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