Category Archives: Jury trial

Duty of the court, Jury trial, Sentencing, Standard of review

Case 000993

Posted on by Gary McCurdy

Error and/or relief

The trial court failed to properly advise the defendant of his right to a jury trial on certain aggravating factors, and that his admissions to those factors were not knowing, intelligent, and voluntary. Accordingly, we vacate appellant’s sentence and remand the matter for a full resentencing.

Before the matter was submitted to the jury, appellant admitted the allegations of circumstances in aggravation under California Rules of Court, rule 4.421(b)(2) through (5). During the admission colloquy, the trial court advised appellant that he only had the right to a court trial on the truth of the allegations. We agree with the defendant that this advisement was incorrect, and that the record does not establish that his admissions were knowing, intelligent, and voluntary.

The factors in question under rule 4.421(b) are, in essence:
(2) The defendant’s prior convictions are numerous and of increasing seriousness;
(3) The defendant has served prior terms in prison;
(4) The defendant was on probation or parole when he committed the alleged offenses; and
(5) The defendant’s prior performance on probation and parole was unsatisfactory.

First Holding:

A criminal defendant has the right to a jury trial on the facts underlying aggravating factors used to justify imposition of an upper term sentence under section 1170(b). That right is not merely a state law entitlement, but is constitutionally required for all aggravating facts.

Authority:

PEN 1170(b)

People v. Lynch (2024) 16 Cal.5th 730, 757

People v. Wiley (2025) 17 Cal.5th 1069, 1078

Second Holding:

Section 1170(b)(3) provides a limited exception for prior convictions, permitting the court to consider them based on a certified record of conviction without submitting the prior convictions to a jury.

Our Supreme Court has clarified, however, that the exception is narrowly limited to the bare fact of a prior conviction and its elements.

Applying this principle, Wiley held that jury findings were required for aggravating factors based on increasingly serious prior convictions and unsatisfactory prior performance on probation or parole.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082

Third Holding:

Because the Sixth Amendment affords a defendant the right to a jury trial on alleged aggravating factors, a valid admission to those factors requires the same advisements and waivers required for a stipulation to a prior conviction.

This includes advisement and waiver of the defendant’s Boykin-Tahl rights: the right to a jury trial, the right to confront adverse witnesses, and the privilege against self-incrimination.  A defendant must also be advised of the penal consequences of the admission.

If the trial court fails to properly advise the defendant of these rights or consequences, reversal is required unless the record affirmatively shows, under the totality of the circumstances, that the admission was knowing, intelligent, and voluntary.

Authority:

People v. Kinnear (2025) 116 Cal.App.5th 1116, 1127

People v. Mitchell (2026) 19 Cal.5th 729, 745–746

Boykin v. Alabama (1969) 395 U.S. 238

In re Tahl (1969) 1 Cal.3d 122

People v. Cross (2015) 61 Cal.4th 164, 170

People v. Mosby (2004) 33 Cal.4th 353, 361–365

Defenses, Jury instructions, Jury trial, Standard of review

Case 000935

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by instructing the jury that a person may lose the right to self-defense if he was the initial aggressor or a mutual combatant (CALCRIM No. 3471), or if he contrived the claim as a pretext to assault the victim (CALCRIM No. 3472). Given the evidence in this case, no reasonable jury could find these instructions applicable.

Although the error was harmless as to the instructions on mutual combat and contrived self-defense—as the jury was readily able to see the irrelevance of these instructions—the record reveals a reasonable likelihood that the jury was misled by the initial aggressor instruction. We therefore reverse the defendant’s murder conviction and remand for retrial.

First Holding:

The prosecution argues that the claim was forfeited by lack of objection. The defendant argues the issue is reviewable insofar as the challenged instructions directly undermined his self-defense claim and thus impaired his substantial rights.

Alternatively, he claims defense counsel rendered ineffective assistance in failing to fully object to both instructions.

We must address the defendant’s contention on its merits to determine whether there was an impairment of his substantial rights or ineffective assistance of counsel.

Authority:

PEN 1259

People v. Anderson (2007) 152 Cal.App.4th 919, 927

Second Holding:

It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.

The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.

The corollary to this mandate is equally well-established: a trial court is not obligated to give an instruction if the evidence presented at trial is such as to preclude a reasonable jury from finding the instruction applicable. Indeed, it is error to give a jury instruction that is legally correct but has no application to the facts of the case.

Authority:

People v. St. Martin (1970) 1 Cal.3d 524, 531

People v. Schultz (1987) 192 Cal.App.3d 535, 539

People v. Guiton (1993) 4 Cal.4th 1116, 1129

Third Holding:

Giving an inapplicable instruction is subject to the traditional Watson test for prejudice, under which reversal is required if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred.

Such an error is generally only a technical error that does not constitute ground for reversal because juries are fully capable of analyzing the evidence, determining the facts, and realizing that an instruction does not apply. Juries are routinely told that some of the instructions may not apply, depending on their findings about the facts of the case and are directed to follow the instructions that do apply to the facts as they find them.

That being said, in some cases, the presence of an extraneous instruction may be confusing enough to become prejudicial.

