Tag Archives: Forfeiture

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]

Appellate Principles, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000024

Posted on by Gary McCurdy

Error and/or relief

GARY note: The winning issue was relatively simple, but in affirming the overall conviction, the court shared several principles I thought worthy of reporting, even though many did not bear on the dual use of enhancements.

For the attempted murder of the victim in count 3, the trial court should have stayed the three-year enhancement for great bodily injury under section 12022.7 because it also imposed a term of 25 years to life under section 12022.53, subdivision (d), for personally and proximately causing great bodily injury with a firearm. We will modify the judgment so that it accords with the law.

First Holding:

Where multiple prison terms are improperly imposed as in this case, the reviewing court may modify the sentence to stay imposition of the sentence

Authority:

People v. Hunter (1986) 184 Cal.App.3d 1531, 1537

Second Holding:

It is improper to impose the enhancement under Penal Code section 12022.7 in addition to enhancement under section 12022.53(d), and it must be stayed.

Authority:

People v. Garcia (2017) 7 Cal.App.5th 941, 949

People v. Hunter (1986) 184 Cal.App.3d 1531, 1537

Third Holding:

If an error violates a defendant’s federal constitutional rights, reversal is required unless the error was harmless beyond a reasonable doubt.

Authority:

People v. Hernandez (2011) 51 Cal.4th 733, 745

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

People v. Canizales (2019) 7 Cal.5th 591, 615

People v. Concha (2010) 182 Cal.App.4th 1072, 1087

Fourth Holding:

A harmless error analysis may include consideration of implausible defense testimony and closing argument to the jury.

Authority:

People v. Fayed (2020) 9 Cal.5th 147, 195

People v. Zambrano (2004) 124 Cal.App.4th 228, 243

People v. Flores (2016) 2 Cal.App.5th 855, 881

Fifth Holding:

With respect to errors alleged regarding the conviction of the murder, the error can be found to be harmless beyond a reasonable doubt even under the Chapman standard, as the court concludes in this instance.

Authority:

People v. Salas (2006) 37 Cal.4th 967, 983-984

People v. Garcia (2001) 25 Cal.4th 744, 755

Wright v. West (1992) 505 U.S. 277, 296

Hanrahan v. Thieret (7th Cir. 1991) 933 F.2d 1328, 1340

Phelps v. Duckworth (7th Cir. 1985) 772 F.2d 1410, 1413-1414

Sixth Holding:

The standard of review on sufficiency of evidence is whether any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt, viewing evidence in light most favorable to prosecution.

Authority:

People v. Zamudio (2008) 43 Cal.4th 327, 357

Seventh Holding:

Substantial evidence is evidence that is reasonable, credible, and of solid value.

Authority:

People v. Zamudio (2008) 43 Cal.4th 327, 357

Eighth Holding:

A conviction for attempted murder requires proof that the defendant intended to kill the victim and proof of a direct but ineffectual act toward accomplishing that goal. But a finding of willfulness, deliberation, and premeditation requires more than a showing of an intent to kill.

Authority:

People v. Medina (2019) 33 Cal.App.5th 146, 153

People v. Gomez (2018) 6 Cal.5th 243, 282

Ninth Holding:

When reviewing a claim the trial court erred in denying a motion for a judgment of acquittal (sec. 1118.1) that was made at the close of the prosecution’s case-in-chief, the appellate court considers the evidence as it stood at that point,

Authority:

People v. Cole (2004) 33 Cal.4th 1158, 1212-1213

Tenth Holding:

It is the appellant’s burden to demonstrate error based on the appellate record and with meaningful legal analysis with adequate citation to the record.

Authority:

People v. Dauterman (2024) 104 Cal.App.5th 603, 609

Eleventh Holding:

Arguments not raised below are forfeited.

Authority:

People v. Richardson (2008) 43 Cal.4th 959, 1022-1023

Twelfth Holding:

The court conducts de novo review to detemine if jury miscontrued or misapplied the law.

Authority:

People v. Shaw (2002) 97 Cal.App.4th 833, 838

Thirteenth Holding:

Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 646

Fourteenth Holding:

Errors in the abstract of judgment may be corrected.

Authority:

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

 

Sentencing, Sixth Amendment

Case 000018

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the Sixth Amendment by imposing upper term sentences; the issue was not forfeited, and as the People concede, the court erred and the error was not harmless.

First Holding:

The Sixth Amendment right to jury trial applies to any factor that may increase the sentence or range of sentence. In Wiley, our Supreme Court addressed section 1170(b)(3)’s prior conviction exception in light of the holding in Erlinger. To avoid any application that would set section 1170(b)(3) at odds with the high court’s constitutional interpretation, the court interpreted] section 1170(b)(3)’s procedure in a manner that is coextensive with high court dictates. Thus, in accordance with Erlinger, 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

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

People v. Wiley (2025) 17 Cal.5th 1069, 1086

Second Holding:

Failure to object generally results in forfeiture and can apply to constitutional claims.

Authority:

People v. Stowell (2003) 31 Cal. 4th 1107, 1114 [The forfeiture doctrine is a well-established procedural principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court]

People v. Scott (2015) 61 Cal.4th 363, 406 [A party in a criminal case may not, on appeal, raise claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices if the party did not object to the sentence at trial]

People v. McCullough (2013) 56 Cal.4th 589, 593 [a constitutional right may be forfeited by failure to assert the right before the tribunal with jurisdiction to determine it]

People v. Achane (2023) 92 Cal.App.5th 1037

Third Holding:

A claim of violation of Sixth Amendment right to trial is not forfeited by lack of objection as it requires express consent in open court by both the defendant and the defense attorney.

Authority:

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

Fourth Holding:

An appellate court can exercise discretion to address a forfeited issue.

Authority:

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party]

Fifth Holding:

Unless stipulated to by the defendant, before the factors in aggravation may be used to justify imposition of the upper term, the defendant has the right to a jury trial to determine whether the factors have been proved beyond a reasonable doubt that the defendant has engaged in violent conduct that indicates a serious danger to society or that defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness. 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, 1086

People v. Lynch (2024) 16 Cal.5th 730, 776