Tag Archives: Prejudice

Effective assistance of counsel, Immigration

Case 000053

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the denial of his motion under Penal Code section 1473.7 to vacate his 2022 conviction by a no-contest plea. He contends he was unable to defend against and meaningfully understand the adverse immigration consequences of his conviction because of his defense counsel’s prejudicial errors. We conclude the defendant has met his burden of establishing error under section 1473.7. His counsel’s attempts to negotiate an immigration-safe plea were insufficient. Counsel proposed a plea that was unlikely to be accepted by the People, instead of a plea to an alternative, immigration-safe offense that was comparable to the People’s offer. The defendant also established by a preponderance of the evidence that, but for his counsel’s error, he would not have entered a plea. Accordingly, we reverse the denial of his motion and direct the superior court to vacate his conviction.

First Holding:

A person who is no longer in criminal custody may file a motion to vacate a conviction or sentence if the conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence. The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of such grounds for relief.

Authority:

PEN 1473.7

Second Holding:

The moving party must also establish that the conviction or sentence being challenged is currently causing or has the potential to cause removal or the denial of an application for an immigration benefit, lawful status, or a petitioner must first show that an error occurred—specifically, that he or she was unable to either meaningfully understand, defend against, or knowingly accept the immigration consequences of his conviction.

Authority:

People v. Espinoza (2023) 14 Cal.5th 311, 319

People v. Padron (2025) 109 Cal.App.5th 950, 958

Third Holding:

The focus of this showing is the defendant’s own error. To establish error, a petitioner may, but need not, prove he received ineffective assistance from his counsel.

Authority:

PEN 1473.7(a)(1)

People v. Padron (2025) 109 Cal.App.5th 950, 958-959

Fourth Holding:

Even if the motion is based upon errors by counsel, the moving party need not also establish a Sixth Amendment violation as by demonstrating that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.

Authority:

People v. Benitez-Torres (2025) 112 Cal.App.5th 1252, 1268

Fifth Holding:

The petitioner must demonstrate that the error was prejudicial.

Authority:

PEN 1473.7(a)(1)

People v. Vivar (2021) 11 Cal.5th 510, 528

 

Abstracts and Minutes, Appellate Principles, Jury trial, Juveniles, Sentencing, Sixth Amendment

Case 000033

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by not obtaining defendant’s personal waiver of the defendant’s right to a jury trial on allegations of aggravating circumstances and prior convictions under the Three Strikes law. As to the prior convictions, we find no prejudice. The error was prejudicial, however, with regard to the aggravating circumstances.

First Holding:

There is a constitutional right to a jury trial on all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. A waiver of the right must be personally expressed by the defendant in open court. It must be explicit and will not be implied from the defendant’s conduct. A failure to object will not preclude his asserting on appeal his constitutional right to a jury trial.

Authority:

Section 16 of Article I of the California Constitution

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, 46-47

Second Holding:

A complete deprivation of a jury trial on issues of guilt is of a different magnitude than the denial of a jury determination on penalty allegations. Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error.

Authority:

Washington v. Recuenco (2006) 548 U.S. 212

Third Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. Under that standard, reversal and remand are required unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified. Lack of a jury trial is not harmless under Chapman if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.

Authority:

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

People v. Wiley (2025) 17 Cal.5th 1069, 1087

People v. Lynch (2024) 16 Cal.5th 730, 743

Neder v. United States (1999) 527 U.S. 1, 19

Fourth Holding:

The opening brief contains a footnote in which he cursorily asserts a related claim of insufficient evidence. We exercise our discretion to disregard points raised in a footnote rather than being properly presented under a discrete heading with appropriate analysis. Footnotes are not the appropriate vehicle for stating contentions on appeal

Authority:

Cal. Rules of Court rule 8.204(a)(1)(B)

People v. Carroll (2014) 222 Cal.App.4th 1406, 1412, fn. 5

Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947

People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5

Fifth Holding:

With respect to the prior convictions, defendant’s claims are insufficiently developed and could be rejected for that reason alone.

Authority:

People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2

People v. Hardy (1992) 2 Cal.4th 86, 150

Sixth Holding:

Outside the pronouncement of judgment, discrepancies between a minute order and the reporter’s transcript are resolved by adopting whichever should be given greater credence under the circumstances of the particular case.

Authority:

People v. Contreras (2015) 237 Cal.App.4th 868, 880

People v. Smith (1983) 33 Cal.3d 596, 599

Seventh Holding:

There is no federal or state constitutional right to a jury trial on the fact of a prior conviction. In California, defendants have a statutory right to a jury trial on the question of whether or not the defendant has suffered the prior conviction. The requirement of an express waiver under section 16 of article I of the California Constitution] applies to the constitutional right to a jury trial, but not to jury trial rights that are established only by statute. Therefore, the statutory right to a jury trial on prior conviction allegations can be impliedly waived and forfeited.

