Tag Archives: Sufficiency of and substantial evidence

Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case: 000383

Posted on by Gary McCurdy

Error and/or relief

Though we find sufficient evidence to support the convictions, we conclude the evidence does not support the challenged large quantity aggravating circumstances attached to three of the counts.. There were several errors in the abstract of judgment, but they were corrected after the opening brief was filed.

First Holding:

In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment 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. An appellate court must accept logical inferences that the trier of fact might have drawn from the evidence even if the court would have concluded otherwise.

Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. The same standard of review applies when the conviction rests on circumstantial evidence. The standard of appellate review for determining the sufficiency of the evidence supporting an enhancement is the same as that applied to a conviction.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 11

People v. Halvorsen (2007) 42 Cal.4th 379, 419

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

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

People v. Weddington (2016) 246 Cal.App.4th 468, 483

Second Holding:

Possession may be actual or constructive. Actual possession means the contraband is in the defendant’s immediate possession or control. A defendant has actual possession when that defendant has the contraband. Constructive possession means the contraband is not in the defendant’s physical possession, but the defendant knowingly exercises control or the right to control the object. Dominion and control is readily found when the controlled substance is discovered in a place such as a defendant’s residence, vehicle, or among his, her, or their personal effects. Exclusive possession is not necessary. A defendant does not avoid conviction if his, her, or their right to exercise dominion and control over the place where the contraband was located is shared with others.

Authority:

In re Daniel G. (2004) 120 Cal.App.4th 824, 831

People v. Busch (2010) 187 Cal.App.4th 150, 162

Third Holding:

Mere proximity to a prohibited item, however, is not sufficient evidence of possession. In Martin, the court concluded the evidence demonstrated the defendant had mere access or proximity when the stolen goods were found in his codefendant’s car without evidence linking the stolen goods to the defendant. In Myles, the evidence was insufficient to establish possession of stolen televisions found in the trunk of a car in which the defendant was a passenger. In Zyduck, the appellate court rejected the argument that the defendant’s mere presence in a car owned and driven by another, in which the stolen property is readily visible, is enough to show possession.

Authority:

People v. Martin (1973) 9 Cal.3d 687, 696,

People v. Myles (1975) 50 Cal.App.3d 423, 429

People v. Zyduck (1969) 270 Cal.App.2d 334, 335-336

People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417, disapproved on another ground in People v. Farwell (2018) 5 Cal.5th 295, 304 & fn. 6

Fourth Holding:

The defendant did not forfeit the challenge to the quantity enhancement by failing to object below. As to forfeiture, an objection is generally required to challenge on appeal a trial court’s reliance on an improper factor in imposing a sentence. However, sufficiency of the evidence has always been viewed as a question necessarily and inherently raised in every contested trial of any issue of fact, and requiring no further steps by the aggrieved party to be preserved for appeal. Parties may generally challenge the sufficiency of the evidence to support a judgment for the first time on appeal because they necessarily objected to the sufficiency of the evidence by contesting it at trial.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 353

In re K.F. (2009) 173 Cal.App.4th 655, 660

People v. McCullough (2013) 56 Cal.4th 589, 596

Fifth Holding:

California Rules of Court, rule 4.421(a)(10) provides a circumstance in aggravation occurs when the crime involved a large quantity of contraband. In light of the testimony of the witnesses, there was insufficient evidence to support the jury’s finding that the the quantity possessed by the defendant constituted a large quantity.

Authority:

Rules of Court, rule 4.421(a)(10)

Sixth Holding:

Typically, when part of a sentence is stricken on review, a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. However, the record in this case demonstrates with unusual clarity that remand would be an idle act. The trial court indicated it was going to impose the middle term on all counts except those three on which the jury found the large quantity factor in aggravation. It is clear that but for those findings, it would have imposed the middle term. Having concluded that there was insufficient evidence to support those findings, we modify the judgment to impose the middle term for the affect counts.

Authority:

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

People v. Flores (2020) 9 Cal.5th 371, 432

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

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

Amelioration, Retroactivity, Sentencing, Sufficiency of and substantial evidence

Case: 000357

Posted on by Gary McCurdy

Error and/or relief

On remand from the Supreme Court, the prior opinion is amended to vacate the strike finding and prior serious felony enhancement in light of AB 333, enacted after he was sentenced. As held in the original opinion, three of the four counts of felon in possession of a firearm must be vacated, because the same gun was possessed for all four underlying robberies.

