Tag Archives: Briefing

Appellate Principles, Elements of crime, Plea bargains

Case 000679

Posted on by Gary McCurdy

Error and/or relief

Count ten as pled created a legal impossibility requiring reversal of the trial court’s acceptance of defendant’s plea agreement.

First Holding:

A claim not presented in the opening brief and was first raised in the appellant’s reply brief is deemed waived.

Authority:

People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9

Second Holding:

Generally, a guilty or no contest plea precludes appellate consideration of issues related to guilt or innocence, including the sufficiency of the evidence to support the conviction. Nonetheless, a defendant may still assert that his, her, or their admission included a legal impossibility.

Authority:

People v. Palmer (2013) 58 Cal.4th 110, 114

People v. Voit (2011) 200 Cal.App.4th 1353, 1365

Third Holding:

The term ‘legal impossibility,’ as applied to a choate [sic] crime, is merely a catch phrase for saying that, as a matter of law, the statute under which the defendant is charged does not prohibit his, her, or their conduct. Put another way, legal impossibility exists when the facts as admitted cannot constitute the crime pled to, such as where the victim’s characteristics fall outside of the statutory definition.

Authority:

People v. Jerome (1984) 160 Cal.App.3d 1087, 1094, 1099 [setting aside plea to oral copulation of a minor under 14 where the victim was 15]

People v. Richardson (2021) 65 Cal.App.5th 360, 371-375 [setting aside no contest plea to human trafficking of a minor where victim was not a minor]

People v. Soriano (1992) 4 Cal.App.4th 781 [a death certificate is not an instrument within the meaning of section 115, so it was legally impossible for the defendant to be guilty of section 115 for attempting to forge a death certificate]

Fourth Holding:

We conclude that because section 134 [essentially, falsifying a document for a fraudulent or deceitful purpose] is not one of the specifically enumerated offenses in section 653f(a) [solicitation of another to commit specified crimes] and given that the elements of a section 134 offense do not necessarily establish one of the specifically enumerated offenses, defendant’s plea to violating section 653f(a) by committing a violation of section 134 has resulted in a legal impossibility requiring reversal.

Authority:

People v. Soriano (1992) 4 Cal.App.4th 781, 784, 786

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing, Standard of review

Case 000658

Posted on by Gary McCurdy

Error and/or relief

It was an improper delegation of authority to impose a condition of probation that left it up to the probation officer to decide whether treatment should be residential or outpatient. There was also error regarding imposition of fees.

First Holding:

Though the defendant did not object to the condition at the time, the issue is not forfeited on appeal. His claim is cognizable because it is a facial constitutional challenge presenting a pure question of law that does not depend on the underlying factual record. We thus address defendant’s constitutional challenge on the merits, which we review de novo.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 901 [a facial constitutional challenge may be considered for the first time on appeal because it does not depend on the underlying factual record]

In re Sheena K. (2007) 40 Cal.4th 875, 884–886

Second Holding:

Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer.

A court may dictate the basic policy of a condition of probation, leaving specification of details to the probation officer, but the court’s order cannot be entirely open-ended. It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation. By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer.

Authority:

Cal. Const., art. III, sec. 3

People v. Smith (2022) 79 Cal.App.5th 897, 902

In Victor L. (2010) 182 Cal.App.4th 902, 919

Third Holding:

A condition requiring the defendant to enter a residential drug treatment program but authorizing probation to select which residential program may be upheld. We remand for the trial court to either strike the condition, or modify it to specify the type of treatment program in which defendant is directed to participate, including whether it requires defendant to undergo residential treatment. The court’s decision may be informed by the results of any assessment and additional information provided by the parties.

Authority:

People v. Penoli (1996) 46 Cal.App.4th 298, 307–308

People v. Smith (2022) 79 Cal.App.5th 897, 903, 905,

People v. O’Neil (2008) 165 Cal.App.4th 13

Fourth Holding:

Appellants implicitly concede a respondent’s argument by failing to respond in their reply brief to the respondent’s argument on that point. A court may assume respondent’s claim was correct if the defendant did not dispute respondent’s claim in his reply.

Authority:

Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89–90

Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 519 and fn. 4

Fifth Holding:

An order of probation, like an abstract of judgment, must specify the statutory basis of each fine or fee imposed.

