Tag Archives: Prejudice

Sentencing, Sixth Amendment, Standard of review

Case: 000314

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly imposed the upper term for the attempted murder conviction based on unpleaded and unproven aggravating factors. Accordingly, we will remand for resentencing and otherwise affirm the judgment.

First Holding:

In selecting a term of imprisonment, 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 by the jury or by the judge in a court trial. Notwithstanding this rule, a court may 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

Second Holding:

With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury and established beyond a reasonable doubt. 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. Further the United States Supreme Court rejected the argument that the prior conviction exception to the Sixth Amendment permits a judge to find perhaps any fact related to a defendant’s past offenses. Rather, a judge may do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 747, 768

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

Erlinger v. United States (2024) 602 U.S. 821, 837-838

Third Holding:

A trial court’s reliance on aggravating circumstances not found in accordance with section 1170(b) is prejudicial unless an appellate court 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. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing. When assessing prejudice under Chapman, the proper inquiry is whether any rational fact finder could have come to the opposite conclusion. If a rational juror could have reached the opposite conclusion, the error is not harmless under Chapman. The Attorney General bears the burden of establishing that the federal constitutional error was harmless beyond a reasonable doubt.

Authority:

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

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

People v. Wiley (2025) 17 Cal.5th 1069, 1090

People v. Avalos (2022) 85 Cal.App.5th 926, 953

Fourth Holding:

The error was not harmless beyond a reasonable doubt. The record does not necessarily reflect that defendant’s convictions were increasing in seriousness. He was subject to a sustained juvenile petition for robbery, and his adult conviction was for unlawful firearm activity. A rational jury could have concluded that his felony conduct was not increasing in seriousness. The trial court’s remaining findings are subjective determinations that go beyond the mere fact of a prior conviction.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 767 [The Sixth Amendment jury trial right attaches to every aggravating fact, other than a prior conviction, used to justify imposition of the upper term]

Abstracts and Minutes, Amelioration, Elements of crime, Jury instructions, Sentencing, Standard of review

Case: 000302

Posted on by Gary McCurdy

Error and/or relief

The defendants are entitled to retrial on the counts for active participation in a criminal street gang in light of AB 333’s retroactive changes to section 186.22. It was error to order Defendant’s 2 and 3 to be jointly responsible for the funeral expenses of the victim killed by Defendant 1. In addition there were several errors in Defendant 1’s consolidated abstract of judgment that need correction.

First Holding:

During the appeal, the Legislature amended section 186.22’s defendant of a criminal street gang. It narrowed the definition of a criminal street gang to require that any gang be an ongoing, organized association or group of three or more persons; it requires that the pattern of criminal activity foundational to a criminal street gang have been collectively engaged in by members of the gang; it also imposed further requirements limiting the offenses on which a pattern of criminal gang activity could be predicated; and it required that for an offense to have commonly benefitted a street gang, any common benefit be more than reputational.

Authority:

AB 333

PEN 186.22

People v. Tran (2022) 13 Cal.5th 1169, 1206

Second Holding:

The ameliorative amendments apply retroactively to all cases not yet final as of its effective date.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206-1207

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

Third Holding:

The trial court instructed the jury on the then-applicable definition of a criminal street gang, omitting several of the requirements that have now been imposed by AB 333. The jury instruction thus relieved the prosecution of its burden to prove all elements of the crime as now defined.

Authority:

People v. Cooper (2023) 14 Cal.5th 735, 742

Fourth Holding:

We apply the harmless beyond a reasonable doubt standard articulated in Chapman. When a jury instruction has omitted an element of an offense, our task is to determine whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. The question is not whether there is evidence in the record that would support a jury finding of the missing element, but whether we can conclude beyond a reasonable doubt that the jury verdict would have been the same had the jury been instructed on the missing element.

Authority:

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

People v. Cooper (2023) 14 Cal.5th 735, 742-743

People v. Lamb (2024) 16 Cal.5th 400, 449

Fifth Holding:

All three defendants will be entitled to a full resentencing upon remand, independent of the prosecution’s election whether to pursue the gang charge or enhancements on remand. The full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.