First Holding:

The evidence is insufficient to support three of the four charged counts of being a felon in possession of a firearm because he possessed the same gun continuously and can therefore be convicted of only one count. As the Attorney General concedes, the evidence shows a single continuing offense without the interruption in possession necessary for separate crimes. (Indeed, to help prove identity of the perpetrator, the prosecutor relied on the fact that the same gun was used in all the offenses.) We will therefore reverse the judgment and order all but one firearm possession conviction vacated.

Authority:

People v. Mason (2014) 232 Cal.App.4th 355, 365

Second Holding:

After defendant was sentenced, section 1170(b) was amended to create a presumption in favor of the low term under certain circumstances, including where the defendant was under age 26 at the time of the offense and youth was a contributing factor in the offense. Because that new provision is ameliorative, it applies retroactively to this nonfinal judgment.

Authority:

PEN 1170(b)(6)

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

Third Holding:

The Attorney General does not dispute defendant was under 26 at the time of the offenses but argues resentencing is not required because there is no evidence youth was a contributing factor and the aggravating factors found by the court outweigh the mitigating factors such that the court would not have imposed the low term in any event. But when a court has imposed a sentence while unaware of the extent of its discretion—in this case because the legislation was not yet in effect—resentencing is required unless the record clearly indicates the court would have imposed the same sentence under the new standard. We are not persuaded that a lack of evidence showing youth contributed to the offense obviates the need for remand, as before the enactment of the new law, counsel may have had less incentive to present mitigation on the point, and defendant should now be allowed the opportunity to do so.

Authority:

People v. Gerson (2022) 80 Cal.App.5th 1067, 1096

Fourth Holding:

Defendant’s sentence was increased based on the finding that he was convicted in 2012 of a serious felony. The prior conviction is for assault under former Penal Code section 245(a)(1), which qualified as a prior serious felony because it was found to have been committed to benefit a criminal street gang under the version of Penal Code section 186.22 then in effect. The strike finding and prior serious felony enhancement must be vacated because legislation enacted after his sentencing (AB No. 333) added several elements to the gang enhancement statute and, if the current standard is applied to his 2012 conviction, the evidence in the record is insufficient to prove the new elements. 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. We will therefore remand for possible retrial as contemplated in Fletcher, or for resentencing without an increase to defendant’s sentence based on a prior serious felony conviction.

Authority:

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

Fifth Holding:

Effective January 1, 2020, Penal Code section 667.5(b) was amended to limit prior prison term enhancements (for nonviolent offenses not listed in 667.5(c)) to sentences that were served for sexually violent offenses as defined in Welfare and Institutions Code section 6600(b). The amendment applies retroactively and requires the prior prison term enhancements to be vacated because they were not based on sexually violent offenses.

Authority:

SB 136

PEN 667.5

Sixth Holding:

The trial court imposed a concurrent prison term for possessing ammunition, which should have been stayed under section 654 because the ammunition offense is based on the same conduct as unlawfully possessing a firearm, for which the court also imposed a prison term. When resentencing defendant, the trial court shall apply section 654 to stay any prison terms arising from conduct for which punishment is otherwise imposed.

[GARY NOTE: Section 654 now gives the court the discretion to impose punishment for ANY ONE of multiple counts (and stay the punishment on the other(s)) where section 654 applies, and does NOT require that it impose the sentence on the count bearing the greater sentence.]

Authority:

PEN 654

Sixth Holding:

On resentencing, the defendant will be entitled to consideration under the amendments to section 1385 under SB 81 to to limit sentencing enhancements by requiring that great weight be given to evidence of certain mitigating circumstances. By its terms, amended Penal Code section 1385 applies to all sentencings after January 1, 2022, which will include defendant’s resentencing.

Authority:

PEN 1385

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

Case: 000351

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction of aggravated sexual assault by sexual penetration under section 289. The One Strike law applies only to certain offenses. The offense resulting in conviction of Count 18 is not one of those offenses, and the One Strike Sentence for that count is modified accordingly.

