Tag Archives: Forfeiture

Duty of the court, Jury instructions, Sentencing, Sixth Amendment, Standard of review

Case 000589

Posted on by Gary McCurdy

Error and/or relief

We affirm the judgment of conviction, but vacate the defendant’s sentence and remand for a new trial on the aggravating factors because it was prejudicial error for the court to impose an upper term sentence based on uninstructed and unproven aggravating factors.

First Holding:

The Sixth Amendment right to a jury trial and the Fourteenth Amendment guarantee of due process entitle a criminal defendant to a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt. Where enumerated aggravating factors operate as the functional equivalent of an element of a greater offense, the Sixth Amendment requires that they be found by a jury.

Authority:

Apprendi v. New Jersey (2000) 530 U.S. 466, 476-477

Ring v. Arizona (2002) 536 U.S. 584, 609

Cunningham v. California (2007) 549 U.S. 270, 288-289 [under Apprendi, aggravating circumstances supporting upper term sentence must be found by a jury]

Second Holding:

The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense. It is, indeed, very serious constitutional error because it threatens the right to a jury trial that both the United States and California Constitutions guarantee. It is well settled that no objection is required to preserve a claim for appellate review that the jury instructions omitted an essential element of the charge.

Authority:

People v. Merritt (2017) 2 Cal.5th 819, 824

Apprendi v. New Jersey (2000) 530 U.S. 466, 477

People v. Mil (2012) 53 Cal.4th 400, 409 [trial court erred by omitting essential elements of a special circumstance allegation]

Third Holding:

We review constitutional claims and claims of instructional error de novo. We must consider the claim of instructional error in the context of the instructions as a whole and the trial record. An instructional error that improperly describes or omits an element of an offense generally is not a structural defect in the trial mechanism that defies harmless error review and automatically requires reversal under the federal Constitution, unless the instructional error or omission amounts to the total deprivation of a jury trial.

Rather, where the trial court fails to instruct on necessary elements, generally this error is subject to harmless-error analysis under the test of Chapman, that is, whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Overwhelming evidence, other properly given jury instructions, or a defendant’s concession of elements for which an instruction was omitted may render an error harmless.

Authority:

People v. Rivera (2019) 7 Cal.5th 306, 326 [instructional error]

In re Taylor (2015) 60 Cal.4th 1019, 1035 [constitutional claims]

People v. Salazar (2016) 63 Cal.4th 214, 248 [The correctness of jury instructions is to be determined from the entire charge of the court]

People v. Flood (1998) 18 Cal.4th 470, 502-503

People v. Merritt (2017) 2 Cal.5th 819, 830

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

Neder v. U.S. (1999) 527 U.S. 1, 15

People v. Williams (1997) 16 Cal.4th 635, 689, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22

Fourth Holding:

Forfeiture does not bar the defendant’s claim because the trial court had a sua sponte duty to instruct on all essential elements of the charge. Further, the failure to instruct the jury on all essential elements is not a matter of discretion but raises a legal claim under the federal constitution subject to de novo review.

Authority:

People v. Mil (2012) 53 Cal.4th 400, 409

People v. French (2008) 43 Cal.4th 36, 46 [a defendant’s failure to object does not preclude his asserting on appeal that he was denied his constitutional right to a jury trial]

People v. Saunders (1993) 5 Cal.4th 580, 589, fn. 5

People v. Serrano (2022) 77 Cal.App.5th 902, 908-909

People v. Lua (2017) 10 Cal.App.5th 1004, 1013

Fifth Holding:

The trial court failed to instruct properly on essential elements of the aggravating factor under rule 4.421(a)(1) that, to find the aggravating factor true, it must determine that the defendant’s conduct was distinctively worse than what was necessary to commit the crime, an element necessary to a true finding under the rule. The jury instructions omitted any definition of cruelty, viciousness, or callousness within the meaning of rule 4.421(a)(1).

This element of the aggravating factor may not be necessary in every case because “great bodily injury” alone may satisfy the requirements of rule 4.421(a)(1). But here, the defendant was also subject to a sentencing enhancement for inflicting great bodily injury under section 12022.7(a), and the trial court could not aggravate the defendant’s sentence on the same factual basis under section 1170(b)(5).

