Tag Archives: Forfeiture

Appellate Principles, Sentencing

Case 000507

Posted on by Gary McCurdy

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]

Appellate Principles, Effective assistance of counsel, Pleading

Case 000506

Posted on by Gary McCurdy

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]

Appellate Principles, Pleading, Sentencing, Standard of review

Case 000494

Posted on by Gary McCurdy

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

AppellateAdvisor Updates, Due process, Elements of crime, Fifth Amendment, Jury instructions, Sufficiency of and substantial evidence

Case 000489

Posted on by Gary McCurdy

Error and/or relief

There is insufficient evidence to support the child pornography count. The court also impermissibly restricted cross-examination to the extent that it violated the defendant’s right to cross-examine the witness. After reconsideration following four days of testimony, the court changed its mind. Rather than allow the defense to rebut the evidence already before the jury or declare a mistrial, the court instructed the jury that it was striking that portion of the victim’s testimony over the last four days as to her feelings in response to defendant’s actions, statements and text messages, instructing the jury to disregard the stricken testimony.

On this record, the defendant was denied a fair trial, and the judgment is reversed.

First Holding:

There is insufficient evidence to support the child pornography count. The photograph on which it relies does not depict a minor personally engaging in or simulating sexual conduct, as defined in section 311.4(d). Exhibition of the breasts is not included in the statutory definition of sexual conduct. In the context of section 311.4, the rectal area is not equivalent to buttocks and, to the extent rectal area may include any portion of the buttocks, it is limited to a portion of the lower buttocks near the rectum or anus.

Authority:

PEN 311.4(d)

PEN 311.11(a)(1)

PEN 311.4(d)

People v. Wallace (1992) 11 Cal.App.4th 568, 582 ([exposure of breasts does not constitute the prohibited exhibition under section 311.4], disapproved on another ground in People v. Martinez (1995) 11 Cal.4th 434, 452)

People v. Cantrell (1992) 7 Cal.App.4th 523, 545

Second Holding:

The Kongs factors are not included in the standard CALCRIM No. 1145 instruction. The factors are derived from People v. Kongs, where the Court of Appeal applied a list of six factors adopted by the federal courts for a trier of fact to consider when determining what constitutes a lascivious exhibition of specified private parts in assessing a sufficiency of the evidence claim under section 311.4 (using a minor to pose for sex acts) and section 311.11(a) (possession of child pornography).

[GARY NOTE: While it would be perfectly proper to provide the specific language and factors recited in the opinion, I’ve exercised my “G-Rating”-censorship-reserved-right to modify the actual language used and to go no further than I’ve recited. If the factors may have a bearing in your case, you should be reading Kongs for yourself.]

Authority:

People v. Kongs (1994) 30 Cal.App.4th 1741, 1753–1755

Third Holding:

We conclude no reasonable jury could determine, based on the overall content of the photograph, that it depicts an exhibition of the rectal area for the viewer’s sexual stimulation. We thus conclude the subject photograph does not, as a matter of law, depict the minor engaging in or simulating sexual conduct. Consequently, the evidence was insufficient to support the defendant’s conviction for possession of child pornography in count 26. The Double Jeopardy Clause bars retrial on this charge.

Authority:

People v. Spurlock (2003) 114 Cal.App.4th 1122, 1133

People v. Hin (2025) 17 Cal.5th 401, 468

Fourth Holding:

The admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must be of such quality as necessarily prevents a fair trial.

Authority:

People v. Partida (2005) 37 Cal.4th 428, 439

Estelle v. McGuire (1991) 502 U.S. 62, 70

People v. Albarran (2007) 149 Cal.App.4th 214, 229

Fifth Holding:

At trial, the prosecutor extensively questioned the minor about how the defendant made her feel through his statements and actions. The defendant’s defense counsel objected to the prosecutor’s line of questioning on relevance grounds, but the trial court overruled the objection, finding the testimony relevant to the minor’s credibility. As a result, over the course of four days, the minor was permitted to testify extensively on direct examination on how the defendant’s encouraging words made her feel.

When the defense proffered evidence that portrayed an opposite picture of the minor, the trial court conceded that it should have sustained the defense objection on relevancy grounds, denied the defendant’s request to introducing the contrasting evidence, and purported to strike the offending portions of the minor’s direct testimony, instructing the jury to disregard the minor’s testimony over the four days as to her feelings regarding the defendant’s statements. This presentation of extensive inadmissible evidence, combined with the exclusion of defense evidence that would have rebutted the inadmissible testimony, denied the defendant of his due process right to a fair trial.