First Holding:

Section 289 defines various terms pertaining to the conduct it describes as a crime. [Gary note: you just witnessed a little adjustment of precise language to maintain a “G” rating for this movie. If you have an issue involving this section, read it carefully for its definitions. In this case, the conduct in question did not meet the definition for violation of this section.]

Authority:

PEN 289(k)

Second Holding:

When reviewing for substantial evidence, we examine the entire record in the light most favorable to the prosecution to determine if a rational factfinder could find the essential elements of the crime beyond a reasonable doubt. Substantial evidence is reasonable, credible evidence of solid value, even if circumstantial. We will reverse only if upon no hypothesis whatever is there sufficient substantial evidence to support it.

Authority:

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

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

Third Holding:

When insufficient evidence supports a conviction for a greater offense, we may modify the judgment to reflect a conviction for a lesser included offense.

Authority:

People v. Bailey (2012) 54 Cal.4th 740, 748

Fourth Holding:

The only lesser offenses here are time barred. Although the defendant did not raise the statute of limitations in his supplemental brief, a defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense. Because the only applicable lesser included offenses are time-barred, we must reverse the defendant’s conviction for count 19 for insufficient evidence.

Authority:

People v. Williams (1999) 21 Cal.4th 335, 338

Kellett v. Superior Court (1966) 63 Cal.2d 822, 827 [Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.]

Fifth Holding:

The One Strike law, section 667.61, applies only to certain felony sex offenses. The defendant’s Count 18 conviction is not among those offenses. Consequently, we reverse the jury’s two count 18 true findings under section 667.61.

Authority:

PEN 667.61(c)

People v. Anderson (2009) 47 Cal.4th 92, 102

People v. Seals (1993) 14 Cal.App.4th 1379, 1385

Sixth Holding:

The defendant contends his sentence of [hundreds of years to life] constitutes cruel and unusual punishment under the United States and California Constitutions. The defendant forfeited this claim of error. A claim that a sentence is cruel or unusual requires a fact specific inquiry and is forfeited if not raised below. At the sentencing hearing, defense counsel never invoked the state constitutional prohibition against cruel or unusual punishment (Cal. Const., art. I, sec. 17). The defendant did not adequately preserve an objection under the Eighth Amendment either. To the contrary, after imposing the sentence, the court asked if counsel for either side wanted to be heard, and defense counsel responded, “No.” As a result, the defendant’s federal constitutional claim is also forfeited.

Authority:

People v. Baker (2018) 20 Cal.App.5th 711, 720

People v. Boyce (2014) 59 Cal.4th 672, 731

Amelioration, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000345

Posted on by Gary McCurdy

Error and/or relief

Pursuant to a plea bargain, the two defendants pleaded no contest to voluntary manslaughter. Both petitioned the court for resentencing pursuant to section 1172.6. The court denied each man’s petition. We reverse and remand for the trial court to hold another evidentiary hearing pursuant to section 1172.6(d)(3) to determine whether the defendant’s would be guilty of murder beyond a reasonable doubt under current law.

First Holding:

In 2019, the Legislature enacted SB 1437, which altered the rules of murder liability to ensure culpability more closely matched punishment. To provide retroactive relief, SB 1437 also established a resentencing process, now codified in section 1172.6. This statute permits individuals convicted of murder, attempted murder, or manslaughter under a theory made invalid by the current law to petition the sentencing court to vacate the conviction and seek resentencing. Petitioners can seek such relief whether their convictions are the result of a trial or acceptance of a plea offer in lieu of a trial.

Authority:

PEN 1172.6

People v. Arellano (2024) 16 Cal.5th 457, 472

Second Holding:

We review the court’s finding for substantial evidence, making all inferences in favor of the judgment.

Authority:

People v. Schell (2022) 84 Cal.App.5th 437, 442

Third Holding:

Three times the court stated the defendants could be convicted of the crime to which they pleaded–voluntary manslaughter. In one instance, the court noted it was significant the crime they had pleaded to was manslaughter. However, that is not the question the court must answer. The evidentiary hearing under section 1172.6(d)(3), requires the court to determine whether the petitioner could be convicted of murder or attempted murder under current law – not manslaughter.

