holding:

Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. An unlawful killing during the commission of a felony is also murder. Second degree implied malice murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder. Malice may be express or implied.

Authority:

PEN 187(a)

PEN 189(a),(e)

People v. Knoller (2007) 41 Cal.4th 139, 151

Fifth Holding:

Malice is implied when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. In short, implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less. This definition is referred to as “simple implied malice murder.”

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 143

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

Sixth Holding:

To suffice for implied malice murder, the defendant’s act must not merely be dangerous to life in some vague or speculative sense; it must involve a high degree of probability that it will result in death. Implied malice requires a defendant’s awareness of the risk of death to another.

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 152

People v. Reyes (2023) 14 Cal.5th 981, 989

Seventh Holding:

To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. The question of implied malice is to be decided in light of all the circumstances.

Authority:

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

People v. Moore (2010) 187 Cal.App.4th 937, 942

Eighth Holding:

Under Penal Code section 187, the mens rea required for murder is malice aforethought. Regarding aiders and abettors, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.

In the context of implied malice murder, the aider and abettor must know the perpetrator intends to commit a life-endangering act, intend to aid the perpetrator in the commission of that act, know the act is dangerous to human life, and act in conscious disregard for human life.

Authority:

PEN 187

PEN 188(a)(3)

People v. McCoy (2001) 25 Cal.4th 1111, 1118

People v. Harris (2024) 105 Cal.App.5th 623, 631

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

People v. Reyes (2023) 14 Cal.5th 981, 991

Ninth Holding:

Murder also requires an actus reus. In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act.

Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act.

Authority:

People v. Concha (2009) 47 Cal.4th 653, 660

People v. Reyes (2023) 14 Cal.5th 981, 991

Tenth Holding:

As relevant to this aider or abettor theory of liability in a felony-murder, the amended felony-murder rule now states that when a person was not the actual killer, that person must have, 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. Section 189(e)(2) requires a nonkiller to aid the actual killer in the lethal act.

While the language of Penal Code section 188(a)(3), differs from section 189(e), pursuant to section 188(a)(3), a direct aider and abettor must act with malice aforethought, and act with intent to aid the life-endangering act of the direct perpetrator that proximately causes the death.

Authority:

PEN 189(e)(2)

People v. Morris (2026) 19 Cal.5th 671, 678

People v. Pittman (2023) 96 Cal.App.5th 400, 415

People v. Reyes (2023) 14 Cal.5th 981, 991-992

Eleventh Holding:

Implied malice murder requires attention to the aider and abettor’s mental state concerning the life endangering act committed by the direct perpetrator, such as shooting at the victim, or, as in this case, stabbing him. In other words, the aider and abettor must know the perpetrator intends to commit a life-endangering act, intend to aid the perpetrator in the commission of that act, know the act is dangerous to human life, and act in conscious disregard for human life. Even if the act results in a death that is accidental, the circumstances surrounding the act may evince implied malice.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 992

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

People v. Nieto Benitez (1992) 4 Cal.4th 91, 110

Twelfth Holding:

SB 1437 abolished the natural and probable consequences doctrine in cases of murder, amending section 188 to require that, when the felony-murder rule does not apply, a principal in the crime of murder shall act with malice aforethought, and that malice shall not be imputed to a person based solely on his or her participation in a crime. As a result, the natural and probable consequences doctrine can no longer support a murder conviction.

Authority:

PEN 188

In re R.G. (2019) 35 Cal.App.5th 141, 144

People v. Gentile (2020) 10 Cal.5th 830, 847-848

Thirteenth Holding:

Instead, with the exception of section 189(e), a conviction for murder requires that a person act with malice aforethought and that a person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.

We conclude the legislative language of Penal Code section 188(a)(3) requires a finding that the accused actually aided the perpetrator in the commission of the life-endangering act, and that the accused’s participation in a dangerous felony as an aider and abettor cannot form the basis for finding implied malice.

Only in this way will a finding that the accused aided and abetted in the commission of implied malice murder reflect a determination of the person’s guilt based on his own actions and subjective intent.

Authority:

People v. Lopez (2026) 19 Cal.5th 639, 660-661

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

Case 000771

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it failed to instruct the jury regarding specific intent for count 2, and the trial court abused its discretion when it imposed the registration requirement, We reverse count 2 and strike the registration requirement, and in all other respects affirm.

First Holding:

Trial courts have a sua sponte duty to instruct on every element of charged offenses. Instructions completely removing the issue of intent from the jury’s consideration may constitute a denial of federal due process principles. We review independently the legal adequacy of a jury instruction.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 409

People v. Lee (1987) 43 Cal.3d 666, 673,

People v. Cole (2004) 33 Cal.4th 1158, 1211

Second Holding:

The court instructed the jury that count 2 required “general criminal intent,” which is established when the defendant intentionally does a prohibited act.