Authority:

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

People v. Valenzuela (2019) 7 Cal.5th 415, 424–425

Sixth Holding:

We observe, however, that neither Defendant 2 nor Defendant 3 can be ordered to pay restitution for any losses attributable to Defendant 1’s murder of the deceased. Neither of them were charged with any offense involving the deceased, and nothing in the evidence before the jury or the court at sentencing implicated them in his murder. It was accordingly error to make them jointly and severally liable for the deceased’s funeral expenses.

Authority:

PEN 1202.4(f) [authorizing restitution where a victim has suffered economic loss as a result of the defendant’s conduct]

People v. Scott (1994) 9 Cal.4th 331, 354 [unauthorized sentence cannot be lawfully imposed]

Seventh Holding:

Defendant 1’s consolidated abstract of judgment requires correction. First, in case number A, the abstract of judgment erroneously lists as stayed count 2’s multiple-murder special circumstance when the trial court vacated this finding. In case number B, Defendant 1’s conviction for assault with force likely to produce great bodily injury in violation of section 245(a)(4) is described on the abstract as “Asslt w/deadly wpn/force likely to prod GBI.” We agree that an amended abstract should be reworded to avoid confusion between assault with a deadly weapon (sec. 245(a)(1), (2), or (3))—a serious felony under section 1192.7—and assault by force likely to produce great bodily injury (sec. 245(a)(4)).

(GARY NOTE–the appellate court did not cite case authority for the correction of the abstract, but it is abundantly clear the court has that authority. I have set forth some below)

Authority:

PEN 1192.7(c) [listing serious felonies]

People v. Delgado (2008) 43 Cal.4th 1059, 1065

[on correction of abstracts]

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

Amelioration, Appellate Principles, Elements of crime, Retroactivity, Standard of review, Vicarious liability

Case: 000295

Posted on by Gary McCurdy

Error and/or relief

There are two defendants, both convicted of murder and other matters. We reverse all counts of the conviction of Defendant A because of instructional error. It is therefore not necessary for us to consider the other errors urged by Defendant A. As to Defendant B, we reverse the conviction on the firearm offenses because of instructional error, and agree that the jury’s true findings on gang enhancements and related gang-related firearm enhancements must be vacatedand remanded because of changes in the law of gang criminal activity.

[GARY NOTE: The opinion is 70 pages long and goes into extensive discussion of the elements of murder. The reversals were based on the absence of proper jury instructions. I have chosen to summarize only a few of the pronouncements in the opinion rather than present a treatise on the elements of murder. I will, however, send the opinion to attorneys on request.]

First Holding:

Due to the trial court’s failure to instruct the jury on the meanings of “willfully,” “deliberately,” and “with premeditation,” or with the instructions describing aider and abettor liability for murder, Defendant A’s conviction for first degree murder requires reversal.

To be guilty of first degree murder as an aider and abettor, the jury must be instructed that a person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.

Authority:

People v. Beeman (1984) 35 Cal.3d 547, 561

Second Holding:

We evaluate the failure to instruct the jury on an element of an offense for prejudice under Chapman. Under this standard, we must reverse the conviction unless after examining the entire cause, including the evidence, and considering all relevant circumstances, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.

Authority:

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

People v. Beck and Cruz (2019) 8 Cal.5th 548, 642

People v. Swain (1996) 12 Cal.4th 593, 607

Third Holding:

We review a claim of instructional error de novo. Review of the adequacy of instructions is based on whether the trial court fully and fairly instructed on the applicable law. Generally, the trial court is required to instruct the jury on the general principles of law that are closely and openly connected with the evidence and that are necessary to the jury’s understanding of the case. It also has a duty to refrain from giving incorrect instructions or instructions on principles of law that are irrelevant and that would have the effect of confusing the jury or relieving it from making findings on the relevant issues. The trial court’s duty in this regard extends to lesser included offenses that find substantial support in the evidence. In determining the correctness of jury instructions, we consider the entire charge of the court, in light of the trial record.

Authority:

People v. Manriquez (2005) 37 Cal.4th 547, 581, 584

People v. Barber (2020) 55 Cal.App.5th 787, 798-799

People v. Thomas (2023) 14 Cal.5th 327, 388–389

People v. Breverman (1998) 19 Cal.4th 142, 162

People v. Covarrubias (2016) 1 Cal.5th 838, 926

Fourth Holding:

An erroneous failure to instruct on a lesser included offense requires reversal of a conviction if, taking into account the entire record, it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. In a noncapital case, a failure to instruct sua sponte on a lesser necessarily included offense that is supported by the evidence is state law error that we review for prejudice under Watson. Under Watson, a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error. We also consider the instructions as a whole, the jury’s findings, and the closing arguments of counsel.

Authority:

People v. Breverman (1998) 19 Cal.4th 142, 169, 178

People v. Watson (1956) 46 Cal.2d 818, 836

People v. Ledesma (2006) 39 Cal.4th 641, 716

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

People v. Beltran (2013) 56 Cal.4th 935, 955

People v. Larsen (2012) 205 Cal.App.4th 810, 831

Fifth Holding:

We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. When we review a purportedly erroneous instruction, we consider whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.

Authority:

People v. Ramos (2008) 163 Cal.App.4th 1082, 1088

People v. Richardson (2008) 43 Cal.4th 959, 1028

Sixth Holding:

AB 333 amended section 186.22, by, among other things, modifying the definitions of “pattern of criminal activity” and “criminal street gang,” as well as clarifying what is required to establish that an offense benefits, promotes, furthers, or assists a criminal street gang. Section 186.22 now requires proof of the following additional requirements with respect to predicate offenses: (1) the offenses must have commonly benefited a criminal street gang where the common benefit is more than reputational; (2) the last predicate offense must have occurred within three years of the date of the currently charged offense; (3) the predicate offenses must be committed on separate occasions or by two or more gang members, as opposed to persons; and (4) the charged offense cannot be used as a predicate offense.

To benefit, promote, further, or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant.

Authority:

People v. Perez (2022) 78 Cal.App.5th 192, 206

People v. Lopez (2021) 73 Cal.App.5th 327, 345

Seventh Holding:

Because the changes to the criminal street gang statute in AB 333 are ameliorative,those changes apply retroactively to defendants whose convictions are not yet final.

Authority:

People v. Tran (2022) 13 Cal.5th 1169, 1206–1207

Duty of counsel, Effective assistance of counsel, Pleading, Sentencing, Sixth Amendment

Case: 000280

Posted on by Gary McCurdy

Error and/or relief

As to one of the counts the trial court improperly imposed an upper term sentence. The aggravating facts were found true by the judge rather than by the jury. Thus, we shall vacate the upper term sentence. On remand, the People may elect to retry the aggravating facts; if not, the court may proceed to resentencing.

First 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. Trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.

Authority:

PEN 1170

Second Holding:

When a trial court imposes an upper term sentence by relying on aggravating facts not proven in compliance with section 1170(b)(2), the sentence must be vacated, and the matter must be remanded for resentencing unless the reviewing court finds that the omission of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify an upper term sentence.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 744–775

Third Holding:

In this case there was a jury trial, but the aggravating facts were not alleged in the information, they were not found true by the jury, and they were not stipulated to by the defendant. The error was prejudicial under the federal constitutional standard of review. Therefore, we must vacate the upper term sentence as to count six and remand for resentencing.

Authority:

PEN 1170(b)(2)

People v. Buycks (2018) 5 Cal.5th 857, 893 [when part of a sentence is stricken on review, on remand for resentencing a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances]

Fourth Holding:

The People argue that the defendant forfeited this claim because he did not object to the error during the sentencing hearing. We agree that the defendant has forfeited this claim. However, we will exercise our discretion and not apply the forfeiture rule because it will have the effect of converting an appellate issue into a habeas corpus claim of ineffective assistance of counsel for failure to preserve the question by timely objection.

Authority:

People v. Butler (2003) 31 Cal.4th 1119, 1128

Duty of counsel, Effective assistance of counsel, Evidence, Standard of review

Case: 000279

Posted on by Gary McCurdy

Error and/or relief

We find merit in the defendant’s claim of prejudicially ineffective assistance with respect to the court’s admission of the law enforcement witness testimony, and therefore reverse.

First Holding:

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.

Authority:

EVID 353

People v. Flinner (2020) 10 Cal.5th 686, 726 [a defendant forfeits an argument on appeal where [s]he fails to object at all to the evidence in the trial court or when [s]he objects on substantively distinct grounds]

People v. Wilson (2025) 111 Cal.App.5th 1020, 1030 [defendant forfeited claim of prosecutor misconduct in closing argument, including based on an asserted violation of the Racial Justice Act, by failing to assign misconduct and request a jury admonishment]

Second Holding:

To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Authority:

People v. Rices (2017) 4 Cal.5th 49, 80

Strickland v. Washington (1984) 466 U.S. 668, 694

Third Holding:

In determining whether counsel’s performance was deficient, we exercise deferential scrutiny. The appellant must affirmatively show counsel’s deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics. We presume counsel’s performance fell within the wide range of professional competence and that his or her actions and inactions can be explained as a matter of sound trial strategy. When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was no conceivable tactical purpose for counsel’s act or omission.

Authority:

People v. Loza (2012) 207 Cal.App.4th 332, 351

People v. Aguirre (2025) 18 Cal.5th 629, 679

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

Fourth Holding:

An attorney may choose not to object for many reasons, and the failure to object rarely establishes ineffectiveness of counsel.

Authority:

People v. Gurule (2002) 28 Cal.4th 557, 609-610

People v. Torres (1995) 33 Cal.App.4th 37, 48 [counsel’s decision not to object is generally a matter of trial tactics]

Fifth Holding:

This is the rare case where there is no satisfactory explanation for counsel’s failure to object to the testimony of the two police officers concerning whether a drug exchange took place and the defendant’s involvement. Opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.

[GARY NOTE: the balance of this issue was very fact-dependent, with the court implicitly finding that there could have been no legitimate tactical reason for the attorney to not object to the testimony.]

Authority:

People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77

People v. Torres (1995) 33 Cal.App.4th 37, 47

People v. Brown (1981) 116 Cal.App.3d 820, 827-829

People v. Duong (2020) 10 Cal.5th 36, 61 [trial court properly excluded proposed expert testimony that certain wounds were accidental and essentially that the defendant lacked the required intent, which was tantamount to expressing an opinion as to defendant’s guilt because it proposed to dispose of an essential element of the crime]

Amelioration, Sentencing, Sixth Amendment, Standard of review

Case: 000273

Posted on by Gary McCurdy

Error and/or relief

It was error for the trial court to impose the upper term based on its own conclusion that the defendant’s prior convictions were numerous and of increasing seriousness, where there was no waiver of a jury or stipulation by the defendant. Defendant was not advised of his right to a jury trial on the aggravating facts, nor did he explicitly waive his right to jury trial on those aggravating facts. The trial court erred in imposing an upper term sentence in the absence of such a waiver.

First Holding:

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 constitutionally required for all aggravating facts, other than a prior conviction, relied upon to justify an upper term sentence. A defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Authority:

PEN 1170

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

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

Second Holding:

A sentencing judge may only use the information in the record of conviction for the limited function of determining the fact of a prior conviction and the then-existing elements of that offense. A determination that defendant’s prior convictions are of increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. Thus, defendant was entitled to a jury determination on this aggravating factor.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1081-1083

Third Holding:

Defendant must personally waive the right to a jury trial in open court. The waiver must be explicit and will not be implied from a defendant’s conduct. Therefore, a defendant’s failure to object also would not preclude his asserting on appeal that he was denied his constitutional right to a jury trial.

Authority:

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

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

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

Duty of the court, Jury trial, Pleading, Sentencing, Sixth Amendment, Standard of review

Case: 000263

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in not holding a hearing under Marsden when the defendant attempted to have substitute counsel. The trial court erred in imposing the upper term based on its own conclusion that the defendant’s prior convictions that are numerous and of increasing seriousness. The matter is remanded for the trial court to hold a proper Marsden hearing. If the court grants the motion, the court must appoint new counsel to represent her and conduct a new trial. If the court denies the motion, the court is to reinstate the convictions. The judgment is reversed, and the trial court is directed to give the People an opportunity to prove applicable aggravating circumstances beyond a reasonable doubt to a jury (or the court, if if the defendant waives her right to a jury trial on aggravating circumstances) and to resentence the defendant.

First Holding:

When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. Once the defendant clearly indicates to the trial court a request for the discharge and replacement of appointed counsel, the court must hold a hearing to allow the defendant to explain the basis for the request. A proper and formal’ Marsden motion is not required—the defendant need only clearly indicate to the trial court ‘in some manner’ that he or she is requesting the discharge and replacement of appointed counsel.

Authority:

People v. Johnson (2018) 6 Cal.5th 541, 572

People v. Wilson (2023) 14 Cal.5th 839, 863-864

People v. Armijo (2017) 10 Cal.App.5th 1171, 1179

People v. Marsden (1970) 2 Cal.3d 118

Second Holding:

The trial court erred in not holding a Marsden hearing when the defendant said she wanted to fire her court-appointed attorney. While stating a desire to fire one’s court-appointed attorney, without more, may not be sufficient to require a Marsden hearing, the trial court interrupted the defendant after she said “I feel like” and did not allow her to say more. And though the defendant never said she wanted to replace her current attorney with a different court-appointed attorney, that’s because, when the defendant began to explain why she did not want her current attorney to represent her, the court did not give her the chance to state her reasons.

Authority:

People v. Sanchez (2011) 53 Cal.4th 80, 90 [if at any time during criminal proceedings, a defendant requests substitute counsel, the trial court is obligated, pursuant to Marsden, to give the defendant an opportunity to state any grounds for dissatisfaction with the current appointed attorney]

People v. Chavez (1980) 26 Cal.3d 334, 346 [refusal by the trial court to afford a defendant an opportunity to set forth the reasons underlying his request for the substitution of appointed counsel constitutes an abuse of discretion]

Third Holding:

The trial court’s concern that the defendant’s request during jury selection was a delay tactic was legitimate, but it did not justify refusing to hold a Marsden hearing that would allow the court to hear her reasons and weigh them against the effects of delaying the trial.

Authority:

People v. Williams (2021) 61 Cal.App.5th 627, 652 [delay in resolving a Marsden motion is a significant factor that the court is obligated to consider in evaluating the timeliness of the defendant’s request to substitute counsel]

Fourth Holding:

The court also erred in ruling that the defendant’s only choices were to retain an attorney or represent herself. Those were not her only two choices. She also had the right to make a showing under Marsden, if she could, she was entitled to substitute counsel.

Authority:

People v. Johnson (2018) 6 Cal.5th 541, 573 [defendant may request substitute counsel at any time during criminal proceedings]

People v. Sanchez (2011) 53 Cal.4th 80, 90 [same]

Fifth Holding:

The standard for prejudice regarding a denied Marsden motion is under Chapman. Under the Chapman harmless error standard, the burden is on the People, not the defendant, to demonstrate that the violation of the defendant’s federal constitutional right was harmless beyond a reasonable doubt.

Authority:

People v. Loya (2016) 1 Cal.App.5th 932, 945

People v. Taylor (2010) 48 Cal.4th 574, 601

People v. Cutting (2019) 42 Cal.App.5th 344, 349

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

Sixth Holding:

The court imposed the upper term based on the court’s finding that the defendant’s prior convictions and adjudications were numerous and of increasing seriousness. 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. the aggravating circumstance the trial court relied on here in imposing the upper term, increasing seriousness of the defendant’s prior convictions, was not found true beyond a reasonable doubt by a jury (or by the court after a jury trial waiver).

Authority:

PEN 1170

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

People v. Lynch (2024) 16 Cal.5th 730, 742

Seventh Holding:

Such an error is prejudicial unless an appellate court 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. If the reviewing court cannot so determine, applying the Chapman standard of review, the defendant is entitled to a remand for resentencing.