Authority:

PEN 1172.6

Fourth Holding:

On this record, we cannot confidently find the trial court meant to find the two men could be found guilty of murder and not manslaughter under current law. We therefore remand for the court to hold an evidentiary hearing and answer the required question under section 1172.6(d)(3) with regard to their manslaughter convictions.

Authority:

PEN 1172.6

Amelioration, Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case: 000339

Posted on by Gary McCurdy

Error and/or relief

Because of insufficient evidence of the predicate offense, we reverse the juvenile court’s true finding on the gang enhancement as to count 1 pursuant to section 186.22(b)(1)(A) and remand the matter for resentencing. The prosecution did not present any evidence of predicate offenses showing the alleged gang members individually or collectively engaged in a pattern of criminal gang activity. Thus, it did not prove that the robbery was committed for the benefit of a criminal street gang.

First Holding:

Pursuant to section 186.22(b)(1)(A), the juvenile court may impose a sentencing enhancement for a felony committed for the benefit of, at the direction of, or in association with any criminal street gang.

Authority:

PEN 186.22(b)(1)(A)

Second Holding:

A gang is an ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more enumerated offenses, having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.

Authority:

PEN 186.22(f)

Third Holding:

A pattern of criminal gang activity is the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of, two or more enumerated offenses, provided at least one of these offenses occurred after the effective date of [the criminal gang activity chapter], and the last of those offenses occurred within three years of the prior offense and within three years of the date the current offense is alleged to have been committed, the offenses were committed on separate occasions or by two or more members, the offense commonly benefited a criminal street gang, and the common benefit from the offenses is more than reputational.

Authority:

PEN 186.22(e)(1)

Fourth Holding:

The offenses comprising a pattern of criminal gang activity are referred to as predicate offenses. The term ‘commission’ includes the broader statutory inclusion of the ‘attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction’ of a predicate offense.

Authority:

People v. Valencia (2021) 11 Cal.5th 818, 82

Fifth Holding:

Section 186.22(e) does not state that a predicate offense must be committed by a gang member. However, that requirement derives from the definition of a criminal street gang, which includes proof that the gang’s members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity. It follows, then, that the proof of a predicate offense must establish that a member of a defendant’s alleged gang was involved in its commission. Taken together the statutory scheme requires proof that gang members committed at least two predicate offenses within the statutory timeframe. Such proof will generally require evidence of who committed the crime and when they did so, as well as evidence of their gang membership and the nature of the crimes.

Authority:

People v. Valencia (2021) 11 Cal.5th 818, 829–830

Sixth Holding:

When assessing a claim of sufficiency of evidence of a gang enhancement under section 186.22, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which 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. Shively (2025) 111 Cal.App.5th 460, 468

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

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

Case: 000309

Posted on by Gary McCurdy

Error and/or relief

Denial of petition to vacate judgment of murder and for resentencing under section 1172.6 is reversed. The appellant’s participation in the planning and commission of the robbery and failure to render aid to the co-defendant do not demonstrate that he acted with the requisite reckless indifference to human life to be culpable of murder.

First Holding:

The Legislature enacted SB 1437 to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. As amended by SB 1437, section 189 now limits liability under a felony-murder theory to actual killers and those who, with the intent to kill, aid or abet the actual killer in the commission of murder in the first degree. Individuals who do not fall into those categories can be held liable for murder only if they were major participants in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d)—the statute defining the felony-murder special circumstance. Section 1172.6 permits individuals who were convicted of felony murder or murder under a natural and probable consequences theory, but who could not be convicted of murder following SB 1437’s changes to sections 188 and 189, to petition the sentencing court to vacate the conviction and resentence on any remaining counts.

Authority:

SB 1437

PEN 189

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 959

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

Second Holding:

On appeal from an order denying a section 1172.6 petition after an evidentiary hearing, we review the trial court’s factual findings for substantial evidence. We examine 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 that would support a rational trier of fact in finding the defendant guilty beyond a reasonable doubt. Our job on review is different from the trial judge’s job in deciding the petition. While the trial judge must review all the relevant evidence, evaluate and resolve contradictions, and make determinations as to credibility, all under the reasonable doubt standard, our job is to determine whether there is any substantial evidence, contradicted or uncontradicted, to support a rational fact finder’s findings beyond a reasonable doubt. We do not reweigh evidence or revisit the trial court’s credibility determinations.