Authority:

People v. Sengpadychith (2001) 26 Cal.4th 316, 320

People v. Harvey (1984) 163 Cal.App.3d 90, 116-117 [In imposing the upper term . under rule 421(a)(1) [now rule 4.421(a)(1)] the factfinder must convince itself that, when compared to other ways in which such a crime could be committed, the manner of this crime’s commission indicated viciousness and callousness]

People v. Webber (1991) 228 Cal.App.3d 1146, 1169

People v. Nevill (1985) 167 Cal.App.3d 198, 206

People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735 [aggravating factor satisfied by finding of “great bodily injury”]

People v. Scott (1994) 9 Cal.4th 331, 350 [a court generally cannot use a single fact both to aggravate the base term and to impose an enhancement]

People v. Castaneda (1999) 75 Cal.App.4th 611, 614-615

People v. Hill (1994) 23 Cal.App.4th 1566, 1575

People v. La Fargue (1983) 147 Cal.App.3d 878, 898

Sixth Holding:

It is the court’s duty to see to it that the jury are adequately informed on the law governing all elements of the case submitted to them to an extent necessary to enable them to perform their function in conformity with the applicable law. Accordingly, the trial court erred by omitting jury instructions on necessary elements of the aggravating factor allegation.

Authority:

People v. Sanchez (1950) 35 Cal.2d 522, 528

Seventh Holding:

In addition, the court imposed an upper term sentence based on untried aggravating facts, discussing aspects purportedly related to public safety. An upper term sentence may be imposed only when circumstances in aggravation justify that term, and only when the facts underlying those justifying circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at a jury or court trial.

Here, the court erred by imposing an upper term sentence based on facts not found by the jury or stipulated to by the defendant, including that the defendant used a knife, that the assault occurred in a busy public area, and that his conduct endangered public safety. It was error for the court to consider these additional uncharged and unproven aggravating circumstances to impose an upper term sentence. We are unable to determine with a requisite degree of confidence that a jury would have found those facts to be factors in aggravation. We thus reverse the sentence and remand for resentencing.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 759

People v. Whitten (1994) 22 Cal.App.4th 1761, 1767 [examination of aggravating factors necessarily involves subjective determinations based upon objectively demonstrated facts]

Discretion, Effective assistance of counsel, Elements of crime, Sentencing

Case 000558

Posted on by Gary McCurdy

Error and/or relief

The restitution amount is wrong, and the protective order is unauthorized.

First Holding:

Appellant contends changes to section 1001.36 that went into effect after she was denied pretrial diversion apply to her case. We agree. Appellant further contends this matter should be conditionally reversed and remanded so the trial court can exercise its discretion to determine her motion for pretrial diversion in light of the amendment. We disagree.

Appellant has forfeited this claim. Frahs, decided in 2020, made clear that recently enacted section 1001.36 applied in nonfinal cases. Thus, when the law was amended effective January 1, 2023, appellant should have known the amendments applied retroactively. Once the law was amended, appellant had more than three months before she pled and more than seven months before she was sentenced to seek reconsideration of the trial court’s denial of diversion. She did not.

Authority:

People v. Frahs (2020) 9 Cal.5th 618, 631-632

People v. Doron (2023) 95 Cal.App.5th 1, 6

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

People v. Brown (2024) 101 Cal.App.5th 113, 128 [failure to seek reconsideration excused where amendment to statute effective after entry of plea but only 10 days before sentencing]

Second Holding:

In order to establish a claim for ineffective assistance of counsel, a defendant must show that his or her counsel’s performance was deficient, and that the defendant suffered prejudice as a result of such deficient performance. The record is silent, however, why defense counsel failed to seek reconsideration under the amended law.

It is possible that counsel was unaware of the newly passed statute. It is also possible, however, that counsel had sound reasons not to pursue the issue. For example, appellant may have changed her mind and decided to refuse to accept the treatment required for participation in the diversion program. Because trial counsel’s reasons for not raising the issue are not readily apparent, the issue is more appropriately considered in a habeas corpus proceeding.

