Tag Archives: Forfeiture

Sentencing, Sixth Amendment

Case 000785

Posted on by Gary McCurdy

Error and/or relief

On remand from a prior appeal, it was error for the court to impose the upper term based on circumstances in aggravation not presented to a jury for proof beyond a reasonable doubt. The trial court concluded that it could reimpose the upper term because the upper term had been imposed at the original sentencing, before the amendments to section 1170 that required proof beyond a reasonable doubt to a jury.

The court may have mistakenly believed that this resentencing was under section 1172.75, which does contain a provision allowing the reimposition of the upper term if the upper term had been imposed at the original sentencing. This was not a resentencing under section 1172.75, however. It was a resentencing following a remand for resentencing in his prior appeal from the judgment of conviction. The amendments to section 1170 applied.

First Holding:

Section 1170(b)(2) provides a trial court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial. The court may, however, consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170(b)(2)

Second Holding:

SB 567 (2021-2022 Reg. Sess.), which amended this provision of the statute, became effective January 1, 2022, after defendant’s initial sentencing. The amendment applies retroactively to defendant because his judgment was not final on direct appeal at the time the statute took effect.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 749

In re Estrada (1965) 63 Cal.2d 740, 745

Third Holding:

A criminal defendant has a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. Any waiver of this jury trial right must be an express waiver by the defendant and counsel in open court.

Authority:

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

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

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

Fourth Holding:

The Attorney General argues defendant forfeited his claims regarding the imposition of the upper term on count four because he interposed no objection during the sentencing hearing. He maintains a statutory right to a jury trial is forfeited by failure to object.

We hold an objection was not required to preserve the issue. In light of the People’s sentencing memorandum in the lower court and the on-the-record discussion between counsel and the court before defendant entered the courtroom for resentencing, everyone understood an admission to an aggravating factor was necessary and the only question was whether defendant would agree to admit an aggravating factor.

Making a formal objection under those circumstances would have added nothing. There was no forfeiture. We need not reach the question of whether a forfeiture cannot stand as a bar to relief because an express waiver of the jury trial right was required.

Authority:

People v. Sanders (1993) 5 Cal.4th 580, 589-590 [the purpose of the forfeiture rule is to encourage a party to bring errors to the attention of the trial court so that they can be corrected]

Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264 [The purpose of the general doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had]

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

People v. Lynch (2024) 16 Cal.5th 730, 768

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

Fifth Holding:

A court may not use a fact constituting an element of the offense either to aggravate or to enhance a sentence.

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350

Jurisdiction, Juveniles

Case 000774

Posted on by Gary McCurdy

Error and/or relief

The juvenile court erred by holding the minor jointly and severally liable for victim restitution.

First Holding:

Restitution orders are subject to review on appeal for an abuse of discretion. The ‘court abuses its discretion when it acts contrary to law.

Authority:

In re Travis J. (2013) 222 Cal.App.4th 187, 202

Second Holding:

Welfare and Institutions Code section 730.6 governs restitution in cases where a minor is adjudicated a ward of the court pursuant to section 602. Under this statute, a victim of conduct for which a minor is found to be a person described in section 602 who incurs an economic loss as a result of the minor’s conduct shall receive restitution directly from that minor.

For the purposes of victim restitution, each minor shall be held severally liable, and shall not be held jointly and severally liable as co-offenders. The court shall apportion liability based on each minor’s percentage of responsibility or fault for all economic losses included in the order of restitution. The aggregate amount of apportioned liability for all minors involved shall not exceed 100 percent in total.

Authority:

WIC 730.6

WIC 602

In re M.W. (2008) 169 Cal.App.4th 1, 4

Third Holding:

The error has not been waived, as the failure to object to a restitution order that exceeds the court’s statutory authority does not waive the claim of error.

Authority:

In re Paul R. (1996) 42 Cal.App.4th 1582, 1590

Jury trial, Standard of review

Case 000754

Posted on by Gary McCurdy

Error and/or relief

The trial court erroneously overruled the defendant’s objection to the prosecutor’s use of a peremptory challenge against a Black prospective juror because the main reason given by the prosecutor for exercising the challenge was presumptively invalid under Code of Civil Procedure section 231.7. The record did not contain clear and convincing evidence rebutting the presumptive invalidity of the challenge.