Authority:

People v. Richardson (2022) 79 Cal.App.5th 1085, 1090

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

People v. San Nicolas (2004) 34 Cal.4th 614, 657-658

People v. Emanuel (2025) 17 Cal.5th 867, 885

People v. Cody (2023) 92 Cal.App.5th 87, 112-113

Third Holding:

In Banks, the Supreme Court set out a nonexhaustive list of considerations relevant to whether a defendant’s participation in criminal activities known to carry a grave risk of death is sufficiently significant to render him or her a major participant in the crime. Those considerations are: 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?

Authority:

People v. Banks (2015) 61 Cal.4th 788, 794, 803

People v. Strong (2022) 13 Cal.5th 698, 705

Fourth Holding:

Clark similarly set forth a list of considerations relevant to determining whether a defendant acted with reckless indifference to human life. The first factor relates to weapons: was the defendant aware that weapons would be used in the felony? Did the defendant use a weapon? How many weapons were used in the crime? The court cautioned that the mere fact of a defendant’s awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to human life. A robbery in which the only factor supporting reckless indifference to human life is the fact of the use of a gun is what the Banks court meant by a garden-variety armed robbery.

The second factor is the defendant’s physical proximity to the murder and the events leading up to it, and the opportunities that proximity afforded to restrain the crime or aid the victim.

The third factor is the duration of the felony, particularly the duration of the interaction between victims and perpetrators; more prolonged incidents provide “‘a greater window of opportunity for violence.

The fourth factor is the defendant’s awareness of his or her codefendants’ propensity for violence or likelihood of killing a victim.

The final factor is the defendant’s efforts to minimize the risk of violence during the felony, though the court cautioned that some effort to minimize the risk of violence does not, in itself, necessarily foreclose a finding that defendant acted with reckless indifference to human life. In cases where a defendant was a youth at the time of the crime, his or her age may also be relevant to determining whether he or she acted with reckless indifference.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 617-623

People v. Banks (2015) 61 Cal.4th 788, 794, 802

People v. Emanuel (2025) 17 Cal.5th 867, 885 fn 6

In re Moore (2021) 68 Cal.App.5th 434, 453-454

People v. Ramirez (2021) 71 Cal.App.5th 970, 987

Fifth Holding:

No single Banks or Clark factor is determinative. Lower courts should take care to consider the presence or absence relating to each relevant factor on its own merits before considering the evidence in its totality.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618, 621-623

People v. Emanuel (2025) 17 Cal.5th 867, 888

Sixth Holding:

There is significant overlap between being a major participant and acting with reckless indifference to human life, and the greater the defendant’s participation in the felony murder, the more likely that he acted with reckless indifference to human life. However, that does not necessarily mean that every major participant in a crime acts with reckless indifference to human life. Participation in a gardenvariety armed robbery is insufficient without more to establish reckless indifference. The defendant must not merely be aware of the foreseeable risk of death inherent in any violent felony; he or she must knowingly create a grave risk of death to demonstrate reckless indifference to human life. The defendant’s actions before and during the crime are important but not determinative; the key inquiry is what his actions reveal about his mental state.

Authority:

People v. Clark (2016) 63 Cal.4th 522, 618, 614-615

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

Elements of crime, Fifth Amendment, Juveniles, Standard of review, Sufficiency of and substantial evidence

Case: 000306

Posted on by Gary McCurdy

Error and/or relief

The evidence to support the alleged use of a deadly weapon is insufficient as a matter of law. The minor was alleged to have committed robbery with the use of a deadly or dangerous weapon (knife).

First Holding:

Section 12022(b)(1) allows a defendant’s sentence to be enhanced if he or she personally used a deadly or dangerous weapon during a felony. To prove use, the evidence must show something more than merely being armed. Intentionally displaying a weapon in a menacing manner qualifies. When a defendant deliberately shows a weapon or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the fact finder is entitled to find a facilitative use rather than an incidental or inadvertent exposure. But the use enhancement is not applicable if the evidence shows that the defendant’s conduct with respect to the weapon appears to be purely incidental to the crime, or if the defendant did no more than passively display the weapon.

