Tag Archives: Forfeiture

Appellate Principles, Discretion, Sentencing, Standard of review

Case 000522

Posted on by Gary McCurdy

Error and/or relief

In the sentencing of the defendant on two separate cases, the court erred in believing that consecutive terms were mandatory.

First Holding:

When considering a trial court’s sentencing decision, we apply an abuse of discretion standard of review. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion” of the sentencing court. A trial court cannot properly exercise its informed discretion if it is unaware of its discretionary authority at the time a decision is being made. A trial court generally has discretion to impose consecutive or concurrent sentences. An exception applies when a sentence is imposed under section 667(c)(8), which requires a strike sentence to run consecutive to any other sentence that the defendant is already serving, unless otherwise provided by law. From its comments at sentencing, it is clear the trial court believed consecutive sentences were required under this provision because it was imposing a strike sentence on the 2024 robbery.

Authority:

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

People v. Hilburn (2023) 93 Cal.App.5th 189, 205

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

People v. Panozo (2021) 59 Cal.App.5th 825, 837

People v. McDaniels (2018) 22 Cal.App.5th 420, 42

Second Holding:

Forfeiture does not apply to claims that the trial court misapprehended its sentencing discretion.

Authority:

People v. Panozo (2021) 59 Cal.App.5th 825, 840

Third Holding:

The defendant was convicted by jury of a robbery he committed in 2024. When he committed this offense, he was on probation for another robbery, for which he was convicted in 2021. At the preliminary hearing for the 2024 robbery, the court revoked his probation for the 2021 robbery. At sentencing on both robberies, the court sentenced the defendant to four years for the 2024 robbery, and a consecutive term of one year for the 2021 robbery. In making its order, the court expressed its belief that consecutive sentencing was required under Penal Code section 667.

A trial court generally has discretion to impose consecutive or concurrent sentences. An exception applies when a sentence is imposed under section 667(c)(8), which requires a strike sentence to run consecutive to any other sentence that the defendant is already serving, unless otherwise provided by law. From its comments at sentencing, it is clear the trial court believed consecutive sentences were required under this provision because it was imposing a strike sentence on the 2024 robbery.

When a defendant is placed on probation and imposition of sentence is suspended, as in this defendant’s case, the defendant does not begin serving a sentence until a sentence is later imposed after revocation of probation and the defendant is delivered into custody for that offense. Thus when the court sentenced the defendant for the 2024 robbery, he was not already serving a sentence on the 2021 robbery case. This is not the same situation as in Gonzalez, where the defendant was already serving a sentence because he had been sentenced for violating his probation orders and he was still awaiting trial on the new offense.

Authority:

PEN 667(c)(8)

PEN 669(a)

People v. Rosbury (1997) 15 Cal.4th 206, 210–211

People v. Gonzalez (2019) 39 Cal.App.5th 115, 121

Fourth Holding:

Where a sentencing court was not fully aware of the scope of its discretionary powers, the appropriate remedy is to remand for resentencing unless the record clearly indicates that the court would have reached the same conclusion even it had been aware it had such discretion. It is apparent from the court’s comments in the record that it did not intend to impose the maximum possible sentence, as it imposed the low term and struck a prior serious felony. The case should be remanded for the trial court to exercise its discretion whether to impose consecutive or concurrent sentences.

Authority:

People v. Superior Court (Guevara) (2025) 18 Cal.5th 838, 878, fn. 16

People v. Leon (2016) 243 Cal.App.4th 1003, 1026 [relief from a trial court’s misunderstanding of its sentencing discretion is available on direct appeal when such misapprehension is affirmatively demonstrated by the record]

Appellate Principles, Effective assistance of counsel, Evidence, Fifth Amendment, Sentencing

Case 000517

Posted on by Gary McCurdy

Error and/or relief

It was error to include in the restitution order reimbursement for expenses incurred by the victim that were not caused by the defendant’s criminal conduct.

First Holding:

The defendant concedes he forfeited his Fifth Amendment claim by failing to object during trial on this ground to the admission of the pretext call evidence, the prosecutor’s arguments and questions on his silence, and the adoptive admission jury instruction. We elect to address the issue in order to forestall a petition for writ of habeas corpus based on a claim of ineffective assistance of counsel.

