Tag Archives: Forfeiture

Elements of crime, Jury instructions, Standard of review, Vicarious liability

Case: 000131

Posted on by Gary McCurdy

Error and/or relief

[GARY NOTE: No relief was granted, because the errors were all found to be harmless in light of the rest of the evidence. The gold here rests in the relative clarity in which the principles of implied malice were set out by the court.] The trial court instructed the jury incorrectly on implied malice and aiding and abetting implied malice murder. However, we find the error harmless beyond reasonable doubt. If anything, the defect in CALCRIM No. 401 only made it harder for the jury to find defendant guilty. It would have been easier for the jury to find that defendant knew that the co-defendants intended to commit a life-endangering act than to find defendant knew they intended to commit murder, a life-ending act.

First Holding:

Implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less. Implied malice contains an objective or physical component and a subjective or mental component.

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 143

People v. Nieto Benitez (1992) 4 Cal.4th 91, 106

Second Holding:

To be liable for an implied malice murder, a direct aider and abettor must aid the perpetrator in committing a life endangering act that proximately causes death.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990-991

People v. Powell (2021) 63 Cal.App.5th 689, 712-713

Third Holding:

Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review.

Authority:

People v. Hillhouse (2002) 27 Cal.4th 469, 503

Fourth Holding:

Defendant’s jury was incorrectly instructed under CALCRIM No. 401 to determine whether defendant aided and abetted the perpetrators’ commission of a crime, not an act. Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea. In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 991

People v. Powell (2021) 63 Cal.App.5th 689,

People v. McCoy (2001) 25 Cal.4th 1111, 1122

Fifth Holding:

The instruction given was thus an erroneous aiding and abetting instruction for purposes of this case. We review the error under the Chapman harmless error standard.

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 714-715

Chapman v. California (1967) 386 U.S. 18, 24

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

Case: 000129

Posted on by Gary McCurdy

Error and/or relief

The trial court must correct the abstract of judgment to reflect that the court never imposed fines or fees other than restitution to the Victim’s Compensation Board, and must recalculate his actual custody credits.

First Holding:

The abstract of judgment must be corrected to reflect that the court waived the imposition of a restitution fine and the parole revocation fine and other fines and fees.  [GARY NOTE: The court did not cite authority for correction of the abstract of judgment, but the law is clear that it has the authority to do so, and I have listed some authorities below.]

Authority:

People v. Scott (2012) 203 Cal.App.4th 1303, 1324

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

People v. Zackery (2007) 147 Cal.App.4th 380, 387–388

People v. Gobert (2023) 89 Cal.App.5th 676, 689

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

Second Holding:

As the People did not object in the court below, the People have forfeited the issue of the propriety of the trial court order waiving the restitution and other fines and fees.

Authority:

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

Third Holding:

When a trial court resentences a defendant who is currently in custody, it must calculate and credit him with all actual days spent in custody (whether in jail or prison) up to that time, including time in custody after the original sentencing. [GARY NOTE: the court did not cite authority for remanding for the court to determine custody credits, but the law is clear, per the authorities I have set forth below.]

Authority:

PEN 2900.1

PEN 2900.5

People v. Buckhalter (2001) 26 Cal.4th 20, 37

Amelioration, Appellate Principles, Duty of the court, Retroactivity, Sentencing

Case: 000126

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously used the defendant’s 2012 prior conviction to sentence him under the Three Strikes law without first determining whether that gang-enhanced felony could have been obtained after amendments enacted by AB 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699).

First Holding:

Where a defendant has previously suffered a conviction under the prior version of Penal Code section 186.22, the changes made in AB 333 apply to the determination of whether the conviction qualifies as a prior serious felony conviction under section 1192.7(c)(28) for purposes of the Three Strikes law and prior serious felony enhancements.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576

Second Holding:

By treating the defendant’s 2012 conviction as a prior strike conviction, the trial court imposed a sentence that is unauthorized by law under Fletcher. The defendant’s argument is therefore not forfeited.

Authority:

People v. Mancebo (2002) 27 Cal.4th 735, 749, fn. 7 [forfeiture principles do not apply to legal error resulting in an unauthorized sentence]

People v. Lynch (2024) 16 Cal.5th 730, 751 [The unauthorized sentence rule is an exception to the forfeiture doctrine. It permits a challenge to an unauthorized sentence on appeal even if the defendant failed to object below.]

Sentencing

Case 000058

Posted on by Gary McCurdy

Error and/or relief

The fines and fees not mentioned in the trial court’s oral imposition of sentence are improper and must be stricken.

