Category Archives: Due process

Due process, Probation Parole PRCS, Sentencing, Standard of review

Case 000992

Posted on by Gary McCurdy

Error and/or relief

We find sufficient evidence to support the conclusion that the defendant violated the conditions of his probation. But in light of the materially inaccurate information that appears to have influenced the defendant’s sentence, we cannot conclude that the superior court exercised informed discretion in imposing his sentence. Remanded for resentencing.

First Holding:

A probation violation is provable by a preponderance of the evidence. We review factual findings in this respect for substantial evidence. Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court’s decision. In conducting this inquiry, we give full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Authority:

People v. Rodriguez (1990) 51 Cal.3d 437, 441

People v. Butcher (2016) 247 Cal.App.4th 310, 318

People v. Kurey (2001) 88 Cal.App.4th 840, 848

People v. Mumin (2023) 15 Cal.5th 176, 198

Second Holding:

There may be situations in which a prisoner is entitled to a new sentencing hearing, but only where he shows that: (1) material false information was (2) relied upon by the sentencing judge, and (3) the defendant had no opportunity at the time of sentencing to correct such false information. The probation officer’s report stated that the defendant was found in violation of probation for, among other things, using illicit drugs. In fact, he was not found to have used drugs, and he was not found in violation for using drugs.

The record here reflects that the court relied on that materially false information. When defense counsel attempted to bring it to the court’s attention that the statement was untrue, the court gave no feedback or acknowledgement and simply proceeded with sentencing, in contrast to an earlier correction on a different misunderstanding brought to the court’s attention by the prosecutor, whom the court thanked for bringing the correction to the court’s attention.

Defendants are entitled to sentencing decisions made in the exercise of the informed discretion of the sentencing court. On this record, which appears to show that the sentencing court believed that the drug-use allegations had been proven, we cannot be confident that the court exercised informed discretion.

Authority:

In re Beal (1975) 46 Cal.App.3d 94, 99–100

People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8

Third Holding:

A court’s alleged reliance on inaccurate information that appears to have contributed to the defendant’s sentence implicates the federal constitutional guarantee of due process. We evaluate such claims under the standard set forth in Chapman. This stricter standard of review requires reversal unless the error is harmless beyond a reasonable doubt.

Authority:

People v. Eckley (2004) 123 Cal.App.4th 1072, 1080

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

People v. Schuller (2023) 15 Cal.5th 237, 251

Fourth Holding:

In revoking and terminating probation, trial court is entitled to consider defendant’s performance on probation from the time it was originally granted until it was reinstated for the final time.

Authority:

People v. Black (2009) 176 Cal.App.4th 145, 151

Appellate Principles, Due process, Duty of the court, Standard of review

Case 000954

Posted on by Gary McCurdy

Error and/or relief

The court erred in by using the wrong standard in ruling on the defendant’s motion to modify the verdict pursuant to Penal Code section 1181(6). We reverse the judgment of the trial court and remand this matter for reconsideration of appellant’s motion to modify the verdict.

First Holding:

The defendant’s claim that the prosecution engaged in misconduct during oral argument is forfeited because there was no objection. Generally, a defendant must make a timely objection and a request that the jury be admonished to disregard the impropriety, unless the objection would have been futile or the error could not be cured by an admonition.

Authority:

People v. Aguirre (2025) 18 Cal.5th 629, 705

Second Holding:

It is true that a prosecutor may violate a defendant’s constitutional rights when the prosecutor engages in a course of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. The claimed misconduct here was not so egregious as to result in a denial of due process.

