Category Archives: Appellate Principles

Appellate Principles, Due process, Sentencing

Case 000235

Posted on by Gary McCurdy

Error and/or relief

Intro blurb here

First Holding:

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Authority:

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Second Holding:

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Authority:

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Appellate Principles, Jurisdiction

Case: 000229

Posted on by Gary McCurdy

Error and/or relief

Petitioner seeks permission to file a belated notice of appeal under the doctrine of constructive filing. The People have voiced no opposition. Granted.

First Holding:

Petitioner is granted leave to file a notice of appeal on or before 60 days from the date of this order. The clerk of the superior court is to treat it as timely filed, and to proceed with the preparation of the record on appeal in accordance with the applicable rules of the California Rules of Court if the clerk of that court receives said request on or before 60 days of the date of this order.

Authority:

In re Benoit (1973) 10 Cal.3d 72

Second Holding:

[GARY NOTE: the second, third, fourth, fifth, and sixth holdings and their authorities are provided by GARY and did not appear in the opinion, but are important enough to mention in the context of the filing of a notice of appeal. The summary for Case 000085 contains a more thorough discussion of the Benoit rule regarding what would otherwise be untimely filings of the notice of appeal.]

Where a defendant is incarcerated and has requested his attorney to file a notice of appeal within the time to file a notice, the court may deem the otherwise late notice of appeal to have been constructively filed timely. The Attorney General’s concession on behalf of the People is deemed to constitute an agreement that the requested relief ought to be granted without further proceedings

Authority:

In re Benoit (1973) 10 Cal.3d 72, 81–82

People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7

Third Holding:

In felony cases, a notice of appeal and any statement required by Penal Code section 1237.5 must be filed within 60 days after the rendition of the judgment or the making of the order being appealed. Except as provided in rule 8.66 [which deals with when catastrophes happen], no court may extend the time to file a notice of appeal.

Authority:

Rules of Court, rule 8.308

Fourth Holding:

In misdemeanor cases, the notice of appeal under this article must be filed within 30 days after the rendition of the judgment or the making of the order being appealed.

Authority:

Rules of Court, rule 8.393

Fifth Holding:

As used in rule 8.304(a)(1) regarding the filing of a notice of appeal in the superior court in a felony case, “felony case” means any criminal action in which a felony is charged, regardless of the outcome. A felony is “charged” when an information or indictment accusing the defendant of a felony is filed or a complaint accusing the defendant of a felony is certified to the superior court under Penal Code section 859a. A felony case includes an action in which the defendant is charged with: (A) A felony and a misdemeanor or infraction, but is convicted of only the misdemeanor or infraction; (B) A felony, but is convicted of only a lesser offense; or (C) An offense filed as a felony but punishable as either a felony or a misdemeanor, and the offense is thereafter deemed a misdemeanor under Penal Code section 17(b).

Authority:

Rules of Court, rule 8.304(a)(2)

Sixth Holding:

An untimely notice of appeal divests the appellate court of jurisdiction to hear the appeal.

Authority:

In re G.C. (2020) 8 Cal.5th 1119

People v. Mendez (1999) 19 Cal.4th 1084, 1094 [An untimely notice of appeal is wholly ineffectual. The delay cannot be waived, it cannot be cured by nunc pro tunc order, and the appellate court has no power to give relief, but must dismiss the appeal on motion or on its own motion.]

Appellate Principles, Sentencing

Case: 000223

Posted on by Gary McCurdy

Error and/or relief

Sentences for eight of his convictions, which the defendant served concurrently with his completed determinate term, should have been stayed under section 654. The court found the balance of the issues forfeited for lack of objection at the trial level.

First Holding:

A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial. The rule applies to cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.

Authority:

People v. Gonzalez (2003) 31 Cal.4th 745, 751

Second Holding:

In contrast to errors in exercising sentencing discretion, the waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.

Authority:

People v. Perez (1979) 23 Cal.3d 545, 549, fn. 3

Third Holding:

In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. In California, a single act or course of conduct by a defendant can lead to convictions of any number of the offenses charged. Section 954 generally permits multiple conviction. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same act or omission. When section 954 permits multiple conviction, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. Imposition of concurrent sentences is not the correct method of implementing section 654, because a concurrent sentence is still punishment.

