Tag Archives: Forfeiture

Effective assistance of counsel, Sixth Amendment, Standard of review

Case 000464

Posted on by Gary McCurdy

Error and/or relief

We conclude the prosecutor prejudicially misstated the law in closing arguments and defense counsel was ineffective for failing to object. We therefore reverse the judgment as to the murder conviction and accompanying sentence. The prosecutor prejudicially misstated the law during closing arguments, andt defense counsel’s failure to object to the prosecutor’s misstatements constituted ineffective assistance of counsel. However, because we additionally conclude that substantial evidence supported the conviction, the defendant may be retried.

First Holding:

The defendant forfeited any objection to the jury instructions by failing to object in the trial court. Generally, failure to object to a jury instruction forfeits a claim of error on appeal. Generally, a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety. The defendant’s failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct. The defendant’s claims are forfeited.

Authority:

People v. Mora and Rangel (2018) 5 Cal.5th 442, 471

People v. Centeno (2014) 60 Cal.4th 659, 674

Second Holding:

The defendant also asserts that his trial attorney’s failure to object to the instruction or the prosecutor’s argument constituted ineffective assistance of counsel. We therefore address the underlying claims of error in the context of ineffective assistance of counsel. The Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee a criminal defendant the right to the effective assistance of counsel at trial. The ultimate purpose of this right is to protect the defendant’s fundamental right to a trial that is both fair in its conduct and reliable in its result.

Authority:

People v. Lopez (2008) 42 Cal.4th 960, 966 [a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent and conscientious advocate]

In re Lucas (2004) 33 Cal.4th 682, 721

Strickland v. Washington (1984) 466 U.S. 668, 687

People v. Ledesma (1987) 43 Cal.3d 171, 215

In re Long (2020) 10 Cal.5th 764, 773

Third Holding:

To prevail on his claim, the defendant must show that defense counsel’s omission fell below an objective standard of reasonableness in light of the professional norms prevailing when the representation took place. The defendant must also show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case. It is enough to show a probability sufficient to undermine confidence in the outcome.

The standard for judging counsel’s representation is a most deferential one. We must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance because it is all too easy to conclude that a particular act or omission of counsel was unreasonable in the harsh light of hindsight. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. Accordingly, we must reconstruct the circumstances of counsel’s challenged conduct, and evaluate the conduct from counsel’s perspective at the time.

Authority:

Strickland v. Washington (1984) 466 U.S. 668, 688, 689, 693-694

In re Long (2020) 10 Cal.5th 764, 773-774

Fourth Holding:

Where the prosecutor is alleged to have misstated the law to the jury, this constitutes error only if (1) the prosecutor misstated the law, and (2) there is a reasonable likelihood the jury understood or applied the prosecutor’s remarks in an improper or erroneous manner. We objectively examine how a reasonable juror would likely interpret the prosecutor’s remarks, bearing in mind that we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.

Authority:

People v. Collins (2021) 65 Cal.App.5th 333, 340

Fifth Holding:

Where the prosecutor is alleged to have misstated the law to the jury, this constitutes error only if (1) the prosecutor misstated the law, and (2) there is a reasonable likelihood the jury understood or applied the prosecutor’s remarks in an improper or erroneous manner. We objectively examine how a reasonable juror would likely interpret the prosecutor’s remarks, bearing in mind that we do not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.

Authority:

People v. Collins (2021) 65 Cal.App.5th 333, 340

Sixth Holding:

Defense counsel did not object to the prosecutor’s repeated misstatements of the law. In general, if the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim on appeal must be rejected.

Moreover, because, in general, it is inappropriate for an appellate court to speculate as to the existence or nonexistence of a tactical basis for a defense attorney’s course of conduct when the record on appeal does not illuminate the basis for the attorney’s challenged acts or omissions, a claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct. Additionally, the decision facing counsel in the midst of trial over whether to object to comments made by the prosecutor in closing argument is a highly tactical one and a mere failure to object to evidence or argument seldom establishes counsel’s incompetence.

Here, however, we are constrained to conclude that there could be no satisfactory explanation for defense counsel’s failure to object to the prosecutor’s repeated misstatements of the law during closing arguments. The defendant has established that defense counsel’s failure to object fell short of prevailing professional standards of reasonableness. We also conclude that he has demonstrated a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Authority:

People v. Wilson (1992) 3 Cal.4th 926, 936

People v. Centeno (2014) 60 Cal.4th 659, 675

People v. Stratton (1988) 205 Cal.App.3d 87, 93

Defenses, Pleading

Case 000457

Posted on by Gary McCurdy

Error and/or relief

The conviction for making a criminal threat must be reversed because the charge is barred by the statute of limitations.

