Tag Archives: Prejudice

Duty of counsel, Sentencing, Sixth Amendment

Case: 000237

Posted on by Gary McCurdy

Error and/or relief

The sentencing court erred by considering aggravating circumstances not proven at trial. Because we reverse and remand for resentencing, we need not address the defendant’s contention that the court committed dual use error by relying on same fact—that he was was armed with or used a firearm—to both impose enhancements and sentence him to the upper term. He may raise his dual use argument at resentencing.

First Holding:

The defendant’s attorney did not object to dual use of facts or reliance on factors in aggravation that were not proved at trial. In general, claims not raised in the trial court may not be raised for the first time on appeal. This includes claims involving the trial court’s failure to properly make or articulate its discretionary sentencing choices.

However, an appellate court may decline to apply the forfeiture rule. Where an otherwise forfeited claim presents an important question of constitutional law or a substantial right, the appellate court may exercise discretion to review the claim. Thus, in People v. Gonzalez, this court declined to apply forfeiture to the defendant’s section 1170(b) claim where the defendant did not refer to the statute at sentencing, citing the defendant’s alternative claim of ineffective assistance of counsel and stating the application of amended section 1170(b) implicates a constitutional right.

Authority:

People v. Gonzalez (2024) 107 Cal.App.5th 312, 326-327

People v. Coddington (2023) 96 Cal.App.5th 562, 568

People v. Denard (2015) 242 Cal.App.4th 1012, 1030, fn. 10

Second Holding:

The 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 by the jury or by the judge in a court trial.

Authority:

PEN 1170

Third Holding:

Under the Sixth Amendment to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt. Virtually any fact that increases the prescribed range of penalties to which a criminal defendant is exposed must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). Under the current version of section 1170(b)(2), a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 281

Erlinger v. United States (2024) 602 U.S. 821, 834

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

Fourth Holding:

When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. When the trial court actually relies on improperly proven aggravating facts to justify an upper term sentence, a Sixth Amendment violation occurs and the Chapman standard of reversal unless harmless beyond a reasonable doubt must be satisfied.

Authority:

People v. Price (1991) 1 Cal.4th 324, 492

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

Elements of crime, Jury instructions, Standard of review

Case: 000219

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in instructing the jury that implied malice murder can be based on an act that was reasonably foreseeable to cause death rather than highly likely to cause death. The prosecutor erred by making arguments to the jury on the same point. The defendant’s convictions on the counts of murder are reversed. The charges may be retried on remand. [The defendant was convicted as a result of the death of three occupants of a vehicle he crashed into while he was driving under the influence.]

First Holding:

Malice may be implied when a defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. The trial court erred here by requiring only that death be a reasonably foreseeable consequence of appellant’s act, rather than a highly probable one. Similarly, the prosecutor erred by arguing to the jury that it need not find that appellant’s act of driving impaired created a strong probability of death.

Authority:

People v. Dellinger (1989) 49 Cal.3d 1212, 1219

Second Holding:

When the trial court misinstructs the jury on an element of a charged crime, we consider prejudice under the standard of Chapman. Under that standard, we reverse the judgment unless the error was harmless beyond a reasonable doubt.

Authority:

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

People v. Hendrix (2022) 13 Cal.5th 933, 942

Sentencing, Sixth Amendment

Case 000201

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred when it sentenced the defendant to an upper term sentence without affording him a jury trial on aggravating factors. The trial court did not obtain defendant’s personal waiver of his right to a jury trial on the aggravating factors. Defendant’s trial counsel stipulated to a court trial on defendant’s behalf, but defendant did not personally stipulate to a court trial or waive the jury trial right. The court found the pleaded aggravating circumstances to be true after a court trial, in violation of defendant’s constitutional right to a jury. We cannot conclude beyond a reasonable doubt the jury would have found true that the defendant’s prior performance on post release community supervision was unsatisfactory. Because defendant was entitled to a jury trial at a minimum on this aggravating factor, we must remand the matter for a full resentencing to afford defendant that right.

First Holding:

A criminal defendant has a constitutional and statutory right to have a jury determine beyond a reasonable doubt the truthfulness of every aggravating circumstance used to increase the penalty for the crime. Any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. Any waiver of this jury trial right must be an express waiver by the defendant and counsel in open court.

Authority:

PEN 1170

Cal. Const., art. I, sec. 16

Cunningham v. California (2007) 549 U.S. 270, 288-289

People v. Lynch (2024) 16 Cal.5th 730, 757

People v. Wiley (2025) 17 Cal.5th 1069, 1084

Erlinger v. United States (2024) 602 U.S. 821, 838-840, 842

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

Second Holding:

The error is prejudicial unless we can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements. Lack of a jury trial is not harmless if the record contains evidence that could rationally lead to a contrary finding’ with respect to the aggravating fact at issue.

Authority:

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

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

Discretion, Sentencing, Sixth Amendment

Case: 000189

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by reimposing the upper term sentences based on aggravating factors that were not proven beyond a reasonable doubt to a jury as required under section 1170(b)(2). This error violated his Sixth Amendment right to a jury trial and was not harmless beyond a reasonable doubt. The trial court failed to exercise its discretion under AB 518 (2021-2022 Reg. Sess.) (regarding the choice of sentences to impose when section 654 permits sentencing on only one of the counts it applies to) at the resentencing hearing. The abstract of judgment must be corrected to reflect the correct sentencing date and number of custody credits.