Authority:

People v. Mickel (2016) 2 Cal.5th 181, 198

Strickland v. Washington (1984) 466 U.S. 668, 687-692

People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267

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

Third Holding:

We review the trial court’s restitution order for abuse of discretion. We apply the substantial evidence standard in a challenge to the sufficiency of evidence to support a factual finding necessary for a victim restitution order. Sentencing judges are given virtually unlimited discretion as to the kind of information they can consider and the source from whence it comes because a hearing to establish the amount of restitution does not require the formalities of other phases of a criminal prosecution. The court may use any rational method of fixing the amount of restitution as long as it is reasonably calculated to make the victim whole. It may make a restitution order based on truncated evidence such as declarations or probation reports, business records, and checks.

Authority:

People v. Giordano (2007) 42 Cal.4th 644, 663

People v. Jessee (2013) 222 Cal.App.4th 501, 507

People v. Hove (1999) 76 Cal.App.4th 1266, 1275

People v. Plains All American Pipeline L.P. (2024) 101 Cal.App.5th 872, 898-899

Fourth Holding:

The total restitution awarded to the victim includes two computational errors. The court erroneously included a $4,520 attorney fees bill twice and included $880 for an unknown reason. We will correct those errors.

Authority:

People v. Smith (2001) 24 Cal.4th 849, 854

Fifth Holding:

Section 136.2(i) authorizes a court to issue an order restraining a defendant for up to 10 years when the defendant has been convicted of a qualifying crime. Appellant’s conviction for assault with a deadly weapon under section 245 is not a qualifying crime under section 136(i). The court did not have statutory authority to issue the protective order, therefore, the order must be stricken.

Authority:

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Appellate Principles, Duty of counsel, Duty of the court, Sentencing

Case 000548

Posted on by Gary McCurdy

Error and/or relief

(GARY note: This case actually provided no relief at all to the defendant. It is included because it teaches a valuable lesson on the burden an appellant bears to prevail on appeal. The defendant argued that the protective order was unlawful because he was not convicted of a crime eligible for protective orders.

(But the Court of Appeal concluded that the defendant did not show that he did not commit the crime in the course of a domestic violence course of conduct, and the Court of Appeal must assume that the trial court made such a finding or it would not have imposed the order.

(The defendant was required to prove a negative. It is entirely possible that there was nothing in the record that would disprove there was or was not a domestic relationship. The conviction resulted from a plea bargain with a stipulated sentence. No objection was interposed at the time the protective order was issued.

But the case highlights the importance of understanding that an appellate court is not bound to help the defense. The conviction shifted the presumption from innocence to guilt, and the burden shifted likewise. The California Constitution requires upholding a conviction in the absence of a miscarriage of justice. Thus, the appellate courts start with a mandate that the conviction be affirmed. It is appellate counsel’s role to chip away at the presumption that orders of the superior court were properly issued. Don’t make any assumptions that cannot be backed up by the record.)

First Holding:

The defendant contends the trial court erred in issuing a criminal protective order pursuant to section 136.2(i) because his conviction for assault with a semiautomatic firearm (section 245(b)) is not an offense enumerated under the statute.

Assault with a semiautomatic firearm is not an explicitly enumerated offense under section 136.2(i). However, assault with a semiautomatic firearm can qualify under the statute as a crime involving domestic violence if the defendant’s abusive conduct is directed at someone with a qualifying relationship to him.

The record on appeal is silent as to the nature of the relationship between the defendant and the victim. The defendant has not remedied this silence with an adequate record from which we can discern whether his conviction constituted a crime involving domestic violence. On this silent record, we indulge all intendments and presumptions to support the criminal protective order, including the existence of a qualifying relationship between Hooks and the victim. Because the record does not support the defendant’s claim, he fails to meet his burden on appeal.

