Tag Archives: Appellate process

Appellate Principles, Discretion, Duty of the court, Fines and fees, Standard of review

Case 001156

Posted on by Gary McCurdy

Error and/or relief:

The trial court should have granted the defendant’s Pitchess motion and conducted an in camera review of the officers’ personnel records.

First Holding:

A movant under the Pitchess statutes must show, among other things, good cause for the discovery or disclosure sought. A showing of good cause is measured by relatively relaxed standards that serve to insure the production for trial court review of all potentially relevant documents.

This good cause requirement has two components. First, the movant must set forth the materiality of the information sought to the subject matter involved in the pending litigation. The function of this requirement is to exclude requests for officer information that are irrelevant to the pending charges. Accordingly, a defendant seeking Pitchess discovery must establish not only a logical link between the defense proposed and the pending charge, but also articulate how the discovery being sought would support such a defense or how it would impeach the officer’s version of events.

If the movant shows that the request is relevant to the pending charges, and explains how, the materiality requirement will be met. If information is material within the meaning of Brady, it is necessarily material to the subject matter involved in a criminal prosecution.

Authority:

EVID 1043

Pitchess v. Superior Court (1974) 11 Cal.3d 531

People v. Gaines (2009) 46 Cal.4th 172, 179

Association for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 41-42

Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021

Brady v. Maryland (1963) 373 U.S. 83

Second Holding:

Second, the good cause requirement obliges the movant to articulate a reasonable belief that the agency has the type of information sought. This belief may be based on a rational inference. What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. The information sought must be described with some specificity to ensure that the defendant’s request is not so broad as to garner all information that has been obtained by the People in their investigation of the crime but is limited to instances of officer misconduct related to the misconduct asserted by the defendant. This specificity requirement excludes requests for officer information that are irrelevant to the pending charges.

Authority:

Association for Los Angeles Deputy Sheriffs v. Superior Court (2019) 8 Cal.5th 28, 42

Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021, 1025

Third Holding:

If the trial court finds good cause for the motion, the court must examine the requested materials in camera to determine whether they should be disclosed to the defendant and whether certain specified categories of information must be withheld.

Authority:

City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 83

Fourth Holding:

We review a trial court’s denial of a Pitchess motion for an abuse of discretion.

Authority:

People v. Breaux (1991) 1 Cal.4th 281, 311

Fifth Holding:

By parsing the defendant’s claims as alleging a conspiracy among the several correctional officers, rather than focusing on the individual involvement of each officer and whether the defendant presented a plausible factual scenario in which, for example, one of the officers planted the contraband and/or falsified his report, the trial court abused its discretion as its ruling falls outside the bounds of reason.

Authority:

People v. Memro (1995) 11 Cal.4th 786, 850

Sixth Holding:

We find that the defendant’s Pitchess motion presented a specific factual scenario establishing a plausible factual foundation for his allegations.

Authority:

City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1147

Seventh Holding:

A showing of good cause is measured by relatively relaxed standards that serve to insure the production for trial court review of all potentially relevant documents. Further, the defendant need not point to any corroboration for the defendant’s account, and is also not required to present a credible or believable factual account of, or a motive for, police misconduct.

Rather, all that is required is the presentation of a scenario that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. Depending on the circumstances of the case, a sufficient factual allegation in a Pitchess motion may consist of a denial of the facts asserted in the police report.

Considering the relatively relaxed standards which should be applied by the trial court to assess whether such a factual scenario was plausible, the defendant clearly made such a showing here.

Authority:

People v. Gaines (2009) 46 Cal.4th 172, 179

Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043, 1049

Eighth Holding:

Where the trial court has erroneously rejected a showing of good cause for Pitchess discovery and has not reviewed the requested records in camera, the proper remedy is not outright reversal, but a conditional reversal with directions to review the requested documents in chambers on remand.

Following remand, after reviewing the confidential materials in chambers, the trial court may determine that the requested personnel records contain no relevant information and reinstate the judgment.

It is also possible for the trial court to determine on remand that relevant information exists and should be disclosed. In that event, that the trial court must order disclosure, allow the defendant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed.

Authority:

People v. Gaines (2009) 46 Cal.4th 172, 180-181

Ninth Holding:

We find that the defendant, by failing to object when they were imposed, has forfeited his argument challenging the fines, fees, and assessments on appeal. In general, a defendant who fails to object to the imposition of fines, fees, and assessments at sentencing forfeits the right to challenge those fines, fees, and assessments on appeal.