Authority:

People v. Guiton (1993) 4 Cal.4th 1116, 1130

People v. Watson (1956) 46 Cal.2d 818, 836

People v. Cross (2008) 45 Cal.4th 58, 67

People v. Schultz (1987) 192 Cal.App.3d 535, 539-540

Fourth Holding:

Regarding the instruction on initial aggressor, there are two problems. First, the paragraph the jury received on sudden escalation was written in terms of a defendant initiating an altercation with nondeadly force, the victim responding with deadly force, and then the defendant using deadly force in return.

But the evidence here suggested a different scenario, in which (arguably) the victim initiated with nondeadly force, the defendant responded with deadly force, the victim subsequently used deadly force, and then the defendant used deadly force in return. In other words, the standard language did not quite fit the facts here.

Second, and more to the point, we agree with the defendant that no reasonable jury could find the initial aggressor concept applicable—even with tailored sudden escalation language—given the timelapse between the two encounters. The reason that a defendant forfeits his claim to self-defense when he initiates a deadly attack is because the victim is then legally justified in using deadly force against the defendant. But no one is justified in using deadly force absent fear of imminent death or great bodily injury. 

(Gary note: The appellate court describes the facts as the defendant initially pointing a gun, then the altercation is over, but an hour later the victim shows up and starts throwing rocks at the defendant, who responds with deadly force. “Accordingly, the defendant’s conduct during the first encounter did not limit his self-defense claim; he did not have a duty to withdraw during the second encounter.”)

On this record, we discern a reasonable likelihood that at least one juror would have accepted that the defendant actually believed he needed to defend himself from imminent death or great bodily injury, but was misled into thinking the defendant lost his right to make that claim since he pulled the gun on the victim an hour earlier, and he did not communicate an intent to stop fighting during the second, fatal encounter.

We therefore conclude that giving the initial aggressor instruction was prejudicial, and accordingly reverse the murder conviction.

Authority:

In re Christian S. (2015) 7 Cal.4th 768, 773, fn. 1 [self-defense and imperfect self-defense may not be invoked by a defendant who, through his own wrongful conduct (e.g., the initiation of a physical assault or the commission of a felony), has created circumstances under which his adversary’s attack or pursuit is legally justified]

People v. Vasquez (2005) 136 Cal.App.4th 1176, 1179–1180 [imperfect self-defense is available when the victim’s use of force against the defendant is unlawful, even when the defendant set in motion the chain of events that led the victim to attack the defendant]

People v. Humphrey (1996) 13 Cal.4th 1073, 1082 [for either perfect or imperfect self-defense, the fear must be of imminent harm]

Fifth Holding:

To the extent the prosecution contends that any error in instructing the jury on the limits of self-defense was harmless since the jury found the defendant guilty of first degree murder, we note that killing in self-defense is not necessarily inconsistent with premeditation and deliberation.

Authority:

People v. Schuller (2023) 15 Cal.5th 237, 265 (conc. opn. of Liu, J.)

Duty of the court, Jury trial

Case 000925

Posted on by Gary McCurdy

Error and/or relief

We agree that the trial court erred in denying the defendant’s objection under Code of Civil Procedure section 231.7 to the prosecution’s use of peremptory challenges.

First Holding:

The Legislature enacted section 231.7, effective in criminal trials beginning January 1, 2022, to establish ‘a new process for identifying unlawful bias in the use of peremptory challenges during jury selection’ because studies showed that the existing Batson/Wheeler analysis was inadequate to prevent racial discrimination.

Discrimination in violation of section 231.7 need not be purposeful, but may involve unconscious bias, which includes implicit and institutional biases. Section 231.7 prohibits the use of a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s perceived or actual race and] gender, as well as five other protected characteristics.

Once an objection to a peremptory challenge is made, the party challenging the prospective juror must state the reasons the peremptory challenge has been exercised.

Authority:

CCP 231.7

Batson v. Kentucky (1986) 476 U.S. 79

People v. Wheeler (1978) 22 Cal.3d 258

People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540

Second Holding:

We review de novo a trial court’s determination that a peremptory challenge was valid, and the trial court’s express factual findings for substantial evidence. We do not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. If the ruling on an objection was erroneous, the statute precludes a finding of harmless error. Instead, the sole remedy is reversal.

Authority:

CCP 231.7(j) [error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial]

People v. Ortiz (2023) 96 Cal.App.5th 768, 795

Third Holding:

(Gary note: The opinion then discussed the specific reasons the juror was excused by the prosecution and the failure of the court to follow the required procedure where the reason given is one that is expressly presumed in section 231.7 to be an invalid reason. I have omitted that discussion, since it cannot provide any value as an unpublished opinion.)

Neither the showing required of the prosecution under section 231.7(e) nor the determination by the trial court required under subdivision (f) was made in this case. To the extent that the record is silent, we may not speculate about or consider other possible reasons for the challenge by the prosecution, as we are permitted to consider only the reasons given.

Moreover, we may not impute to the trial court any findings that the trial court did not expressly state on the record. Simply put, the statute does not permit a reviewing court to find compliance when no compliance is apparent in the record.

In any event, even without the statutory prohibition, there would be no reason to impute findings to the trial court in this case because the trial court expressly found, on the record, that there were no presumptively invalid reasons for exclusion of the prospective juror.

