Category Archives: Jury trial

Appellate Principles, Jury trial

Case 001134

Posted on by Gary McCurdy

Error and/or relief

The record must be amended to delete the term “or firearm” with respect to the jury’s true finding under section 667.61(e)(3).

Holding:

The jury answered “true” to the question of whether the defendant personally used a dangerous or deadly weapon or firearm within the meaning of section 667.61(e)(3). The jury instruction CALCRIM 3145 is limited to only the use of a dangerous or deadly weapon. It does not refer to firearms. The prosecutor’s closing argument expressly informed the jury that the prosecution was relying on [specific nonfirearm items] to be the dangerous or deadly weapon for purposes of section 667.61(e)(3). There was absolutely no evidence that a firearm was used in the commission of the crime.

These considerations lead to two conclusions. First, the jury’s verdict could not be based on the defendant using a firearm. Second, the verdict form’s use of the term firearm for purposes of count 3 conformed only to the general language of section 667.61(e)(3) and did not conform to either the evidence presented or the arguments and theories of the prosecution. Under these circumstances, we are satisfied that inclusion of the term firearm for purposes of count 3 and section 667.61(e)(3) was a clerical error.

Courts have the inherent power and discretion to correct clerical errors so that court records accurately reflect the true facts. This includes clerical errors that appear in a jury’s verdict form.

For accuracy’s sake and for the record to clearly reflect the true state of the facts, we will exercise our discretion and direct the trial court to strike the phrase “or firearm” the verdict form.

Authority:

People v. Alanis (2008) 158 Cal.App.4th 1467,1473–1474

People v. Trotter (1992) 7 Cal.App.4th 363, 370

Jury trial, Sixth Amendment

Case 001080

Posted on by Gary McCurdy

Error and/or relief

The court’s closure of the courtroom to the entire public during the testimony of at least two accomplice witnesses (who claimed fear of retaliation by the defendant’s fellow gang members for their testimony) violated the defendant’s constitutional right under the federal and state constitutions to a public trial.

First Holding:

Four requirements are necessary to justify exclusion of the entire public from a courtroom:

(1) the existence of an overriding interest that is likely to be prejudiced absent the closure;

(2) the closure is narrowly tailored, i.e., no broader than necessary to protect that interest;

(3) no reasonable alternatives to closing the proceeding are available; and

(4) the trial court must make findings adequate to support the closure.

Authority:

Waller v. Georgia, (1984) 467 U.S. 39, 48

Second Holding:

A partial closure of the courtroom requires only a substantial reason for the exclusion of certain spectators, and that the exclusion be narrowly tailored.

Authority:

People v. Baldwin (2006) 142 Cal.App.4th 1416, 1421, fn. 1

Third Holding:

The United States Constitution and the California Constitution guarantee a criminal defendant the right to a public trial, including the right to have friends and relatives present during the proceedings.

The right to a public trial serves two important interests. It protects those who are accused of a crime by helping to ensure that the innocent are not unjustly convicted and that the guilty are given a fair trial. Second, there is a strong societal interest in public trials; they provide an opportunity for spectators to observe the judicial system, improve the quality of testimony, encourage witnesses to come forward with relevant testimony, and prompt judges, lawyers, witnesses, and jurors to perform their duties conscientiously.

Authority:

U.S. Const., 6th and 14th Amends.

Cal. Const., art. I, sec. 15;

In re Oliver (1948) 333 U.S. 257, 271-272, 272, fn. 29 [noting special concern for assuring attendance of a defendant’s family members and friends]

People v. Scott (2017) 10 Cal.App.5th 524, 530

Fourth Holding:

In general, there are two types of exclusions: a total closure where all spectators are directed to leave the courtroom, and a partial closure where some, but not all, spectators are asked to leave.

Authority:

People v. Esquibel (2008) 166 Cal.App.4th 539, 552

Fifth Holding:

While California statutes permit both exclusion and closure orders, rulings applying those statutes are still subject to the fundamental constitutional right to a public trial under the federal and California constitutions. We thus analyze the court’s Closure Order (excluding the entire public during the testimony of certain witnesses) using the factors the Supreme Court identified as relevant to balancing the important public interest in open courtrooms against any higher values or overriding interest.

