Tag Archives: Forfeiture

Appellate Principles, Fines and fees, Sentencing

Case 000678

Posted on by Gary McCurdy

Error and/or relief

The defendant was sentenced to life without the possibility of parole (LWOP). It was therefore improper to impose a parole revocation fine, which applies only to non-LWOP sentences.

First Holding:

The trial court erred in imposing and staying a parole revocation fine under section 1202.45(a), because the defendant’s sentence did not include a period of parole.

Authority:

People v. Battle (2011) 198 Cal.App.4th 50, 63 [parole revocation fine improperly imposed upon defendant sentenced to indeterminate term on one count and LWOP on another]

Second Holding:

The defendant also contends for the first time on appeal that the court violated his constitutional rights, by ordering him to pay a $10,000 restitution fine under Penal Code section 1202.4(b), a court operations surcharge under Government Code section 69926(a), and court facilities and court operations assessments under Government Code section 70373 and Penal Code 1465.8(a)(1)), without first determining his ability to pay. Because these contentions were not raised below, they are forfeited.

Authority:

People v. Trujillo (2015) 60 Cal.4th 850, 856–859

People v. McCullough (2013) 56 Cal.4th 589, 597–598

People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1155

People v. Dueñas (2019) 30 Cal.App.5th 1157, overruled in part by People v. Kopp (2025) 19 Cal.5th 1, 23

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing, Standard of review

Case 000658

Posted on by Gary McCurdy

Error and/or relief

It was an improper delegation of authority to impose a condition of probation that left it up to the probation officer to decide whether treatment should be residential or outpatient. There was also error regarding imposition of fees.

First Holding:

Though the defendant did not object to the condition at the time, the issue is not forfeited on appeal. His claim is cognizable because it is a facial constitutional challenge presenting a pure question of law that does not depend on the underlying factual record. We thus address defendant’s constitutional challenge on the merits, which we review de novo.

Authority:

People v. Smith (2022) 79 Cal.App.5th 897, 901 [a facial constitutional challenge may be considered for the first time on appeal because it does not depend on the underlying factual record]

In re Sheena K. (2007) 40 Cal.4th 875, 884–886

Second Holding:

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.

A court may dictate the basic policy of a condition of probation, leaving specification of details to the probation officer, but the court’s order cannot be entirely open-ended. It is for the court to determine the nature of the prohibition placed on a defendant as a condition of probation. 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.

Authority:

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

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

In Victor L. (2010) 182 Cal.App.4th 902, 919

Third Holding:

A condition requiring the defendant to enter a residential drug treatment program but authorizing probation to select which residential program may be upheld. We remand for the trial court to either strike the condition, or modify it to specify the type of treatment program in which defendant is directed to participate, including whether it requires defendant to undergo residential treatment. The court’s decision may be informed by the results of any assessment and additional information provided by the parties.

Authority:

People v. Penoli (1996) 46 Cal.App.4th 298, 307–308

People v. Smith (2022) 79 Cal.App.5th 897, 903, 905,

People v. O’Neil (2008) 165 Cal.App.4th 13

Fourth Holding:

Appellants implicitly concede a respondent’s argument by failing to respond in their reply brief to the respondent’s argument on that point. A court may assume respondent’s claim was correct if the defendant did not dispute respondent’s claim in his reply.

Authority:

Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89–90

Reygoza v. Superior Court (1991) 230 Cal.App.3d 514, 519 and fn. 4

Fifth Holding:

An order of probation, like an abstract of judgment, must specify the statutory basis of each fine or fee imposed.

Authority:

People v. Eddards (2008) 162 Cal.App.4th 712, 716

Sixth Holding:

In general costs of prosecuting and rehabilitating criminals are not recoverable absent express statutory authority to the contrary. The Legislature repealed section 1203.1b (which authorized to court to impose an order for the cost of probation services, depending on ability to pay, and it could not be a condition of probation) and enacted section 1465.9, which states in relevant part, that on after July 1, 2021, the balance of any court-imposed costs pursuant to section 1203.1b [among numerous other statutes] shall be unenforceable and uncollectible and any portion of a judgment imposing those costs shall be vacated.