Authority:

CCP 231.7(j)

People v. Garcia (2025) 114 Cal.App.5th 1154, 1164

People v. Alston (2026) 118 Cal.App.5th 575, 587

Fourth Holding:

If another party or the trial court objects to the use of a peremptory challenge, then the party that exercised the peremptory challenge must state the reasons for the challenge; there is no requirement that the objecting party first establish a prima facie case of discrimination.

Instead, it is then up to the trial court to correctly apply the procedure set forth in section 231.7 when deciding whether to sustain the objection, and this includes determining whether the proffered reason is presumptively invalid.

Authority:

People v. SanMiguel (Jul. 30, 2026, S287786) __ Cal.5th __

People v. Aguilar (2026) 118 Cal.App.5th 1, 11

People v. Espiritu (2026) 119 Cal.App.5th 1128, 1141 [objecting party’s initial objection preserves the right to challenge the court’s failure to consider the presumptively invalid categories]

Fifth Holding:

(Gary note: This is not really a holding in the opinion. The court discusses the specific reasons relied on by the prosecution and found them in presumptive violation of Code of Civil Procedure section 231.7(e). I thought it might be useful and enlightened to include all of the section 231.7(e) statutorily presumptively invalid reasons here.)

Authority:

CCP 231.7(e):

A peremptory challenge for any of the following reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case:

(1) Expressing a distrust of or having a negative experience with law enforcement or the criminal legal system.

(2) Expressing a belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.

(3) Having a close relationship with people who have been stopped, arrested, or convicted of a crime.

(4) A prospective juror’s neighborhood.

(5) Having a child outside of marriage.

(6) Receiving state benefits.

(7) Not being a native English speaker.

(8) The ability to speak another language.

(9) Dress, attire, or personal appearance.

(10) Employment in a field that is disproportionately occupied by members listed in subdivision (a) or that serves a population disproportionately comprised of members of a group or groups listed in subdivision (a).

(11) Lack of employment or underemployment of the prospective juror or prospective juror’s family member.

(12) A prospective juror’s apparent friendliness with another prospective juror of the same group as listed in subdivision (a).

(13) Any justification that is similarly applicable to a questioned prospective juror or jurors, who are not members of the same cognizable group as the challenged prospective juror, but were not the subject of a peremptory challenge by that party. The unchallenged prospective juror or jurors need not share any other characteristics with the challenged prospective juror for peremptory challenge relying on this justification to be considered presumptively invalid.

Duty of the court, Jury trial, Standard of review

Case 000874

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in denying the defendant’s objection under Code of Civil Procedure section 231.7 to the prosecutor’s exercise of a peremptory challenge during voir dire.

First Holding:

Section 231.7(a), prohibits the use of a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.

The statute specifies the process that must be followed if a party or the trial court objects to the use of a peremptory challenge. Two different subdivisions of the statute provide lists of presumptively invalid reasons for exercising a peremptory challenge and specify the processes that must be followed if such reasons are asserted in a section 231.7 scenario.

Relevant here, subdivision (g) lists three categories of presumptively invalid reasons that have historically been associated with improper discrimination in jury selection. Those reasons are presumptively invalid unless the trial court is able to confirm that the asserted behavior occurred, based on the court’s own observations or those of counsel for the objecting party.

Authority:

CCP 231.7

Second Holding:

On appeal, we review the overruling of a section 231.7 objection de novo, with the trial court’s express factual findings reviewed for substantial evidence. We may only consider those reasons given by the party exercising the peremptory challenge and those factual findings expressly made by the trial court. If we conclude the trial court erred by overruling an objection, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Third Holding:

An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method.

But that rule is not automatic. Further, courts have recognized there are circumstances in which it should not apply. Among those circumstances are when its application would be incompatible with the fundamental purposes of a statutory scheme.

Authority:

People v. Saunders (1993) 5 Cal.4th 580, 589–590

In re L.C. (2023) 90 Cal.App.5th 728, 738,

In re S.B. (2004) 32 Cal.4th 1287, 1293

In re Sheena K. (2007) 40 Cal.4th 875, 889 [pure question of law]

In re Frank R. (2011) 192 Cal.App.4th 532, 539 [conflict with due process]

Fourth Holding:

As explained in Espiritu, the Legislature enacted section 231.7 in response to shortcomings of the inquiry under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258, overruled in part in Johnson v. California (2005) 545 U.S. 162.

Whereas Batson/Wheeler targets purposeful discrimination only, section 231.7 aims to eliminate purposeful and unconscious bias. And, whereas Batson/Wheeler employs a largely deferential burden shifting evaluation which places the ultimate burden of persuasion on the objecting party, section 231.7 sets forth a comprehensive process that expressly imposes virtually all burdens on the party exercising the peremptory challenge or the trial court.

Authority:

CCP 231.7

People v. Espiritu (2026) 119 Cal.App.5th 1128, 1139

People v. Lenix (2008) 44 Cal.4th 602

People v. Lomax (2010) 49 Cal.4th 530, 569

Fifth Holding:

Although not expressly stated in the statute, it logically flows from the legislative purpose and established scheme that the first required step in such an evaluation is to consider whether any of the reasons fall into a presumptively invalid category listed in subdivision (e) or subdivision (g).