Authority:

PEN 686.2

PEN 868,7

Waller v. Georgia, (1984) 467 U.S. 39, 45

Sixth Holding:

Protecting trial witnesses from threats, harassment, or physical harm is an overriding interest and deserving of protection. Substantial evidence supports the trial court’s factual determination that one of the witnesses felt intimidated by the presence of individuals in the courtroom on the second day of his testimony.

(Gary note: The court went on to compare the conclusions of the trial court with the remaining requirements of Waller, and determined that the initial partial exclusion order by the trial court–excluding only certain named individuals–was likely reasonable under Waller. The additional information the trial court received about the defendant’s purported involvement in securing the presence of those spectators did not add anything to the analysis of the threat as to warrant closure to the entire public. The appellate court’s analysis under Waller is fact specific and not particularly informative in the context of these summaries of unpublished opinions.)

Authority:

NBC Subsidiary (KNBC–TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1223

Seventh Holding:

It has been a longstanding aspect of criminal law that exclusion of witnesses does not violate a defendant’s right to a public trial, even if the witnesses are the defendant’s close relations.

Authority:

EVID 777 [the trial court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses]

People v. Sprague (1879) 53 Cal. 491, 493 [The wife and daughters of defendant were witnesses, and were properly included within the order which excluded from the Court-room all witnesses but the one under examination]

United States v. Ricker (8th Cir. 2020) 983 F.3d 987, 994 [rejecting the defendant’s Sixth Amendment argument after the defendant’s father was excluded from the courtroom as a potential witness but was not called; explaining that the Supreme Court has said that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged., but that entitlement is not absolute, and does not necessarily prohibit the sequestration of the defendant’s friends or relatives who may be called as witnesses.]

Appellate Principles, Duty of the court, Elements of crime, Jury trial, Sentencing

Case 001075

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in imposing and staying enhancements under section 12022.7(e) on counts 2, 3, and 4, and under section 12022.7(a) on count 2, because the jury did not find those allegations true.

Holding:

In their appellate briefing, the parties agree that the trial court erred in imposing and staying enhancements under section 12022.7, subdivision (e) on counts 2, 3, and 4, and under section 12022.7, subdivision (a) on count 2, because the jury did not find those allegations true. In keeping with the parties’ concessions, we strike these four enhancements.

Authority:

Williams v. Superior Court (1964) 226 Cal.App.2d 666, 674 [An express concession or assertion in a brief is frequently treated as an admission of a legal or factual point, controlling in the disposition of the case.]

Appellate Principles, Fifth Amendment, Jury trial, Sixth Amendment

Case 001055

Posted on by Gary McCurdy

Error and/or relief

The trial court’s failure to ensure that all 12 jurors were present together in court when the verdict was rendered violated the defendant’s statutory and constitutional right to a unanimous 12-person verdict and resulted in the recording of an invalid verdict.

(Gary note: During deliberations, the jury reached a unanimous verdict on some counts and the foreman signed the verdicts while the jury continued to deliberate on remaining counts. At some point the foreman was allowed to go on vacation, and an alternate juror took his place.

(When the final verdicts were read in open court, the jury was polled and all 12 confirmed the verdict. The problem is that the foreman who signed the jury verdict forms had been replaced, so only 11 of the jurors who voted on those verdicts were present in open court and were polled.)

First Holding:

The right to a trial by jury is a fundamental constitutional right guaranteed to a criminal defendant by both the state and federal constitutions. An essential aspect of that right is the right to a unanimous jury verdict. In California, a defendant may not be convicted except by 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity.

Authority:

U.S. Const., 6th and 14th Amends.

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

People v. Collins (2001) 26 Cal.4th 297, 304

Ramos v. Louisiana (2020) 590 U.S. 83, 92-93

People v. Collins (1976) 17 Cal.3d 687, 693, superseded by statute on another ground as stated in People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19

Second Holding:

To safeguard the right to a unanimous jury verdict, the Legislature has set forth in prescriptive detail the procedures that trial courts must follow in receiving a jury verdict. Section 1147 requires all 12 jurors to be present when the trial court receives the verdict.

