Error and/or relief
GARY note: The winning issue was relatively simple, but in affirming the overall conviction, the court shared several principles I thought worthy of reporting, even though many did not bear on the dual use of enhancements.
For the attempted murder of the victim in count 3, the trial court should have stayed the three-year enhancement for great bodily injury under section 12022.7 because it also imposed a term of 25 years to life under section 12022.53, subdivision (d), for personally and proximately causing great bodily injury with a firearm. We will modify the judgment so that it accords with the law.
First Holding:
Where multiple prison terms are improperly imposed as in this case, the reviewing court may modify the sentence to stay imposition of the sentence
Authority:
People v. Hunter (1986) 184 Cal.App.3d 1531, 1537
Second Holding:
It is improper to impose the enhancement under Penal Code section 12022.7 in addition to enhancement under section 12022.53(d), and it must be stayed.
Authority:
People v. Garcia (2017) 7 Cal.App.5th 941, 949
People v. Hunter (1986) 184 Cal.App.3d 1531, 1537
Third Holding:
If an error violates a defendant’s federal constitutional rights, reversal is required unless the error was harmless beyond a reasonable doubt.
Authority:
People v. Hernandez (2011) 51 Cal.4th 733, 745
Chapman v. California (1967) 386 U.S. 18, 24
People v. Canizales (2019) 7 Cal.5th 591, 615
People v. Concha (2010) 182 Cal.App.4th 1072, 1087
Fourth Holding:
A harmless error analysis may include consideration of implausible defense testimony and closing argument to the jury.
Authority:
People v. Fayed (2020) 9 Cal.5th 147, 195
People v. Zambrano (2004) 124 Cal.App.4th 228, 243
People v. Flores (2016) 2 Cal.App.5th 855, 881
Fifth Holding:
With respect to errors alleged regarding the conviction of the murder, the error can be found to be harmless beyond a reasonable doubt even under the Chapman standard, as the court concludes in this instance.
Authority:
People v. Salas (2006) 37 Cal.4th 967, 983-984
People v. Garcia (2001) 25 Cal.4th 744, 755
Wright v. West (1992) 505 U.S. 277, 296
Hanrahan v. Thieret (7th Cir. 1991) 933 F.2d 1328, 1340
Phelps v. Duckworth (7th Cir. 1985) 772 F.2d 1410, 1413-1414
Sixth Holding:
The standard of review on sufficiency of evidence is whether any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt, viewing evidence in light most favorable to prosecution.
Authority:
People v. Zamudio (2008) 43 Cal.4th 327, 357
Seventh Holding:
Substantial evidence is evidence that is reasonable, credible, and of solid value.
Authority:
People v. Zamudio (2008) 43 Cal.4th 327, 357
Eighth Holding:
A conviction for attempted murder requires proof that the defendant intended to kill the victim and proof of a direct but ineffectual act toward accomplishing that goal. But a finding of willfulness, deliberation, and premeditation requires more than a showing of an intent to kill.
Authority:
People v. Medina (2019) 33 Cal.App.5th 146, 153
People v. Gomez (2018) 6 Cal.5th 243, 282
Ninth Holding:
When reviewing a claim the trial court erred in denying a motion for a judgment of acquittal (sec. 1118.1) that was made at the close of the prosecution’s case-in-chief, the appellate court considers the evidence as it stood at that point,
Authority:
People v. Cole (2004) 33 Cal.4th 1158, 1212-1213
Tenth Holding:
It is the appellant’s burden to demonstrate error based on the appellate record and with meaningful legal analysis with adequate citation to the record.
Authority:
People v. Dauterman (2024) 104 Cal.App.5th 603, 609
Eleventh Holding:
Arguments not raised below are forfeited.
Authority:
People v. Richardson (2008) 43 Cal.4th 959, 1022-1023
Twelfth Holding:
The court conducts de novo review to detemine if jury miscontrued or misapplied the law.
Authority:
People v. Shaw (2002) 97 Cal.App.4th 833, 838
Thirteenth Holding:
Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.
Authority:
People v. Lewis (2001) 25 Cal.4th 610, 646
Fourteenth Holding:
Errors in the abstract of judgment may be corrected.
Authority:
People v. Mitchell (2001) 26 Cal.4th 181