Tag Archives: Appellate process

Case 000507

Error and/or relief

The defendant was entitled to full resentencing under section 1172.75, even though the now-invalid prior prison enhancement was stayed at the original sentencing.

First Holding:

When a prior conviction pursuant to section 667.5(b) is stricken pursuant to the procedures in section 1172.75, a defendant is entitled to full resentencing under section 1172.75(d).

Authority:

People v. Rhodius (2025) 17 Cal.5th 1050

Second Holding:

The failure of the People to raise the issue in the trial court forfeits the issue on appeal. The reason for the forfeitur] rule is that it is both unfair and inefficient to permit a claim of error on appeal that, if timely brought to the attention of the trial court, could have been easily corrected or avoided. The forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.

Authority:

People v. Sperling (2017) 12 Cal.App.5th 1094, 1101

People v. Partida (2005) 37 Cal.4th 428, 433-434

Third Holding:

If the appellate court’s order upon remand requires correction as to one part of a sentence but the remand order limits the scope of resentencing, the trial court must adhere to the limits set forth in the remand order. At the hearing upon remand, the trial court addressed only the section 667(a), prior convictions as directed by disposition in the Opinion. While the trial court could have addressed the section 667.5(b) priors and the stayed sentences at that time of remand based on a change of the law, it did not do so and was never asked to consider resentencing on the prior prison terms.

Authority:

People v. Walker (2021) 67 Cal.App.5th 198, 205

People v. Hargis (2019) 33 Cal.App.5th 199, 205-207 [where a change in the law becomes effective after the appellate court’s opinion but before the hearing on the limited remand, the trial court could consider the new law despite the limited remand]

Case 000506

Error and/or relief

Under a convoluted set of circumstances, misdemeanors were alleged in the information that were not shown at the preliminary examination. Conviction on those misdemeanors was reversed.

First Holding:

Section 1009 provides that an indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination. No distinction is made between felony offenses and misdemeanor offenses.

Thus, misdemeanors included in an information must be supported by a showing of probable cause at the preliminary hearing. If not, an amendment that results in a conviction of the erroneously added offense is reversible error. Permitting the two misdemeanor counts to proceed to trial as part of a felony information without having been shown at the preliminary hearing was error and requires the reversal of the convictions for counts 1 and 2.

Authority:

PEN 1009

People v. Griffith (2011) 196 Cal.App.4th 943, 951

People v. Dominguez (2008) 166 Cal.App.4th 858, 867–868 [conviction of improperly added charges is unquestionably prejudicial]

Second Holding:

Both parties agree that the defendant forfeited his claim on appeal by failing to object to the improper amendment before trial, but both ask us to consider the merits to avoid a claim of ineffective assistance of counsel. We agree the claim was forfeited but exercise our discretion to decide the impact of the errant amendment.

Authority:

People v. Burnett (1999) 71 Cal.App.4th 151, 179, 181 [concluding the issue of prosecution for an offense not shown at the preliminary hearing was waived but reversing for prejudicial ineffective assistance of counsel for failure to object with specificity because a superior court lacks authority to try a defendant for a felony charged by information with an offense not previously subjected to a preliminary hearing]

People v. McCullough (2013) 56 Cal.4th 589, 593 [neither forfeiture nor application of the forfeiture rule is automatic, and appellate courts have discretion to review otherwise forfeited challenges]

Case 000496

Error and/or relief

The court should have stayed the sentence on one count under section 654.

Holding:

The defendant was convicted under two separate Penal Code sections for the same act. Section 654 provides that an act punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act be punished under more than one provision. The sentence imposed for count 7 should have been stayed. The defendant requests a remand for resentencing, but we may modify the judgment ourselves to stay the count 7 sentence.

(GARY NOTE: The opinion does not mention whether it concluded that the trial court would have imposed sentence on the count carrying the longer sentence (15 years to life) rather than on the count carrying the shorter term (180 days), a choice that has been restored to the judiciary with the passage of AB 518 several years ago. But the defendant’s total sentence on the numerous counts consisted of several hundred years to life. Allowing the trial court to choose between the counts would likely not have resulted in earlier release. On the other hand, it is conceivable that on remand, the trial court might have had other options on a full resentencing.)

Authority:

People v. Jones (2012) 54 Cal.4th 350, 353

People v. Lopez (2004) 119 Cal.App.4th 132, 139

Case 000494

Error and/or relief

It was error to impose the upper term on aggravating factors there were not stipulated to or found true beyond a reasonable doubt by a jury.