It provides that when the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried.

Section 1149 requires that upon the jury appearing in court, the court, or clerk, must ask the jurors whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.

Authority:

PEN 1147

PEN 1149

People v. Carbajal (2013) 56 Cal.4th 521, 530

People v. Bailey (2018) 27 Cal.App.5th 376, 382

Third Holding:

Sections 1163 and 1164 govern jury affirmation of the verdict by polling and the recording of the verdict.

Under section 1163, once the verdict has been rendered, either party may ask the court to poll the jurors individually before the verdict is recorded. Upon such a request, each juror must be asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation.

Under section 1164, the jurors may also be polled, upon request, after the clerk has recorded the verdict. If any juror disagrees with the verdict at that point, the jury will again be sent out; but if no disagreement is expressed, the verdict is complete, and the jury shall be discharged from the case.

A verdict is complete when it has been rendered in compliance with these provisions, i.e., once it has been received and read by the clerk, acknowledged by the jury, and recorded.

Authority:

PEN 1163

PEN 1164

People v. Hendricks (1987) 43 Cal.3d 584, 597

People v. Bento (1998) 65 Cal.App.4th 179, 188

People v. Garcia (2012) 204 Cal.App.4th 542, 551

Fourth Holding:

Acknowledgement of the verdict in open court by all 12 members of the jury is not a mere procedural formality. It is essential to the validity of the verdict. If the jury returns a written verdict but fails to unanimously endorse the verdict in open court, the verdict cannot normally be sustained based solely on the written form. It is the oral declaration of the jurors, not the submission of the written verdict forms, that constitutes the return of the verdict. In other words, there is no verdict absent unanimity in the oral declaration.

Authority:

People v. Traugott (2010) 184 Cal.App.4th 492, 500-502, 506 (conc. opn.)

People v. Thornton (1984) 155 Cal.App.3d 845, 858-860

People v. Garcia (2012) 204 Cal.App.4th 542, 549-550

People v. Green (1995) 31 Cal.App.4th 1001, 1009

People v. Bailey (2018) 27 Cal.App.5th 376, 382

Fifth Holding:

It follows from these authorities that a criminal defendant has a fundamental right under the California Constitution to a trial by a 12-person jury. This right requires that all 12 jurors deliberate and reach a unanimous verdict voted upon and, upon request by any party, declared orally by each of the 12 jurors. In the absence of such a declaration, there is no verdict.

Authority:

People v. Traugott (2010) 184 Cal.App.4th 492, 500

People v. Bailey (2018) 27 Cal.App.5th 376, 387 [The right to a jury trial includes the right to a unanimous 12-person verdict, orally affirmed by each individual juror. In the absence of an express waiver by the defendant, an 11-person verdict violates that right—regardless of the reason it occurs.]

Sixth Holding:

When the jury rendered their verdict only 11 of the 12 jurors who deliberated together to reach the verdicts on the defendant’s charges were present in court to orally declare the verdicts. The initial foreperson who signed all of the defendant’s verdict forms had been excused due to a pre-planned vacation.

Because it is the oral declaration of the jurors, and not the submission of the written verdict forms that constitutes the return of the verdict, the defendant’s statutory and constitutional right to a unanimous verdict rendered by all 12 members of the jury was violated. Absent the express consent of the defendant, a valid verdict cannot be rendered by only 11 jurors.

Authority:

People v. Traugott (2010) 184 Cal.App.4th 492, 500

People v. Garcia (2012) 204 Cal.App.4th 542, 550

Seventh Holding:

Only 11 of the jurors who deliberated together to reach the verdicts on the defedant’s charges were present to render the verdict. The alternate juror who replaced the initial foreperson may have agreed with the verdicts on the defendant’s charges, but that juror did not participate in those deliberations, and his or her affirmation of the defendant’s verdicts was not sufficient to satisfy the 12-person requirement.

It is not enough that 12 jurors reach a unanimous verdict if 1 juror has not had the benefit of the deliberations of the other 11. A defendant may only be convicted by the 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity. It is those 12 jurors who must appear together in court when the verdict is rendered, and upon request, individually affirm the verdict.