First Holding:

Code of Civil Procedure section 231.7 prohibits the use of a peremptory challenge on the basis of a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups. The Legislature enacted section 231.7, effective in criminal trials beginning January 1, 2022, to establish a new process for identifying unlawful bias in the use of peremptory challenges during jury selection because studies showed that the existing Batson/Wheeler analysis was inadequate to prevent racial discrimination.

Authority:

CCP 231.7

People v. Jimenez (2024) 99 Cal.App.5th 534, 539–540

Batson v. Kentucky (1986) 476 U.S. 79

People v. Wheeler (1978) 22 Cal.3d 258

Second Holding:

Upon objection to the exercise of a peremptory challenge pursuant to CCP 231.7, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised. The trial court must then evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances, considering only the reasons actually given.

If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained. For purposes of section 231.7, an objectively reasonable person is aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California.

Authority:

CCP 231.7

Third Holding:

Section 231.7 also contains two separate provisions describing presumptively invalid reasons for the exercise of a peremptory challenge. Each subdivision sets out a distinct process by which a court determines whether a presumptively invalid reason can be absolved of that presumption.

The challenge of a prospective juror who expresses a distrust of or having a negative experience with law enforcement or the criminal legal system is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case

Authority:

CCP 231.7(e) and (g)

People v. Alston (2026) 118 Cal.App.5th 575, 581

Fourth Holding:

The denial of an objection made under CCP section 231.7 shall be reviewed by the appellate court de novo, with the trial court’s express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record.

The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, the error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Fifth Holding:

The defendant did not forfeit review of this issue, because his attorney’s general objection to the exercise of the peremptory challenge was sufficient to preserve the issue in this case.

Authority:

People v. Jaime (2023) 91 Cal.App.5th 941, 946 [forfeiture rule applies to section 231.7 claims]

People v. Espiritu (2026) 119 Cal.App.5th 1128 [The court was not confronted with a situation in which a defendant wholly failed to object “under the applicable statute. Rather, the defendant’s general objection was sufficient to preserve an argument alleging error based on a category of presumptively invalid reasons not brought to the trial court’s attention by defense counsel.]

Sixth Holding:

An objection to a peremptory challenge must be sustained whenever any reason identified for the challenge becomes conclusively invalid under section 231.7(g), regardless of whether the party exercising the peremptory challenge also identifies facially neutral reasons that do not fall within the scope of subdivision (g). Under the circumstances in this case, the defendant’s objection to the peremptory challenge was erroneously overruled, and prejudicially so. We reverse the judgment and remand for a new trial.

Authority:

People v. Caparrotta (2024) 103 Cal.App.5th 874, 896

Probation Parole PRCS, Sentencing, Standard of review

Case 000726

Posted on by Gary McCurdy

Error and/or relief

The court ordered appellant participate and complete general education/counseling and mental health counseling at the discretion of and as directed by probation. We find that delegating unfettered discretion to the probation department to determine whether appellant shall participate and complete education and counseling is impermissible and violates the separation of powers doctrine.

As such, we strike this probation condition and remand the matter to the trial court to consider whether or not appellant shall participate in and complete education and counseling as a condition of his probation, consistent with this opinion.

First Holding:

The People argue that appellant forfeited his probation-condition challenge by failing to object to it at the sentencing hearing. The forfeiture doctrine is a well-established principle that, with certain exceptions, an appellate court will not consider claims of error that could have been—but were not—raised in the trial court.

Strong policy reasons support this rule: 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 law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1114

In re Sheena K. (2007) 40 Cal.4th 875, 880–881

Second Holding:

One exception to the forfeiture doctrine includes a facial constitutional challenge—one that does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court.

Appellant presents a facial challenge: the issue is whether the trial court may, under the separation of powers doctrine, delegate to the probation officer the determination of whether appellant must participate and complete education/counseling and mental health counseling.