Authority:

PEN 1465.9

People v. Baker (1974) 39 Cal.App.3d 550, 559–560

Seventh Holding:

The abstract of judgment contains an error. It states that the jury found true the enhancement for great bodily injury under section 12022.7. This conflicts with the actual oral statement of the judge (who conducted a court trial on the enhancement), in which the judge stated “I am not going to find true the allegation of great bodily injury.”

Where, as here, discrepancies exist between the court’s oral pronouncement of judgment and the minute order, the oral pronouncement controls. The trial court should thus modify the probation order to conform to its oral pronouncement.

Authority:

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

Appellate Principles, Probation Parole PRCS, Sentencing

Case 000655

Posted on by Gary McCurdy

Error and/or relief

The probation condition ordering treatment but permitting the probation officer to decide whether such treatment should be residential was an improper delegation of the court’s authority.

First Holding:

Under the state constitution, judicial powers may not be delegated to nonjudicial officers. Allowing the probation officer discretion to decide whether the probationer had to attend a residential program, as opposed to outpatient treatment, improperly delegated judicial authority in violation of the separation of powers doctrine.

Authority:

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

Second Holding:

The defendant did not object to this probation condition with the trial court, but his appellate claim is not forfeited because he claims a facial constitutional violation.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 888–889 [appellate claim that a probation condition was unconstitutionally vague and overbroad was not forfeited by failure to object below where the facial challenge was a pure question of law]

Appellate Principles, Discretion, Due process, Elements of crime, Pleading, Sentencing, Standard of review

Case 000654

Posted on by Gary McCurdy

Error and/or relief

The court imposed the wrong sentence for the consecutive term.

First Holding:

In one count, the defendant was convicted of second degree robbery (sec. 211). At sentencing, the trial court imposed an aggravated term of five years, which was ordered to be served consecutively at a subordinate term of one year four months. Because the robbery was a second degree felony, the middle term is three years in prison. As such, the consecutive subordinate term must be one-third the middle term, or one year. Thus, the sentence on that count must be reduced from 16 months to one year. We may correct this unauthorized sentence on appeal without remanding for a full resentencing.

Authority:

PEN 1170.1(a)

PEN 1260

People v. Lawley (2002) 27 Cal.4th 102, 171–172

Second Holding:

The defendant argues that he should have been charged with only one count of attempting to dissuade a witness rather than the 10 charged and found true. The ten calls all occurred on the same day over a span of six hours. The issue is whether appellant may be lawfully subject to multiple convictions. We review this claim de novo.

Authority:

PEN 954

People v. Duffy (2020) 51 Cal.App.5th 257, 261

Third Holding:

Section 954 defines what charges can be joined in one action. This statute does not permit multiple convictions for the same offense based on the same act or course of conduct. However, section 954 authorizes multiple convictions for different or distinct offenses. As a result, a defendant may be convicted of multiple counts of the same crime, such as grand theft, based on separate and distinct criminal acts, even if the acts were all part of a single overarching scheme.

Authority:

PEN 954

People v. Vidana (2016) 1 Cal.5th 632, 650

People v. Whitmer (2014) 59 Cal.4th 733, 74

Fourth Holding:

Determining whether a defendant has committed one or more criminal acts requires identifying what the Legislature intended to punish as a single offense under the relevant statute. Courts refer to this inquiry as determining the statute’s unit of prosecution. Courts should look to the characteristics of the crime, including both (1) the factual circumstances of the defendant’s criminal conduct and (2) the elements of the crime as defined by the Legislature in the relevant statute.

Authority:

Moore v. Superior Court (2020) 57 Cal.App.5th 441, 461

People v. Wilson (2015) 234 Cal.App.4th 193, 199-200

People v. Whitmer (2014) 59 Cal.4th 733, 744 (conc. opn. of Liu, J.)

Fifth Holding:

Section 136.1(a)(2) makes it a crime to knowingly and maliciously attempt to prevent or dissuade a witness from attending or giving testimony at a trial, proceeding or inquiry authorized by law. In relevant part, malice is defined under this statute as an intent to thwart or interfere in any manner with the orderly administration of justice. This crime is completed upon any attempt.