First Holding:

We review the validity of a jury trial waiver under the totality of the circumstances unique to each case. Relevant circumstances can include the nature of the colloquy prior to the court’s acceptance of a waiver, the presence of counsel and references to discussions between the defendant and counsel regarding the jury right, and the existence and contents of a written waiver. Ultimately, the record must affirmatively show the waiver is voluntary and intelligent under the totality of the circumstances. When a defendant is denied the right to a jury trial on aggravating factors, this error is not structural but subject to harmless error analysis.

Authority:

People v. Morelos (2022) 13 Cal.5th 722, 753

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

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

People v. Collins (2001) 26 Cal.4th 297, 310

People v. Lynch (2024) 16 Cal.5th 730, 750-751, 755

Second Holding:

We review procedural due process claims de novo because the ultimate determination of procedural fairness amounts to a question of law.

Authority:

In re Jonathan V. (2018) 19 Cal.App.5th 236, 241

Third Holding:

Ordinarily, an appellate court will not consider a claim of error if an objection could have been, but was not, made in the lower court. However, a defendant’s failure to object would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial. Also, it is well-established that an appellate court is generally not prohibited from reaching questions that have not been preserved for review by a party.

Authority:

People v French (2008) 43 Cal. 4th 36, 46

People v. Smith (2003) 31 Cal.4th 1207, 1215

Fourth Holding:

Under Apprendi, any fact that increases the penalty for a crime beyond the statutory maximum prescribed for that crime must be submitted to a jury and proved beyond a reasonable doubt. The Varnell court nevertheless held there is no due process right to notice in the accusatory pleading with respect to a sentencing factor. A sentencing factor is a circumstance, which may be either aggravating or mitigating in character, that supports a specific sentence within the range authorized by the jury’s finding that the defendant is guilty of a particular offense.

Because sentencing factors do not operate to increase the penalty for a crime beyond the statutory maximum, they are not required to be pleaded. Unlike penalty provisions and enhancements, the finding of an aggravating factor by a jury does not require or prescribe an added penalty; it merely authorizes the sentencing court to impose the upper term. The California Supreme Court has yet to squarely address whether due process requires pleading and notice of aggravating factors under the most recent sentencing laws.

Authority:

In re Varnell (2003) 30 Cal.4th 1132, 1135, fn.3, 1142

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 95

People v. Lynch (2024) 16 Cal.5th 730, 769 [stating it was not necessary to decide exactly what the statute and the federal Constitution demand in the pleading and notice context]

Fifth Holding:

A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. For example, a defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence. Under the Fifth and Sixth Amendments to the federal Constitution, a judge may do no more than determine what crime, with what elements, the defendant was convicted of.

The burden is on the People to prove beyond a reasonable doubt the facts relied on to justify an upper term sentence. If those facts are properly proven, the court may take them into account and exercise its discretion under section 1170(b) to determine what sentence to impose. Here, the court’s findings that the defendant “has an extensive prior criminal history” and he “was on a grant of misdemeanor probation when he picked up the new charge” constitute qualitative decisions that go beyond the bare fact of the existence of the prior conviction and, absent a waiver, he was entitled to a jury trial on those factors.

Authority:

PEN 1170(b)(3)

People v. Wiley (2025) 17 Cal.5th 1069, 1076, 1085, 1086

Erlinger v. United States (2024) 602 U.S. 821, 838

Sixth Holding:

When a court improperly relies upon a factor that was not properly proven at a jury trial, the error is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. If any aggravating circumstance fails to meet this standard, “the defendant is entitled to a remand for resentencing.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 768

Case 000486

Error and/or relief

The defendant was convicted of murder and conspiracy to commit that same murder. It was error to impose sentence on both counts concurrently. One of the counts should have been stayed under section 654.

First Holding:

Section 654(a) provides that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. A defendant may not receive more than one punishment for a single act, nor may a defendant receive multiple punishments for acts that comprised a single, indivisible course of conduct in service of a single objective. As a result, section 654 prohibits punishing a defendant for both conspiracy to commit murder and the underlying murder.

Authority:

PEN 654

People v. Perez (1979) 23 Cal.3d 545, 550-552

People v. Hernandez (2003) 30 Cal.4th 835, 866, disapproved of on another ground by People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32

Second Holding:

In pronouncing the defendant’s sentence, the court did not stay the sentence on count two, which was necessary to avoid double punishment.

Authority:

People v. Caparaz (2022) 80 Cal.App.5th 669, 689

Third Holding:

Where, as here, the punishment is the same for the two counts at issue, a remand is unnecessary because it would not change the defendant’s sentence. Accordingly, we will modify the judgment to stay the sentence for count two.

Authority:

People v. Bey (2025) 108 Cal.App.5th 144, 167