Tag Archives: Forfeiture

Elements of crime, Fifth Amendment, Juveniles, Standard of review, Sufficiency of and substantial evidence

Case: 000306

Posted on by Gary McCurdy

Error and/or relief

The evidence to support the alleged use of a deadly weapon is insufficient as a matter of law. The minor was alleged to have committed robbery with the use of a deadly or dangerous weapon (knife).

First Holding:

Section 12022(b)(1) allows a defendant’s sentence to be enhanced if he or she personally used a deadly or dangerous weapon during a felony. To prove use, the evidence must show something more than merely being armed. Intentionally displaying a weapon in a menacing manner qualifies. When a defendant deliberately shows a weapon or otherwise makes its presence known, and there is no evidence to suggest any purpose other than intimidating the victim (or others) so as to successfully complete the underlying offense, the fact finder is entitled to find a facilitative use rather than an incidental or inadvertent exposure. But the use enhancement is not applicable if the evidence shows that the defendant’s conduct with respect to the weapon appears to be purely incidental to the crime, or if the defendant did no more than passively display the weapon.

Authority:

People v. Chambers (1972) 7 Cal.3d 666, 672

People v. Wims (1995) 10 Cal.4th 293, 302

People v. Granado (1996) 49 Cal.App.4th 317, 325

People v. Hays (1983) 147 Cal.App.3d 534, 548–549

Second Holding:

To determine whether the defendant used a knife for purposes of section 12022(b)(1), we may properly consult cases construing the term uses in other enhancement statutes, including cases involving the personal use of a firearm. But in doing so, we are mindful that unlike a firearm, a knife can be, and usually is, used for innocent purposes, and for that reason is not among the few objects that are inherently deadly weapons.

Authority:

People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1198, overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216

People v. Aledamat (2019) 8 Cal.5th 1, 6

Third Holding:

In considering a challenge to the sufficiency of the evidence to support an enhancement, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.

Authority:

People v. Albillar (2010) 51 Cal.4th 47, 59–60

Fourth Holding:

On a claim of insufficiency of the evidence, we consider the record evidence, not how a trial court might have responded to a timely objection.

Authority:

People v. McCullogh (2013) 56 Cal.4th 589, 596

In re I.A. (2020) 48 Cal.App.5th 767, 776 [No objection is necessary to preserve a challenge to the sufficiency of the evidence for appeal]

People v. Hiller (2023) 91 Cal.App.5th 335, 345 [a challenge to the sufficiency of the evidence is generally not subject to forfeiture]

Fifth Holding:

Reversal of the use enhancement for insufficiency of the evidence bars retrial of the enhancement.

Authority:

Tibbs v. Florida (1982) 457 U.S. 31, 42

People v. Eroshevich (2014) 60 Cal.4th 583, 591

Amelioration, Plea bargains, Sentencing

Case: 000282

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed an upper term sentence without an appropriate factual finding or stipulation as to an aggravating factor, as required by Penal Code section 1170(b). We conclude that the defendant may raise this issue even though he stipulated to the sentence as part of a plea bargain.

First Holding:

When the defendant entered his plea in 2020, the choice to impose a lower, middle, or upper term sentence was committed to the sound discretion of the court. But when the court ultimately entered judgment in 2024, following the passage of SB 567, a trial court was permitted to impose an upper term sentence only when aggravating circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. The defendant argues that, although he agreed to the sentence in his plea agreement, the change in the law renders his agreement to an upper term sentence invalid in the absence of an appropriate finding of or stipulation to aggravating circumstances. The circumstances in French differ from those here in potentially meaningful ways. Nonetheless, in light of the significant uncertainty in this area and the potential Sixth Amendment implications, we deem it appropriate to exercise our discretion to reach the merits of the defendant’s arguments.

Authority:

PEN 1170

People v. French (2008) 43 Cal.4th 36 [defendant did not forfeit his Sixth Amendment right by failing to request a jury trial on the aggravating circumstances]

People v. Gonzalez (2024) 107 Cal.App.5th 312, 326–327 [exercising discretion to forgive forfeiture because the application of amended section 1170, subdivision (b) implicates a constitutional right, as recognized in People v. Lynch (2024) 16 Cal.5th 730]

Second Holding:

With respect to the merits, the People argue that because the defendant agreed to a specific term of imprisonment as part of his plea bargain, section 1170(b)’s sentencing procedures are irrelevant. As we have noted, this issue has been addressed in multiple Court of Appeal decisions and is now before the Supreme Court. We therefore dispense with offering significant additional analysis, except to say we are persuaded by the logic of the courts that have allowed defendants subject to stipulated sentences to seek the benefits of Senate Bill 567. Among other things, we think this best comports with Stamps, which is the leading authority on what relief is available under ameliorative sentencing legislation that takes effect after a defendant enters a plea agreement for a stipulated sentence.

Authority:

People v. De La Rosa Burgara (2023) 97 Cal.App.5th 1054, 1063, review granted February 21, 2024, S283452 [defendant entitled to remand]

People v. Todd (2023) 88 Cal.App.5th 373, 381–382, review granted April 26, 2023, S279154 [same]

People v. Stamps (2020) 9 Cal.5th 685

Third Holding:

In keeping with Stamps, if the defendant waives the requirements of amended section 1170(b), the trial court shall reinstate his original sentence. If he invokes the requirements of section 1170(b), he must state whether he stipulates to the facts underlying an aggravating circumstance justifying the imposition of the upper term on count 1 and the enhancement, or whether he desires a jury or bench trial on any aggravating circumstances alleged by the People. If he stipulates to the facts underlying an aggravating circumstance justifying the upper-term sentence, the trial court shall find that the upper term may be imposed on count 1. If he requests a trial, the People will have the burden proving beyond a reasonable doubt the truth of any alleged aggravating circumstance justifying the imposition of the upper term. If the factfinder finds an aggravating circumstance true, and the trial court determines the upper term can be imposed on count 1, the court shall reinstate the original sentence. If the People fail to prove the truth of an aggravating circumstance, the trial court shall find that the sentence on count 1 cannot exceed the middle term. At that point, if the court does not approve of the plea agreement with the reduced sentence or if the People do not agree to the reduced sentence, the court shall vacate the plea in toto and return the parties to their status quo ante.