First Holding:

Under the Fifth and Sixth Amendments to the United States Constitution, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. Section 1170(b)(2) similarly provides that the trial court may impose a sentence exceeding the middle term only when circumstances in aggravation of the crime justify imposition of an upper term sentence, and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt’ at a jury or court trial. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence.

Authority:

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

Second 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, a sentence imposed under section 1170(b) must be reversed and remanded 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, or that those facts were otherwise proved true in compliance with the current statute. 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:

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

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

Third Holding:

Section 654 prohibits a court from punishing a defendant more than once for the same act or course of conduct. Prior to 2022, the statute required that an act or omission punishable in different ways by different statutes be punished under the provision that provided the longest potential term of imprisonment. (Former sec. 654(a).) AB 518 amended section 654 effective January 1, 2022, to grant a court discretion to punish such an act under either of such provisions. The trial court erroneously failed to exercise its discretion under Assembly Bill 518 at the resentencing hearing. Since we are again remanding this matter for resentencing under Senate Bill 567, the trial court should conduct a full resentencing as to all counts based on the law and circumstances that apply when resentencing occurs, including the amendments to section 654 under AB 518.

Authority:

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

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

Fourth Holding:

The abstract of judgment will need to be corrected to reflect the correct sentencing date and number of custody credits.

[Gary note: The court did not cite authority for this obviously required order. There are many cases it could have cited. I have listed some of them below.]

Authority:

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

People v. Delgado (2008) 43 Cal.4th 1059, 1070

People v. Leon (2020) 8 Cal.5th 831, 855

In re Black (1967) 66 Cal.2d 881, 890

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

People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2

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

000184

Posted on by Gary McCurdy

Error and/or relief

A jury found the defendant guilty of felony reckless evasion of a police officer. There were evidentiary conflicts. Under the highly deferential substantial evidence review standard, we conclude the conflicting trial evidence nonetheless supports his conviction. These evidentiary conflicts were sufficient, however, to raise a substantial question about whether all the elements of reckless evasion were present, warranting an instruction on the lesser included offense of simple evasion. We conclude failure to give this instruction was prejudicial error.

Accordingly, we reverse the judgment with the direction that if the People do not timely elect to retry the defendant for reckless evasion, then the judgment shall be modified to reflect a conviction for simple evasion and the trial court shall resentence the defendant.

First Holding:

It is undisputed that misdemeanor simple evasion (Veh. Code, sec. 2800.1) is a lesser included offense of felony reckless evasion (Veh. Code, sec. 2800.2) and that the only distinction between the two crimes is that the greater offense requires proof of the additional element that the defendant drove the pursued vehicle in a willful or wanton disregard for the safety of persons or property. The greater offense’s additional element can be established by proving that during the evasion the defendant committed three or more violations that are assigned a traffic violation point count under section 12810.

Authority:

VEH 2800.1

VEH 2800.2

People v. Springfield (1993) 13 Cal.App.4th 1674, 1680

People v. Diaz (2005) 125 Cal.App.4th 1484, 1486

Second Holding:

In reviewing a challenge to the sufficiency of the evidence, we do not determine the facts ourselves. Rather, we examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — 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.

We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a convictionIf the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Authority:

People v. Houston (2012) 54 Cal.4th 1186, 1215

People v. Oyler (2025) 17 Cal.5th 756, 819–820

People v. Ramirez (2022) 13 Cal.5th 997, 1118

People v. Jennings (2010) 50 Cal.4th 616, 638, 639

Third Holding:

California law has long provided that even absent a request, and over any party’s objection, a trial court must instruct a criminal jury on any lesser offense necessarily included in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence. The rule prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other.

Thus, a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support. In this context, substantial evidence is not any evidence, no matter how weak; it is evidence that a reasonable jury could find persuasive. If there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged, such instructions shall not be given. Although we concluded above that substantial evidence supports the finding that the defendant committed at least three qualifying Vehicle Code violations during the pursuit, there is also substantial evidence that he did not commit at least three qualifying violations. Accordingly, the trial court erred by failing to instruct the jury sua sponte regarding this lesser included offense.

Authority:

People v. Smith (2013) 57 Cal.4th 232, 239–240

People v. Breverman (1998) 19 Cal.4th 142, 154

People v. Williams (2015) 61 Cal.4th 1244, 1263

People v. Kraft (2000) 23 Cal.4th 978, 1063

Fourth Holding:

We apply the generally applicable California test for harmless error under which we deem an error harmless unless it is reasonably probable the outcome would have been different in the absence of the error. Other than in cases involving the unique relationship between murder and voluntary manslaughter, the general rule is that the failure to instruct on other forms of lesser included offenses in noncapital cases is an error of state law. A reasonable probability in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. In assessing prejudice, we consider both the magnitude of the error and the closeness of the case. Applying this standard, we find the error here prejudicial.

Authority:

People v. Schuller (2023) 15 Cal.5th 237, 251

People v. Watson (1956) 46 Cal.2d 818

People v. Hendrix (2022) 13 Cal.5th 933, 944

People v. Vasquez (2018) 30 Cal.App.5th 786, 798