Authority:

Miller v. Pate (1967) 386 U.S. 1, 7 [multiple misrepresentations of fact]

Brady v. Maryland (1963) 373 U.S. 83 [withholding of exculpatory evidence]

Griffin v. California (1965) 380 U.S. 609 [the prosecutor’s argument prejudices a specific right, such as the privilege against compulsory self-incrimination]

Third Holding:

After the jury returned the verdict, the defendant brought a motion to modify the verdict pursuant to section 1181(6) on the grounds that the evidence was insufficient as a matter of law to sustain a conviction for first degree murder. The defendant asked the court to review and reweigh the evidence presented at trial and modify the verdict to a finding of second-degree murder or manslaughter. The court applied the wrong standard in considering and denying the motion. It stated that had the judge been on the jury, he likely wuold have had a different decision, but he was not the jury, and he was required to honor the sanctity of the jury.

This is an inaccurate statement of the correct standard. The court conflated a sufficiency of the evidence review, in which the verdict is upheld if there is any evidence to support it, with its duty to independently determine whether the element of premeditation had been proven. Under the correct standard, in considering a motion under section 1181(6), the trial judge independently weighs the evidence, rather than applying the substantial evidence rule and determining legal sufficiency.

Authority:

People v. Veitch (1982) 128 Cal.App.3d 460, 468

Fourth Holding:

Section 1181(6) provides in relevant part that the court may grant a new trial when the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, the court may modify the verdict or judgment accordingly without granting or ordering a new trial.

Authority:

PEN 1181(6)

Fifth Holding:

In considering a motion under section 1181(6), the court extends no evidentiary deference in ruling on the motion. Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a 13th juror. It is the trial court’s function to determine independently whether it is satisfied that there is sufficient credible evidence to sustain the verdict.

Authority:

Porter v. Superior Court (2009) 47 Cal.4th 125, 133

People v. Dickens (2005) 130 Cal.App.4th 1245, 1254

Due process, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000882

Posted on by Gary McCurdy

Error and/or relief

Though the defendant was convicted of section 243.4(a), the correct code section for the pleaded and proved crime was section 243.4(d), and we modify the judgment accordingly. In all other respects, we affirm the judgment.

(Gary note: I stretch to count this as a win, because it did not really provide any relief. But it contains some important principles on what happens when the allegation describes conduct but lists the incorrect code section for it. So I decided to include it. Yep. My bar for inclusion is very low.)

First Holding:

Adequate notice to the defendant of the offense with which he is charged is not determined solely by the charging statute. A reference to an incorrect penal statute can be overcome by factual allegations adequate to inform the defendant of the crime charged.

The defendant was amply acquainted with the basis for count 3 and argues no prejudice from being charged under the wrong subdivision of section 243.4. The victim testified to the conduct underlying count 3 at the preliminary hearing and then again at trial. There is no dispute the evidence supports a conviction under subdivision (d).

Authority:

People v. Haskin (1992) 4 Cal.App.4th 1434, 1439

People v. Thomas (1987) 43 Cal.3d 818, 826–827, 832

People v. Maury (2003) 30 Cal.4th 342, 427–428

(Gary note: the court did not cite it, but section 1260 provides that the appellate court may modify a judgment, among several other actions. While it does not specifically say that the court can modify the judgment by having it reflect a different code section than was alleged, the above cases make it clear that specification of a code section does not necessarily control whether the defendant has been placed on adequate notice of the conduct he is accused of.)

Second Holding:

We review de novo whether the trial court’s instructions on the law were correct. When instructions are claimed to be erroneous, conflicting, or ambiguous, we ask whether jurors were reasonably likely to have construed them in a manner that violates the defendant’s rights. We look to the instructions as a whole and the entire record of trial, including the arguments of counsel.

We assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions given. Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.

Authority:

People v. Ramos (2008) 163 Cal.App.4th 1082, 1088

People v. Richardson (2008) 43 Cal.4th 959, 1028

People v. Rogers (2006) 39 Cal.4th 826, 873

People v. Franco (2009) 180 Cal.App.4th 713, 720

Third Holding:

The defendant argues the trial evidence does not support the conclusion that the victim was particularly vulnerable. We review an aggravating factor finding for substantial evidence. The court must 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 aggravating factor beyond a reasonable doubt. We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.

