Tag Archives: Double jeopardy

Appellate Principles, Elements of crime, Sentencing, Statutory interpretation, Sufficiency of and substantial evidence

Case: 000132

Posted on by Gary McCurdy

Error and/or relief

We shall reduce one conviction to reflect a lesser included offense, remand for resentencing, and otherwise affirm the judgment.

First Holding:

In considering the sufficiency of evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We review the record in the light most favorable to the judgment, presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. We also accept logical inferences that the jury might have drawn from the circumstantial evidence. We do not resolve credibility issues or evidentiary conflicts.

Authority:

People v. Osband (1996) 13 Cal.4th 622, 690

People v. Baker (2021) 10 Cal.5th 1044, 1103

People v. Young (2005) 34 Cal.4th 1149, 1181

Second Holding:

In considering the substantiality of generic testimony regarding multiple indistinguishable instances of child sexual abuse, a victim of child molestation need not specify precisely the date, time, or circumstances of each crime. Rather, the victim must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment, a requirement that can be met with such testimony as “twice a month” or “every time we went camping.”

Authority:

People v. Jones (1990) 51 Cal.3d 294, 299–300, 315–316

Third Holding:

The jury was instructed pursuant to CALCRIM No. 1015 that duress means a direct or implied threat of force, violence, danger, hardship, or retribution that causes a reasonable person to do or submit to something that he or she would not otherwise do or submit to, and that in making its determination the jury should consider all the circumstances, including the age of the other person and his relationship to the defendant.

As to fear, the jury was told, “[a]n act is accomplished by fear if the other person is actually and reasonably afraid.” The existence of duress is an objective inquiry, and it is not dependent on the response exhibited by a particular victim.

We consider the totality of the circumstances, including the victim’s relationship to the perpetrator, whether the perpetrator physically controlled the victim when the victim attempted to resist, and the relative physical vulnerability of the victim. Duress may arise in a variety of ways related to psychological and/or situational factors between the perpetrator and victim, including an uneven power dynamic between a victim and perpetrator inhabiting a position of authority. Not all forms of coercion necessarily constitute duress, however.

Authority:

People v. Soto (2011) 51 Cal.4th 229, 246

People v. Guenther (2024) 104 Cal.App.5th 483, 518 [courts apply reasonable person standard to inquiry into duress]

People v. Thomas (2017) 15 Cal.App.5th 1063, 1072–1073

People v. Veale (2008) 160 Cal.App.4th 40, 44, 47

People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321

Fourth Holding:

A variance between the crime charged and proved is not material unless it is of such a substantive character as to mislead the accused in preparing his defense, or is likely to place him in second jeopardy for the same offense.

Authority:

PEN 960 [No accusatory pleading is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which does not prejudice a substantial right of the defendant upon the merits]

People v. Williams (1945) 27 Cal.2d 220, 226

People v. Maury (2003) 30 Cal.4th 342

Fifth Holding:

A lesser offense is necessarily included in a charged offense if one of two tests is met: either all the legal ingredients of the corpus delicti of the lesser offense are included in the elements of the greater offense (the “elements test”) or the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed (the “accusatory pleading test”). We do not consider the evidence presented at trial to determine whether one offense is necessarily included in the other.

Authority:

People v. Lopez (1998) 19 Cal.4th 282, 288–289

People v. Cheaves (2003) 113 Cal.App.4th 445, 454

People v. Ortega (1998) 19 Cal.4th 686, 698

Sixth Holding:

Despite the constitutional prohibition of a second trial if a conviction is reversed for insufficient evidence, when a trial or appellate court concludes that there is insufficient evidence to support a conviction of a greater offense, it can reduce the conviction to a lesser included offense that is supported by the evidence.

Authority:

PEN 1181

PEN 1260

People v. Goolsby (2016) 244 Cal.App.4th 1220, 1225

People v. Navarro (2007) 40 Cal.4th 668, 677

People v. Espinoza (2002) 95 Cal.App.4th 1287, 1321–1322, 1324 [reducing conviction to reflect lesser included offense where there was no evidence defendant used direct or implied threat to commit a lewd act]

Seventh Holding:

We review a court’s award of restitution to a victim for abuse of discretion, reversing only if it is arbitrary or capricious. An abuse of discretion exists when there is no rational and factual basis for the amount of restitution ordered. The court must demonstrate a rational basis for its award, and ensure that the record is sufficient to permit meaningful review. The burden is on the party seeking restitution to provide an adequate factual basis for the claim.