This general rule applies when the relevant statute includes an ability to pay component, including when the defendant makes a constitutional argument. Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed. Ability to pay is a factual determination that is properly raised and determined first in the trial court.

We recognize however, there is a possibility the defendant demonstrates he is entitled to a new trial based on the outcome of the Pitchess proceedings below. In that event, and assuming he is again convicted following that new trial, he may address any applicable fines and fees that may be imposed at sentencing.

Authority:

People v. Greeley (2021) 70 Cal.App.5th 609, 624

People v. Aguilar (2015) 60 Cal.4th 862

People v. Trujillo (2015) 60 Cal.4th 850, 856-858

People v. Avila (2009) 46 Cal.4th 680, 729

People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154

People v. McCullough (2013) 56 Cal.4th 589, 597

Appellate Principles, Immigration, Sentencing, Standard of review

Case 001153

Posted on by Gary McCurdy

Error and/or relief:

The court erred in denying the defendant’s motion to vacate her plea under section 1473.7 by concluding that she did not establish prejudicial error regarding her misunderstanding of the immigration consequences of her plea.

First Holding:

Section 1473.7(a)(1) provides that a person who is no longer in criminal custody may file a motion to vacate a conviction if the conviction is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.

Authority:

PEN 1473.7

Second Holding:

To prevail, the moving party must show three things.

First, they must show that they did not meaningfully understand the immigration consequences of their plea.

Second, they must show that their misunderstanding constituted prejudicial error.

And third, they must show that the conviction or sentence being challenged currently is causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or naturalization. The moving party bears the burden of establishing entitlement to relief by a preponderance of the evidence.

Authority:

PEN 1473.7(a)1, (e)(1), (f)(1)

People v. Espinoza (2023) 14 Cal.5th 311, 319

Third Holding:

To show prejudicial error under section 1473.7(e)(1), the moving defendant must demonstrate a reasonable probability that the defendant would have rejected the plea if the defendant had correctly understood its actual or potential immigration consequences.

Factors particularly relevant to this inquiry include the defendant’s ties to the United States, the importance the defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible. Also relevant are the defendant’s probability of obtaining a more favorable outcome if he or she had rejected the plea, as well as the difference between the bargained-for term and the likely term if he or she were convicted at trial.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 529-530

People v. Espinoza (2023) 14 Cal.5th 311, 319-320

Fourth Holding:

A defendant must provide objective evidence to corroborate factual assertions. Objective evidence includes facts provided by declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced.

However, a defendant’s self-serving statement—after trial, conviction, and sentence—that with competent advice he or she would have accepted or rejected a proffered plea bargain, is insufficient in and of itself to sustain the defendant’s burden of proof as to prejudice, and must be corroborated independently by objective evidence.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 321

People v. Bravo (2021) 69 Cal.App.5th 1063, 1074

Fifth Holding:

We independently review whether a movant has demonstrated entitlement to relief under section 1473.7(a)(1). In this context, independent review does not mean de novo review. We exercise independent judgment to determine whether the facts satisfy the rule of law. We weigh and consider all relevant circumstances, with no single factor being dispositive. We are in the same position as the trial court in interpreting written declarations when reviewing a cold record in a section 1473.7 proceeding. We may not simply second-guess factual findings that are based on the trial court’s own observations. We afford particular deference to factual findings based on the trial court’s personal observations of witnesses.

Authority:

People v. Vivar (2021) 11 Cal.5th 510, 524, 527-528

People v. Coca (2023) 96 Cal.App.5th 451, 458

Sixth Holding:

But we do not defer to those findings that are based on written materials, since we are similarly situated to the trial court when interpreting a cold record. And we may reach a different conclusion from the trial court on an independent examination of the evidence even where the evidence is conflicting and the trial court’s conclusions are based in part on its assessment of the credibility of witnesses it heard and observed.

Ultimately, it is for us to decide, exercising our independent judgment, whether the evidence, taken as a whole, establishes prejudicial error damaging defendant’s ability to meaningfully understand the immigration consequences of the charges to which she pled, or her ability to defend against those consequences or to knowingly accept them.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598

Seventh Holding:

In determining whether a defendant has established error for purposes of section 1473.7(a)(1), we focus on the defendant’s subjective understanding at the time they entered their guilty plea. We ask whether the defendant has shown that they were unable to meaningfully understand the immigration consequences of their plea, or that their ability to defend against or knowingly accept those consequences was impaired. The key is the mindset of the defendant and not what an objectively reasonable person would have understood under the circumstances.