Authority:

PEN 13700

FAM 6203(a), 6211(c)

Second Holding:

The People assert the defendant forfeited his contention by failing to object in the trial court. As a general rule, an appellant waives issues on appeal that he or she did not initially raise in the trial court. But there are exceptions to this rule for unauthorized sentences and sentencing decisions that are in excess of the trial court’s jurisdiction. Because this case involves the jurisdictional validity of the trial court’s decision to issue a protective order during sentencing, we will consider the defendant’s claim on the merits.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 381-382

Third Holding:

Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error. This presumption also applies to a lower court’s orders. All intendments and presumptions are indulged to support the order on matters as to which the record is silent, and error must be affirmatively shown. On appeal, the defendant must affirmatively demonstrate error below and provide an adequate record to support his arguments. Any uncertainty in the record must be resolved against the defendant. We will not presume error.

Authority:

People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573

People v. Sullivan (2007) 151 Cal.App.4th 524, 549

Abstracts and Minutes, Appellate Principles, Fines and fees, Sentencing

Case 000538

Posted on by Gary McCurdy

Error and/or relief

The abstract of judgment must be corrected because it contains several errors, including a representation that the court imposed a $300 restitution, contrary to the actual order.

First Holding:

The abstract of judgment reflects a $300 restitution fine under section 1202.4(b) and a $300 parole revocation fine under section 1202.45 that were not orally imposed during the sentencing hearing. Under section 1202.4(b), the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record.

Under section 1202.45, if a defendant’s sentence includes a period of parole or the defendant is subject to post-release community supervision or mandatory supervision, the court shall impose an additional fine in the same amount as the section 1202.4 fine.

The People did not object to the court’s failure to orally impose these fines. Because such fines are discretionary given the court’s ability to not impose them if it makes certain findings on the record, the People forfeited the imposition of the fines by not objecting. Accordingly, we direct those fines to be stricken.

Authority:

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

Second Holding:

The abstract of judgment reflects that the restitution fine was imposed, but it was not. The oral pronouncement controls, so we amend the abstract of judgment accordingly.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185, 188

Appellate Principles, Sentencing

Case 000526

Posted on by Gary McCurdy

Error and/or relief

At sentencing, the trial court found the defendant, who was found guilty of assault with a deadly weapon and vandalism, was not a suitable candidate for probation and imposed a custodial sentence. As part of that sentence, the court issued an indefinite stay-away order barring the defendant from the specific address of the apartment complex where the victim lived. It was improper to issue a protective order, which must be stricken.

First Holding:

Claims that a sentence is unauthorized may be raised for the first time on appeal and should be corrected whenever a reviewing court identifies the error.

Authority:

People v. Ponce (2009) 173 Cal.App.4th 378, 382

Second Holding:

Section 136.2(a)(1), allows a trial court to issue protective orders during a criminal case. But courts have read that provision to allow protective orders only while the criminal action is pending. In response, the Legislature added subdivision (i) to section 136.2, which allows postconviction protective orders lasting up to 10 years, but only when the defendant is convicted of domestic violence, certain sexual offenses, street terrorism, or crimes requiring sex offender registration.

Outside of those categories, section 136.2 does not give the trial court statutory authority to impose the postconviction protective order. The order here was unauthorized on two independent grounds. First, it was indefinite in duration and not tied to the pendency of the criminal proceedings. The trial court denied probation, so the order was not authorized as a condition of probation. A postjudgment restraining order imposed under these circumstances falls outside the authority granted by section 136.2 and must be stricken. Second, the trial court never made a finding of good cause to believe that the defendant posed an ongoing risk of intimidating or dissuading the vicitm or anyone else at the complex.

Authority:

PEN 136.2

People v. Corrales (2020) 46 Cal.App.5th 283, 286

People v. Stone (2004) 123 Cal.App.4th 153, 159

People v. Garcia (2022) 76 Cal.App.5th 887, 901

Third Holding:

A criminal protective order must also rest on a finding of good cause to believe that the defendant is likely to try to intimidate or dissuade a victim or witness. The fact that a victim was harmed or threatened with harm is not enough on its own.

Authority:

Babalola v. Superior Court (2011) 192 Cal.App.4th 948, 962