Here, the court relied on only one aggravating circumstance: prior convictions that are numerous and of increasing seriousness. Determining whether that allegation is true, however, requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. While the evidence may have been sufficient to support a finding of increasing seriousness, a rational juror could have reached the opposite conclusion based on the totality of the defendant’s criminal conduct and the applicable sentences for those transgressions. Because a rational juror could find the defendant’s convictions were not of increasing seriousness, the error is not harmless under Chapman.

Authority:

AD

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

People v. Wiley (2025) 17 Cal.5th 1069, 1090

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

Abstracts and Minutes, Due process, Equal protection, Jury trial, Racial Justice Act, Sixth Amendment, Standard of review, Sufficiency of and substantial evidence

Case: 000262

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by permitting the prosecution’s peremptory challenge to a juror, within the meaning of Code of Civil Procedure section 231.7 (CCP 231.7), which requires reversal. The court also erred in denying the defendant’s motion for discovery under the Racial Justice Act (RJA) to support his claim that racial bias infected his case. We conclude the trial court misapplied the applicable legal standards. We conclude that the trial court erroneously applied the law in denying the defendant’s motion for discovery. The defendant also contends that the abstract of judgment should be corrected because it does not reflect the trial court’s ruling regarding his fees and fines. Because we reverse the conviction, we need not reach this issue.

First Holding:

Both the federal and state Constitutions prohibit any advocate’s use of peremptory challenges to exclude prospective jurors based on race. Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. Excluding by peremptory challenge even a single juror on the basis of race or ethnicity is an error of constitutional magnitude.

Authority:

People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 759–760

People v. Gutierrez (2017) 2 Cal.5th 1150, 1157

Second Holding:

After studies showed that the existing analysis under Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 258 was inadequate to prevent racial discrimination, the Legislature enacted CCP 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.

Authority:

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

Third Holding:

In contrast to the three-step Batson/Wheeler procedure, under CCP 231.7, there is no requirement that the objecting party first make a showing of purposeful discrimination. Rather, upon objection, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised. The trial court shall evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances. In doing so, the court shall consider only the reasons actually given and shall not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge.

Authority:

CCP 231.7

People v. Jaime (2023) 91 Cal.App.5th 941, 943

People v. Hinojos (2025) 110 Cal.App.5th 524, 540–541

Fourth Holding:

Unlike in the Batson/Wheeler analysis, the ultimate question for the trial court is not whether the party exercising the peremptory challenge engaged in purposeful discrimination. The statute expressly recognizes that discrimination in violation of this section need not be purposeful, but may involve unconscious bias, which includes implicit and institutional biases. The trial court shall sustain the objection to the use of the peremptory challenge if the court determines there is a substantial likelihood that an objectively reasonable person [aware that unconscious bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in the State of California], would view race as a factor in the use of the peremptory challenge. The statute defines “substantial likelihood” as more than a mere possibility but less than a standard of more likely than not.

Authority:

CCP 231.7

People v. Hinojos (2025) 110 Cal.App.5th 524, 541

Fifth Holding:

CCP 231.7, subdivisions (e) and (g) provide two separate lists of presumptively invalid reasons for exercising a peremptory challenge. Each of these subdivisions sets out a distinct process by which a court determines whether a presumptively invalid reason can be absolved of that presumption.

Authority:

CCP 231.7(e),(g)

People v. Ortiz (2023) 96 Cal.App.5th 768, 793

Sixth Holding:

The denial of an objection shall be reviewed de novo, with the trial court’s express factual findings reviewed for substantial evidence. Erroneous denial of a challenge is deemed prejudicial and requires reversal of the judgment and remand for a new trial.

Authority:

CCP 231.7

Seventh Holding:

We review the factual underpinnings of a discovery order for substantial evidence, but where such a determination rests on incorrect legal premises, our review is de novo.

Authority:

Young v. Superior Court of Solano County (2022) 79 Cal.App.5th 138, 156

Gonzales v. Superior Court (2024) 108 Cal.App.5th pp. Supp. 36, 55

Eighth Holding:

Penal Code section 745 authorizes a defendant to file a discovery motion at trial as soon as practicable upon the defendant learning of an alleged violation, and requires the trial court to hold an evidentiary hearing if the defendant makes a prima facie showing of the violation.