Stated differently, the presumptively invalid categories embody circumstances in which the Legislature has declared the court must presume an objectively reasonable person would view membership or perceived membership in a listed group as a factor in the use of the peremptory challenge, unless the party exercising the challenge overcomes the presumption in the statutorily specified manner.

Authority:

People v. Caparrotta (2024) 103 Cal.App.5th 874, 893 [after party objects under sec. 237.1, it is trial court’s responsibility to apply correct procedure to decide whether to sustain objection]

Sixth Holding:

(Gary note: The opinion then sets forth the specifics of the questions and answers and exercise of the peremptory challenge. Those details are unnecessary in this type of summary that focuses on the principles relied on rather than specific application, so I have chosen to omit them. Having found error in overruling the defense objection to the exercise, the court reversed and remanded for a new trial. Erroneously overruled objections under section 231.7 are not subject to harmless error analysis.)

Authority:

People v. Aguilar (2026) 118 Cal.App.5th 1, 10

Duty of the court, Jury trial, Standard of review

Case 000829

Posted on by Gary McCurdy

Error and/or relief

The defendant’s jury trial waiver was invalid as it was not knowing, intelligent, and voluntary. Reversed and remanded for a new trial.

First Holding:

A criminal defendant has the constitutional right to a jury trial. The defendant may waive the constitutional right to a jury trial, provided the waiver is knowing, intelligent, and voluntary. A waiver is knowing and intelligent if it is made with full awareness of the nature of the right and the consequences of abandoning it. It is voluntary if it was the product of a free and deliberate choice, rather than intimidation, coercion, or deception.

Authority:

U.S. Const., 6th Amend.

Cal. Const., art. I, sec. 16

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

Second Holding:

Whether a defendant satisfies that standard must depend upon the unique circumstances of each case. Our Supreme Court has persistently declined to mandate any specific admonitions describing aspects of the jury trial right.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 166-167 [Our precedent has not mandated any specific method for determining whether a defendant has made a knowing and intelligent waiver of a jury trial in favor of a bench trial. We instead examine the totality of circumstances.]

People v. Daniels (2017) 3 Cal.5th 961, 992

Third Holding:

A reviewing court’s task is to independently examine the record to determine whether the defendant’s jury waiver was knowing, intelligent, and voluntary. We will uphold the validity of a jury waiver if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances.

We do not start with a presumption of validity that may only be rebutted by signs of a defendant’s confusion or unwillingness in entering a waiver. Instead, a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent.

Authority:

People v. Doolin (2009) 45 Cal.4th 390, 453

People v. Daniels (2017) 3 Cal.5th 961, 991

Fourth Holding:

Our Supreme Court has eschewed any rigid formula or particular form of words that a trial court must use in taking a jury waiver. That said, it has emphasized the value of a robust oral colloquy in evincing a knowing, intelligent, and voluntary waiver of a jury trial.

The Supreme Court has recommended that trial courts advise a defendant of the basic mechanics of a jury trial in a waiver colloquy, including but not necessarily limited to the facts that (1) a jury is made up of 12 members of the community; (2) a defendant through his or her counsel may participate in jury selection; (3) all 12 jurors must unanimously agree in order to render a verdict; and (4) if a defendant waives the right to a jury trial, a judge alone will make the decision.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 169-170

Fifth Holding:

The Supreme Court has also recommended that the trial judge take additional steps as appropriate to ensure, on the record, that the defendant comprehends what the jury trial right entails.

A trial judge may do so in any number of ways—among them, by asking whether the defendant had an adequate opportunity to discuss the decision with his or her attorney, by asking whether counsel explained to the defendant the fundamental differences between a jury trial and a bench trial, or by asking the defendant directly if he or she understands or has any questions about the right being waived.

Ultimately, a court must consider the defendant’s individual circumstances and exercise judgment in deciding how best to ensure that a particular defendant who purports to waive a jury trial does so knowingly and intelligently.

(Gary note: The court then analyzed record in this case and concluded that the jury trial waiver was not knowing and intelligent under the totality of the circumstances. The court’s advisement addressed only one and a half of the four basic mechanics of a jury trial described in Sivongxxay–that a judge alone would decide guilt if the defendant forwent a jury trial, and that the jury would be composed of people who live in the county.)

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 169-170

People v. Jones (2018) 26 Cal.App.5th 420, 428

Appellate Principles, Elements of crime, Jury trial

Case 000824

Posted on by Gary McCurdy

Error and/or relief

The conviction on count 2 must be reversed because it is a lesser included offense of count 1.

First Holding:

The law prohibits simultaneous convictions for both a greater offense and a lesser offense necessarily included within it, when based on the same conduct. When the jury expressly finds defendant guilty of both the greater and lesser offense the conviction of the greater offense is controlling, and the conviction of the lesser offense must be reversed.

Authority:

People v. Milward (2011) 52 Cal.4th 580, 589

Second Holding:

Assault with a firearm is a lesser included offense of assault with a semi-automatic firearm. Accordingly, the defendant’s conviction for assault with a firearm must be reversed

Authority:

People v. Martinez (2012) 208 Cal.App.4th 197, 199

Evidence, Fifth Amendment, Jury trial, Standard of review

Case 000780

Posted on by Gary McCurdy

Error and/or relief

We conclude the detectives subjected defendant to a custodial interrogation. Their failure to advise him of his Miranda rights therefore required the suppression of his confession.