Authority:

PEN 654

PEN 954

People v. Reed (2006) 38 Cal.4th 1224, 1226–1227

People v. Alford (2010) 180 Cal.App.4th 1463, 1468

Appellate Principles, Sentencing

Case: 000204

Posted on by Gary McCurdy

Error and/or relief

The 25 years to life sentences on three counts violate constitutional prohibitions on ex post facto laws because the offenses occurred prior to the effective date of the statute under which they were imposed. The trial record does not establish beyond a reasonable doubt that the offenses in the three counts occurred after the effective date of the statutory amendment increasing the penalty for the offenses.

First Holding:

The federal and state constitutions proscribe ex post facto laws. Both constitutions prohibit legislatures from retroactively increasing the punishment for a crime. The federal and state ex post facto laws are interpreted the same way.

Authority:

U.S. Const., art. I, sec. 10

Cal. Const., art. I, sec. 9

Collins v. Youngblood (1990) 497 U.S. 37, 42–43

People v. Grant (1999) 20 Cal.4th 150, 158

People v. Snook (1997) 16 Cal.4th 1210, 1220

Second Holding:

Ex post facto principles have been applied to the One Strike law and its amendments. Where the ex post facto clauses apply, it is the prosecution’s responsibility to prove to the jury that the charged offenses occurred on or after the effective date of the statute providing for the defendant’s punishment. When the evidence at trial does not establish that fact, the defendant is entitled to be sentenced under the formerly applicable statutes even if he raised no objection in the trial court.

Authority:

People v. Canales (2024) 106 Cal.App.5th 1230, 1259–1260

People v. Hiscox (2006) 136 Cal.App.4th 253, 256–262

People v. Riskin (2006) 143 Cal.App.4th 234, 244–245

Third Holding:

An unauthorized sentence may also be corrected on appeal despite the absence of an objection below. A sentence is unauthorized if it could not lawfully be imposed under any circumstance in the particular case.

Authority:

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

Fourth Holding:

When part of a sentence is stricken on review, a remand and full resentencing is generally appropriate so the trial court can exercise its sentencing discretion following the changed circumstances. However, when the trial court imposes the maximum possible sentence, there is no need to remand the matter for resentencing. Where there are no sentencing choices to restructure, it is appropriate to modify the sentence on appeal.

Authority:

PEN 1260

People v. Buycks (2018) 5 Cal.5th 857, 893, 896 fn 15

People v. Lopez (2019) 42 Cal.App.5th 337, 342

People v. Francis (2017) 16 Cal.App.5th 876, 887

Fifth Holding:

The one strike law includes a provision requiring consecutive sentences for some, but not all, of the offenses listed in section 667.61(c). The only crime for which the defendant was convicted is identified in section 667.61(c)(8) and therefore, defendant’s convictions do not implicate the mandatory sentencing provision in section 667.61(i). By implication, section 667.61(i) leaves the decision to impose consecutive or concurrent terms on the nonspecified offenses to the sentencing court’s discretion under section 669.

Authority:

PEN 667.61(i)

People v. Lopez (2022) 76 Cal.App.5th 287, 291

People v. Valdez (2011) 193 Cal.App.4th 1515, 1524

Appellate Principles, Duty of the court, Sentencing

Case: 000185

Posted on by Gary McCurdy

Error and/or relief

The defendant’s Penal Code section 1172.75 petition for resentencing asked the trial court to strike certain sentencing enhancements that were no longer valid under current law and to exercise its discretion to strike other enhancements and prior strike convictions. The trial court held a resentencing hearing, struck the invalid enhancements, but declined to further reduce defendant’s sentence. We reverse for some certain conceded errors in the pronouncement of sentence, including with respect to custody credits, but otherwise affirm.

First Holding:

A trial court conducting a resentencing under section 1172.75 has discretion to dismiss a “strike” allegation under the Three Strikes law. There was no abuse of discretion here.

Authority:

PEN 1385

People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504

People v. Williams (1998) 17 Cal.4th 148, 161

Second Holding:

The trial court calculated certain elements of the defendant’s sentence by subtracting the one-year prior prison term enhancements from his original sentence as opposed to the later sentence imposed on remand following a determination that it was error to sentence on two–rather than just one–of the counts because of Penal Code section 654. There was some further ambiguity in the sentence imposed at the section 1172.75 hearing. The matter must be remanded to the trial court to strike the prior prison term enhancements on Counts Two and Three, to clarify the sentence on Count Three remains stayed, and to clarify the status of the prior serious felony enhancement on Count Two.