Authority:

People v. Albarran (2007) 149 Cal.App.4th 214

Sixth Holding:

Constitutional errors in admitting or excluding evidence are both subject to harmless error review. Federal constitutional errors subject to harmless error review are reviewed under Chapman, which requires us to reverse the conviction unless the People can demonstrate that the error was harmless beyond a reasonable doubt. To determine whether the People have carried their burden, we examine the entire record and must reverse if there is a reasonable possibility that the error contributed to the verdict.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 412

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

People v. Reese (2017) 2 Cal.5th 660, 671

Seventh Holding:

Even thoughtfully phrased limiting instructions may be insufficient to mitigate the harm resulting from prejudicial evidence.

Authority:

People v. Guerrero (1976) 16 Cal.3d 719, 730 [No limiting instruction, however thoughtfully phrased or often repeated, could erase from the jurors’ minds the prejudicial evidence]

Eighth Holding:

Ordinarily, a party’s failure to object to certain testimony at all, or failure to object on the specific grounds asserted on appeal, would render a challenge to the admission of the testimony forfeited.

Authority:

People v. Oyler (2025) 17 Cal.5th 756, 831

Abstracts and Minutes, Elements of crime, Pleading, Sentencing

Case 000484

Posted on by Gary McCurdy

Error and/or relief

The court failed to award presentence conduct credits, and the abstract of judgment must be corrected (a) to show the correct section and description of the crime the jury convicted the defendant of in count 7, and (b) to delete the $10,000 restitution fine and the $10,000 parole revocation restitution fine that were waived by the court.

First Holding:

When the defendant is sentenced under section 667.61, the one strike law, the court need not grant such presentence conduct credit. But here it was error to deny the defendant credit for his presentence conduct under PC 667.61, because the People never invoked section 667.61 by alleging the strikable circumstances in the accusatory pleading. The lack of such notice precluded the trial court from sentencing the defendant subject to section 667.61. Further, such a sentencing scheme would have required the court to impose an indeterminate term, and it did not. The defendant was therefore entitled to an award of conduct credits at the rate of 15%, based on his conviction of violent felony.

Authority:

PEN 667.61

PEN 2933.1

People v. Govan (2023) 91 Cal.App.5th 1015, 1036–1037

People v. Jimenez (2019) 35 Cal.App.5th 373, 393–397

Second Holding:

Though the information charged the defendant in count 7 with section 245 as assault with a deadly weapon (defendant’s hands and feet), the jury was instructed only as to section 245 as assault by means of force likely to cause great bodily injury. The verdict form showed simply as charged under count 7 of the information. The jury could not have convicted the defendant of anything other than assault with force likely to produce great bodily injury because it was never instructed on any other crime for the purposes of count 7.

Thus, the verdict form’s reference to the erroneous charge is a clerical error rather than a reflection of the true verdict. We may correct a clerical error on a verdict form when the error does not reflect the jury’s actual verdict. The abstract lists the offense as section 245 assault with a deadly weapon. In light of the jury instruction and the verdict form, it must be corrected to reflect that the conviction was for section 245 as assault by means of force likely to cause great bodily injury.

Authority:

People v. Perez (2018) 4 Cal.5th 1055, 1065 [Hands and feet are not deadly weapons as a matter of law]

People v. Frederickson (2020) 8 Cal.5th 963, 1026 [we presume the jury understood and followed instructions]

People v. Trotter (1992) 7 Cal.App.4th 363, 370-371 [clerical correction to verdict forms after jury is discharged is not modification of verdict itself]

People v. Mitchell (2001) 26 Cal.4th 181, 185 [a reviewing court has the authority to correct clerical errors at any time]

Third Holding:

The trial court ordered direct restitution to the victim but waived the separate mandatory fines and fees. The abstract of judgment erroneously lists two fines: a $10,000 restitution fine and a $10,000 parole revocation restitution fine per section 1202.45. When the oral pronouncement of judgment and the abstract of judgment are inconsistent with one another, the oral pronouncement controls over the abstract of judgment. The abstract of judgment may be corrected at any time for accuracy.

On appeal, the Attorney General argues the abstract of judgment need not be amended because the fines have a mandatory minimum that can only be waived by a finding of compelling and extraordinary reasons, and the court’s reasoning here was insufficient. We need not reach this question. Any such argument was waived when the prosecutor did not object in the trial court.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 303

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

People v. Mitchell (2001) 26 Cal.4th 181, 185–188