First Holding:

Under Miranda, suspects questioned by law enforcement after being taken into custody must first be informed that they have the right to remain silent, that any statements they make may be used against them, and that they have a right to the presence of an attorney. If police interrogate a suspect in custody without providing these advisements, the suspect’s responses cannot be admitted to establish their guilt.

Authority:

Miranda v. Arizona (1966) 384 U.S. 436

People v. NavaAdame (2025) 116 Cal.App.5th 1, 16

Second Holding:

The duty to advise suspects of their Miranda rights applies only if they are in custody. Custody is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In deciding if a person is in custody for Miranda purposes, the question is whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave. To answer this question, the court must examine all the circumstances surrounding the interrogation

Authority:

People v. NavaAdame (2025) 116 Cal.App.5th 1, 16

Third Holding:

Relevant considerations include (1) who initiated the contact; (2) whether the person agreed to the interview; (3) whether the person was questioned as a witness or suspect; (4) the interview’s location; (5) whether police said the person was under arrest or in custody (6) conversely, whether they said the person was free to leave at any time; (7) whether the person’s movement was restrained; (7) the length of questioning; (8) the number of officers; (9) the degree of police control over the interrogation; (10) whether officers conveyed a belief in the person’s guilt and suggested they had incriminating evidence; (11) whether the tone was aggressive or accusatory; (12) whether police used interrogation tactics designed to pressure the person; and (13) whether the person was arrested at the end of the interrogation.

Authority:

People v. NavaAdame (2025) 116 Cal.App.5th 1, 16-17

Fourth Holding:

The prosecution has the burden of proving a defendant was not in custody. We review the trial court’s factual findings for substantial evidence but independently decide if the interrogation was custodial.

(GARY Note: the court then described the events in detail that led the court to declare “Based on the totality of the circumstances, we conclude defendant was subjected to a custodial interrogation long before he received Miranda advisements.” Because the opinion is unpublished, it is not useful to recite the circumstances, because you cannot cite this case as an example of a finding that Miranda rights should have been given earlier. If an attorney wants to read the full opinion, I can provide it on request.)

Authority:

In re Anthony L. (2019) 43 Cal.App.5th 438, 445

Fifth Holding:

A confession held inadmissible by reason of having been obtained in violation of the prophylactic Miranda requirements is subject to a harmless-error standard of review specified in Chapman. Under that standard, we ask whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. To say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the jury considered on the issue in question.

Authority:

People v. NavaAdame (2025) 116 Cal.App.5th 1, 21-22

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

Sixth Holding:

The erroneous admission of defendant’s confession cannot be regarded as unimportant. A confession is like no other evidence. Indeed, the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. Confessions often operate as a kind of evidentiary bombshell which shatters the defense and are thus much more likely to be prejudicial.

Authority:

Arizona v. Fulminante (1991) 499 U.S. 279, 296

People v. Neal (2003) 31 Cal.4th 63, 86

Seventh Holding:

We decline to consider defendant’s testimony at trial in assessing harmlessness. When an illegally obtained confession is erroneously admitted, the defendant’s testimony will not render the error harmless unless it is shown beyond a reasonable doubt that the defendant did not take the stand in an attempt to mitigate the explosive impact of a confession which had left his case in ruin.

Authority:

People v. Marlow (2004) 34 Cal.4th 131, 151

Jury trial, Standard of review

Case 000754

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously overruled the defendant’s objection to the prosecutor’s use of a peremptory challenge against a Black prospective juror because the main reason given by the prosecutor for exercising the challenge was presumptively invalid under Code of Civil Procedure section 231.7. The record did not contain clear and convincing evidence rebutting the presumptive invalidity of the challenge.

First Holding:

Code of Civil Procedure section 231.7 prohibits the use of a peremptory challenge on the basis of a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups. The Legislature enacted section 231.7, effective in criminal trials beginning January 1, 2022, to establish a new process for identifying unlawful bias in the use of peremptory challenges during jury selection because studies showed that the existing Batson/Wheeler analysis was inadequate to prevent racial discrimination.

Authority:

CCP 231.7

People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540

Batson v. Kentucky (1986) 476 U.S. 79

People v. Wheeler (1978) 22 Cal.3d 258

Second Holding:

Upon objection to the exercise of a peremptory challenge pursuant to CCP 231.7, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised. The trial court must then evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances, considering only the reasons actually given.

If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained. For purposes of section 231.7, an objectively reasonable person is aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California.

Authority:

CCP 231.7

Third Holding:

Section 231.7 also contains two separate provisions describing presumptively invalid reasons for the exercise of a peremptory challenge. Each subdivision sets out a distinct process by which a court determines whether a presumptively invalid reason can be absolved of that presumption.

The challenge of a prospective juror who expresses a distrust of or having a negative experience with law enforcement or the criminal legal system is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case

Authority:

CCP 231.7(e) and (g)

People v. Alston (2026) 118 Cal.App.5th 575, 581

Fourth Holding:

The denial of an objection made under CCP section 231.7 shall be reviewed by the appellate court de novo, with the trial court’s express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record.