Authority:

People v. Garcia (1997) 59 Cal.App.4th 834, 838-839

Third Holding:

The trial court improperly delegated calculation of his custody credits to the California Department of Corrections and Rehabilitation.

Authority:

PC 2900.1

PC 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 23-24

Appellate Principles, Sentencing

Case: 000169

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it imposed a consecutive term of eight months for taking a police vehicle without consent rather than the correct four-month sentence for attempted taking, the crime specified by the complaint. The appropriate term for an attempt is half the sentence for the completed crime, in this case, four months. Accordingly, we will modify the sentence imposed for attempted theft to a term of four months and otherwise affirm the judgment.

First Holding:

In setting the sentence the court imposed a consecutive term of eight months for count 8, a violation of Vehicle Code section 10851. The allegation of count eight of the complaint stated that the defendant attempted to take a vehicle without consent. It does not refer to section 664(a), which specifies that the sentence for an attempt is one-half the term of imprisonment prescribed upon a conviction of the offense attempted. The charging document, however, need not cite the statute to allege an attempt.

Authority:

PEN 952

PEN 664(a)

People v. Hawley (1930) 106 Cal.App. 216, 218 [in charging an attempt to commit theft (even in the absence of direct statutory authorization therefor), it should be sufficient to allege that the defendant unlawfully attempted to commit the same offense]

People v. Heim (1961) 196 Cal.App.2d 1, 4 [defendant was on notice of the charge against him where charging documents specifically referred to attempted burglary]

Second Holding:

An appellate court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed. When sentencing error does not require additional evidence, further fact finding, or further exercise of discretion, the appellate court may modify the judgment appropriately and affirm it as modified.

Authority:

PEN 1260

People v. Haskin (1992) 4 Cal.App.4th 1434, 1441

Appellate Principles, Sentencing, Standard of review

Case: 000156

Posted on by Gary McCurdy

Error and/or relief

On appeal from a resentencing, the defendant seeks a remand to make further requests to dismiss gang enhancements under recently amended Penal Code section 186.22, subdivision (g), which now requires more than reputational benefit to a gang. We reverse the judgment and remand the matter for the trial court to rule on defendant’s motion to dismiss the gang enhancements, and to reconsider its determination declining to dismiss the firearm enhancements under section 1385.

First Holding:

At the resentencing hearing, the trial court erred in believed it had no jurisdiction under the remittitur from the previous appeal (which had remanded the matter for resentencing) to fully resentence the defendant. But the scope of the superior court’s jurisdiction as defined by a remittitur does not prevent the retroactive application of ameliorative laws.

Authority:

People v. Lopez (2025) 17 Cal.5th 388, 396

Second Holding:

Because the trial court determined it had no jurisdiction to consider defendant’s motion to dismiss the gang enhancements, it did not reach the parties’ substantive arguments. Given the lack of a full record on appeal regarding the issues (including the absence of the complete preliminary hearing transcript and evidence), the appropriate course is to permit the trial court to assess, after full consideration of the issue on a proper record, whether changes to section 186.22 require dismissal of the gang enhancements.

We observe that if the trial court exercises its discretion to dismiss the gang enhancements, the prosecution will be entitled to the same remedy as the defense (i.e., withdrawal from the plea agreement) and the trial court may withdraw its approval of the plea agreement as well. If defendant elects and is permitted to withdraw from the plea agreement, the trial court must restore the parties to the status quo ante, including permitting the prosecution to request to reopen the preliminary hearing and present evidence on the new elements of the gang allegations or to proceed without those charges.

[Gary Note: This opinion was issued in December 2025. Effective 1/1/2025, Pen. Code, sec. 1171 was amended, and subdivision (c)(3) provides that, with respect to certain postconviction proceedings to modify a sentence or conviction pursuant to an ameliorative statute, a modification of a sentence shall not be a basis for a prosecutor or court to rescind a plea bargain. Does this affect the Stamps solution of remanding for the possible setting aside of the plea bargain if the defendant chooses to pursue amelioration? Good question, Gary!]