First Holding:

The defendant did not raise the statute of limitations issue below. However, where the charging document indicates on its face that the action is time-barred, a person convicted of a charged offense may raise the statute of limitations at any time.

Authority:

People v. Sedillo (2015) 235 Cal.App.4th 1037, 1050–1051

Second Holding:

The applicable statute of limitations is three years. In both the complaint and information, the defendant was charged with making a criminal threat between March 31, 1999, and March 30, 2004. However, the prosecution commenced, at the earliest, on December 2, 2022, when the arrest warrant was issued. There are no facts alleged in the accusatory pleading showing that the prosecution is not barred by the statute of limitations. Therefore, as the statute of limitations ran in 2007 but the prosecution was not commenced until 2022, the criminal threat charge was time-barred and the defendant’s conviction must be reversed.

Authority:

PEN 17

PEN 422

PEN 801

PEN 804

People v. Meza (2019) 38 Cal.App.5th 821, 825 [The statute of limitations completely bars prosecution.]

People v. Sedillo (2015) 235 Cal.App.4th 1037, 1048 [An accusatory pleading must allege facts showing that the prosecution is not barred by the statute of limitations]

Appellate Principles, Discretion, Duty of the court, Fines and fees, Probation Parole PRCS, Sentencing, Standard of review

Case 000454

Posted on by Gary McCurdy

Error and/or relief

Though we find that a condition of probation that requires the defendant participate and complete any counseling, rehabilitation, or treatment program deemed appropriate by the probation officer was not an improper delegation of the court’s authority under the separation of powers doctrine, it was improper to impose as a condition of probation that the defendant participate at his own expense.

The challenged probation condition should be modified to delete the portion of the condition requiring defendant to be responsible for the payment of the costs/fees of any counseling or rehabilitation/treatment program. The court is directed to issue a separate order for the payment of such costs and fees. Before the court may order defendant to pay any or all costs associated with his probation, it must make an inquiry and determination as to his ability to pay and determine the amount of payment.

First Holding:

A trial court may order a defendant to pay for reasonable costs of probation; however, such costs are collateral and their payment cannot be made a condition of probation. Instead, the court must issue a separate order for the payment of such costs. Moreover, before ordering a defendant to pay costs of probation, the court must make an inquiry and determination of the defendant’s ability to pay and the amount of payment.

Authority:

PEN 1203.1b(a)

Brown v. Superior Court (2002) 101 Cal.App.4th 313, 321-322

Second Holding:

Though we find there was no improper delegation, the defendant’s claim that the condition of probation is an improper delegation of the court’s authority under the separation of powers doctrine has not been forfeited for lack of objection, because it raises a pure question of law.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 888

People v. Mendez (2013) 221 Cal.App.4th 1167, 1172

Third Holding:

A trial court has broad discretion to impose probation conditions to foster rehabilitation of the defendant and to protect the public. Further, the court has authority to empower the probation department with authority to supervise the probation conditions. We review a constitutional challenge to a probation condition de novo.

Authority:

PEN 1203.1(j)

People v. Carbajal (1995) 10 Cal.4th 1114, 1120

People v. Kwizera (2000) 78 Cal.App.4th 1238, 1240

In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143

Fourth Holding:

A trial court is governed by the separation of powers doctrine. The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution. Although the separation of powers doctrine does not prohibit one branch from taking action that might affect another, the doctrine is violated when the actions of one branch defeat or materially impair the inherent functions of another. Separation of powers does not mean an entire or complete separation of powers or functions, which would be impracticable, if not impossible.

Authority:

Cal. Const., art. III, sec. 3

In re D.N. (2022) 14 Cal.5th 202, 212

Fifth Holding:

By leaving key determinations to be decided ad hoc, a vague probation condition may result in an impermissible delegation of authority to the probation officer. Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers. While the probation officer may properly specify the details necessary to effectuate the court’s probation conditions, it is the court’s duty to determine the nature of the requirements imposed on the probationer. The court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1358-1359

Sixth Holding:

A probation condition directing that a defendant participate in any treatment program when considering another condition requiring a defendant complete a drug and alcohol assessment and follow through with treatment as prescribed by the probation officer, passes constitutional muster. This is particularly true where the court’s oral comments reflect that the defendant needs treatment for a substance abuse problem. However, where the condition includes the possibility of participation in a residential treatment program, as directed by the probation officer, it is an improper delegation of judicial authority.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 902-903

People v. Cruz (2011) 197 Cal.App.4th 1306, 1310 [Invalidating probation condition that gave the probation officer sole discretion to decide whether the defendant should be subject to GPS monitoring.]