Authority:

People v. Mendez-Torres (2025) 113 Cal.App.5th 1007, 1020

People v. Wilson (2008) 44 Cal.4th 758, 806

People v. Alvarado (2001) 87 Cal.App.4th 178, 195 [inability to speak English can be a factor suggesting particular vulnerability]

People v. Carpenter (1997) 15 Cal.4th 312, 413 [noting vulnerability from victim being alone]

People v. Clark (1990) 50 Cal.3d 583, 638 [noting vulnerability from victim being told a false story to get the victim into a private space]

People v. Stevens (2007) 41 Cal.4th 182, 203 [noting a vulnerable position arises from exploiting a false sense of security]

Discretion, Due process, Duty of the court, Standard of review

Case 000745

Posted on by Gary McCurdy

Error and/or relief

The trial court abused its discretion and violated his right to due process when it denied a continuance to investigate and file a motion for a new trial after granting his motion to represent himself.

First Holding:

We review a trial court’s decision granting or denying a continuance for an abuse of discretion. Absent a showing of an abuse of discretion and prejudice, we will not reverse the trial court’s decision.

Authority:

People v. Mungia (2008) 44 Cal.4th 1101, 1118

People v. Doolin (2009) 45 Cal.4th 390, 450

Second Holding:

A trial court’s decision that is deemed an abuse of discretion has been described as a decision that exceeds the bounds of reason or as one that is arbitrary, capricious, patently absurd, or even whimsical. A court’s discretion, however, is not a whimsical, uncontrolled power. T

he scope of discretion always resides in the particular law being applied, i.e., in the legal principles governing the subject of the action. The court’s proper exercise of its discretion, therefore, requires knowledge and consideration of the legal principles essential to an informed, intelligent and just decision.

Where a ruling transgresses the confines of the applicable principles of law defining the scope of discretion, the court abuses its discretion.

Authority:

People v. Seigler (2025) 116 Cal.App.5th 596, 609

People v. Jacobs (2007) 156 Cal.App.4th 728, 737

City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297

People v. Lara (2001) 86 Cal.App.4th 139, 165

Third Holding:

In deciding whether to grant a continuance, trial courts may not exercise their discretion in such a manner as to deprive the defendant or defendant’s counsel of a reasonable opportunity to prepare.

That counsel for a defendant has a right to reasonable opportunity to prepare for a trial is as fundamental as is the right to counsel. The opportunity to prepare is no less fundamental when a defendant elects to proceed pro se.

While it is true that a defendant, who chooses to conduct his defense in pro. per. does so subject to the disabilities normally attendant upon the status as a prisoner, a pro se defendant must be given a reasonable opportunity to prepare a defense.

The denial of a continuance after a trial court grants a defendant’s request for self-representation could deprive a defendant of the opportunity to prepare a defense. To deny him that opportunity would be to render his right to appear in propria persona an empty formality, and in effect deny him the right to counsel.

Therefore, when a trial court grants a defendant’s request to proceed pro se, it has been held an abuse of discretion and a denial of due process to deny a request for a reasonable continuance to allow the in propria persona defendant to prepare a defense.

Authority:

People v. Sakarias (2000) 22 Cal.4th 596, 646

People v. Maddox (1967) 67 Cal.2d 647, 652, 653-655

People v. Cruz (1978) 83 Cal.App.3d 308, 324

People v. Wilkins (1990) 225 Cal.App.3d 299, 304-305

People v. Hill (1983) 148 Cal.App.3d 744, 756, 757

Fourth Holding:

Courts have made an exception only where the record demonstrates the trial court expressly conditioned the granting of an untimely Faretta motion on the defendant’s express waiver of a continuance.

