Tag Archives: Forfeiture

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

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing

Case 001152

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect the oral judgment on the parole revocation restitution fine.

First Holding:

Though the court imposed the minimum restitution fine, it made no mention of the parole revocation restitution fine, yet the abstract of judgment reflected that it was imposed. The parole revocation fine was erroneously included in the abstract of judgment because that fine was not part of the trial court’s oral pronouncement of judgment. The People concede the error. We accept the concession and shall order the parole revocation fine stricken from the abstract of judgment.

Authority:

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

People v. El (2021) 65 Cal.App.5th 963, 967

Second Holding:

Since the defendant did not specifically object to imposition of the assessments based on ability to pay, he forfeited the right to challenge those assessments on appeal.

Authority:

People v. Ramirez (2023) 98 Cal.App.5th 175, 224-225

People v. Wilson (2023) 14 Cal.5th 839, 867

Abstracts and Minutes, Duty of the court, Fines and fees, Sentencing

Case 001148

Posted on by Gary McCurdy

Error and/or relief

The court improperly imposed a fine and penalty assessments of $3200 without specifying how that sum was reached. Remanded for the court to determine the fine under section 290.3. The court also failed to award sufficient credit for time served. And the court improperly issued a protective order pertaining to someone who was neither a victim of nor a witness to the crime.

First Holding:

The reporter’s transcript of the sentencing hearing shows that the trial court imposed a restitution fine of $1,000 and the $3,200 penalty assessment. The court did not explain how this penalty assessment had been calculated. A restitution fine is not subject to penalty assessments.

The probation report recommended that, under section 290.3, the defendnat be ordered to pay a fine of $3,200 including penalty assessment. The probation report did not explain how the figure of $3,200 had been reached.

The court’s minutes show a restitution fine of $1,000 and a fine of $3,200 pursuant to Section 290.3. The abstract of judgment states that appellant shall pay a $3200 fine pursuant to PC 290.3.

Under section 290.3(a) the maximum fine was $300 because this was appellant’s first conviction of an offense specified in section 290(c).

Authority:

PEN 1202.4(e)

PEN 290.3(a)

PEN 290(c)

Second Holding:

On a $300 fine imposed under section 290.3, the maximum penalty assessments total $930. The penalty assessments are:

(1) a 100 percent state penalty assessment under 1464(a)(1) equal to $300;

(2) a 70 percent additional penalty under Government Code section 76000(a)(1)) equal to $210;

(3) a 20 percent state surcharge under section 1465.7) equal to $60;

(4) a 50 percent state court construction penalty under Government Code section 70372 equal to $150;

(5) a 20 percent additional penalty for emergency medical services under Government Code section 76000.5 equal to $60;

(6) a 10 percent additional DNA penalty under Government Code section 76104.6(a)(1)) equal to $30; and

(7) a 40 percent additional state-only DNA penalty under Government Code section 76104.7(a) equal to $120.

Authority:

People v. Johnson (2015) 234 Cal.App.4th 1432, 1457-1458 [the penalty assessments on a $300 fine imposed pursuant to section 290.3(a) should have totaled $930]

People v. Hamed (2013) 221 Cal.App.4th 928 [though in Hamed, the GOV 76104.7(a) assessment was at 30 percent, before the section was amended to increase it to 40%]

Third Holding:

The abstract of judgment should detail the amounts of and statutory basis for the base fine and each of the penalty assessments imposed. Although we recognize that a detailed recitation of all the fees, fines and penalties on the record may be tedious, California law does not authorize shortcuts. All fines and fees must be set forth in the abstract of judgment. If the abstract does not specify the amount of each fine, the Department of Corrections and Rehabilitation cannot fulfill its statutory duty to collect and forward deductions from prisoner wages to the appropriate agency.

Accordingly, the matter must be remanded to the trial court for recalculation of the section 290.3(a) fine and penalty assessments.

(Gary note: The court also concluded that the defendant was entitled to be present at the hearing on the recalculation, to allow the defendant to present a challenge on his ability to pay. The court did not cite any specific authority for that directive, but I’m guessing it probably had a case like People v. Kopp (2025) 19 Cal.5th 1 in mind.)

Authority:

People v. Johnson (2015) 234 Cal.App.4th 1432, 1459

People v. High (2004) 119 Cal.App.4th 1192, 1200

Fourth Holding:

A sentencing court must award credits for all days in custody up to and including the day of sentencing. In addition to actual credit, which accumulates from time spent in custody, detainees in local institutions are usually able to earn credit against their eventual sentence for good behavior and work performed. The parties agree that the credits awarded by the court were short by 3 days. On remand, the court should recalculate the presentence custody credits.

Authority:

People v. Crenshaw (2025) 116 Cal.App.5th 1169, 1181

Fifth Holding:

At the time of sentencing, the trial court issued a protective order directing appellant to not contact Person A.

Section 136.2 covers protective orders. Section 136.2(i)(1) provides that, if a defendant has been convicted of [the court describes the crime committed here], the court, at the time of sentencing, shall consider issuing an order restraining the defendant from any contact with a victim of the crime. Person A was not a victim of the [specified crime].

Section 136.2(i)(2) authorizes the issuance of an order restraining the defendant from any contact with a percipient witness to the crime if it can be established by clear and convincing evidence that the witness has been harassed by the defendant. Person A was not a percipient witness to the crime.

Thus, we direct the trial court to strike the protective order as to Person A.

Authority:

PEN 136.2

Sixth Holding:

The defendant did not object to the no-contact order. 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

Appellate Principles, Sentencing

Case 001145

Posted on by Gary McCurdy

Error and/or relief

The court erred in imposing a post-sentencing protective order and in doubling the middle term when the strike had been dismissed as part of the plea agreement.

First Holding:

A court may issue a protective order to protect a witness or victim during the pendency of a criminal case. Generally, protective orders issued under section 136.2 are limited in duration and may not extend beyond the court’s jurisdiction. It was therefore error for the court to impose a protective order to extend past sentencing.

Authority:

PEN 136.2

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

Second Holding:

The issue of the propriety of the issuance of a protect order may be raised on appeal despite a lack of objection.

(Gary note: The court cited Ponce, but did not elaborate on its holding. I have set forth the Ponce actual holding.)

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 381 (As a general rule, an appellant waives issues on appeal that he or she did not initially raise in the trial court. (People v. Smith (2001) 24 Cal.4th 849, 852.) 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 three-year protective order during sentencing, we will consider Ponce’s claim on the merits.)

Third Holding:

It was error to impose a second-strike punishment, because the defendant did not admit the prior strike. The strike prior allegation was dismissed when the defendant was sentenced.

(Gary note: The court did not cite any authority for this holding, most likely because it is so obvious. I have listed the two statutes pertaining to the Three Strikes law for your convenience.

(Section 667 was amended by the Legislature in 1994 to add the Strikes alternative sentencing scheme in addition to the already-existing section 664(a) enhancement on serious felony convictions for each prior conviction of a serious felony brought and tried separately.

(Section 1170.12 was added by initiative (Proposition 184) later in 1994. Somewhat confusingly, perhaps, both statutes co-exist. Both were amended in 2012 by Proposition 36.)

Authority:

PEN 667(b)-(j)

PEN 1170.12

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