Authority:

People v. Chambers (1972) 7 Cal.3d 666, 672

People v. Wims (1995) 10 Cal.4th 293, 302

People v. Granado (1996) 49 Cal.App.4th 317, 325

People v. Hays (1983) 147 Cal.App.3d 534, 548–549

Second Holding:

To determine whether the defendant used a knife for purposes of section 12022(b)(1), we may properly consult cases construing the term uses in other enhancement statutes, including cases involving the personal use of a firearm. But in doing so, we are mindful that unlike a firearm, a knife can be, and usually is, used for innocent purposes, and for that reason is not among the few objects that are inherently deadly weapons.

Authority:

People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1198, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216

People v. Aledamat (2019) 8 Cal.5th 1, 6

Third Holding:

In considering a challenge to the sufficiency of the evidence to support an enhancement, 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.

Authority:

People v. Albillar (2010) 51 Cal.4th 47, 59–60

Fourth Holding:

On a claim of insufficiency of the evidence, we consider the record evidence, not how a trial court might have responded to a timely objection.

Authority:

People v. McCullogh (2013) 56 Cal.4th 589, 596

In re I.A. (2020) 48 Cal.App.5th 767, 776 [No objection is necessary to preserve a challenge to the sufficiency of the evidence for appeal]

People v. Hiller (2023) 91 Cal.App.5th 335, 345 [a challenge to the sufficiency of the evidence is generally not subject to forfeiture]

Fifth Holding:

Reversal of the use enhancement for insufficiency of the evidence bars retrial of the enhancement.

Authority:

Tibbs v. Florida (1982) 457 U.S. 31, 42

People v. Eroshevich (2014) 60 Cal.4th 583, 591

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

Case: 000300

Posted on by Gary McCurdy

Error and/or relief

We order the protective order modified to strike [person x] as a protected person. We reject the defendant’s claim that the trial erred in not sua sponte instruction on the defense of unconsciousness.

First Holding:

Unconsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge. For purposes of the defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist where the subject physically acts but is not, at the time, conscious of acting. The law presumes that a person who appears to be acting in a state of consciousness is conscious. Accordingly, the burden is on a criminal defendant to produce evidence rebutting this presumption of consciousness. If a defendant produces substantial evidence that he or she was unconscious, the trial court is obligated to instruct the jury on the theory; the failure to do so is error. In this case, the defendant did not rebut the presumption of his consciousness, and it was therefore not error for the trial court to fail to instruct the jury on unconsciousness sua sponte.

Authority:

PEN 26

People v. Halvorsen (2007) 42 Cal.4th 379, 417

People v. James (2015) 238 Cal.App.4th 794, 804

Second Holding:

Unconsciousness caused by voluntary intoxication may negate specific intent, but it is not a defense to a general intent crime. Assault with a deadly weapon is a general intent crime. Reckless evasion of a peace officer is a specific intent crime.

Authority:

People v. James (2015) 238 Cal.App.4th 794, 805

People v. Rocha (1971) 3 Cal.3d 893, 899

People v. Williams (2001) 26 Cal.4th 779, 788

People v. Taylor (2018) 19 Cal.App.5th 1195, 1203-1206

Third Holding:

We review de novo whether the trial court correctly instructed the jury.

Authority:

People v. Oropeza (2007) 151 Cal.App.4th 73, 78

Fourth Holding:

A case is not authority for propositions not considered.

Authority:

People v. Chavez (2020) 54 Cal.App.5th 477, 480

Fifth Holding:

Where a defendant is convicted of certain defined crimes of domestic violence, the trial may issue a protective order restraining the defendant from any contact with a victim of the crime. Such orders are limited to defendants convicted of crimes that qualify as domestic violence and where the protected person qualifies as a victim of said crimes. The trial court does not have authority to restrain a defendant from contacting a person who was not present during or otherwise suffered harm from the crime.

For instance, a protective order covering children who were present but asleep during a domestic violence incident was found to be improper in Lopez. With respect to the issuance of a legally authorized criminal protective order, we imply all findings necessary to support the judgment, and our review is limited to whether there is substantial evidence in the record to support these implied findings.

The record here contains no substantial evidence from which the trial court reasonably could conclude that [person x] was a victim of the crime subject to protection under section 136.2(i)(1).