First Holding:

Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.

Authority:

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

[Cf.] People v. Cleveland (2004) 32 Cal.4th 704, 768

Second Holding:

When a trial court does not orally impose discretionary restitution and parole revocation fines under sections 1202.4 and 1202.45 and the prosecution does not object, as here, the prosecution forfeits any objection on appeal and the fines or fees must be stricken.

Authority:

People v. Tillman (2000) 22 Cal.4th 300, 302–303

Third Holding:

When a defendant has been convicted of certain listed offenses, including any crime that requires sex offender registration pursuant to section 290(c) at the time of sentencing the trial court shall consider issuing an order restraining the defendant from any contact with a victim of the crime. It was error to include Jane Doe in the protective order because she was not a victim of the crime, and even as a witness there was no indication that the defendant had made threats toward her within the meaning of section 136.2(i)(2).

Authority:

PEN 136.2(i)(1)

PEN 136.2(i)(2)

People v. Walts (2025) 112 Cal.App.5th 127, 143 [The amendment to section 136.2(i)(1) reflects that the Legislature intended that protective orders should only be available for any person who is a victim of any one of the specifically enumerated crimes under section 136.2(i)(1) for which the defendant has been convicted]

Fourth Holding:

The defendant should have objected to the protective order in trial court, thus forfeiting the issue, but we will nonetheless consider his argument to the extent that it raises a question of law.

Authority:

People v. Walts (2025) 112 Cal.App.5th 127, 140

Fifth Holding:

We review the trial court’s result, not its rationale.

Authority:

People v. Zapien (1993) 4 Cal.4th 929, 976

Probation Parole PRCS, Standard of review

Case 000045

Posted on by Gary McCurdy

Error and/or relief

On appeal, the minor contends that the electronics search conditions should be stricken as unreasonable under People v. Lent (1975) 15 Cal.3d 481 or, at a minimum, modified as unconstitutionally overbroad. He also maintains that the association condition should be modified due to its overbreadth. We find the electronics search conditions reasonable under Lent, but we accept the People’s concession that they are unconstitutionally overbroad. We see no constitutional infirmity in the association condition. We therefore remand the matter to the trial court to strike or modify the electronics search condition. Remanded to modify terms 9 and 16

First Holding:

Under Lent, a condition of probation will not be held invalid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality. The Lent test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term. We find dispositive the first element of Lent’s test, which asks whether the probation condition has no relationship to the conviction. Here, the record supports an implied finding that there was a relationship between the offense and minor’s use of an electronic device and the internet.

Authority:

People v. Lent (1975) 15 Cal.3d 481, 486

People v. Olguin (2008) 45 Cal.4th 375, 379

People v. Patton (2019) 41 Cal.App.5th 934, 945

Second Holding:

The failure to object to a probation condition as unreasonable under Lent generally forfeits the contention on appeal. Only facial constitutional challenges to a probation condition that are capable of correction without reference to the particular sentencing record are exempt from the general forfeiture rule.

Authority:

People v. Welch (1993) 5 Cal.4th 228, 234-235, 237

In re Sheena K. (2007) 40 Cal.4th 875, 887

Third Holding:

The court may nevertheless exercise its discretion to consider the merits of both his Lent and constitutional claims in light of the People’s concession and the minor’s alternative contention that his trial counsel’s failure to make an adequate objection constituted ineffective assistance.

Authority:

People v. Mattson (1990) 50 Cal.3d 826, 854 [considering issues not raised in trial court to forestall later claim of constitutionally inadequate representation]

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [appellate courts may reach unpreserved questions]

Fourth Holding:

In applying the Lent test, we review the conditions imposed for abuse of discretion.

Authority:

In re Ricardo P. (2019) 7 Cal.5th 1113, 1118

People v. Salvador (2022) 83 Cal.App.5th 57, 62, 64

Fifth Holding:

We review constitutional overbreadth questions de novo

Authority:

In re P.O. (2016) 246 Cal.App.4th 288, 297

Sixth Holding:

The electronic search conditions here were overly broad.

Authority:

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355 [If a probation condition serves to rehabilitate and protect public safety, the condition may impinge upon a constitutional right otherwise enjoyed by the probationer, who is not entitled to the same degree of constitutional protection as other citizens.]

In re Sheena K. (2007) 40 Cal.4th 875, 890 [A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.]

In re E.O. (2010) 188 Cal.App.4th 1149, 1153 [The essential question in an overbreadth challenge is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement]