A Defendant May Be Convicted of Human Trafficking of a Minor Under the Attempt Prong of the Statute (Pen. Code, § 236.1, Subd. (C)), Rather Than the General Law of Attempt (Pen. Code, §§ 21a, 664), Even if the Target of His Recruitment Efforts Is an Undercover Detective
July 8th, 2021

People v. Moses (2020) 10 Cal.5th 893 held that to violate PC 236.1(c) based on an attempt, the defendant must intend to induce a minor to engage in a commercial sex act (at least when no actual minor victim is involved). But the target of that inducement need not be an actual minor. (The Court disapproved People […]


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CSC: Certainty About Identification Instruction (CC 315) Does Not Violate Due Process but Should No Longer be Given Absent Request by the Defense
July 1st, 2021

People v. Lemcke (2021) 11 Cal.5th 644 held that — while a modified version of the witness certainty factor in the instruction is advisable — that alone does not establish a due process violation in light of the record as a whole. Accordingly, even though it affirmed the judgement the Court recommended that the CALCRIM committee […]


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Reckless Driving Is Not an Inherently Lesser-Included Offense of Felony Evading
June 17th, 2021

People v. Walker (May 6, 2021, A158423) ___ Cal.App.1st ___ [pp. 4-8] considered whether reckless driving (VC 23103) is inherently a lesser included within felony evasion of a peace officer (VC 2800.2).   Both crimes expressly require that the driving be in a, “willful or wanton disregard for the safety of persons or property.”   […]


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Provocative Act of Murder: Applicability of Concurrent Causation and Transferred Intent Under Review in CSC
June 14th, 2021

As Justice Kennard explained in her concurring opinion in Sanchez, (People v. Sanchez (2001) 26 C4th 834) the underlying distinction between Cervantes (People v. Cervantes (2001) 26 C4th 860) and Sanchez is that the former was a revenge killing while the latter was mutual combat. In Sanchez the defendant and the rival gang member were […]


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SB 1437 Update
June 12th, 2021

This post:   SB 1437, Which Amended the Natural and Probable Consequences Doctrine as It Relates to Murder, Bars a Conviction for Second Degree Murder Under That Theory  December 23rd, 2020   discusses People v. Gentile (2020) 10 Cal.5th 830, 842 which barred a conviction for second degree murder under the natural and probable consequences […]


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Controlled Substances: Usable Quantity Element
June 10th, 2021

PC 4573 bars transporting “any controlled substance” into a correctional facility. People v. Blanco (Feb. 24, 2021, E073176) 61 Cal.App.5th 278 [pp. 12] concluded that “the Legislature intended for a usable quantity to be an element of section 4573.”   Accordingly, CC 2304 correctly requires the jury to find usable quantity as an element a […]


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CALCRIM Is Not the Law
June 3rd, 2021

In People v. Burgess (Feb. 11, 2021, D076287) ___ Cal.App.4th ___ [pp. 6] the defendant maintained that his PC 29815 conviction must be reversed because no evidence showed his firearm restriction probation condition was ordered by a court. He pointed to the language in two jury instructions, CALCRIM Nos. 2512 and 3500, the first stating […]


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Is Assault by Means of Force Likely to Produce Great Bodily Injury a Lesser Included Offense of Assault With a Deadly Weapon?
June 1st, 2021

Review granted in People v. Aguayo, S254554. (D073304; 31 Cal.App.5th 758; San Diego County Superior Court; SCS295489.) to consider the following issues:   (1) Is assault by means of force likely to produce great bodily injury a lesser included offense of assault with a deadly weapon? (See People v. Aledamat (2019) [8] Cal.5th 1, 16, […]


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Does PC 188 Require Willful and Deliberate Administration of Poison?
May 28th, 2021

People v. Brown (July 16, 2019, C085998) rejected the view that “to be guilty of first degree murder by poison, the administration of poison itself must be willful, deliberate, and premeditated. Rather, it appears the People need only prove that the killing was caused by administration of poison, and that the killing was done with […]


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Felony Murder Special Circumstance: CC 703 Improperly Invites Juror Speculation As to Factors Which Are Not Supported by Substantial Evidence
May 4th, 2021

In reliance on People v. Banks (2015) 61 Cal.4th 788, 803–808 and People v. Clark (2016) 63 Cal.4th 522, 614–620 CC 703 identifies a number of specific factors for the jurors “may consider” in deciding “reckless indifference” and “major participant” elements of the felony murder special circumstance.   As to reckless indifference CC 703 includes […]


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