People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355, 1359 [Invalidating condition that provided, “You shall not associate socially, nor be present at any time, at any place, public or private, with any person, as designated by your probation officer.”]

People v. Kwizera (2000) 78 Cal.App.4th 1238,-1241 [Upholding probation condition that directed defendant to “follow such course of conduct as the probation officer may prescribe”]

People v. Penoli (1996) 46 Cal.App.4th 298, 307 [Upholding condition that probation officer may unilaterally select a residential drug rehabilitation program and determine whether defendant successfully completed that program.]

Seventh Holding:

A probation condition should be given the meaning that would appear to a reasonable, objective reader. Following that precept, we read the challenged provision here not as delegating adjudicatory powers to the probation officer but as indicating the court’s advance approval of an agreement that the probation officer might reach with defendant. If a probation officer does interpret the condition in an arbitrary manner, defendant may then file a petition for modification of his probation condition. Thus, the probation condition did not improperly delegate judicial authority to the probation officer.

Authority:

PEN 1203.2(b)(1)

PEN 1203.3

In re D.N. (2022) 14 Cal.5th 202, 211

People v. Olguin (2008) 45 Cal.4th 375, 382

People v. Keele (1986) 178 Cal.App.3d 701, 708 [trial court retains jurisdiction to review probation officer’s actions]

People v. Arevalo (2018) 19 Cal.App.5th 652, 658 [If probation officer interprets probation condition in an arbitrary way, the defendant can file a petition for modification of his probation condition.]

Appellate Principles, Discretion, Duty of the court, Sentencing, Standard of review

Case 000448

Posted on by Gary McCurdy

Error and/or relief

The defendant contends that it was error to proceed to sentencing in the absence of the attorney she retained after counsel was appointed, and that the court abused its discretion when it found that her youth was not a contributing fact. Retained counsel did file a document titled “Limited Scope Substitution of Counsel.” Thereafter, appointed counsel filed a resentencing brief on the defendant’s behalf. The retained attorney did not. At the resentencing hearing, appointed counsel appeared with the defendant. The retained attorney did not appear. We affirm, but the trial court must recalculate the credit for time served.

First Holding:

The trial court did not recalculate the defendant’s custody credits and ordered the California Department of Corrections and Rehabilitation to do the calculation. A trial court must calculate a defendant’s custody credits when resentencing.

Authority:

PEN 2900.1

People v. Buckhalter (2001) 26 Cal.4th 20, 37 [when a trial court resentences a defendant on remand, it must credit him with all actual days he spent in custody, whether in jail or prison, up to that time]

Second Holding:

We review the defendants’s contentions regarding counsel of choice and selection of sentence term under the deferential abuse of discretion standard. A defendant who desires to retain his own counsel is required to act with diligence and may not demand a continuance if he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel at the time of trial.

Authority:

People v. O’Malley (2016) 62 Cal.4th 944, 1004 [trial court has discretion to deny substitution of counsel where it would prejudice the defendant or disrupt the orderly processes of justice]

People v. Blake (1980) 105 Cal.App.3d 619, 623-624

People v. Partida (2005) 37 Cal.4th 428, 435 [appellate review of asserted evidentiary error forfeited where defendant failed to make a timely, specific objection]

Third Holding:

Section 1170(b)(6) does not mandate a presumption in favor of the lower term in every case in which the defendant was under age 26 at the time the crime was committed. Instead, the presumption applies only if the defendant’s youth was a contributing factor in his or her commission of the offense.

Authority:

PEN 1170(b)(6)

People v. Fredrickson (2023) 90 Cal.App.5th 984, 991-992

People v. Carmony (2004) 33 Cal.4th 367, 376-377 [trial court’s sentencing choices reviewed for abuse of discretion]

Fourth Holding:

At oral argument, the defendant contended that the trial court erred in conducting the resentencing hearing without her physical presence. But the defendant failed to raise this contention in her opening brief. Thus, it is forfeited. Forfeiture aside, any error would have been harmless beyond a reasonable doubt based on the record before us.