This instruction was erroneous. The crime in count 2 is a specific intent crime because it requires the act to be done with the intent to accomplish a separate objective.

In addition, the instruction given on the crime was incomplete, because it included the statutory language for the prohibited conduct, but it omitted the requirement that the physical act be performed for a separate reason.

Specific intent is not presumed from the doing of the unlawful act.

Authority:

EVID 668

People v. ZarateCastillo (2016) 244 Cal.App.4th 1161, 1167 [construing equivalent language of a similar section]

Third Holding:

We assess the prejudicial effect of the failure to instruct regarding the required element of mental state pursuant to Chapman. We must reverse unless it appears beyond a reasonable doubt that the error did not contribute to the jury’s verdict.

Instructional error is harmless where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, but not where the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

In our view, the instructional error is not harmless because the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.

Authority:

Chapman v. California (1967) 386 U.S. 18, 24

People v. Mil (2012) 53 Cal.4th 400, 409

Neder v. United States (1999) 527 U.S. 1, 19

Fourth Holding:

Substantial evidence did not support the trial court’s order that the defendant register as a sex offender. Section 290.006 requires a defendant to register as a sex offender if the court finds at the time of conviction or sentencing that the person committed the offense as a result of sexual compulsion or for purposes of sexual gratification. Section 290.006 does not include sexual abuse as a basis for registration.

Authority:

PEN 290.006

Fifth Holding:

We review imposition of a registration requirement pursuant to section 290.006 for abuse of discretion. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.

A trial court abuses its discretion when its factual findings are not supported by the evidence. Here, there was no evidence that the murder (count 1) was committed for sexual gratification. The registration requirement must be stricken.

If the defendant is retried on the reversed count by a properly instructed jury, the court may reconsider the registration requirement based on the evidence presented at that trial.

Authority:

People v. Picklesimer (2010) 48 Cal.4th 330, 335

People v. Thai (2023) 90 Cal.App.5th 427, 433

Sixth Holding:

Because sufficient evidence was presented that could support a guilty verdict if the jury were properly instructed, the People may retry the defendant for count 2 on remand.

Authority:

People v. Hatch (2000) 22 Cal.4th 260, 271–272

Appellate Principles, Racial Justice Act, Standard of review

Case 000770

Posted on by Gary McCurdy

Error and/or relief

In 2023, the defendant filed a motion in the trial court for postjudgment discovery pursuant to Penal Code section 1054.9, in advance of filing a petition for writ of habeas corpus. The defendant alleged he was arrested, charged, and convicted as a result of racial bias by the police department and the district attorney, and that his defense counsel was prejudicially ineffective. He appealed from the court’s denial of a portion of his motion. It was not an appealable order. We treat this as a petition for writ of mandate.

(Gary note: The court denied the petition, but I have included the “gold”–its principles–for educational reasons. Which is really the point of this entire blog, of course.)

First Holding:

A party must seek review of the trial court’s denial of a section 1054.9 motion for postconviction discovery by filing a petition for writ of mandate rather than an appeal.

Authority:

In re Steele (2004) 32 Cal.4th 682, 688

People v. Serrano (2024) 106 Cal.App.5th 276, 292

Second Holding:

Given the procedural background of this case, rather than dismiss the appeal, we exercise our discretion to treat it as a petition for writ of mandate in the interests of judicial economy.

Authority:

People v. Payne (1988) 202 Cal.App.3d 933, 937

People v. Picklesimer (2010) 48 Cal.4th 330, 335

Third Holding:

A motion for postjudgment discovery filed pursuant to section 1054.9 may be made in anticipation of filing a petition for writ of habeas corpus but before the petition is actually filed. However, the statute provides only limited discovery. It does not allow free-floating discovery asking for virtually anything the prosecution possesses.

Authority:

In re Steele (2004) 32 Cal.4th 682, 691

Barnett v. Superior Court (2010) 50 Cal.4th 890, 894

Fourth Holding:

The trial court’s ruling on a motion under section 1054.9 is reviewed for an abuse of discretion.

Authority:

Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366

Gary Note:

(Gary note: I wrote a Gary Musings on the code section at issue here, focusing on the statutory duty it imposes on counsel to retain a copy of [insert appropriate adjective, depending on how YOU read the subdivision, but for lack of a better term at the moment, “certain” will do] clients’ files in a digital format in color. It went up on the blog on June 21, 2026, under the category “Gary Musings.” The article’s title is “To Save, Or Not To Save (the client’s file).”)