Such a claim is not predicated on the factual details about the specific education and counseling ordered, appellant’s specific rehabilitative needs, or on the details of the programming the probation officer could determine under this condition. The forfeiture doctrine does not apply in this circumstance.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 885, 887-888

Third Holding:

The California Constitution separates the state government’s power into legislative, executive, and judicial branches and prohibits persons charged with the exercise of one power to exercise either of the others except as permitted by the California Constitution. The separation of powers doctrine is violated when the actions of one branch defeat or materially impair the inherent functions of another. Under the separation of powers doctrine, judicial powers may not be delegated to nonjudicial officers.

Authority:

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

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

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

Fourth Holding:

A trial court has broad discretion to impose probation conditions to promote rehabilitation of the defendant and to protect the public. The court also has authority to empower the probation department with authority to supervise the probation conditions.

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. 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.

Authority:

PEN 1203.1(j)

PEN 1202.7

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

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

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

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

Fifth Holding:

We review a constitutional challenge to a probation condition de novo.

Authority:

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

People v. Appleton (2016) 245 Cal.App.4th 717, 723

Sixth Holding:

Imposing a probation condition that subjects the defendant to the approval or direction of the probation officer is a permissible delegation. But delegating to a probation officer the decision of whether a defendant will participate in a specific form of treatment is an improper delegation of judicial authority.

Authority:

People v. Penoli (1996) 46 Cal.App.4th 298, 307–309

People v. Smith (2022) 79 Cal.App.5th 897, 901, 903 [probation condition violates separation of powers doctrine by delegating to probation officer whether the defendant would be required to attend residential treatment/therapy/counseling program]

Seventh Holding:

Here, the court’s order for appellant to submit to education and counseling was much broader than simply leaving the details of that programming to the probation department, it gave the probation department the unlimited discretion to decide whether appellant is required to participate and complete general education and counseling at all.

Specifically, the court ordered appellant to participate and complete education/counseling and mental health counseling at the discretion of and as directed by the probation department.

This is an invalid delegation of judicial authority: although the court may delegate to probation the determinations of when and where a condition will be satisfied, the court may not delegate the decision of whether counseling or education shall be completed.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 901, 903

Abstracts and Minutes, Fines and fees, Sentencing

Case 000719

Posted on by Gary McCurdy

Error and/or relief

Although the trial court did not orally impose any fines or fees at sentencing, the minute order and abstract of judgment include a $300 restitution fine, a $300 parole revocation fine, a $40 court operations assessment, and a $30 criminal conviction assessment. The abstract of judgment and the minute order must be corrected to reflect the oral pronouncement of judgment.

First Holding:

The oral imposition of sentence constitutes the judgment in an action, and the minutes and abstract of judgment cannot add anything substantive to the oral pronouncement. The oral pronouncement controls if there is a discrepancy, and the court clerk lacks the authority to add fines or fees not imposed by the trial court. If the clerk includes fines or fees in the minute order or abstract of judgment that were not orally imposed, those fines and/or fees must be stricken from the minute order and abstract.

Authority:

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

People v. Zackery (2007) 147 Cal.App.4th 380, 385, 387-389, 385-390

People v. Rowland (1988) 206 Cal.App.3d 119, 124

Second Holding:

A restitution fine under section 1202.4 need not be imposed if the trial court finds compelling and extraordinary reasons for not doing so, and states those reasons on the record. Thus, a restitution fine under section 1202.4 is a discretionary sentencing choice. A corresponding parole revocation fine is mandatory only if a restitution fine is imposed. Although the People argue the judgment should be modified to include the omitted fines, they did not object to the omission at sentencing.

Authority:

PEN 1202.4(b)

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

People v. Smith (2001) 24 Cal.4th 849, 853

Third Holding:

The court operations assessment and criminal conviction assessment are both mandatory, and we may address such an omission because the failure to impose them results in an unlawful sentence. The judgment is modified to impose a $40 court operations assessment and a $30 criminal conviction assessment. The trial court is directed to correct the sentencing minute order and abstract of judgment to omit the $300 restitution fine and the $300 parole revocation fine, and to forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.

Authority:

PEN 1465.8

GOV 70373

People v. Smith (2001) 24 Cal.4th 849, 853