Authority:

PEN 136.1

People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519

Sixth Holding:

A trial court’s decision whether to impose consecutive or concurrent sentences is reviewed for an abuse of discretion. A defendant bears the burden to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, a reviewing court presumes the trial court acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on appeal. Moreover, a decision will not be reversed merely because reasonable people might disagree. Instead, the decision must be so irrational or arbitrary that no reasonable person could agree with it.

Authority:

PEN 669(a)

People v. Giminez (1975) 14 Cal.3d 68, 71–72

People v. Carmony (2004) 33 Cal.4th 367, 376–377

Seventh Holding:

Once a trial court lawfully decides to impose consecutive sentences on convictions for violating section 136.1, section 1170.15 applies. If a person is convicted of a felony, and of an additional felony that is a violation of section 136.1 or 137 and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony the Penal Code provides that those subordinate terms shall consist of the full middle term.

Authority:

PEN 1170.15

Eighth Holding:

In relevant part, the rule against the dual use of facts prohibits a trial court from relying on the same fact “to impose both the upper term and a consecutive sentence. Only a single factor in aggravation is needed to support imposition of an upper term. Likewise, only one relevant and sustainable fact may explain a series of consecutive sentences. We presume the trial court acted to achieve legitimate sentencing objectives

Authority:

People v. Scott (1994) 9 Cal.4th 331, 350, fn. 12

People v. Osband (1996) 13 Cal.4th 622, 730

People v. Carmony (2004) 33 Cal.4th 367, 376-377

Ninth Holding:

There is a developing split of authority regarding application of the forfeiture doctrine regarding the low term presumption under section 1170(b)(6). We need not decide that issue. Although the court did not specifically mention subdivision (b)(6), we presume it knew of that provision.

Authority:

People v. Achane (2023) 92 Cal.App.5th 1037, 1039, 1044 [forfeiture doctrine applied when defendant failed to raise in the trial court the presumption in favor of a lower term]

People v. Fredrickson (2023) 90 Cal.App.5th 984, 994, fn. 8 [sec. 1170 mandates application of the lower term presumption and is not subject to forfeiture]People v. Caparrotta (2024) 103 Cal.App.5th 874, 905

Tenth Holding:

Under the cumulative error doctrine, errors that are individually harmless may nevertheless have cumulative prejudice. A claim of cumulative error is essentially a due process challenge. The issue is whether the defendant received a fair trial. Here, appellant’s claim of cumulative prejudice is without merit because we have rejected the individual claims. After reviewing the entire record, we are confident that appellant received due process throughout the entire proceeding, including sentencing.

Authority:

In re Avena (1996) 12 Cal.4th 694, 772, fn. 32

People v. Rivas (2013) 214 Cal.App.4th 1410, 1436

People v. Bradford (1997) 14 Cal.4th 1005, 1057

People v. Cunningham (2001) 25 Cal.4th 926, 1009 [a defendant is “entitled to a fair trial but not a perfect one”]

Duty of the court, Jury instructions, Standard of review, Sufficiency of and substantial evidence

Case 000611

Posted on by Gary McCurdy

Error and/or relief

The trial court failed to instruct the jury about how a defendant who is an initial aggressor can regain the right to self-defense.

First Holding:

The defendant’s defense was self-defense, and the trial court accordingly instructed the jury on perfect and imperfect self-defense under CALCRIM No. 505. Over his objection, the trial court also instructed the jury with CALCRIM No. 3471 regarding an initial aggressor’s right to self-defense. However, the trial court omitted language from CALCRIM No. 3471 about how an initial aggressor can regain the right to self-defense. Omission of that language was prejudicial error. Whether a trial court properly instructed a jury is a question of law that we review de novo.

Authority:

People v. Cole (2004) 33 Cal.4th 1158, 1210

Second Holding:

A trial court in a criminal case must instruct on the general principles of law that are closely and openly connected to the facts before the court and are necessary for the jury’s understanding of the case. This includes a sua sponte duty to instruct the jury on an affirmative defense if it appears the defendant is relying on such a defense or if substantial evidence supports it and it is not inconsistent with the defendant’s theory of the case.