Authority:

PEN 136.2,(i)(1)

People v. Lopez (2022) 75 Cal.App.5th 227, 237

People v. Pena (2025) 113 Cal.App.5th 640, 648

People v. Race (2017) 18 Cal.App.5th 211, 217

People v. Delarosarauda (2014) 227 Cal.App.4th 205, 212 [absent evidence from which the trial court could reasonably conclude that appellant had harmed or attempted to harm two children, the court lacked authority to issue the no-contact protective order as to the children]

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

Case: 000296

Posted on by Gary McCurdy

Error and/or relief

The evidence is insufficient to support the defendant’s conviction on count 2 for attempted voluntary manslaughter, and that conviction must be reversed. We also conclude the court’s use of the pre-AB 333 pattern jury instruction was prejudicial. This requires reversal of the gang enhancements, the substantive gang offense (count 7), and the related section 12022.53(d) and (e)(1) gang related firearm use enhancements.

First Holding:

Attempted voluntary manslaughter requires proof that the defendant specifically intended to kill the named victim, although the intent is mitigated by heat of passion or imperfect self-defense.

Authority:

People v. Manriquez (2005) 37 Cal.4th 547, 583

Second Holding:

The jury must agree unanimously the defendant is guilty of a specific crime. When the evidence suggests more than one discrete crime under a single count, either the prosecution must elect the act relied upon or the court must instruct the jury to agree on the same criminal act. The unanimity instruction exists to prevent jurors from convicting a defendant based on different instances of conduct, thereby ensuring all 12 jurors are convinced beyond a reasonable doubt that the same act constituted the offense. A unanimity instruction is required when the record shows evidence of more than one crime that could support conviction under a single count. But if the evidence shows only a single discrete crime, no instruction is necessary.

Authority:

People v. McDaniel (2021) 12 Cal.5th 97, 142

People v. Russo (2001) 25 Cal.4th 1124, 1132

People v. Covarrubias (2016) 1 Cal.5th 838, 877

People v. Hernandez (2013) 217 Cal.App.4th 559, 569

People v. Grimes (2016) 1 Cal.5th 698, 727

People v. Diedrich (1982) 31 Cal.3d 263, 281

Third Holding:

Determining whether a particular instruction was required presents a predominantly legal mixed question of law and fact. We therefore review claims of instructional error de novo.

Authority:

People v. Hernandez (2013) 217 Cal.App.4th 559, 568

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Guiuan (1998) 18 Cal.4th 558, 569

Fourth Holding:

In a criminal case, the trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues raised by the evidence and necessary to the jury’s understanding of the case. The correctness of jury instructions is determined by considering the charge as a whole, not by viewing individual instructions in isolation.

Authority:

People v. Martinez (2010) 47 Cal.4th 911, 953

People v. Carrington (2009) 47 Cal.4th 145, 192

Fifth Holding:

To determine whether the trial court properly instructed on the kill zone theory, we apply the substantial evidence standard of review. Under this standard, the question is whether the record contains evidence from which a reasonable jury could infer that the defendant intended to kill everyone within the zone of harm as a means of killing the primary target.

Authority:

People v. Mumin (2023) 15 Cal.5th 176, 193, 203 [Without substantial evidence showing the defendant acted with intent to kill a primary target, the essential basis for a concurrent intent analysis is not satisfied]

Sixth Holding:

The standard for assessing a sufficiency of the evidence claim is highly deferential. We examine 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. In conducting our review, we must presume in support of the judgment the existence of every fact the trial court could reasonably deduce from the evidence. We also accept all logical inferences the trial court could have drawn from circumstantial evidence. The question is not whether the evidence proves guilt beyond a reasonable doubt, but whether substantial evidence supports the trier of fact’s finding. The judgment must be upheld unless it appears that, under no hypothesis whatsoever, is there sufficient substantial evidence to support it.

Authority:

People v. Cravens (2012) 53 Cal.4th 500, 507-508

People v. Kurey (2001) 88 Cal.App.4th 840, 848–849 [we resolve all inferences and intendments in favor of the judgment, and all conflicting evidence will be resolved in favor of the decision]

People v. Medina (2009) 46 Cal.4th 913, 919, superseded by statute on other grounds

People v. Flores (2020) 9 Cal.5th 371, 411

People v. Crittenden (1994) 9 Cal.4th 83, 139

People v. Sanchez (2003) 113 Cal.App.4th 325, 329

Seventh Holding:

The jury was instructed on the gang participation law as it existed at the time of trial. Because subsequent amendments under AB 333 changed the elements considerably and the defendant’s judgment is not final, the gang-related convictions must be retried under the new law.