Authority:

People v. Stamps (2020) 9 Cal.5th 685

(Gary note: Is Stamps still good law? Effective 1/1/2025, section 1171 was enacted to give courts guides on how to handle various amerliorative statutes. Take a look at 1171(c)(3) in this partial rendition of section 1171 (bold and italics by me):

(Penal Code section 1171[(a) For the purposes of this section, “postconviction proceeding” means a proceeding to modify a sentence or conviction pursuant to an ameliorative statute. Ameliorative statutes include, but are not limited to, Sections 1170.18, 1172.1, 1172.6, 1172.7, and 1172.75.
(…
((c) The following shall apply for all postconviction proceedings unless there is a conflict with a more specific rule established in statute, in which case the more specific statute shall apply: … (3) Any changes to a sentence shall not be a basis for a prosecutor or court to rescind a plea agreement.
(…
((e) This section does not diminish the ability of the prosecution to oppose relief requested in a postconviction proceeding.
((f) This section shall not be interpreted to authorize anything prohibited by an initiative statute.)

Duty of the court, Juveniles

Case: 000281

Posted on by Gary McCurdy

Error and/or relief

The case must be remanded for the juvenile court to declare the four offenses misdemeanors or felonies as required by Welfare and Institutions Code section 702.

First Holding:

Crimes punishable as either a misdemeanor or a felony at the discretion of the sentencing court are known as wobblers.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 704

Second Holding:

If a minor commits a wobbler, the court shall declare the offense to be a misdemeanor or felony. The juvenile court must make this declaration at a hearing so the record expressly reflects the court was “‘aware of, and exercised its discretion’” to treat the offense as either a misdemeanor or a felony.

Authority:

WIC 702

In re F.M. (2023) 14 Cal.5th 701, 705

Third Holding:

Neither the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court. Absent a juvenile court’s express declaration, or other record evidence establishing, it was aware of and exercised its discretion, the matter must be remanded for the requisite declaration to be made.

Authority:

In re Manzy W. (1997) 14 Cal.4th 1199, 1208-1209

Fourth Holding:

Fourth Holding:
A claim of section 702 error is not forfeited by the defense’s failure to object in the juvenile court.

Authority:

In re F.M. (2023) 14 Cal.5th 701, 710-711

Fifth Holding:

We generally review sentencing decisions for abuse of discretion. A court abuses its discretion when its decision is arbitrary or capricious or exceeds the bounds of reason under the circumstances. A failure to exercise discretion also may constitute an abuse of discretion.

Authority:

People v. Sandoval (2007) 41 Cal.4th 825, 847-848

People v. Carbajal (1995) 10 Cal.4th 1114, 1121

Duty of counsel, Effective assistance of counsel, Pleading, Sentencing, Sixth Amendment

Case: 000280

Posted on by Gary McCurdy

Error and/or relief

As to one of the counts the trial court improperly imposed an upper term sentence. The aggravating facts were found true by the judge rather than by the jury. Thus, we shall vacate the upper term sentence. On remand, the People may elect to retry the aggravating facts; if not, the court may proceed to resentencing.

First Holding:

The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.

Authority:

PEN 1170

Second Holding:

When a trial court imposes an upper term sentence by relying on aggravating facts not proven in compliance with section 1170(b)(2), the sentence must be vacated, and the matter must be remanded for resentencing unless the reviewing court finds that the omission of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify an upper term sentence.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 744–775

Third Holding:

In this case there was a jury trial, but the aggravating facts were not alleged in the information, they were not found true by the jury, and they were not stipulated to by the defendant. The error was prejudicial under the federal constitutional standard of review. Therefore, we must vacate the upper term sentence as to count six and remand for resentencing.

Authority:

PEN 1170(b)(2)

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Fourth Holding:

The People argue that the defendant forfeited this claim because he did not object to the error during the sentencing hearing. We agree that the defendant has forfeited this claim. However, we will exercise our discretion and not apply the forfeiture rule because it will have the effect of converting an appellate issue into a habeas corpus claim of ineffective assistance of counsel for failure to preserve the question by timely objection.

Authority:

People v. Butler (2003) 31 Cal.4th 1119, 1128

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case: 000273

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to impose the upper term based on its own conclusion that the defendant’s prior convictions were numerous and of increasing seriousness, where there was no waiver of a jury or stipulation by the defendant. Defendant was not advised of his right to a jury trial on the aggravating facts, nor did he explicitly waive his right to jury trial on those aggravating facts. The trial court erred in imposing an upper term sentence in the absence of such a waiver.

First Holding:

The trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at a jury or court trial. This jury trial right is constitutionally required for all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. 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.

Authority:

PEN 1170

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

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

Second Holding:

A sentencing judge may only use the information in the record of conviction for the limited function of determining the fact of a prior conviction and the then-existing elements of that offense. A determination that defendant’s prior convictions are of increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. Thus, defendant was entitled to a jury determination on this aggravating factor.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1081-1083

Third Holding:

Defendant must personally waive the right to a jury trial in open court. The waiver must be explicit and will not be implied from a defendant’s conduct. Therefore, a defendant’s failure to object also would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial.

Authority:

Cal. Const., art. I, sec. 16

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

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