Authority:

People v. Stamps (2020) 9 Cal.5th 685, 707-708

People v. Superior Court (1982) 131 Cal.App.3d 256

Mendoza v. Superior Court (2023) 91 Cal.App.5th 42, 58

Third Holding:

We review for abuse of discretion the trial court’s exercise of discretion under section 1385(c). We review associated questions of statutory construction de novo.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1033

People v. Burke (2023) 89 Cal.App.5th 237, 242

Fourth Holding:

Under Penal Code section 1385(c)(1), the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. In exercising its discretion under this subdivision, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in subparagraphs (A) to (I) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.

The trial court denied the defendant’s request to dismiss the firearm enhancment under Penal Code section 1385, subdivision (c). But it decided the motion before Walker clarified how to exercise its authority. Accordingly, we will remand the matter to allow the trial court to determine that question and, if decided in the negative, to further determine whether there is substantial, credible evidence of countervailing factors sufficient to neutralize the great weight of the recognized mitigating circumstances asserted by defendant (including mental illness, prior victimization, and childhood trauma). Notwithstanding the presence of a mitigating circumstance, trial courts retain their discretion to impose an enhancement based on circumstances long deemed essential to the furtherance of justice inquiry.

Authority:

PEN 1385(c)(1)

People v. Walker (2024) 16 Cal.5th 1024 [Specifically, absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances, when they are present. In other words, if the court does not find that dismissal would endanger public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.]

Fifth Holding:

On remand, the trial court shall consider defendant’s motion for relief under section 186.22 and reconsider defendant’s motion to dismiss the firearm enhancements under section 1385. If such relief is granted, defendant shall be entitled to full resentencing.

Authority:

People v. Walker (2024) 16 Cal.5th 1024

Appellate Principles, Sentencing, Sixth Amendment

Case: 000152

Posted on by Gary McCurdy

Error and/or relief

The sentencing court violated Penal Code section 1170(b)(2) by considering an aggravating circumstance not proven at trial, and the error was prejudicial.

First Holding:

The sentencing court’s erroneous reliance on the vulnerable victim circumstance requires reversal and remand for resentencing. Section 1170(b)(2) states that the court may only sentence a defendant to the upper term based on aggravating circumstances the defendant stipulates to or that are found true beyond a reasonable doubt at trial. The error prejudiced the defendant because the trial court relied on the vulnerable victim aggravating circumstance in selecting a sentence.

Authority:

PEN 1170(b)(2)

Cunningham v. California (2007) 549 U.S. 270, 281 [Under the Sixth Amendment to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt.]

Erlinger v. United States (2024) 602 U.S. 821, 834 [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]

Second Holding:

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, 768

Third Holding:

Because it constitutes a violation of the Sixth Amendment, the matter must be remanded for resentencing unless the error was harmless beyond a reasonable doubt. The reviewing court must be able to conclude beyond a reasonable doubt that the jury would have found the unproven aggravating facts to be true had it been properly instructed.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 761

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

Fourth Holding:

Though generally, claims–including those involving a court’s failure to properly make or articulate its discretionary sentencing choices–not raised in the trial court may not be raised for the first time on appeal, an appellate court has the authority to decline to apply the forfeiture rule.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 326

People v. Coddington (2023) 96 Cal.App.5th 562, 568

People v. Denard (2015) 242 Cal.App.4th 1012, 1030, fn. 10 [Where an otherwise forfeited claim presents an important question of constitutional law or a substantial right, the appellate court may exercise discretion to review the claim.]

Fifth Holding:

The prosecution elected not to proceed on the vulnerable victim allegation, and thus the defendant had no occasion to bring any evidence contesting this alleged aggravating circumstance. The prosecution introduced no proof relevant to this aggravating circumstance other than the disparity in age between him and the victim and the church setting. In this situation, we cannot conclude beyond a reasonable doubt that the trial court as factfinder would have found the vulnerable victim aggravating circumstance true.