Authority:

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

People v. Lopez (2025) 17 Cal.5th 388, 394

People v. Hallock (1989) 208 Cal.App.3d 595, 610

Appellate Principles, Duty of the court, Pleading, Standard of review, Sufficiency of and substantial evidence

Case: 000291

Posted on by Gary McCurdy

Error and/or relief

This was a People’s appeal from the trial court’s grant of a motion under section 995 to set aside counts and enhancements in the information that the magistrate found insufficient evidence to support at the preliminary hearing. Grant of section 995 motion affirmed.

[GARY NOTE: This opinion went into depth analyzing the sufficiency of evidence on the question of gang common benefit and whether the members collectively engaged in the pattern of criminal gang activity that the statute requires. It discussed several published cases as example that guided its decision. I have not included the discussion or the cases cited, as that depth is beyond the scope of this blog. I’m happy to provide the full opinion to any attorney who asks me for it.]

First Holding:

Under section 995, an information will be set aside if the defendant was committed without reasonable or probable cause. To establish probable cause sufficient to withstand a section 995 motion to dismiss, the People must make some showing as to the existence of each element of the charged offense. Reasonable or probable cause’ means such a state of facts as would lead a [person] of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion of the guilt of the accused. Probable cause signifies a level of proof below that of proof beyond a reasonable doubt, or even proof by a preponderance of the evidence. The showing required at this stage is exceedingly low, and an information should be set aside only when there is a total absence of evidence to support a necessary element of the offense charged.

Authority:

Hale v. Superior Court (2014) 225 Cal.App.4th 268, 271 [a defendant may utilize section 995 to strike invalid enhancement allegations]

People v. Chapple (2006) 138 Cal.App.4th 540, 545

People v. Mower (2002) 28 Cal.4th 457, 473

People v. Superior Court (Mendez) (2022) 86 Cal.App.5th 268, 276

People v. Garcia (2018) 29 Cal.App.5th 864, 870–871

Second Holding:

When we review a section 995 motion, we disregard the ruling of the superior court and directly review the determination of the magistrate. We must draw all reasonable inferences in favor of the information and decide whether there is probable cause to hold the defendants to answer, i.e., whether the evidence is such that a reasonable person could harbor a strong suspicion of the defendant’s guilt.

Authority:

People v. San Nicolas (2004) 34 Cal.4th 614, 654 [reviewing denial of sec. 995 motion made after magistrate struck special circumstance allegation]

Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072

Third Holding:

As here with respect to the gang evidence presented by the prosecution, where the facts are undisputed, the determination of probable cause constitutes a legal conclusion which is subject to independent review on appeal.

Authority:

People v. Superior Court (Farley) (2024) 100 Cal.App.5th 315, 326

People v. Scully (2021) 11 Cal.5th 542, 582 [independent standard of review applies when magistrate determines that the People did not put forth sufficient evidence to support the charges]

Fourth Holding:

Not every crime committed by gang members is related to a gang. Concerned with lax interpretations of the prior gang law that allowed for overly expansive application of gang enhancements, the Legislature amended section 186.22 effective January 1, 2022. The amendments to section 186.22 narrowed the definition of a criminal street gang and increased the prosecution’s burden of proof by altering the definition of a criminal street gang and instituting new requirements to prove that a criminal street gang engaged in a pattern of criminal gang activity.

Authority:

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

People v. Cooper (2023) 14 Cal.5th 735, 744

People v. Renteria (2022) 13 Cal.5th 951, 961, fn. 6

Fifth Holding:

For the reasons stated in this opinion, we conclude that there was insufficient evidence that a reasonable person could harbor a strong suspicion that gang’s predicate offenses were either committed for the gang’s common benefit or that the gang members collectively engaged in a pattern of criminal gang activity as defined under section 186.22. Finding insufficient evidence that the gang meets the definition of a criminal street gang under section 186.22, we discern no error in the trial court’s partial grant of the section 995 motion as to the gang enhancements and gang related firearm enhancements as to all defendants.

Authority:

Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072