Authority:

People v. Collins (1976) 17 Cal.3d 687, 693

Eighth Holding:

When the verdict has been read and recorded in the presence of all 12 jurors, minor procedural errors and technical violations of the statutory requirements for receiving the jury verdicts” are subject to harmless error analysis.

However, when only 11 members of the jury are present to render the verdict, the error is considered structural, and reversal is required.

Authority:

People v. Anzalone (2013) 56 Cal.4th 545, 556-558, 560

People v. Traugott (2010) 184 Cal.App.4th 492, 505 [the denial of a 12-person jury rendering a unanimous verdict is clearly structural and, as such, reversible per se]

Borns v. Butts (1979) 98 Cal.App.3d 208, 210 [prejudice is inherent in the entry of an invalid verdict and judgment], overruled on other grounds in Juarez v. Superior Court (1982) 31 Cal.3d 759, 768-769.

Ninth Holding:

Both the state and federal constitutions prohibit placing a person in jeopardy more than once for the same offense. Unless sound reason exists, California courts will not interpret the California double jeopardy clause more broadly than its federal counterpart.

Authority:

U.S. Const., 5th Amend. [no person shall be subject for the same offense to be twice put in jeopardy of life or limb]

Cal. Const. art. I, sec. 15 [Persons may not twice be put in jeopardy for the same offense]

People v. Eroshevich (2014) 60 Cal.4th 583, 588

People v. Wilson (2023) 14 Cal.5th 839, 852

Tenth Holding:

The legal standards governing double jeopardy are well established. At its core, the double jeopardy clause protects an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. Jeopardy attaches when a defendant is placed on trial in a court of competent jurisdiction, on a valid accusatory pleading, before a jury duly impaneled and sworn.

Authority:

People v. Eroshevich (2014) 60 Cal.4th 583, 588

Green v. United States (1957) 355 U.S. 184, 187

Curry v. Superior Court of San Francisco (1970) 2 Cal.3d 707, 712

Eleventh Holding:

Once jeopardy has attached, the question of whether double jeopardy principles bar a second trial depends on how the first trial ended. An acquittal is accorded special weight. The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal. Similarly, when the jury is discharged without having issued a verdict, courts will treat that circumstance as equivalent in law to an acquittal and retrial will be barred unless the defendant consented to the discharge or legal necessity required it.

Authority:

People v. Wilson (2023) 14 Cal.5th 839, 852

Curry v. Superior Court of San Francisco (1970) 2 Cal.3d 707, 712

Twelfth Holding:

The rules differ when the trial ends in a conviction. As a general rule, it is well established that if the defendant secures on appeal a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial. It has long been settled that the Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction.

We therefore apply the general rule that when the defendant secures a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial.

Authority:

People v. Hernandez (2003) 30 Cal.4th 1, 6

United States v. DiFrancesco (1980) 449 U.S. 117, 131

People v. Wilson (2023) 14 Cal.5th 839, 852-853

Lockhart v. Nelson (1988) 488 U.S. 33, 38

In re Hess (1955) 45 Cal.2d 171, 176 [by failing to object to the entry of judgment on the defective verdict and by collaterally attacking the judgment petitioner has impliedly waived any objection to being retried on the charge of which he was improperly convicted]

Amelioration, Elements of crime, Jury trial, Pleading, Retroactivity, Sentencing

Case 001032

Posted on by Gary McCurdy

Error and/or relief

At the resentencing hearing under section 1172.75, it was error for the court to impose a term of prison under section 12022.53(d), an enhancement that was not pleaded or proved on the count for which it was imposed. It was also error for the court not to consider the impact of AB 333’s amendments on criminal gang activity laws on the defendant’s sentence.

First Holding:

Section 12022.53(d) provides that a person who, in the commission of a felony specified in section 246(a), or section 26100(c) or (d), personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in section 12022.7, or death, to a person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.

Section 12022.53(e)(1) provides that the enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved:

(A) The person violated subdivision (b) of Section 186.22.

(B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).