For sentences imposed under the former law the record must clearly indicate that the court would have found an upper term justified had it been aware of its more limited discretion. Thus, we assume without deciding that the different posture of the instant case compared to that in Lynch requires an examination of whether the court would have imposed the same sentence in the absence of the error. We conclude the defendant has demonstrated prejudice in this regard, regardless of whether the applicable test is whether the record clearly indicates the court would have imposed the same sentence absent the error, or whether it is reasonably probable the court would have imposed the same sentence.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 774

People v. Gutierrez (2014) 58 Cal.4th 135

Appellate Principles, Fines and fees

Case: 000151

Posted on by Gary McCurdy

Error and/or relief

Though the court affirmed the other orders of the trial court regarding the resentencing conducted under Penal Code section 1172.75, the restitution fine, ordered more than 10 years earlier, must be stricken.

First Holding:

As a result of amendments effective January 1, 2025, the restitution fine must be stricken, because it has been more than 10 years since it was originally imposed. Penal Code section 1465.9 provides that upon the expiration of 10 years after the date of imposition of a restitution fine pursuant to section 1202.4, the balance, including any collection fees, shall be unenforceable and uncollectible and any portion of a judgment imposing those fines shall be vacated. Not only is the unpaid portion now uncollectible, the court must vacate the portion of the judgment imposing it.

Authority:

PEN 1465.9

People v. Greeley (2021) 70 Cal.App.5th 609, 626-627

People v. Lopez-Vinck (2021) 68 Cal.App.5th 945, 953

Second Holding:

Though the People argue that the 10 years has not passed, because he was resentenced only a few years ago, the People do not identify any legal authority or develop any substantive reasoning supporting the proposition that a component of a defendant’s punishment starts over at resentencing. We therefore need not consider that argument.

However, the plain language of the statute does not support their interpretation and the result they advocate for is in tension with clearly expressed legislative intent to eliminate fees and fines that deepen the poverty cycle for offenders without meeting the financial needs of crime survivors. We find the People’s position untethered from the plain language of the statute and the underlying legislative intent, and in advancing the proposition that the restitution fine was “reimposed” at the resentencing hearing such that the clock affording defendant ameliorative relief from a component of his punishment restarted, they fail to elucidate the point or acknowledge any of the issues such an interpretation necessarily implicates. Therefore, we give effect to the plain language of section 1465.9(d) providing that any portion of a judgment imposing a restitution fine under section 1202.4 shall be vacated 10 years after imposition.

Authority:

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363 [If a party’s briefs do not provide legal argument and citation to authority on each point raised, the court may treat it as waived, and pass it without consideration.]

Appellate Principles, Fines and fees, Sentencing

Case: 000148

Posted on by Gary McCurdy

Error and/or relief

Where the trial court intended to impose the minimum restitution fine, but mistakenly believed the minimum was $600 rather than $300, the appellate court modified the restitution fine to $300 and directed the trial court to prepare an amended minute order following sentencing and an amended abstract of judgment reflecting these amounts. Here, the record makes clear that the trial court intended to impose the statutory minimum fine. We therefore modify the judgments to impose a $300 restitution fine with a matching, suspended parole revocation restitution fine in each case.

First Holding:

In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000).

Authority:

PEN 1202.4(b)(1)

Second Holding:

[GARY NOTE: The court did not cite any authority for its jurisdiction to modify the mistaken order of the court below, but it does have that authority under PC 1260.]

Authority:

PEN 1260 [The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed, and may set aside, affirm, or modify any or all of the proceedings subsequent to, or dependent upon, such judgment or order, and may, if proper, order a new trial and may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances.]

Appellate Principles, Plea bargains, Sentencing

Case: 000142

Posted on by Gary McCurdy

Error and/or relief

Defendant contends the trial court could not impose a more severe punishment than was contemplated in the plea agreement without first giving him an advisement of such a possibility prior to taking his plea, or without an opportunity to withdraw his plea. Finding merit in the contention, we will reverse the judgment and remand the matter to the trial court for further proceedings.

First Holding:

The plea bargain did not contemplate that a failure to return for sentencing would result in a higher sentence than specified in the plea bargain. At the conclusion of taking the plea, the court advised the defendant that he would be released from custody on a Cruz waiver, and if he failed to appear, the court would impose a higher term upon his apprehension. The defendant agreed to the waiver. He failed to appear, and on his apprehension he was sentenced to the upper term rather than the agreed-on middle term. This was error.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1249

Second Holding:

When the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea. If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw the plea if the defendant desires to do so. The court shall also cause an inquiry to be made of the defendant to satisfy itself that the plea is freely and voluntarily made, and that there is a factual basis for the plea.