Authority:

People v. Stanley (1995) 10 Cal.4th 764, 793 [Every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration]

People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [claims not raised in the opening brief are waived]

People v. Velasco (2023) 97 Cal.App.5th 663, 674

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Discretion, Sentencing

Case 000445

Posted on by Gary McCurdy

Error and/or relief

Convicted of both murder and conspiracy to commit that murder, the court should have stayed the sentence for the conspiracy under section 654.

First Holding:

Section 654(a) provides in pertinent part that an act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. The waiver doctrine does not apply to questions involving the applicability of section 654. Errors in the applicability of section 654 are corrected on appeal regardless of whether the point was raised by objection in the trial court or assigned as error on appeal.

Authority:

PEN 654

People v. Hester (2000) 22 Cal.4th 290, 295

Second Holding:

Section 654 precludes multiple punishments for a single act or indivisible course of conduct. Even concurrent sentences on convictions subject to section 654 are prohibited; the sentence on one of the two applicable convictions must be imposed and then stayed. The purpose of section 654 is to insure that a defendant’s punishment will be commensurate with his culpability.

Authority:

People v. Hester (2000) 22 Cal.4th 290, 294

People v. Deloza (1998) 18 Cal.4th 585, 591–592

People v. Latimer (1993) 5 Cal.4th 1203, 1211

Third Holding:

To determine the applicability of section 654, we first consider if the different crimes were completed by a single physical act. If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act—i.e., a course of conduct—do we then consider whether that course of conduct reflects a single intent and objective or multiple intents and objectives.

Authority:

People v. Corpening (2016) 2 Cal.5th 307, 311

Fourth Holding:

If the convictions involve more than one act, the court reaches step two of the section 654 analysis: whether the course of conduct involved multiple intents and objectives. At step two, whether crimes arise from an indivisible course of conduct turns on the perpetrator’s intent and objective. If all of the crimes were merely incidental to, or were the means of accomplishing or facilitating one objective, a defendant may be punished only once. If, however, a defendant had several independent criminal objectives, he may be punished for each crime committed in pursuit of each objective, even though the crimes shared common acts or were parts of an otherwise indivisible course of conduct. Whether a defendant harbored a single intent—and thus a single objective—is a factual question; the applicability of section 654 to settled facts is a question of law.

Authority:

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

People v. Perry (2007) 154 Cal.App.4th 1521, 1525

Fifth Holding:

Because the conspiracy count in this case did not include a broader objective than the commission of the first degree murder, section 654 applied.

Authority:

People v. Dalton (2019) 7 Cal.5th 166, 247

People v. Lewis (2008) 43 Cal.4th 415, 439 [overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919]

People v. Briones (2008) 167 Cal.App.4th 524, 529

People v. Hernandez (2003) 30 Cal.4th 835, 866 [disapproved on other grounds in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32]

People v. Ramirez (1987) 189 Cal.App.3d 603, 615–616

Sixth Holding:

We acknowledge the trial court’s discretion under section 654 to choose which punishment to stay. Nevertheless, we conclude that a remand is unnecessary because the trial court’s decision on which punishment to stay would make no difference to the total sentence for the defendant. In this case, the sentence for the first degree murder count and the conspiracy to commit murder count are the same, 25 years to life. Under these circumstances, we will correct the trial court’s error by modifying the defendant’s sentence to stay the punishment on count 2, the conspiracy to commit murder conviction and the attached enhancements, to comply with section 654.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379

People v. Cortez (1998) 18 Cal.4th 1223, 1237
People v. Hernandez (2003) 30 Cal.4th 835, 870 [disapproved on other grounds in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32]

People v. Calles (2012) 209 Cal.App.4th 1200, 1221

People v. Bey (2025) 108 Cal.App.5th 144, 167

Jurisdiction, Plea bargains, Sentencing

Case: 000442

Posted on by Gary McCurdy

Error and/or relief

The defendant entered into a plea agreement that stipulated the length of his sentence and how it was to be served (a split sentence under Realignment). When he was eventually sentenced, the court deviated from that agreed-on sentence. The defendand appealed. While the appeal was pending, the trial court and parties attempted to modify the judgment in accordance with the plea agreement. Because the defendant was never advised of his right to withdraw his plea if the court chose to not abide by the agreed sentence under section 1192.5, the matter is reversed to allow the defendant to withdraw his guilty plea. The trial court had no jurisdiction to modify the judgment while the appeal was pending.