The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, the error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Fifth Holding:

The defendant did not forfeit review of this issue, because his attorney’s general objection to the exercise of the peremptory challenge was sufficient to preserve the issue in this case.

Authority:

People v. Jaime (2023) 91 Cal.App.5th 941, 946 [forfeiture rule applies to section 231.7 claims]

People v. Espiritu (2026) 119 Cal.App.5th 1128 [The court was not confronted with a situation in which a defendant wholly failed to object “under the applicable statute. Rather, the defendant’s general objection was sufficient to preserve an argument alleging error based on a category of presumptively invalid reasons not brought to the trial court’s attention by defense counsel.]

Sixth Holding:

An objection to a peremptory challenge must be sustained whenever any reason identified for the challenge becomes conclusively invalid under section 231.7(g), regardless of whether the party exercising the peremptory challenge also identifies facially neutral reasons that do not fall within the scope of subdivision (g). Under the circumstances in this case, the defendant’s objection to the peremptory challenge was erroneously overruled, and prejudicially so. We reverse the judgment and remand for a new trial.

Authority:

People v. Caparrotta (2024) 103 Cal.App.5th 874, 896

Appellate Principles, Discretion, Jury trial, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case 000746

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by discharging Juror No. 1 without good cause in violation of his rights under the Sixth Amendment. Our review of the record does not reveal it was a demonstrable reality that the discharged juror refused to deliberate. Rather, the juror listened to all the evidence, participated to some extent in the discussions in the jury room, and remained willing and able to vote concerning the verdict. The judgment is reversed.

First Holding:

If at any time, whether before or after the final submission of the case to the jury, a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged. In most circumstances, section 1089 is applied to remove a juror “who becomes physically or emotionally unable to continue to serve as a juror due to illness or other circumstances. However, section 1089 also has been applied “to permit the removal of a juror who refuses to deliberate, on the theory that such a juror is unable to perform his duty.

Authority:

PEN 1089

People v. Cleveland (2001) 25 Cal.4th 466, 474

Second Holding:

The removal of a seated juror for failing to deliberate is a serious matter that implicates a defendant’s state and federal constitutional right to a unanimous decision by the jury. Accordingly, great caution is required when deciding to excuse a sitting juror. The requirement of a unanimous criminal verdict is an important safeguard, long recognized in American jurisprudence. This safeguard rests on the premise that each individual juror must exercise his or her own judgment in evaluating the case. The fact that other jurors may disagree with a panel member’s conclusions, or find disagreement frustrating, does not necessarily establish misconduct.

Authority:

People v. Armstrong (2016) 1 Cal.5th 432

People v. Allen and Johnson (2011) 53 Cal.4th 60, 71

Third Holding:

If a juror’s willingness or ability to continue deliberating is unclear, the trial court must take care that its investigation is neither too cursory nor intrudes too deeply into the jury’s deliberative process to avoid invading the sanctity of the deliberations or creating a coercive effect on those deliberations.

The circumstance that a juror does not deliberate well or relies upon faulty logic or analysis does not constitute a refusal to deliberate and is not a ground for discharge. Similarly, the circumstance that a juror disagrees with the majority of the jury as to what the evidence shows, or how the law should be applied to the facts, or the manner in which deliberations should be conducted does not constitute a refusal to deliberate and is not a ground for discharge.

Authority:

People v. Cleveland (2001) 25 Cal.4th 466, 485

Fourth Holding:

When reviewing the dismissal of a juror, the California Supreme Court has adopted a heightened standard of review that protects the defendant’s fundamental rights to due process and a fair trial. The juror’s inability to perform his or her duty must appear in the record as a demonstrable reality. This test is more comprehensive and less deferential than the substantial evidence test. Under both tests, the appellate court reviews the entire record and does not reweigh the evidence.

However, under the substantial evidence test, the court reviews the record in the light most favorable to the judgment and upholds it if there is credible evidence that could reasonably support the trial court’s decision to remove a juror. Under the demonstrable reality test, by contrast, we must determine whether the trial court actually did rely on evidence that supports removing the juror.

This heightened and “ore stringent demonstrable reality standard more fully reflects an appellate court’s obligation to protect a defendant’s fundamental rights to due process and to a fair trial by an unbiased jury. Under the more comprehensive and less deferential review applicable here, we consider the reasons that the trial court provided, identify the evidence on which the court actually relied, and determine whether the evidence manifestly supports the court’s conclusion that a juror is refusing to deliberate.

Authority:

People v. Armstrong (2016) 1 Cal.5th 432, 450-451

People v. Barnwell (2007) 41 Cal.4th 1038, 1052, 1053

People v. McGhee (2025) 17 Cal.5th 612, 634 [a juror’s ability to describe to the court the views of the challenged juror showed there was some discussion going on]

People v. Engelman (2002) 28 Cal.4th 436, 446 [Jurors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means; it is not required that jurors deliberate well or skillfully]

People v. Barton (2020) 56 Cal.App.5th 496, 515 [juror’s refusal to change her mind and her decision to no longer attempt to explain that decision to the other jurors did not amount to misconduct]

Fifth Holding:

An abuse of discretion in discharging a juror under section 1089 requires reversal only if it is reasonably probable that a result more favorable to the defendant would have been reached but for the error.