Authority:

PEN 745

Ninth Holding:

To establish good cause for discovery under the RJA, a defendant is required to advance a plausible factual foundation, based on specific facts, that a violation of the RJA could or might have occurred in his case. This is a notably less demanding standard than the prima facie requirement set forth in the statute for granting an evidentiary hearing, and a standard that should not be difficult to meet.

Authority:

Young v. Superior Court of Solano County (2022) 79 Cal.App.5th 138, 159

McDaniel v. Superior Court (2025) 111 Cal.App.5th 228, 244 [trial court should consider the relevance of the proffered facts to the claims of racial bias to determine whether a minimally plausible basis exists to grant discovery—a low threshold]

Gonzales v. Superior Court (2024) 108 Cal.App.5th pp. Supp. 36, 44 [reversing denial of discovery motion where defendant had minimally proffered a plausible factual foundation for a potential violation of the RJA]

Tenth Holding:

[Gary note: The abstract of judgment apparently did not reflect the court’s order regarding fines and fees. The opinion gave no further information, because the issue would be addressed on remand for other reasons. But the law is clear that the court could have ordered correction of the abstract of judgment and minute orders. I have set forth some cases it could have relied on had it addressed the issue.]

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

Pleading, Sentencing, Sixth Amendment, Standard of review

Case: 000259

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for a full resentencing hearing because the trial court unconstitutionally relied upon its own factfinding to impose the upper term on defendant’s conviction, and the error is not harmless beyond a reasonable doubt.

First Holding:

On January 1, 2022, the Legislature amended section 1170 to provide that the trial court shall, in its discretion impose a sentence not to exceed the middle term except in the following circumstance: 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’ 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 trial by the jury or by the judge in a court trial. Notwithstanding these provisions, the court may 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:

People v. Lynch (2024) 16 Cal.5th 730, 748

Second Holding:

The trial court’s factfinding role as to a defendant’s prior convictions is specifically exempted from the Sixth Amendment jury trial right. However, 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. For example, a defendant is entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation, before the court could rely on those aggravating facts to find justification for an upper term sentence.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 767

People v. Wiley (2025) 17 Cal.5th 1069, 1084-1085

Third Holding:

A court’s determination that a defendant has suffered prior criminal convictions on separate occasions, that the offenses were close in time, and that they were similar or intertwined in purpose and character runs afoul of constitutional proscriptions and must be resolved by a unanimous jury beyond a reasonable doubt.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082-1083 [Error for court to impose additional time based on its qualitative assessment of the offenses time, location, character, and purpose]

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

Fourth 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, 1086 [error not harmless where a rational jury could have concluded that the People failed to prove beyond a reasonable doubt that the defendant’s convictions were of increasing seriousness]

People v. Lynch (2024) 16 Cal.5th 730,742-743, 760-761, 768, 775 [We may find the omission harmless if we can conclude beyond a reasonable doubt ‘that the omitted fact was uncontested and supported by overwhelming evidence]

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

Sentencing, Sixth Amendment, Standard of review

Case: 000252

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the defendant’s right to a jury trial by imposing the upper term without an express waiver of his right to a jury trial on the aggravating factors. The trial court’s finding that the defendant had consistently violated the law is a decision that goes beyond the bare fact of the prior conviction and its elements and therefore exceeds the scope of the statutory exception to the jury trial right for prior conviction that appears in section 1170(b)(3). Absent a waiver the defendant was entitled to a jury trial on the aggravating factors. The error was not harmless beyond a reasonable doubt.

First Holding:

We review questions about whether a defendant’s constitutional rights were violated de novo. If we determine that a defendant’s right to a jury trial has been violated, we apply the harmless error standard in Chapman. Under the Chapman standard, we must reverse and remand a sentence imposed under section 1170(b) unless we conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Palmer (2020) 49 Cal.App.5th 268, 280

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

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

Second Holding:

In 2022, the Legislature amended section 1170, subdivision (b) to limit a trial court’s discretion to impose the upper term of a sentencing triad. Under the current version of the statute, trial courts may impose a sentence that exceeds 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. However, the court may 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

People v. Lynch (2024) 16 Cal.5th 730, 773

Third Holding:

In Erlinger, the United States Supreme Court clarified that the court in Almendarez-Torres v. United States permitted a judge to undertake the job of finding the fact of a prior conviction—and that job alone. The question before the Erlinger court was whether a judge may decide that a defendant’s past offenses were committed on separate occasions or whether the Fifth and Sixth Amendments required a jury to make that determination beyond a reasonable doubt. In holding that Erlinger was entitled to a jury determination on the issue, the court stated that deciding whether those past offenses occurred on three or more different occasions is a fact-laden task, and judges may not assume the jury’s factfinding function for themselves.