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

Case 000768

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the allegation that the minor received stolen property in violation of section 496d(a) (pertaining to the vehicle in which he was a passenger).

First Holding:

The same standard governs review of the sufficiency of the evidence in adult criminal cases and juvenile cases. We examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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.

While substantial evidence includes circumstantial evidence and reasonable inferences drawn therefrom, such inferences may not be based on suspicion alone, or on imagination, or speculation.

Authority:

In re Amanda A. (2015) 242 Cal.App.4th 537, 545-546

In re Matthew A. (2008) 165 Cal.App.4th 537, 540

People v. Grant (2020) 57 Cal.App.5th 323, 330

Second Holding:

To sustain the petition on the receiving a stolen vehicle count, the People had to prove: (1) the motor vehicle was stolen; (2) the minor knew it was stolen; and (3) the minor received, concealed, or withheld the stolen vehicle from its owner.

Authority:

People v. Land (1994) 30 Cal.App.4th 220, 223-224

In re Anthony J. (2004) 117 Cal.App.4th 718, 728

Third Holding:

Receipt, or possession of stolen property, may be actual or constructive and need not be exclusive. Physical possession is also not a requirement. It is sufficient if the defendant acquires a measure of control or dominion over the stolen property.

Constructive possession occurs when the defendant maintains control or a right to control the property; possession may be imputed when the property is found in a place that is immediately and exclusively accessible to the defendant and subject to his or her dominion and control, or to the joint dominion and control of the defendant and another.

Authority:

People v. Land (1994) 30 Cal.App.4th 220, 223-224 [construing similar language in context of sec. 496, general receiving stolen property statute]

People v. Rushing (1989) 209 Cal.App.3d 618, 621-622

Fourth Holding:

Possession may be established through circumstantial evidence and resulting reasonable inferences. However, mere presence near the stolen property, or access to the location where the stolen property is found is not sufficient evidence of possession, standing alone, to sustain a conviction for receiving stolen property. Something more must be shown to support inferring of dominion and control. The necessary additional circumstances may, in some fact contexts, be rather slight.

Authority:

People v. Land (1994) 30 Cal.App.4th 220, 224

People v. Myles (1975) 50 Cal.App.3d 423, 429 [evidence the defendant was passenger in car and found standing close to car trunk containing stolen goods insufficient to infer possession for conviction of receiving stolen property]

People v. Zyduck (1969) 270 Cal.App.2d 334, 336 [evidence defendant was passenger in car with stolen chain saw in rear seat insufficient evidence to infer his possession of stolen item]

Fifth Holding:

The car was stolen and the minor knew the car was stolen, but there is no substantial evidence that the minor possessed or aided in withholding the car from its owner.

While it is true that conscious possession of recently stolen property itself raises a strong inference that the possessor knew the property was stolen, the issue here is whether, as a mere passenger, he actually or constructively possessed the stolen car as a section 496d conviction requires.

Aiding and abetting the commission of a crime requires some affirmative action. Mere presence at the scene of a crime which does not itself assist its commission or mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting.

There was no evidence to show the minor directed the driver to speed away from the pursuing officers or otherwise directed any movement of the Infiniti as a passenger. There was no evidence that the minor had an opportunity to get out of the car before the traffic stop, or once the driver sped away from the officers.

The record is also devoid of any evidence regarding the minor’s relationship to any of the other occupants of the car, and the gang expert conceded the minor had no documented gang-related contacts apart from this one incident.

Absent evidence showing the nature and extent of the relationship between the minor and the other occupants, or the circumstances of the minor’s affirmative actions beyond simply running from the Infiniti, we conclude the evidence established nothing more than that the minor was a passenger in the stolen car, but not that he aided and abetted in the vehicle theft or in withholding the stolen vehicle from its rightful owner.

Authority:

People v. O’Dell (2007) 153 Cal.App.4th 1569, 1574

People v. Anderson (1989) 210 Cal.App.3d 414, 420-421

People v. Partee (2020) 8 Cal.5th 860, 868

People v. Pettie (2017) 16 Cal.App.5th 23, 57

People v. Sedillo (2015) 235 Cal.App.4th 1037, 1039 [presence at crime scene, by itself, is insufficient to establish aiding and abetting; relevant factors for determining aider and abettor liability may include presence, companionship, and conduct before and after offense]

Abstracts and Minutes, Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000767

Posted on by Gary McCurdy

Error and/or relief

We find that the evidence was sufficient to support the conviction for discharging a firearm for the benefit of a criminal street gang.