Authority:

Faretta v. California (1975) 422 U.S. 806

People v. Jenkins (2000) 22 Cal.4th 900, 1038 [court warned the defendant that a request for a continuance would be a basis for denying Faretta motion, and the defendant accepted pro se status on the understanding that no additional time would be granted]

People v. Clark (1992) 3 Cal.4th 41, 110 [court granted Faretta motion only after the defendant “expressly represented he was able to proceed without a continuance], overruled on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 462

People v. Rudd (1998) 63 Cal.App.4th 620, 626 [Faretta motion granted only after the defendant expressly stated he would be able to proceed without a continuance]

Fifth Holding:

The denial of a continuance may be so arbitrary as to deny due process. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. Instead, the answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

Authority:

People v. Beames (2007) 40 Cal.4th 907, 921

Sixth Holding:

The trial court has broad discretion in ruling on a new trial motion, and its decision will be disturbed only for clear abuse of that discretion. Such an abuse of discretion occurs when the court bases its decision on an incorrect legal standard.

Authority:

People v. Iraheta (2014) 227 Cal.App.4th 611, 619

Seventh Holding:

To be sure, the text of section 1181 expressly limits the grant of a motion for new trial to the nine grounds enumerated in the statute. And ineffectiveness of trial counsel is not one of them.

Trial courts, however, have a duty to ensure that a trial is conducted with solicitude for the essential rights of the accused. That includes the right to effective counsel.

The Legislature has no authority to limit by statute a court’s constitutional obligation to ensure that a defendant is accorded due process. Therefore, our Supreme Court has stated that section 1181 should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law.

In appropriate circumstances, the trial court should consider a claim of ineffective assistance of counsel in a motion for new trial, because justice is expedited when the issue of counsel’s effectiveness can be resolved promptly at the trial level.

Authority:

People v. Fosselman (1983) 33 Cal.3d 572, 582

People v. Clark (2016) 63 Cal.4th 522, 630

People v. Watts (2018) 22 Cal.App.5th 102, 117

Eighth Holding:

We take issue with the trial court’s determination that the defendant could raise the issues of ineffective assistance of counsel and late discovered evidence on appeal. Unless the record on appeal includes an explanation as to why trial counsel acted or failed to act in the manner challenged, or unless counsel was asked for an explanation and failed to provide one, a claim on appeal that trial counsel was ineffective is at risk of being rejected.

Under the circumstances in this case, the trial court abused its discretion and deprived the defendant of his right to due process. We remand the matter and direct the trial court to grant the defendant a reasonable continuance to investigate and file a motion for new trial.

Authority:

People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [claims of ineffective assistance of counsel are often more appropriately litigated in a habeas corpus proceeding]

Appellate Principles, Discretion, Due process, Elements of crime, Pleading, Sentencing, Standard of review

Case 000654

Posted on by Gary McCurdy

Error and/or relief

The court imposed the wrong sentence for the consecutive term.

First Holding:

In one count, the defendant was convicted of second degree robbery (sec. 211). At sentencing, the trial court imposed an aggravated term of five years, which was ordered to be served consecutively at a subordinate term of one year four months. Because the robbery was a second degree felony, the middle term is three years in prison. As such, the consecutive subordinate term must be one-third the middle term, or one year. Thus, the sentence on that count must be reduced from 16 months to one year. We may correct this unauthorized sentence on appeal without remanding for a full resentencing.

Authority:

PEN 1170.1(a)

PEN 1260

People v. Lawley (2002) 27 Cal.4th 102, 171–172

Second Holding:

The defendant argues that he should have been charged with only one count of attempting to dissuade a witness rather than the 10 charged and found true. The ten calls all occurred on the same day over a span of six hours. The issue is whether appellant may be lawfully subject to multiple convictions. We review this claim de novo.