First Holding:

A plea of guilty or nolo contendere may specify the punishment. Where, as here, the plea is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.

If the court approves of the plea, it shall inform the defendant prior to the making of the plea that (1) its approval is not binding, (2) it may, at the time set for the hearing on the application for probation or pronouncement of judgment, withdraw its approval in the light of further consideration of the matter, and (3) in that case, the defendant shall be permitted to withdraw the plea if the defendant desires to do so. The advisement required by section 1192.5(c) was not given here. When the trial court fails to give a section 1192.5 admonition, the defendant’s failure to object at sentencing does not waive his claim on appeal.

Authority:

PEN 1192.5

People v. Silva (2016) 247 Cal.App.4th 578, 589

People v. Walker (1991) 54 Cal.3d 1013, 1024–1025 [overruled on other grounds by People v. Villalobos (2012) 54 Cal.4th 177, 183]

Second Holding:

The three-year prison sentence originally imposed is more severe than the agreed-upon sentence of two years in county jail with one year of mandatory supervision. There is a qualitative difference between an inmate in actual prison custody and a felon released in the community under mandatory supervision.

Authority:

People v. Segura (2008) 44 Cal.4th 921, 935 [length of jail term is significant]

People v. Silva (2016) 247 Cal.App.4th 578, 591–592 [30-day jail sentence consecutive to agreed-upon sentence allowed defendant to withdraw plea]

Wofford v. Superior Court (2014) 230 Cal.App.4th 1023, 1037

Third Holding:

The filing of a valid notice of appeal vests jurisdiction of the cause in the appellate court until determination of the appeal and issuance of the remittitur. Because an appeal divests the trial court of subject matter jurisdiction, the court lacks jurisdiction to vacate the judgment or make any order affecting it. Thus, action by the trial court while an appeal is pending is null and void. The purported changes to the sentence that were made while appeals in this matter were pending are thus void.

Authority:

People v. Alanis (2008) 158 Cal.App.4th 1467, 1472-1473

Fourth Holding:

While an appeal is pending, a trial court has inherent power to correct clerical errors in its records, including correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered. Here the court had the power to correct the erroneous section designation in the original abstract. But it did not have the power to change the sentence while the appeals were pending. Under such circumstances, the proper procedure is to reverse the void judgment rather than dismiss the appeal.

Authority:

People v. Alanis (2008) 158 Cal.App.4th 1467, 1473-1474

Abstracts and Minutes, Fines and fees, Sentencing

Case: 000385

Posted on by Gary McCurdy

Error and/or relief

The minute order and abstract of judgment erroneously indicates that the court imposed the parole revocation fine (PEN 1202.45) on the defendant, who was sentenced to a term of life without the possibility of parole. Because the parole revocation fine cannot be imposed on person sentence to LWOP, it must be stricken.

First Holding:

The trial court should not have imposed the challenged fines and respectfully request the court modify the judgment by striking them. The abstract must be corrected.

Authority:

PEN 1202.45

People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1181–1182, 1185 [Section 1202.45 indicates that it is applicable to a person .whose sentence includes a period of parole]

Second Holding:

The defendant contends he is entitled to an additional day of actual presentence custody credit. The People concede he is correct. Although the defendant did not object at trial, forfeiture of sentencing only occurs when the alleged error involved an exercise of discretion. Because the calculation of credits is purely mathematical, his failure to object at trial does not preclude this court from correcting the error.

Authority:

People v. Aguirre (1997) 56 Cal.App.4th 1135, 1139

Elements of crime, Sentencing, Sufficiency of and substantial evidence

Case: 000383

Posted on by Gary McCurdy

Error and/or relief

Though we find sufficient evidence to support the convictions, we conclude the evidence does not support the challenged large quantity aggravating circumstances attached to three of the counts.. There were several errors in the abstract of judgment, but they were corrected after the opening brief was filed.

First Holding:

In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. An appellate court must accept logical inferences that the trier of fact might have drawn from the evidence even if the court would have concluded otherwise.

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. Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. The same standard of review applies when the conviction rests on circumstantial evidence. The standard of appellate review for determining the sufficiency of the evidence supporting an enhancement is the same as that applied to a conviction.