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 614

Eighth Holding:

Because the error inquiry focuses on the defendant’s subjective understanding, courts evaluating section 1473.7(a)(1) motions must look beyond the record of the plea and consider the totality of the circumstances bearing on the inquiry.

(Gary note: The court then spent several pages analyzing the evidence that the defendant and the People presented at the hearing, and concluded that she established that she did not meaningfully understand the immigration consequences and that she suffered prejudice from that lack of understanding. The details are case-specific and of no value to any reader of this summary of an unpublished case.)

Authority:

People v. Hernandez (2026) 20 Cal.5th 598, 615

People v. Mosby (2004) 33 Cal.4th 353, 361 [going beyond the courtroom colloquy and examining the totality of circumstances to evaluate whether plea was knowing and voluntary]

People v. Patterson (2017) 2 Cal.5th 885, 898-899 [in deciding whether to permit withdrawal of guilty plea under section 1018 based on defendant’s mistake or ignorance courts consider all factors necessary to bring about a just result.]

Appellate Principles, Jurisdiction

Case 001149

Posted on by Gary McCurdy

Error and/or relief:

This was a writ of habeas corpus to permit the defendant to rely on the In re Benoit principle of constructive timely filing of a notice of appeal. The petition was granted, and the defendant was allowed to proceed with his appeal.

First Holding:

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

Authority:

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

Second Holding (Gary Musings):

GARY Musings: the second, third, fourth, fifth, and sixth holdings and their authorities are provided by me and did not appear in the opinion, but are important enough to mention in the context of the filing of a notice of appeal.

What I have set forth in this summary is virtually a direct copy-and-paste from my summary in case 000229. The summary for Case 000085 contains a more thorough discussion of the Benoit rule regarding what would otherwise be untimely filings of the notice of appeal.

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

Authority:

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

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

Third Holding:

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

Authority:

Rules of Court, rule 8.308

Fourth Holding:

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

Authority:

Rules of Court, rule 8.393

Fifth Holding:

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

Authority:

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

Sixth Holding:

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

Authority:

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

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

Appellate Principles, Sentencing, Sufficiency of and substantial evidence

Case 001140

Posted on by Gary McCurdy

Error and/or relief

The evidence was insufficient to support an order requiring the defendant to submit to HIV/AIDS testing.

First Holding:

The trial court erred in ordering the defendant to submit to a blood test for HIV/AIDS pursuant to section 1202.1 because there was insufficient evidence of probable cause to require the testing. The conduct was contact by the defendant’s hands only, but there was no indication in the record that the touching would transmit bodily fluids.

Authority:

PEN 1202.1

Second Holding:

Defendant did not object below to the HIV/AIDS testing order. In general, absent an objection in the trial court, a defendant forfeits appeal of any deficiency in the statutorily required finding supporting an HIV testing order pursuant to section 1202.1. However, as the People point out, because mandatory HIV/AIDS testing is strictly limited by statute and Penal Code section 1202.1 conditions a testing order upon a finding of probable cause, a defendant may challenge the sufficiency of the evidence even in the absence of an objection.

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1117,

People v. Butler (2003) 31 Cal.4th 1119, 1123

Third Holding:

Section 1202.1 requires the trial court to order every person who is convicted of a sexual offense listed in subdivision (e) to submit to a blood test for evidence of antibodies to the probable causative agent of acquired immune deficiency syndrome (AIDS).

The term “sexual offense” includes lewd or lascivious conduct with a child in violation of Section 288, but the statute provides that testing shall be ordered only if the court finds that there is probable cause to believe that blood, semen, or any other bodily fluid capable of transmitting HIV has been transferred from the defendant to the victim. The statute directs a court ordering such testing to note its finding on the court docket and minute order if one is prepared.

Authority:

PEN 1202.1

Fourth Holding:

A remand is warranted. Section 1202.1 is part of a broader statutory scheme of health and safety legislation intended to combat the further spread of HIV infection and promote prompt medical treatment for those already infected. Given the significant public policy considerations at issue, we conclude it would be inappropriate simply to strike the testing order without remanding for further proceedings to determine whether the prosecution has additional evidence that may establish the requisite probable cause. It would be unfair to both the victim and the public to permit evasion of the legislative directive if evidence exists to support a testing order.

Accordingly, we will vacate the HIV/AIDS testing order but remand the matter to permit a further hearing on the issue if the prosecution so requests.

Authority:

People v. Butler (2003) 31 Cal.4th 1119, 1128-1129

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