Authority:

People v. Hovarter (2008) 44 Cal.4th 983, 1021

People v. Boyer (2006) 38 Cal.4th 412, 469

People v. Ramirez (2015) 233 Cal.App.4th 940, 949

Third Holding:

It is error to give an instruction that is not supported by substantial evidence. Substantial evidence is evidence of reasonable, credible value sufficient to deserve consideration by the jury. In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.

Authority:

People v. Marshall (1997) 15 Cal.4th 1, 39–40

People v. Guiton (1993) 4 Cal.4th 1116, 1129

People v. Wilson (2005) 36 Cal.4th 309, 331

People v. Crew (2003) 31 Cal.4th 822, 835

People v. Salas (2006) 37 Cal.4th 967, 982

Fourth Holding:

As an initial matter, the Attorney General contends the defendant forfeited his contention that it was error to omit the language on how an initial aggressor can regain his right to self defense, because he failed to ask the trial court to include the omitted language. Assuming forfeiture applies, we nonetheless may decline to apply it if the instructional error affected the defendant’s substantial rights. Because the contention affects the defendant’s substantial rights, we consider it.

Authority:

PEN 1259

People v. Jennings (2010) 50 Cal.4th 616, 671 [party may not complain on appeal that instruction correct in law and responsive to evidence was too general or incomplete in absence of request for clarifying language]

People v. Ramirez (2015) 233 Cal.App.4th 940, 949

Fifth Holding:

When a defendant engages in simple assault or trespass and his opponent responds with deadly force so suddenly that the person cannot withdraw, a defendant may immediately use deadly force in self-defense. The qualification in the language omitted from the jury instruction thus applies where the defendant commits a simple assault. But if one makes a felonious assault upon another, or has created appearances justifying the other to launch a deadly counterattack in self-defense, the original assailant cannot slay his adversary in self-defense unless he has first, in good faith, declined further combat, and has fairly notified him that he has abandoned the affray.

Authority:

People v. Quach (2004) 116 Cal.App.4th 294, 301

People v. Conkling (1896) 111 Cal. 616, 626–627

People v. Hecker (1895) 109 Cal. 451, 464 [Where one is the first wrongdoer, but his unlawful act is not felonious, as a simple assault upon the person of another, or a mere trespass upon his property, even though forcible, and this unlawful act is met by a counter assault of a deadly character, the right of self-defense to the first wrongdoer is not lost]

People v. Ramirez (2015) 233 Cal.App.4th 940, 949

People v. Gleghorn (1987) 193 Cal.App.3d 196, 201

People v. Salazar (2016) 63 Cal.4th 214, 249-250 [exception did not apply where defendant approached victim with cocked gun]

Sixth Holding:

We apply the harmless-beyond-a-reasonable-doubt standard in Chapman to determine whether the error merits reversal. The Chapman standard requires us to determine whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error. We must reverse the conviction under that standard unless we conclude that no rational juror who made the findings reflected in the verdict and heard the evidence at trial court could have had a reasonable doubt regarding the findings necessary to convict the defendant, absent the instructional error.

Authority:

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

People v. Quach (2004) 116 Cal.App.4th 294, 303

People v. Ramirez (2015) 233 Cal.App.4th 940, 953

People v. Merritt (2017) 2 Cal.5th 819, 831

People v. Schuller (2023) 15 Cal.5th 237, 244

Seventh Holding:

Simple assault requires an act that by its nature would directly and probably result in the application of physical force to another person, and the crime does not require actual physical injury or contact to the victim.

Authority:

People v. Harring (2021) 69 Cal.App.5th 483, 503

Eighth Holding:

An instruction is inconsistent with defendant’s theory of case if it requires acknowledging, if only inferentially, existence of facts which defendant otherwise denied. The language omitted from the instruction was not inconsistent with the defendant’s defense.

Authority:

People v. Jo (2017) 15 Cal.App.5th 1128, 1168–1169

People v. Salas (2006) 37 Cal.4th 967, 982–983 [trial court has no duty to instruct on affirmative defense inconsistent with defendant’s theory of case]