Authority:

People v. Rodriguez (1999) 20 Cal.4th 1, 11

People v. Halvorsen (2007) 42 Cal.4th 379, 419

People v. Bolin (1998) 18 Cal.4th 297, 331

People v. Kraft (2000) 23 Cal.4th 978, 1053

People v. Weddington (2016) 246 Cal.App.4th 468, 483

Second Holding:

Possession may be actual or constructive. Actual possession means the contraband is in the defendant’s immediate possession or control. A defendant has actual possession when that defendant has the contraband. Constructive possession means the contraband is not in the defendant’s physical possession, but the defendant knowingly exercises control or the right to control the object. Dominion and control is readily found when the controlled substance is discovered in a place such as a defendant’s residence, vehicle, or among his, her, or their personal effects. Exclusive possession is not necessary. A defendant does not avoid conviction if his, her, or their right to exercise dominion and control over the place where the contraband was located is shared with others.

Authority:

In re Daniel G. (2004) 120 Cal.App.4th 824, 831

People v. Busch (2010) 187 Cal.App.4th 150, 162

Third Holding:

Mere proximity to a prohibited item, however, is not sufficient evidence of possession. In Martin, the court concluded the evidence demonstrated the defendant had mere access or proximity when the stolen goods were found in his codefendant’s car without evidence linking the stolen goods to the defendant. In Myles, the evidence was insufficient to establish possession of stolen televisions found in the trunk of a car in which the defendant was a passenger. In Zyduck, the appellate court rejected the argument that the defendant’s mere presence in a car owned and driven by another, in which the stolen property is readily visible, is enough to show possession.

Authority:

People v. Martin (1973) 9 Cal.3d 687, 696,

People v. Myles (1975) 50 Cal.App.3d 423, 429

People v. Zyduck (1969) 270 Cal.App.2d 334, 335-336

People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417, disapproved on another ground in People v. Farwell (2018) 5 Cal.5th 295, 304 & fn. 6

Fourth Holding:

The defendant did not forfeit the challenge to the quantity enhancement by failing to object below. As to forfeiture, an objection is generally required to challenge on appeal a trial court’s reliance on an improper factor in imposing a sentence. However, sufficiency of the evidence has always been viewed as a question necessarily and inherently raised in every contested trial of any issue of fact, and requiring no further steps by the aggrieved party to be preserved for appeal. Parties may generally challenge the sufficiency of the evidence to support a judgment for the first time on appeal because they necessarily objected to the sufficiency of the evidence by contesting it at trial.

Authority:

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

In re K.F. (2009) 173 Cal.App.4th 655, 660

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

Fifth Holding:

California Rules of Court, rule 4.421(a)(10) provides a circumstance in aggravation occurs when the crime involved a large quantity of contraband. In light of the testimony of the witnesses, there was insufficient evidence to support the jury’s finding that the the quantity possessed by the defendant constituted a large quantity.

Authority:

Rules of Court, rule 4.421(a)(10)

Sixth Holding:

Typically, when part of a sentence is stricken on review, a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances. However, the record in this case demonstrates with unusual clarity that remand would be an idle act. The trial court indicated it was going to impose the middle term on all counts except those three on which the jury found the large quantity factor in aggravation. It is clear that but for those findings, it would have imposed the middle term. Having concluded that there was insufficient evidence to support those findings, we modify the judgment to impose the middle term for the affect counts.

Authority:

People v. Buycks (2018) 5 Cal.5th 857, 893

People v. Flores (2020) 9 Cal.5th 371, 432

Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000351

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction of aggravated sexual assault by sexual penetration under section 289. The One Strike law applies only to certain offenses. The offense resulting in conviction of Count 18 is not one of those offenses, and the One Strike Sentence for that count is modified accordingly.

First Holding:

Section 289 defines various terms pertaining to the conduct it describes as a crime. [Gary note: you just witnessed a little adjustment of precise language to maintain a “G” rating for this movie. If you have an issue involving this section, read it carefully for its definitions. In this case, the conduct in question did not meet the definition for violation of this section.]

Authority:

PEN 289(k)

Second Holding:

When reviewing for substantial evidence, we examine the entire record in the light most favorable to the prosecution to determine if a rational factfinder could find the essential elements of the crime beyond a reasonable doubt. Substantial evidence is reasonable, credible evidence of solid value, even if circumstantial. We will reverse only if upon no hypothesis whatever is there sufficient substantial evidence to support it.

Authority:

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

People v. Redmond (1969) 71 Cal.2d 745, 755

Third Holding:

When insufficient evidence supports a conviction for a greater offense, we may modify the judgment to reflect a conviction for a lesser included offense.