Authority:

People v. Gomez (2023) 97 Cal.App.5th 111, 116

Abstracts and Minutes, Appellate Principles, Jury trial, Juveniles, Sentencing, Sixth Amendment

Case 000033

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by not obtaining defendant’s personal waiver of the defendant’s right to a jury trial on allegations of aggravating circumstances and prior convictions under the Three Strikes law. As to the prior convictions, we find no prejudice. The error was prejudicial, however, with regard to the aggravating circumstances.

First Holding:

There is a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. A waiver of the right must be personally expressed by the defendant in open court. It must be explicit and will not be implied from the defendant’s conduct. A failure to object will not preclude his asserting on appeal his constitutional right to a jury trial.

Authority:

Section 16 of Article I of the California Constitution

People v. Wiley (2025) 17 Cal.5th 1069, 1078

People v. Sivongxxay (2017) 3 Cal.5th 151, 166

People v. French (2008) 43 Cal.4th 36, 46-47

Second Holding:

A complete deprivation of a jury trial on issues of guilt is of a different magnitude than the denial of a jury determination on penalty allegations. Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error.

Authority:

Washington v. Recuenco (2006) 548 U.S. 212

Third Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, reversal and remand are required unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.

Authority:

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

People v. Wiley (2025) 17 Cal.5th 1069, 1087

People v. Lynch (2024) 16 Cal.5th 730, 743

Neder v. United States (1999) 527 U.S. 1, 19

Fourth Holding:

The opening brief contains a footnote in which he cursorily asserts a related claim of insufficient evidence. We exercise our discretion to disregard points raised in a footnote rather than being properly presented under a discrete heading with appropriate analysis. Footnotes are not the appropriate vehicle for stating contentions on appeal

Authority:

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

People v. Carroll (2014) 222 Cal.App.4th 1406, 1412, fn. 5

Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947

People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5

Fifth Holding:

With respect to the prior convictions, defendant’s claims are insufficiently developed and could be rejected for that reason alone.

Authority:

People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2

People v. Hardy (1992) 2 Cal.4th 86, 150

Sixth Holding:

Outside the pronouncement of judgment, discrepancies between a minute order and the reporter’s transcript are resolved by adopting whichever should be given greater credence under the circumstances of the particular case.

Authority:

People v. Contreras (2015) 237 Cal.App.4th 868, 880

People v. Smith (1983) 33 Cal.3d 596, 599

Seventh Holding:

There is no federal or state constitutional right to a jury trial on the fact of a prior conviction. In California, defendants have a statutory right to a jury trial on the question of whether or not the defendant has suffered the prior conviction. The requirement of an express waiver under section 16 of article I of the California Constitution] applies to the constitutional right to a jury trial, but not to jury trial rights that are established only by statute. Therefore, the statutory right to a jury trial on prior conviction allegations can be impliedly waived and forfeited.

Authority:

PEN 1025(b) and (c)

Almendarez-Torres v. United States (1998) 523 U.S. 224

People v. Gallardo (2017) 4 Cal.5th 120, 125

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

People v. Grimes (2016) 1 Cal.5th 698, 737–738

People v. Saunders (1993) 5 Cal.4th 580, 589

Eighth Holding:

As a general rule, double jeopardy principles do not prohibit retrial following reversal on appeal for reasons other than insufficiency of the evidence.

Authority:

People v. Wilson (2023) 14 Cal.5th 839, 855

Monge v. California (1998) 524 U.S. 721, 728–729

Ninth Holding:

Juvenile adjudications do not, under any circumstances, qualify as convictions for purposes of section 667(a) (the enhancement for prior convictions of a serious felony when the new offense is a serious felony).

Authority:

People v. West (1984) 154 Cal.App.3d 100, 107–108

People v. Park (2013) 56 Cal.4th 782, 798

People v. Smith (2003) 110 Cal.App.4th 1072, 1080, fn. 10

People v. O’Neal (2000) 78 Cal.App.4th 1065, 1068