Authority:

PEN 954

People v. Duffy (2020) 51 Cal.App.5th 257, 261

Third Holding:

Section 954 defines what charges can be joined in one action. This statute does not permit multiple convictions for the same offense based on the same act or course of conduct. However, section 954 authorizes multiple convictions for different or distinct offenses. As a result, a defendant may be convicted of multiple counts of the same crime, such as grand theft, based on separate and distinct criminal acts, even if the acts were all part of a single overarching scheme.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 650

People v. Whitmer (2014) 59 Cal.4th 733, 74

Fourth Holding:

Determining whether a defendant has committed one or more criminal acts requires identifying what the Legislature intended to punish as a single offense under the relevant statute. Courts refer to this inquiry as determining the statute’s unit of prosecution. Courts should look to the characteristics of the crime, including both (1) the factual circumstances of the defendant’s criminal conduct and (2) the elements of the crime as defined by the Legislature in the relevant statute.

Authority:

Moore v. Superior Court (2020) 57 Cal.App.5th 441, 461

People v. Wilson (2015) 234 Cal.App.4th 193, 199-200

People v. Whitmer (2014) 59 Cal.4th 733, 744 (conc. opn. of Liu, J.)

Fifth Holding:

Section 136.1(a)(2) makes it a crime to knowingly and maliciously attempt to prevent or dissuade a witness from attending or giving testimony at a trial, proceeding or inquiry authorized by law. In relevant part, malice is defined under this statute as an intent to thwart or interfere in any manner with the orderly administration of justice. This crime is completed upon any attempt.

Authority:

PEN 136.1

People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519

Sixth Holding:

A trial court’s decision whether to impose consecutive or concurrent sentences is reviewed for an abuse of discretion. A defendant bears the burden to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, a reviewing court presumes the trial court acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on appeal. Moreover, a decision will not be reversed merely because reasonable people might disagree. Instead, the decision must be so irrational or arbitrary that no reasonable person could agree with it.

Authority:

PEN 669(a)

People v. Giminez (1975) 14 Cal.3d 68, 71–72

People v. Carmony (2004) 33 Cal.4th 367, 376–377

Seventh Holding:

Once a trial court lawfully decides to impose consecutive sentences on convictions for violating section 136.1, section 1170.15 applies. If a person is convicted of a felony, and of an additional felony that is a violation of section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony the Penal Code provides that those subordinate terms shall consist of the full middle term.

Authority:

PEN 1170.15

Eighth Holding:

In relevant part, the rule against the dual use of facts prohibits a trial court from relying on the same fact “to impose both the upper term and a consecutive sentence. Only a single factor in aggravation is needed to support imposition of an upper term. Likewise, only one relevant and sustainable fact may explain a series of consecutive sentences. We presume the trial court acted to achieve legitimate sentencing objectives

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12

People v. Osband (1996) 13 Cal.4th 622, 730

People v. Carmony (2004) 33 Cal.4th 367, 376-377

Ninth Holding:

There is a developing split of authority regarding application of the forfeiture doctrine regarding the low term presumption under section 1170(b)(6). We need not decide that issue. Although the court did not specifically mention subdivision (b)(6), we presume it knew of that provision.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1039, 1044 [forfeiture doctrine applied when defendant failed to raise in the trial court the presumption in favor of a lower term]

People v. Fredrickson (2023) 90 Cal.App.5th 984, 994, fn. 8 [sec. 1170 mandates application of the lower term presumption and is not subject to forfeiture]People v. Caparrotta (2024) 103 Cal.App.5th 874, 905

Tenth Holding:

Under the cumulative error doctrine, errors that are individually harmless may nevertheless have cumulative prejudice. A claim of cumulative error is essentially a due process challenge. The issue is whether the defendant received a fair trial. Here, appellant’s claim of cumulative prejudice is without merit because we have rejected the individual claims. After reviewing the entire record, we are confident that appellant received due process throughout the entire proceeding, including sentencing.

Authority:

In re Avena (1996) 12 Cal.4th 694, 772, fn. 32

People v. Rivas (2013) 214 Cal.App.4th 1410, 1436

People v. Bradford (1997) 14 Cal.4th 1005, 1057

People v. Cunningham (2001) 25 Cal.4th 926, 1009 [a defendant is “entitled to a fair trial but not a perfect one”]