Authority:

PEN 1192.5

Third Holding:

A defendant may expressly waive the right to withdraw the plea. But any such waiver would have to be obtained at the time of the trial court’s initial acceptance of the plea, and it must be knowing and intelligent.

Authority:

People v. Cruz (1988) 44 Cal.3d 1247, 1254, fn. 5

Fourth Holding:

A defendant who fails to appear for sentencing does not breach the terms of the plea agreement but instead commits the separate offense of failure to appear, and thus a defendant who fails to appear does not lose the protections of section 1192.5. A plea agreement may validly provide for a specified greater term to be imposed if the defendant fails to appear for sentencing or fails to satisfy other terms and conditions of the agreement. When the parties themselves agree as part of the plea bargain to a specific sanction for nonappearance, the court need not permit the defendant to withdraw his or her plea but may invoke the bargained-for sanction.

Authority:

People v. Masloski (2001) 25 Cal.4th 1212, 1219, 1222-1224

Fifth Holding:

Absent compliance with the section 1192.5 procedure, the defendant’s constitutional right to the benefit of his bargain is not waived by a mere failure to object at sentencing. There can be no waiver of a constitutional right absent an intentional relinquishment or abandonment of a known right or privilege. No less should a court presume from mere silence that defendant is waiving implementation of the consideration that induced him to waive his constitutional rights. Thus, when the trial court fails to give a section 1192.5 admonition, the defendant’s failure to object at sentencing does not waive his claim on appeal.

Authority:

People v. Silva (2016) 247 Cal.App.4th 578, 589

People v. Walker (1991) 54 Cal.3d 1013, 1024-1025

People v. Cruz (2013) 219 Cal.App.4th 61, 65

Sixth Holding:

A certificate of probable cause is not required if the issue on appeal arose after the entry of the plea and does not affect the validity of the plea. Defendant did not agree, as part of the plea agreement, to the six-year term. That term was imposed after his plea. Under these circumstances, a certificate of probable cause is not required.

Authority:

People v. Vargas (2007) 148 Cal.App.4th 644, 651

Appellate Principles, Sentencing, Sixth Amendment

Case: 000141

Posted on by Gary McCurdy

Error and/or relief

The court prejudicially erred by imposing the upper term without submitting aggravating factors to the jury pursuant to amended section 1170(b).

First Holding:

It was error for the court to impose the upper term on finding the defendant’s criminal history was of increasing seriousness and the convictions were numerous without submitting the aggravating factors to a jury for proof beyond a reasonable doubt or obtaining a stipulation from the defendant. 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. A defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence.

Authority:

PEN 1170

People v. Lynch (2024) 16 Cal.5th 730, 747

Erlinger v. United States (2024) 602 U.S. 821

Cunningham v. California (2007) 549 U.S. 270

People v. Wiley (2025) 17 Cal.5th 1069, 1085

Second Holding:

Under the narrow exception under which a jury is not required for proof of the fact of a prior conviction, 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, 838

Third Holding:

Generally, a party’s failure to raise a sentencing issue in the trial court forfeits the issue on appeal. The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. Additionally, it is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. The forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 352–353

People v. McCullough (2013) 56 Cal.4th 589, 593

People v. French (2008) 43 Cal.4th 36, 46

Fourth Holding:

An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. Indeed, it has the authority to do so, and whether or not it should do so is entrusted to its discretion. Such discretionary review is typical when a forfeited claim involves an important issue of constitutional law or a substantial right. Here, the defendant initially requested a jury trial. Further research by the court and counsel led the court to erroneously believe that an exception to the jury trial applied, and determined that it would proceed by court trial rather than by jury. Under these circumstances, it is neither unfair nor inefficient to permit the defendant’s claim of error on appeal.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7

People v. McCullough, (2013) 56 Cal.4th 589, 593

Fifth Holding:

But even assuming the forfeiture rule applies, we exercise our discretion to address the issue. Where, as here, the issue on appeal implicates a constitutional right, we will not apply the rule of forfeiture.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 327

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6

People v. Wiley (2025) 17 Cal.5th 1069, 1082 [the Sixth Amendment requires a jury determination of the increasing seriousness of a defendant’s prior convictions]

Sixth 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 must be reversed 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, or that those facts were otherwise proved true in compliance with the current statute. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 742–743

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

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