However, the defendant cannot be convicted of both discharging a firearm at a motor vehicle and grossly negligent discharge of a firearm at a motor vehicle, and the abstract of judgment must be corrected to list the enhancements found true.

First Holding:

In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether it discloses substantial credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on isolated bits of evidence. Resolving conflicts and inconsistencies in the testimony is the jury’s exclusive province.

We do not redetermine the weight of the evidence or the credibility of witnesses. Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.

Authority:

People v. Brooks (2017) 3 Cal.5th 1, 57

People v. Cuevas (1995) 12 Cal.4th 252, 261

People v. Young (2005) 34 Cal.4th 1149, 1181

People v. Albillar (2010) 51 Cal.4th 47, 60

Second Holding:

We must accept logical inferences that the trier of fact might have drawn from the evidence even if we would have concluded otherwise. 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.

The reviewing court need not address assertions of conflicts in the evidence or alternative theories regarding the inferences that should have been drawn from the evidence. 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. This is true for both direct and circumstantial evidence.

In this case, a reasonable jury could have found that the actions of the defendant were gang related and for the benefit of a gang.

Authority:

People v. Streeter (2012) 54 Cal.4th 205, 241, overruled on other grounds as stated in People v. Harris (2013) 57 Cal.4th 804, 834

People v. Albillar (2010) 51 Cal.4th 47, 60

People v. Letner and Tobin (2010) 50 Cal.4th 99, 162

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

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

People v. Thompson (2010) 49 Cal.4th 79, 113

Third Holding:

The crime of grossly negligent discharge of a firearm which could result in injury or death (sec. 246.3(a)) is a lesser included offense of discharging a firearm at a motor vehicle (sec. 246).

Although section 954 provides that a single act or course of conduct can lead to convictions of any number of the offenses charged, the courts have created an exception to this rule where multiple convictions are based on necessarily included offenses.

In Ramirez, our Supreme Court reviewed the elements of both offenses and concluded that the only difference between the two crimes, and the basis for the more serious treatment of a section 246 offense, is that the greater offense requires that an inhabited dwelling or other specified object be within the defendant’s firing range.

All the elements of section 246.3(a) are necessarily included in the more stringent requirements of section 246. Therefore, we shall reverse defendant’s conviction on the count alleging grossly negligent discharge of a firearm.

Authority:

PEN 954

People v. Ramirez (2009) 45 Cal.4th 980, 984–985

Fourth Holding:

The abstract of judgment fails to accurately reflect the sentence orally pronounced by the trial court. Courts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

Sentencing, Standard of review

Case 000764

Posted on by Gary McCurdy

Error and/or relief

The court erred by not staying punishment for the second count under section 654. Also, the court must recalculate the credit for time served on resentencing. Further, the abstract of judgment erroneously reflects that the defendant stands convicted of a count that was reversed in the prior appeal.

(Gary note: This was mentioned only in a footnote, and there was no express direction for correction. But the court did order resentencing “consistent with this opinion,” which most likely implies a direction that the subsequent abstract of judgment accurately reflect the record.)

First Holding:

Section 654(a) states 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.

Authority:

PEN 654(a)

Second Holding:

Whether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry, because the statutory reference to an act or omission may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective.

We first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives. At step one, courts examine the facts of the case to determine whether multiple convictions are based upon a single physical act.

When those facts are undisputed the application of section 654 raises a question of law we review de novo. However, we review the trial court’s factual findings for substantial evidence.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311–312

People v. Washington (2021) 61 Cal.App.5th 776, 795

Third Holding:

A review of the record indicates that there was but one act constituting the crime. Accordingly, the sentence on count 2 should have been stayed.

Authority:

PEN 654

Fourth Holding:

While we do not address the trial court’s failure to recalculate the defendant’s actual days of presentence custody credits because it was not raised by the defendant and we are remanding the matter for resentencing, we note that trial courts are required to do so.

Authority:

People v. Buckhalter (2001) 26 Cal.4th 20, 41

Fifth Holding:

(Gary note: the court mentioned in a footnote that the abstract incorrectly lists a conviction of an offense that was reversed in a prior appeal. It made no express direction for correct of the abstract, but there is much authority that would have supported such an order, some of which I set forth below.)

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

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

Case 000760

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction on count 2, and there are errors in the abstract of judgment that must be corrected.

First Holding:

The defendant was charged with taking a vehicle in violation of Vehicle Code section 10851 and with receiving stolen property (the same vehicle) under Penal Code section 496d(a). He was convicted of both counts. Though there was sufficient evidence that he took the vehicle, there was no evidence on what he did with it before its discovery. The evidence supports the theory that defendant was on one continuous journey away from the locus of the theft’ with the golf cart after taking it from the company premises until it was placed at the location from which the victim later retrieved it.