Authority:

People v. Bailey (2012) 54 Cal.4th 740, 748

Fourth Holding:

The only lesser offenses here are time barred. Although the defendant did not raise the statute of limitations in his supplemental brief, a defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense. Because the only applicable lesser included offenses are time-barred, we must reverse the defendant’s conviction for count 19 for insufficient evidence.

Authority:

People v. Williams (1999) 21 Cal.4th 335, 338

Kellett v. Superior Court (1966) 63 Cal.2d 822, 827 [Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.]

Fifth Holding:

The One Strike law, section 667.61, applies only to certain felony sex offenses. The defendant’s Count 18 conviction is not among those offenses. Consequently, we reverse the jury’s two count 18 true findings under section 667.61.

Authority:

PEN 667.61(c)

People v. Anderson (2009) 47 Cal.4th 92, 102

People v. Seals (1993) 14 Cal.App.4th 1379, 1385

Sixth Holding:

The defendant contends his sentence of [hundreds of years to life] constitutes cruel and unusual punishment under the United States and California Constitutions. The defendant forfeited this claim of error. A claim that a sentence is cruel or unusual requires a fact specific inquiry and is forfeited if not raised below. At the sentencing hearing, defense counsel never invoked the state constitutional prohibition against cruel or unusual punishment (Cal. Const., art. I, sec. 17). The defendant did not adequately preserve an objection under the Eighth Amendment either. To the contrary, after imposing the sentence, the court asked if counsel for either side wanted to be heard, and defense counsel responded, “No.” As a result, the defendant’s federal constitutional claim is also forfeited.

Authority:

People v. Baker (2018) 20 Cal.App.5th 711, 720

People v. Boyce (2014) 59 Cal.4th 672, 731

Appellate Principles, Duty of the court, Jury instructions, Standard of review

Case 000344

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred and violated his due process rights by failing to provide a self-defense instruction as to the lesser included battery offense. We reverse defendant’s misdemeanor simple battery conviction.

First Holding:

The trial court must instruct on the general principles of law relevant to the issues raised by the evidence.

Authority:

People v. Smith (2013) 57 Cal.4th 232, 239

Second Holding:

We independently review claims of instructional error. We examine the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.

Authority:

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Posey (2004) 32 Cal.4th 193, 218

People v. Houston (2012) 54 Cal.4th 1186, 1229

Third Holding:

Under appropriate circumstances a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case. But a trial court need not give a pinpoint instruction if it is argumentative , merely duplicates other instructions , or is not supported by substantial evidence. However, a defendant bears the burden of requesting a pinpoint instruction; a trial court has no sua sponte duty to provide one.

Authority:

People v. Bolden (2002) 29 Cal.4th 515, 558

People v. Gutierrez (2009) 45 Cal.4th 789, 824

Fourth Holding:

Furthermore, a trial court must instruct the jury sua sponte on general principles of law applicable to the case, including any defense supported by substantial evidence that is not inconsistent with the defendant’s theory of the case. In deciding whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the evidence, but only whether there is evidence which, if believed by the jury, is sufficient to raise a reasonable doubt of guilt.

Authority:

People v. Villanueva (2008) 169 Cal.App.4th 41, 49

People v. Barton (1995) 12 Cal.4th 186, 195

People v. Orlosky (2015) 233 Cal.App.4th 257, 269-270

Fifth Holding:

Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. But that rule does not apply when the trial court gives an instruction that is an incorrect statement of the law. Moreover, a failure to object to instructional error will not result in forfeiture if the error affects the defendant’s substantial rights. In this instance, the trial court on its own modified the instruction on the lesser included offense of battery by omitting the element of lack of self-defense, and directing the jury to consider self-defense solely on the question of whether he acted in self-defense on the greater offense of inflicting corporal injury. The instruction affirmatively and erroneously precluded the jury from considering the self-defense evidence in connection with the lesser included battery charge.

Authority:

People v. Hudson (2006) 38 Cal.4th 1002, 1011-1012

People v. Mitchell (2019) 7 Cal.5th 561, 579

People v. Townsel (2016) 63 Cal.4th 25, 60

Sixth Holding:

The California Supreme Court has yet to determine whether a trial court’s failure to instruct on a requested affirmative defense instruction supported by substantial evidence is federal constitutional error or state law error. We need not resolve the question in this case, because the error was prejudicial even under the state law standard. Under that standard, reversal is warranted if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. In this context, a probability does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.