Authority:

People v. Mora and Rangel (2018) 5 Cal.5th 442, 471 [failure to object to jury instruction forfeits appellate claim of error]

People v. Adanadus (2007) 157 Cal.App.4th 496, 512 [requiring timely objection to preserve prosecutorial misconduct claim]

People v. Barnum (2003) 29 Cal.4th 1210, 1224-1225, fn. 2 [claim based on privilege against self-incrimination may be forfeited]

People v. Williams (2000) 78 Cal.App.4th 1118, 1126

Second Holding:

The police arranged a pretext call between the victim and the defendant, during which the defendant did not deny the victim’s accusations. That evidence was presented at trial as an adoptive admission. The defendant argued that it was a violation of his rights under the Fifth Amendment, because he had previously been advised by counsel to make no statements to the victim. The People’s emphasis on the presence or absence of government coercion fails to account for the rationale underlying adoptive admissions, which is that the natural reaction of an innocent man to an untrue accusation is to enter a prompt denial.

That inference is only justified where the person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution.

But advice of counsel is one form of restraint that might bar a free response by a person accused of a crime and therefore may not give rise to an inference of acquiescence or guilty consciousness as an adoptive admission. An accused’s express invocation of the right to remain silent on the advice of counsel is precisely a circumstance that may lend itself to the inference that the accused’s silence in the face of accusations stems merely from the assertion of that right.

[Gary note on the rest of the story–the appellate court proceeded to conclude that under the actual facts of the case, it was not error to allow the evidence as an adoptive admission.  I have included this holding merely for its educational value, though it did not assist this defendant.]

Authority:

People v. Simmons (1946) 28 Cal.2d 699, 712, 715–716

People v. Riel (2000) 22 Cal.4th 1153, 1189

Third Holding:

A victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime. The trial court’s discretion in setting the amount of restitution is broad, and it may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole. The hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution, and no particular kind of proof evidence is required.

Authority:

PEN 1202.4

People v. Baker (2005) 126 Cal.App.4th 463, 470

People v. Lockwood (2013) 214 Cal.App.4th 91, 96

Fourth Holding:

The restitution power conferred by section 1202.4 in cases where a criminal defendant is sentenced to prison is not as broad as the court’s power to order restitution as a condition of probation, which need only be reasonably related to the crime of which the defendant was convicted or to future criminality. The victim’s mother’s expense incurred for paying for the defendant’s trip to a foreign country was entirely unrelated to the defendant’s criminal conduct, as was the victim’s rideshare share expenses on the day of the crime. Those portions of the restitution order must be stricken.

Authority:

People v. Martinez (2017) 2 Cal.5th 1093, 1101

Abstracts and Minutes, Appellate Principles, Effective assistance of counsel, Elements of crime, Standard of review, Sufficiency of and substantial evidence

Case 000512

Posted on by Gary McCurdy

Error and/or relief

Though we find the evidence was sufficient and we affirm the jury trial convictions, there are errors in the indeterminate abstract of judgment insofar as it incorrectly reflects that two section 12022.53(b) personal use enhancements were found true. The jury found only one to be true. Also, the determinate abstract of judgment reflects the incorrect number of custody credits. There were other errors as well, but the matter must be remanded for further clarity on what should be included in the abstract of judgment.

First Holding:

This court’s role in reviewing a challenge to the sufficiency of evidence is limited. When considering a claim of insufficient evidence, we examine the entire record to assess whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Thus, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. Conflicts and even testimony that is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.

We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. A reversal for insufficient evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the jury’s verdict. Additionally, when undertaking such review, our opinion that the evidence could reasonably be reconciled with a finding of innocence or a lesser degree of crime does not warrant a reversal of the judgment.

Authority:

People v. Smith (2005) 37 Cal.4th 733, 738

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

People v. Hill (1998) 17 Cal. 4th 800, 849

Second Holding:

Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot. A thing is in the immediate presence of a person, in respect to robbery, which is so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.

Authority:

PEN 211

People v. Cooper (1991) 53 Cal.3d 1158, 1165

People v. Hayes (1990) 52 Cal.3d 577, 626-627

Third Holding:

An act may be robbery even if the property had been taken after the victim died. While it may be true that one cannot rob a person who is already dead when one first arrives on the scene, one can certainly rob a living person by killing that person and then taking his or her property.