Authority:

People v. Strong (1994) 30 Cal.App.4th 366, 375

Second Holding:

Where a defendant challenges the sufficiency of the evidence supporting a criminal conviction, we apply the substantial evidence standard of review. Accordingly, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, 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.

While substantial evidence may consist of inferences, such inferences must be a product of logic and reason and must rest on the evidence; inferences that are the result of mere speculation or conjecture cannot support a finding.

Authority:

People v. Rangel (2016) 62 Cal.4th 1192, 1212

People v. Shively (2025) 111 Cal.App.5th 460, 468

Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633

Third Holding:

Vehicle Code section 10851(a) proscribes a wide range of conduct. A person can violate Vehicle Code section 10851(a) either by taking a vehicle with the intent to steal it or by driving it with the intent only to temporarily deprive its owner of possession (i.e., joyriding). A taking is complete when the driving is not part of the escape from the scene of the theft.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

People v. Calistro (2017) 12 Cal.App.5th 387, 395

Fourth Holding:

A person who violates section 10851(a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property. If, on the other hand, a section 10851(a) conviction is based on posttheft driving, a separate conviction under section 496(a) for receiving the same vehicle as stolen property is not precluded.

Authority:

People v. Garza (2005) 35 Cal.4th 866, 871, 876

Fifth Holding:

When a defendant is improperly convicted of both stealing and receiving the same stolen property, the theft conviction should be upheld and the receiving conviction reversed.

Authority:

People v. Ceja (2010) 49 Cal.4th 1, 10

Sixth Holding:

There were numerous errors in the abstract of judgment, in which the recitation of prison terms imposed were quite different than orally pronounced. Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls. The abstract must be corrected.

Authority:

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

Sentencing, Standard of review

Case 000757

Posted on by Gary McCurdy

Error and/or relief

While affirming the lower court’s finding that section 654 did not apply, it did find that the sentence for the second count was unauthorized, as the trial court purported to impose one-third the middle term to be served concurrently with the other count. It should have imposed a full term to run concurrently, as the one-third the middle term calculation applies only when sentences are to be served consecutively.

First Holding:

A sentence is generally unauthorized where it could not lawfully be imposed under any circumstance in the particular case. An appellate court can correct an unauthorized sentence on appeal when such error is clear and correctable independent of any factual issues presented by the record at sentencing.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354

People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3 [vacating and correcting the unauthorized sentence rather than remanding for resentencing because the record clearly reflects the trial judge’s intention to run the unauthorized sentence concurrently and not impose any additional consecutive time]

Second Holding:

The imposition of one-third the middle term for subordinate offenses applies in case of consecutive, but not concurrent, sentences. Because concurrent terms are not part of the principal and subordinate term computation under section 1170.1(a), they are imposed at the full base term, not according to the one-third middle term formula, even though they are served at the same time.

As such, imposition of one-third the midterm sentence on a concurrent term is an unauthorized sentence. However, remand for resentencing is unnecessary because the record clearly indicates that the trial court intended to run the sentence on his possession of a firearm conviction concurrently and not impose any additional consecutive time.

Authority:

People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4

People v. Quintero (2006) 135 Cal.App.4th 1152, 1156, fn. 3

Third Holding:

Section 654(a) provides 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. The statute therefore precludes multiple punishments for a single act or indivisible course of conduct. Multiple punishment includes the imposition of both concurrent and consecutive sentences because the defendant is deemed to be subjected to the term of both sentences although they are served simultaneously.

Authority:

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

People v. Jones (2012) 54 Cal.4th 350, 353, 358

Fourth Holding:

The proscription against double punishment in section 654 is applicable where there is a course of conduct which … comprises an indivisible transaction punishable under more than one statute.… The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one.

Authority:

People v. Bauer (1969) 1 Cal.3d 368, 376

Fifth Holding:

If the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished for each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. In the context of a conviction for possession of a firearm by a felon, where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved.

Authority:

People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268

People v. Bradford (1976) 17 Cal.3d 8, 22

Sixth Holding:

Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. Its findings will not be reversed on appeal if there is any substantial evidence to support them. We review the trial court’s determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. The evidence in this case indicates that the defendant bought the firearm and possessed it for a substantial period before the shooting, not simply during the shooting.

Authority:

People v. Jones (2002) 103 Cal.App.4th 1139, 1143

People v. Wynn (2010) 184 Cal.App.4th 1210, 1217 [courts have determined that section 654 applies where the defendant obtained the prohibited weapon during the assault in which he used the weapon]