Authority:

Authority
People v. Bowers (2001) 87 Cal.App.4th 722, 736 [applying the Watson standard]

People v. Watson (1956) 46 Cal.2d 818, 836

People v. Henderson (2022) 78 Cal.App.5th 530, 565 [discussing prejudice requirement]

Sixth Holding:

In some instances, removal of a juror was upheld. In Dixon, the discharged juror was not merely disagreeing with the other jurors. The trial court found that the juror was upset by a relative’s illness or by intimidation by the other jurors, and this emotional state inhibited the juror’s ability to deliberate. Based on its observation of the discharged juror’s demeanor, the court assessed that the juror had not been candid with the court about these effects on her ability to deliberate.

In Lomax, the discharged juror had prejudged the case but refused to share any of his reasoning with the other jurors, and the juror himself had said he was not able to consider the evidence or take part in the deliberations because of his conscientious objection to the death penalty.

In Samuels, discharge of a juror was upheld where the juror was distressed, asked to be removed, and told the court she could not follow her oath and lacked courage to impose the death penalty even if she were convinced the case required it.

Authority:

People v. Diaz (2002) 95 Cal.App.4th 695, 705,

People v. Lomax (2010) 49 Cal.4th 530, 591

People v. Samuels (2005) 36 Cal.4th 96, 131–133

Seventh Holding:

While a jury is instructed to try to achieve a unanimous verdict, the possibility of a hung jury is an inevitable by-product of our unanimous verdict requirement.

Authority:

People v. Barraza (1979) 23 Cal.3d 675, 683

Eighth Holding:

It cannot be said a juror has refused to deliberate so long as a juror is willing and able to listen to the evidence presented in court, to consider the evidence and the judge’s instructions, and to finally come to a conclusion and vote. This is precisely what Juror No. 1 did.

Applying the heightened standard of review that governs our assessment of a trial court’s decision to discharge a juror, and based on our examination of the record as a whole, we conclude that the court abused its discretion in discharging Juror No. 1 because her inability to perform her duty as a juror does not appear in the record as a demonstrable reality.

Authority:

People v. Barton (2020) 56 Cal.App.5th 496, 514

Ninth Holding:

On the facts in this case, there is no double jeopardy bar to retrial of the case.

Authority:

People v. Hernandez (2003) 30 Cal.4th 454 1, 9

Jury trial

Case 000697

Posted on by Gary McCurdy

Error and/or relief

The defendant was not advised of her right to a jury trial on the prosecution’s petition for extension of her commitment under a finding of not guilty by reason of insanity, and she did not personally waive that right. Therefore, her commitment must be reversed.

First Holding:

A defendant who is found not guilty by reason of insanity may be committed to a state hospital for a term equal to the maximum sentence the court could have imposed for the underlying offense. A person’s commitment may be extended beyond the maximum sentence, however, if certain procedures are followed.

When the petition to extend the commitment is filed, the court shall advise the person named in the petition of the right to be represented by an attorney and of the right to a jury trial. The court shall conduct a hearing on the petition for extended commitment. The trial shall be by jury unless waived by both the person and the prosecuting attorney.

Authority:

PEN 1026.5

Second Holding:

The statutory language is unambiguous–the person named in the petition has the right to a jury trial, and the trial shall be by jury unless the person named in the petition waives said right.

Authority:

People v. Tran (2015) 61 Cal.4th 1160, 1166

Third Holding:

In the present case, there is nothing in the record showing the trial court advised appellant of her right to a jury trial, obtained a personal waiver from her, or made an explicit finding of substantial evidence that she lacked the capacity to make a knowing and voluntary waiver. Instead, the court accepted defense counsel’s waiver of a jury trial without any advisements or personal waivers or findings. The record offers no explanation. Under these circumstances, there is no basis to infer appellant personally waived her right to a jury trial from the silent record. Therefore, the jury trial waiver is invalid.

Authority:

People v. Tran (2015) 61 Cal.4th 1160, 1168-1169

Appellate Principles, Elements of crime, Jury trial, Pleading, Sentencing, Sixth Amendment

Case 000680

Posted on by Gary McCurdy

Error and/or relief

The court committed three errors requiring reversal. It improperly imposed the upper term on the felony offense by considering an aggravating factor that the jury did not find. It improperly refused to award the defendant certain sentencing credits without giving him notice that it might do so. The defendant’s conduct can support only one conviction for drawing and exhibiting a firearm in an angry or threatening manner, not three convictions.

First Holding:

After the jury found the defendant guilty on all counts, the prosecution presented evidence and argument to the jury on the aggravating factors that his unlawful possession of a firearm (1) was of increasing seriousness in relation to his earlier misdemeanor conviction and (2) occurred while he was on probation.

The jury found only the latter aggravating factor true. In selecting the upper term, the court relied on factors including that the defendant was armed and engaged in violent conduct, which indicates a danger to society, as well as the jury’s finding that he was on probation at the time of the offenses.

The trial court clearly erred by relying on an aggravating circumstance that the jury did not find—i.e., that the defendant engaged in violent conduct, which indicates a danger to society.