Authority:

People v. Eddards (2008) 162 Cal.App.4th 712, 716

Sixth Holding:

In general costs of prosecuting and rehabilitating criminals are not recoverable absent express statutory authority to the contrary. The Legislature repealed section 1203.1b (which authorized to court to impose an order for the cost of probation services, depending on ability to pay, and it could not be a condition of probation) and enacted section 1465.9, which states in relevant part, that on after July 1, 2021, the balance of any court-imposed costs pursuant to section 1203.1b [among numerous other statutes] shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

PEN 1465.9

People v. Baker (1974) 39 Cal.App.3d 550, 559–560

Seventh Holding:

The abstract of judgment contains an error. It states that the jury found true the enhancement for great bodily injury under section 12022.7. This conflicts with the actual oral statement of the judge (who conducted a court trial on the enhancement), in which the judge stated “I am not going to find true the allegation of great bodily injury.”

Where, as here, discrepancies exist between the court’s oral pronouncement of judgment and the minute order, the oral pronouncement controls. The trial court should thus modify the probation order to conform to its oral pronouncement.

Authority:

People v. Zackery (2007) 147 Cal.App.4th 380, 385

Appellate Principles, Sentencing

Case 000564

Posted on by Gary McCurdy

Error and/or relief

This is another case where no relief was granted, but it contains important information on how an otherwise nonappealable order might become appealable.

The defendant filed a motion for resentencing under section 1172.1. While a defendant may invite the court under that section to resentence him, he has no right to make a motion under that section. (It can be triggered by the custodial officials or the prosecutors or on the court’s own motion, however.)

Had the court simply declined to respond to the defendant’s “motion,” or simply denied it outright, the defendant would have no right to appeal. The court, however, considered the motion and denied it on its merits. This created a substantial right for the defendant and permitted appellate review. We conclude the trial court evaluated and denied defendant’s petition on the merits, thus affecting defendant’s substantial rights, and thus the denial is an appealable order.

First Holding:

The right to appeal is statutory only, and a party may not appeal a trial court’s judgment, order or ruling unless such is expressly made appealable by statute.

Authority:

People v. Loper (2015) 60 Cal.4th 1155, 1159

Second Holding:

Section 1172.1(a)(1), effective January 1, 2024, provides that the trial court may, on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.

Section 1172.1(c) expressly states, however, that a defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond. Thus, a defendant who chooses to file an unauthorized request for resentencing has no right to a ruling.

Authority:

PEN 1172.1

People v. Roy (2025) 110 Cal.App.5th 991, 998,

Third Holding:

The second sentence in section 1172.1(c) means that a defendant does not have a substantial right at stake when they request recall and resentencing.

Authority:

People v. Brinson (2025) 112 Cal.App.5th 1040, 1045

People v. Roy (2025) 110 Cal.App.5th 991, 998-999

People v. Faustinos (2025) 109 Cal.App.5th 687, 696

Fourth Holding:

Where the trial court undertakes to make a resentencing decision on the merits after a defendant has filed a petition pursuant to section 1172.1, the defendant is entitled to an appeal. Here, the trial court effectively evaluated and denied defendant’s petition on the merits. After defendant filed his petition, the trial court set a status conference and a briefing schedule.

When the People asked the trial court whether it would consider recalling defendant’s sentence, the trial court directed the People to address the merits. Additionally, the trial court invited the victims to be heard at a hearing, it considered the parties’ arguments, and it considered whether resentencing defendant would be in the interest of justice. In short, the trial court evaluated and denied defendant’s petition on the merits, thus affecting his substantial rights.

Authority:

People v. Craig (2026) 117 Cal.App.5th 1165, 1172-1173

People v. Olea (2025) 115 Cal.App.5th 889, 902

Fifth Holding:

Defendant claims the enactment of Evidence Code section 352.2 constitutes such a change in sentencing laws. However, he offers no authority or reasoned argument to support his claim. As a result, we may deem the claim forfeited.

Authority:

Cal. Rules of Court, rule 8.204(a)(1)(B)

People v. Stanley (1995) 10 Cal.4th 764, 793

Sixth Holding:

Add holding blurb here

Authority:

ADD AUTHORITIES HERE

Appellate Principles, Duty of counsel, Duty of the court, Sentencing

Case 000548

Posted on by Gary McCurdy

Error and/or relief

(GARY note: This case actually provided no relief at all to the defendant. It is included because it teaches a valuable lesson on the burden an appellant bears to prevail on appeal. The defendant argued that the protective order was unlawful because he was not convicted of a crime eligible for protective orders.

(But the Court of Appeal concluded that the defendant did not show that he did not commit the crime in the course of a domestic violence course of conduct, and the Court of Appeal must assume that the trial court made such a finding or it would not have imposed the order.