Authority:

People v. Navarette (2003) 30 Cal.4th 458, 499

Fourth Holding:

Defendant’s ineffective assistance claim is forfeited for failure to support his argument with analysis and citation to evidence in the appellate record.

Authority:

Rules of Court rule 8.204(a)(1)(B)(C)

People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument is forfeited if it is raised in a perfunctory fashion without any supporting analysis and authority]

Fifth Holding:

[GARY NOTE: The court cited no authority for its order directing correction of the abstract of judgment, likely because the need for correction of material errors is simply obvious. But the court could have cited a number of cases, a few of which I have laid out.]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

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

Abstracts and Minutes, Effective assistance of counsel, Sentencing

Case 000510

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected to reflect the correct sentence to 27 years rather than the 27 years two months as shown, and to reflect that the term imposed for one count is one-third the middle term.

First Holding:

A reviewing court may order correction of an abstract of judgment that does not accurately reflect the oral pronouncement of judgment by the sentencing court.

Authority:

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

Second Holding:

As a general rule, only claims properly raised and preserved by the parties are reviewable on appeal. Our Supreme Court adopted this forfeiture rule to reduce the number of errors committed in the first instance], and the number of costly appeals brought on that basis. In the context of criminal sentencing, this forfeiture rule applies to claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 852

People v. Scott (1994) 9 Cal.4th 331, 354

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

Third Holding:

At resentencing, the defendant did not ask the trial court to strike the prior serious felony enhancements or argue that imposing both the firearm enhancement and the upper term on count 16 would result in an impermissible dual use of facts. The record contains no sentencing brief; and both defense counsel and the defendant himself responded in the negative when the trial court asked if they wished to be heard at the resentencing hearing. To preserve his claims, the defendant was required to object at resentencing. Because he did not do so, his current appellate contentions are forfeited.

Authority:

People v. Scott (1994) 9 Cal.4th 331,353

People v. Coleman (2024) 98 Cal.App.5th 709, 723-725

Fourth Holding:

If the defendant believes that evidence outside the record would support his claim of ineffective assistance of counsel, the proper remedy would be a petition for a writ of habeas corpus.

Authority:

People v. Snow (2003) 30 Cal.4th 43, 111

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

Sentencing, Sixth Amendment

Case 000476

Posted on by Gary McCurdy

Error and/or relief

The imposition of the upper term of imprisonment violated the defendant’s Sixth Amendment right to a jury trial and was unauthorized under section 1170, subdivision (b) as he did not expressly waive the right as to the aggravating circumstances relied on by the sentencing court to justify imposing the upper term nor stipulate to their truth.

First Holding:

The court may impose a sentence exceeding the middle term only if there are circumstances in aggravation of the crime that justify the upper term. The facts underlying those aggravating circumstances must 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.

Authority:

PEN 1170

Second Holding:

The Sixth Amendment entitles a defendant 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:

People v. Lynch (2024) 16 Cal.5th 730, 755–767

People v. Wiley (2025) 17 Cal.5th 1069, 1082, 1086

Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.]

Third Holding:

An express waiver of a federally-derived jury trial right is required even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed that the defendant had waived or intended to waive the right to a jury trial. That is, the right to a jury trial on aggravating circumstances, which is guaranteed by the federal constitution, may not be forfeited without an express waiver by the defendant.

Authority:

People v. French (2008) 43 Cal.4th 36, 47

Fourth Holding:

Here, appellant did not expressly waive his right to a jury trial on the aggravating circumstances and therefore has not surrendered his claim. No aggravating circumstances were pled in the complaint; as such, appellant’s plea, and his corresponding waiver of his constitutional rights, did not encompass any aggravating circumstances. A defendant does not waive his right to a jury trial on aggravating sentencing factors by pleading no contest to substantive offenses. Even if forfeiture did apply, we would nevertheless exercise our discretion to reach the issue. Such discretionary review is typical when a forfeited claim involves an important issue of constitutional law or a substantial right.