Authority:

Cal. Rules of Court, rule 4.421(b)(1)

People v. Wiley (2025) 17 Cal.5th 1069, 1076 [criminal defendants are entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose them to imposition of a sentence more serious than the statutorily provided midterm]

Second Holding:

We do not have enough confidence to conclude beyond a reasonable doubt that a jury would have found that circumstance in aggravation true beyond a reasonable doubt. Therefore, we remand for resentencing.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087 [this kind of sentencing error requires reversal and remand unless the reviewing court concludes beyond a reasonable doubt that a jury would have found true all aggravating facts relied on to justify the upper term; the error is not harmless if the record contains evidence that could rationally support a contrary finding regarding the aggravating fact at issue]

Third Holding:

A circumstance that is an element of the substantive offense cannot be used as a factor in aggravation. This prohibition applies only if the crime as defined by statute cannot be accomplished without performance of the acts which constitute such factor.

Authority:

People v. Burbine (2003) 106 Cal.App.4th 1250, 1261-1262

Fourth Holding:

The People contend that the defendant forfeited his claims of improper sentencing by not raising them in the trial court. We exercise our discretion to consider them in the interests of justice.

Authority:

People v. Nguyen (2025) 109 Cal.App.5th 1133, 1143 [in the interests of justice we have decided to overlook forfeiture, and remand the matter for resentencing]

Fifth Holding:

A single act of brandishing a firearm in the presence of multiple people can support only a single conviction for brandishing. Brandishing a deadly weapon in the presence of another person is not a crime of violence upon that person, but is committed in someone’s presence, a single act of brandishing can only support a conviction of a single count no matter how many people witness the act. Two of the three brandishing counts are reversed.

Authority:

In re Peter F. (2005) 132 Cal.App.4th 877, 881

Sixth Holding:

The general rule is that on remand for resentencing the trial court may reconsider all sentencing choices.

Authority:

People v. Codinha (2023) 92 Cal.App.5th 976

Seventh Holding:

The trial court erred in denying section 4019 conduct credits to the defendant at sentencing without giving him notice that it might do so.

Authority:

People v. Lara (2012) 54 Cal.4th 896, 906 [defendant is entitled to notice of the facts that restrict his ability to earn credits and, if he does not admit them, a reasonable opportunity to prepare and present a defense]

Duty of the court, Jury trial, Standard of review

Case 000567

Posted on by Gary McCurdy

Error and/or relief

The defendant’s jury trial waiver was invalid as it was not knowing, intelligent, and voluntary. We reverse his convictions on this basis and remand for a new trial.

First Holding:

A criminal defendant has the constitutional right to a jury trial. The defendant may waive the constitutional right to a jury trial, provided the waiver is knowing, intelligent, and voluntary. A waiver is knowing and intelligent if it is made with full awareness of the nature of the right and the consequences of abandoning it. It is voluntary if it was the product of a free and deliberate choice, rather than intimidation, coercion, or deception. Whether a defendant satisfies that standard must depend upon the unique circumstances of each case. Our Supreme Court has persistently declined to mandate any specific admonitions describing aspects of the jury trial right. We instead examine the totality of circumstances.

Authority:

U.S. Const., 6th Amend.

Cal. Const., art. I, sec. 16

People v. Sivongxxay (2017) 3 Cal.5th 151, 166-167 [Our precedent has not mandated any specific method for determining whether a defendant has made a knowing and intelligent waiver of a jury trial in favor of a bench trial]

People v. Daniels (2017) 3 Cal.5th 961, 992

Second Holding:

A reviewing court’s task is to independently examine the record to determine whether the defendant’s jury waiver was knowing, intelligent, and voluntary. We will uphold the validity of a jury waiver if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. We do not start with a presumption of validity that may only be rebutted by signs of a defendant’s confusion or unwillingness in entering a waiver. Instead, a reviewing court satisfies itself of a legitimate waiver only when the record affirmatively demonstrates it was knowing and intelligent.

Authority:

People v. Doolin (2009) 45 Cal.4th 390, 453

People v. Daniels (2017) 3 Cal.5th 961, 991

Third Holding:

The record here does not affirmatively show that the defendant’s jury trial waiver was knowing and intelligent under the totality of the circumstances. The court’s advisement addressed only one and a half of the four basic mechanics of a jury trial described in Sivongxxay: that a judge alone would decide guilt if the defendant forwent a jury trial, and that the jury would be composed of people who live in the county.

But the advisement omitted that a jury consists of 12 people, that jurors are selected from a larger pool of prospective jurors in a process in which he could participate through counsel, or that a jury verdict must be unanimous––meaning that the prosecution would have to convince all 12 jurors of his guilt beyond a reasonable doubt, rather than a single judge. Nothing in the record shows the defendant had ever been advised of these omitted mechanics. He had no prior criminal history, and thus no prior occasion to receive such advisements from a court or otherwise. Nor does the record show a written waiver form was used.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 167-168

People v. Weaver (2012) 53 Cal.4th 1056, 1070 [though not required, written waiver form is helpful to establish the adequacy of a jury waiver]

People v. Jones (2018) 26 Cal.App.5th 420