Authority:

PEN 1025(b) and (c)

Almendarez-Torres v. United States (1998) 523 U.S. 224

People v. Gallardo (2017) 4 Cal.5th 120, 125

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

People v. Grimes (2016) 1 Cal.5th 698, 737–738

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

Eighth Holding:

As a general rule, double jeopardy principles do not prohibit retrial following reversal on appeal for reasons other than insufficiency of the evidence.

Authority:

People v. Wilson (2023) 14 Cal.5th 839, 855

Monge v. California (1998) 524 U.S. 721, 728–729

Ninth Holding:

Juvenile adjudications do not, under any circumstances, qualify as convictions for purposes of section 667(a) (the enhancement for prior convictions of a serious felony when the new offense is a serious felony).

Authority:

People v. West (1984) 154 Cal.App.3d 100, 107–108

People v. Park (2013) 56 Cal.4th 782, 798

People v. Smith (2003) 110 Cal.App.4th 1072, 1080, fn. 10

People v. O’Neal (2000) 78 Cal.App.4th 1065, 1068

Appellate Principles, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case 000024

Posted on by Gary McCurdy

Error and/or relief

GARY note: The winning issue was relatively simple, but in affirming the overall conviction, the court shared several principles I thought worthy of reporting, even though many did not bear on the dual use of enhancements.

For the attempted murder of the victim in count 3, the trial court should have stayed the three-year enhancement for great bodily injury under section 12022.7 because it also imposed a term of 25 years to life under section 12022.53, subdivision (d), for personally and proximately causing great bodily injury with a firearm. We will modify the judgment so that it accords with the law.

First Holding:

Where multiple prison terms are improperly imposed as in this case, the reviewing court may modify the sentence to stay imposition of the sentence

Authority:

People v. Hunter (1986) 184 Cal.App.3d 1531, 1537

Second Holding:

It is improper to impose the enhancement under Penal Code section 12022.7 in addition to enhancement under section 12022.53(d), and it must be stayed.

Authority:

People v. Garcia (2017) 7 Cal.App.5th 941, 949

People v. Hunter (1986) 184 Cal.App.3d 1531, 1537

Third Holding:

If an error violates a defendant’s federal constitutional rights, reversal is required unless the error was harmless beyond a reasonable doubt.

Authority:

People v. Hernandez (2011) 51 Cal.4th 733, 745

Chapman v. California (1967) 386 U.S. 18, 24

People v. Canizales (2019) 7 Cal.5th 591, 615

People v. Concha (2010) 182 Cal.App.4th 1072, 1087

Fourth Holding:

A harmless error analysis may include consideration of implausible defense testimony and closing argument to the jury.

Authority:

People v. Fayed (2020) 9 Cal.5th 147, 195

People v. Zambrano (2004) 124 Cal.App.4th 228, 243

People v. Flores (2016) 2 Cal.App.5th 855, 881

Fifth Holding:

With respect to errors alleged regarding the conviction of the murder, the error can be found to be harmless beyond a reasonable doubt even under the Chapman standard, as the court concludes in this instance.

Authority:

People v. Salas (2006) 37 Cal.4th 967, 983-984

People v. Garcia (2001) 25 Cal.4th 744, 755

Wright v. West (1992) 505 U.S. 277, 296

Hanrahan v. Thieret (7th Cir. 1991) 933 F.2d 1328, 1340

Phelps v. Duckworth (7th Cir. 1985) 772 F.2d 1410, 1413-1414

Sixth Holding:

The standard of review on sufficiency of evidence is whether any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt, viewing evidence in light most favorable to prosecution.

Authority:

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

Seventh Holding:

Substantial evidence is evidence that is reasonable, credible, and of solid value.

Authority:

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

Eighth Holding:

A conviction for attempted murder requires proof that the defendant intended to kill the victim and proof of a direct but ineffectual act toward accomplishing that goal. But a finding of willfulness, deliberation, and premeditation requires more than a showing of an intent to kill.

Authority:

People v. Medina (2019) 33 Cal.App.5th 146, 153

People v. Gomez (2018) 6 Cal.5th 243, 282

Ninth Holding:

When reviewing a claim the trial court erred in denying a motion for a judgment of acquittal (sec. 1118.1) that was made at the close of the prosecution’s case-in-chief, the appellate court considers the evidence as it stood at that point,

Authority:

People v. Cole (2004) 33 Cal.4th 1158, 1212-1213

Tenth Holding:

It is the appellant’s burden to demonstrate error based on the appellate record and with meaningful legal analysis with adequate citation to the record.

Authority:

People v. Dauterman (2024) 104 Cal.App.5th 603, 609

Eleventh Holding:

Arguments not raised below are forfeited.

Authority:

People v. Richardson (2008) 43 Cal.4th 959, 1022-1023

Twelfth Holding:

The court conducts de novo review to detemine if jury miscontrued or misapplied the law.

Authority:

People v. Shaw (2002) 97 Cal.App.4th 833, 838

Thirteenth Holding:

Error in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.

Authority:

People v. Lewis (2001) 25 Cal.4th 610, 646

Fourteenth Holding:

Errors in the abstract of judgment may be corrected.

Authority:

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