Authority:

People v. French (2008) 43 Cal.4th 36, 50

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]

In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7

Fifth Holding:

We cannot determine from this record beyond a reasonable doubt that a jury would have found every aggravating factor relied on by the trial court properly proven. Several of the factors relied on by the sentencing court were fact-specific, which a reasonable jury could disagree on. Moreover, the sentencing court relied on factual recitations in the police reports, which counsel did not stipulate to admitting into evidence for the purpose of establishing aggravating factors, and which contained hearsay. Additionally, we cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 775 [To the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court]

Sixth Holding:

One court has held that the rule 4.421(c) residual clause [which was relied on in part by the trial court here, and lists as a potential factor in aggravation “Any other factors statutorily declared to be circumstances in aggravation or that reasonably relate to the defendant or the circumstances under which the crime was committed” exceeds the legislative delegation in section 1170.3 and thus violates the separation of powers clause of the California Constitution. It reasoned that because the 4.421(c) residual clause specifies no criteria for its use in jury factfinding, it supplies prosecutors unrestricted authority to make fundamental policy decisions on an ad hoc basis by letting prosecutors draft aggravating factors to submit to the jury not based on any statute or rule in order to expose the defendant to increased penalty. The court held that rule 4.421(c) is no longer appropriate under the current determinate sentencing law.

Authority:

Lovelace v. Superior Court (2025) 108 Cal.App.5th 1081, 1099

Sentencing

Case 000475

Posted on by Gary McCurdy

Error and/or relief

We remand to the trial court with directions to clarify its section 654 findings for count 3 (false imprisonment). If the trial court clarifies on remand that section 654 applies, we direct it to modify the judgment to stay the sentence for count 3 and amend the abstract of judgment accordingly. We also direct the court to correct the determination of credit for time served.

First Holding:

Section 654’s applicability is reviewable on appeal even if, as here, the issue was not raised with the trial court.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17

Second Holding:

Section 654(a) protects against multiple punishment where the crimes arise from either (1) the same act or omission or (2) an indivisible course of conduct united by a single intent and objective. In the absence of any reference to PC 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective subject to substantial evidence review.

Authority:

People v. Harrison (1989) 48 Cal.3d 321, 335

People v. Tarris (2009) 180 Cal.App.4th 612, 626

Third Holding:

The court made comments suggesting a section 654 stay applied to the false imprisonment term at the original sentencing but was silent on the matter at resentencing. The trial court originally sentenced the defendant to a total prison term of more than 20 years. At the sentencing hearing, the court said it would impose and stay the middle-term sentence for count 3 (false imprisonment) primarily based on the fact that all of these facts are essentially running together, that there was some overlap with the other counts, as it viewed the false imprisonment as being somewhat encapsulated in the rape, witness intimidation, and domestic violence.

A few months later, the court recalled the sentence, believing the defendant had been given too harsh a sentence, and resentenced the defendant to nearly five years less. At that resentencing hearing, there was no mention of the applicability of section 654. In light of the uncertainty regarding what the trial court intended regarding a finding under section 654, it appears appropriate under these circumstances to remand the matter to permit the trial court to clarify.

Authority:

People v. Garcia (1997) 59 Cal.App.4th 834, 839

Fourth Holding:

The defendant is entitled to one day additional credit, because the correct calculation must include the date of arrest. Further, it is the trial court’s responsibility to calculate all credit for time served through the date of the resentencing, and the duty cannot be delegated to the custodial facility personnel.

Authority:

eople v. Kennedy (2012) 209 Cal.App.4th 385, 394

People v. Buckhalter (2001) 26 Cal.4th 20, 29

Appellate Principles, Fines and fees, Sentencing

Case 000467

Posted on by Gary McCurdy

Error and/or relief

The trial court imposed a restitution fine of $400, believing that $400 was the minimum. The appellate court revised the judgment to impose the intended minimum restitution fine of $300.

First Holding:

The minimum restitution fine for a defendant convicted of a felony is $300.

Authority:

PEN 1202.4(b)(1)

Second Holding:

We may review an asserted legal error in sentencing for the first time on appeal even if the defendant did not object in the trial court. When sentencing error does not require additional evidence, further fact finding, or further exercise of discretion, the appellate court may modify the judgment appropriately and affirm it as modified.

Authority:

People v. McCullough (2013) 56 Cal.4th 589, 594

People v. Haskin (1992) 4 Cal.App.4th 1434, 1441