Authority:

Erlinger v. United States (2024) 602 U.S. 821, 825, 834, 837

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

Fourth Holding:

The California Supreme Court confirmed that virtually any fact that increases a defendant’s exposure to punishment must be submitted to a jury and found unanimously beyond a reasonable doubt. Unless the defendant waives the right to a jury trial or stipulates that the aggravating factors are true, the People must prove to a jury the facts relied on to justify an upper term sentence beyond a reasonable doubt. This jury trial guarantee retains its vitality even if the inquiry is straightforward.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 761-762

People v. Wiley (2025) 17 Cal.5th 1069, 1086

Fifth Holding:

The Wiley court held that an inquiry of whether a defendant’s prior convictions are of increasing seriousness requires a comparison and evaluation of the relationship among a defendant’s prior convictions, and a determination as to their relative seriousness. As a result, it involves something more than a narrow factual finding that the convictions were sustained and what elements were required to prove them. A defendant is entitled to a jury determination on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm. The was entitled to have a jury determine whether his prior convictions were of increasing seriousness and whether he had performed unsatisfactorily on probation before the court could rely on those aggravating facts to find justification for an upper term sentence.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069,1082, 1085

Sixth Holding:

Based on our review of the defendant’s prior record—including his CLETS certified rap sheet, certified records of his convictions, and the probation officer’s report—the sentences imposed for his conviction, the age of his felony convictions, and the nature of his recent offenses could lead a jury to conclude that the defendant’s convictions were not of increasing seriousness. On this record, we cannot conclude beyond a reasonable doubt that a properly instructed jury would have found these aggravating factors true. Because it is possible a jury could reach the opposite conclusion on one of the aggravating factors the court may have relied on to impose the upper term, the omission of the defendant’s right to a jury trial on the aggravating factors was not harmless beyond a reasonable doubt. We, therefore, reverse his sentence and remand for a trial on the aggravating factors.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1090

 

Amelioration, Sentencing, Sixth Amendment

Case: 000250

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially erred at sentencing when it relied on aggravating circumstances to increase the defendant’s punishment without obtaining a waiver of his right to a jury trial on those circumstances.

First Holding:

The trial court erred by sentencing the defendant to an upper term absent the defendant’s (a) stipulation to the aggravating facts the trial court relied on or (b) waiving a jury trial on those aggravating facts.

Authority:

PEN 1170

People v. Wiley (2025) 17 Cal.5th 1069, 1076 [criminal defendants are entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose them to imposition of a sentence more serious than the statutorily provided middle term]

Second Holding:

We cannot conclude beyond a reasonable doubt that a jury would have found true the facts underlying the aggravating circumstance that the defendant’s prior convictions as an adult are numerous. This aggravating circumstance rests on a somewhat vague and subjective standard, which makes it difficult to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court.

For example, we cannot confidently say where the jury would have drawn the line for numerous, how the jury would have weighed felonies or misdemeanors, or how the jury might have considered the passage of time and discounted older convictions. We are also mindful that we cannot necessarily assume that the record reflects all of the evidence that would have been presented had aggravating circumstances been submitted to the jury. For example, had the defense told the jury more details about the offenses, the jury could have been more likely to count convictions as minor and thus less likely to add up to the numerous standard. Having determined that the facts underlying one aggravating circumstance do not meet the standard for harmless error, we must vacate the defendant’s sentence and remand for resentencing.

Authority:

PEN 1170

People v. Sandoval (2007) 41 Cal.4th 825, 840

People v. Wiley (2025) 17 Cal.5th 1069, 1091

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