(The defendant was required to prove a negative. It is entirely possible that there was nothing in the record that would disprove there was or was not a domestic relationship. The conviction resulted from a plea bargain with a stipulated sentence. No objection was interposed at the time the protective order was issued.

But the case highlights the importance of understanding that an appellate court is not bound to help the defense. The conviction shifted the presumption from innocence to guilt, and the burden shifted likewise. The California Constitution requires upholding a conviction in the absence of a miscarriage of justice. Thus, the appellate courts start with a mandate that the conviction be affirmed. It is appellate counsel’s role to chip away at the presumption that orders of the superior court were properly issued. Don’t make any assumptions that cannot be backed up by the record.)

First Holding:

The defendant contends the trial court erred in issuing a criminal protective order pursuant to section 136.2(i) because his conviction for assault with a semiautomatic firearm (section 245(b)) is not an offense enumerated under the statute.

Assault with a semiautomatic firearm is not an explicitly enumerated offense under section 136.2(i). However, assault with a semiautomatic firearm can qualify under the statute as a crime involving domestic violence if the defendant’s abusive conduct is directed at someone with a qualifying relationship to him.

The record on appeal is silent as to the nature of the relationship between the defendant and the victim. The defendant has not remedied this silence with an adequate record from which we can discern whether his conviction constituted a crime involving domestic violence. On this silent record, we indulge all intendments and presumptions to support the criminal protective order, including the existence of a qualifying relationship between Hooks and the victim. Because the record does not support the defendant’s claim, he fails to meet his burden on appeal.

Authority:

PEN 13700

FAM 6203(a), 6211(c)

Second Holding:

The People assert the defendant forfeited his contention by failing to object in the trial court. As a general rule, an appellant waives issues on appeal that he or she did not initially raise in the trial court. But there are exceptions to this rule for unauthorized sentences and sentencing decisions that are in excess of the trial court’s jurisdiction. Because this case involves the jurisdictional validity of the trial court’s decision to issue a protective order during sentencing, we will consider the defendant’s claim on the merits.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 381-382

Third Holding:

Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error. This presumption also applies to a lower court’s orders. All intendments and presumptions are indulged to support the order on matters as to which the record is silent, and error must be affirmatively shown. On appeal, the defendant must affirmatively demonstrate error below and provide an adequate record to support his arguments. Any uncertainty in the record must be resolved against the defendant. We will not presume error.

Authority:

People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573

People v. Sullivan (2007) 151 Cal.App.4th 524, 549

Abstracts and Minutes, Appellate Principles, Effective assistance of counsel, Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000512

Posted on by Gary McCurdy

Error and/or relief

Though we find the evidence was sufficient and we affirm the jury trial convictions, there are errors in the indeterminate abstract of judgment insofar as it incorrectly reflects that two section 12022.53(b) personal use enhancements were found true. The jury found only one to be true. Also, the determinate abstract of judgment reflects the incorrect number of custody credits. There were other errors as well, but the matter must be remanded for further clarity on what should be included in the abstract of judgment.

First Holding:

This court’s role in reviewing a challenge to the sufficiency of evidence is limited. When considering a claim of insufficient evidence, we examine the entire record to assess whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. Additionally, when undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment.

Authority:

People v. Smith (2005) 37 Cal.4th 733, 738

People v. Zamudio (2008) 43 Cal.4th 327, 357

People v. Hill (1998) 17 Cal. 4th 800, 849

Second Holding:

Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot. A thing is in the immediate presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.

Authority:

PEN 211

People v. Cooper (1991) 53 Cal.3d 1158, 1165

People v. Hayes (1990) 52 Cal.3d 577, 626-627

Third Holding:

An act may be robbery even if the property had been taken after the victim died. While it may be true that one cannot rob a person who is already dead when one first arrives on the scene, one can certainly rob a living person by killing that person and then taking his or her property.

Authority:

People v. Navarette (2003) 30 Cal.4th 458, 499

Fourth Holding:

Defendant’s ineffective assistance claim is forfeited for failure to support his argument with analysis and citation to evidence in the appellate record.

Authority:

Rules of Court rule 8.204(a)(1)(B)(C)

People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument is forfeited if it is raised in a perfunctory fashion without any supporting analysis and authority]

Fifth Holding:

[GARY NOTE: The court cited no authority for its order directing correction of the abstract of judgment, likely because the need for correction of material errors is simply obvious. But the court could have cited a number of cases, a few of which I have laid out.]

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

People v. Zackery (2007) 147 Cal.App.4th 380, 385

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2