Authority:

People v. Gonzalez (2018) 5 Cal.5th 186, 199

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

Chapman v. California (1967) 386 U.S. 18, 24 [federal harmlessness standard]

People v. Watson (1956) 46 Cal.2d 818, 836-837 [state law harmlessness standard]

Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050

Amelioration, Appellate Principles, Retroactivity, Sentencing

Case: 000343

Posted on by Gary McCurdy

Error and/or relief

The true finding on the defendant’s prior felony strike conviction must be reversed in light of changes to the gang criminal activity statute by AB 333. Defendant’s sentence, as well as the true finding that defendant’s prior conviction qualifies as prior serious felony conviction under the Three Strikes law, is vacated. The matter is remanded to the trial court for any retrial of that allegation, applying the elements of section 186.22 as amended by AB 333 and for resentencing.

First Holding:

In 2021, the Legislature amended section 186.22 with the passage of AB 333. AB 333 changed the elements of gang offenses and enhancements by narrowing the definitions of criminal street gang, pattern of criminal activity, and what it means for an offense to have commonly benefitted a street gang. AB 333 is ameliorative legislation that applies to nonfinal judgments under the rule of Estrada.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

In re Estrada (1965) 63 Cal.2d 740

Second Holding:

In Fletcher, the Supreme Court addressed the question of whether AB 333 applies to a sentencing court’s determination of whether a defendant’s conviction under the prior version of section 186.22 qualifies as a prior serious felony conviction for purposes of prior serious felony enhancements. It concluded that where a defendant has suffered a prior conviction under the earlier version of section 186.22, AB 333 applies 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. It also held that it applies retroactively to cases in which the judgment is not yet final.

Authority:

People v. Fletcher (2025) 18 Cal.5th 576, 583

Third Holding:

That the defendant admitted the prior conviction does not forfeit the issue. Defendant’s admission cannot be construed as knowingly and/or intelligently made because it was prior to the decision in Fletcher. The true finding on defendant’s strike prior should be reversed, and the matter remanded to the trial court for any retrial of the strike allegation, applying the elements of section 186.22 as amended by AB 333. Notwithstanding the admission of the prior conviction in the trial court, we have discretion to reach the merits.

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]

People v. Monroe (2022) 85 Cal.App.5th 393, 400 [an appellate court may reach the merits of a forfeited issue in order to forestall a cognizable ineffective assistance of counsel claim]

Effective assistance of counsel, Fines and fees, Standard of review

Case: 000341

Posted on by Gary McCurdy

Error and/or relief

The court ordered restitution in the amount of the manufacturer’s suggested retail price rather than the wholesale price of the goods taken from the retailer. The items had been returned to the retailer following the arrest. Rather than attempt to resell the items on its website advertising “like new” items for sale, the retailer simply destroyed them or donated the items. It was error to base the value of the loss at the manufacturer’s suggested retail price. We will vacate the restitution order and remand for a new restitution hearing.

First Holding:

The defendant did not object on the specific ground that the measure should have been the wholesale value, but that it should have been calculated using a diminished value. Nonetheless, even assuming defendant did not properly object to the trial court’s calculation of restitution, reviewing courts may address issues on appeal that present pure questions of law. Because the proper measure of restitution presents a pure question of law, and in light of defendant’s claim of ineffective assistance of counsel, we exercise our discretion to reach the merits.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 889

People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [an appellate court has authority to reach a forfeited claim]

Second Holding:

We review a restitution order for abuse of discretion. A victim’s restitution right is to be broadly and liberally construed. When there is a factual and rational basis for the amount of restitution ordered by the trial court, no abuse of discretion will be found by the reviewing court.

Authority:

In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132

Third Holding:

A restitution order is not intended to provide the victim with a windfall; rather, it is intended to compensate for the victim’s actual loss. Here, there is no evidence in the record of any profits the retailer lost due to defendant’s crimes. As the People concede, giving the retailer restitution based on the retail value of the merchandise rather than the wholesale cost would provide a windfall, because such award would exceed the cost to replace those items.

Authority:

People v. Chappelone (2010) 183 Cal.App.4th 1159, 1172, 1178-1180 [holding that hat because prosecutor presented no evidence that the retailer lost any profit due to the defendants’ theft, the court’s restitution order based on the retail price of the merchandise was improper]