In other words, a firearm enhancement under section 12022.53(e)(1) imposes vicarious liability for another’s personal use of a firearm on aiders and abettors who commit crimes in participation with a criminal street gang.

Authority:

PEN 12022.53

People v. Garcia (2002) 28 Cal.4th 1166, 1171

Second Holding:

Here, the vicarious gang-related firearm enhancement under section 12022.53(d) and (e)(1) was alleged as to count 1. The jury found that enhancement true, but it made no finding defendant personally and intentionally discharged a firearm during the commission of the offense proximately causing GBI or death to a nonaccomplice as required under section 12022.53(d). The verdict form reflects the jury found true the vicarious gang-related firearm enhancement under section 12022.53(e)(1), but does not include a finding regarding the personal and intentional discharge firearm enhancement under section 12022.53(d). This is fatal to imposition of a firearm enhancement under section 12022.53(d).

Further, the trial court dismissed the gang enhancement that was charged, which resulted in section 12022.53(e) being inapplicable. The section 12022.53(d) firearm enhancement must be stricken.

Authority:

PEN 12022.53

Third Holding:

On resentencing, the prosecution asked that if the trial court was not going to reimpose the gang enhancement, that it dismiss the enhancement under AB 333, which would permit the prosecution to retry the gang enhancement to prove that it was valid under the AB 333 amendments. The court declined to decide the retroactivity of AB 333, and instead dismissed it in the interest of justice under section 1385.

By declining to make a decision about the retroactive application of AB 333, the trial court potentially deprived the People of their opportunity to retry the gang enhancement, and the court did not adequately consider whether AB 333 would affect the imposition of the gang-related vicarious firearm enhancement. Without considering the full effect of AB 333, the court exercised less than fully informed sentencing discretion. This was an abuse of discretion.

Authority:

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [a court that is unaware of the scope of its discretionary powers can no more exercise informed discretion than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record]

Fourth Holding:

We remand for a full resentencing. As the firearm enhancement under section 12022.53(d) was not found true by the jury and was unlawfully imposed, it shall be stricken. Given this changed circumstance, resentencing is required to allow the trial court to exercise its sentencing discretion anew.

When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme.

Moreover, because AB 333 applies retroactively, the trial court must apply these changes in the law and consider, in the first instance, whether the jury’s gang enhancement finding is viable, and, if not, the People may elect to retry the enhancement.

In the absence of the gang enhancement, the gang-related vicarious firearm enhancement under section 12022.53(d), (e)(1) cannot be imposed as it is predicated on a pled and proven section 186.22(b) gang enhancement.

(Gary note: I was a bit confused by the presence of this observation, because it appeared to me that the appellate court stated that the jury verdict failed to make a finding of personal use by a participant; I cite the principle here, but I was surprised to see it in this case. Is the court saying that the prosecution gets another opportunity to try the 12022.53(d) enhancement that was missing a vital component? I may have misread something–the opinion dealt with a very complicated set of circumstances, peculiar to this case, that arose in the resentencing)

Authority:

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

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

People v. Hill (1986) 185 Cal.App.3d 831, 834

People v. Sek (2022) 74 Cal.App.5th 657, 668, 669–670 [by requiring proof that benefit to gang was more than reputational, AB 333 added a new element to the enhancement; prosecution was entitled to an opportunity to retry the gang enhancement upon remand]

People v. Cooper (2023) 14 Cal.5th 735, 746–747 [where newly required elements were never tried to jury, remedy is to remand and give the People an opportunity to retry affected charges]

Fifth Holding:

Upon resentencing, subject to the principles articulated in Henderson and its progeny, the trial court may not impose a greater aggregate sentence than that imposed at the resentencing.

Authority:

People v. Henderson (1963) 60 Cal.2d 482, 495–497

People v. Ali (1967) 66 Cal.2d 277, 281

People v. Hanson (2000) 23 Cal.4th 355, 357

People v. Trammel (2023) 97 Cal.App.5th 415, 434

People v. Serrato (1973) 9 Cal.3d 753, 763–764, [exception to Henderson applies only to unauthorized sentences that were unlawfully lenient to the detriment of the People]