Tag Archives: Standard of review

Juveniles, Probation Parole PRCS, Sentencing

Case: 000359

Posted on by Gary McCurdy

Error and/or relief

The minor challenges a probation condition prohibiting use of “illegal drugs or mind altering substances except as prescribed by a physician,” and another condition stating defendant “must not be around persons the minor knows to be users or sellers of illegal drugs or mind altering substances.” The minor contends these conditions are constitutionally vague and overbroad because “mind altering substances” could include legal substances such as caffeine.

We hold the conditions, reasonably read, apply only to illegal drugs and illegal mind-altering substances, and therefore are neither vague nor overbroad. To avoid any ambiguity between the two conditions, however, we modify the second condition to include the same exception for physician-prescribed substances present in the first condition. As modified, we affirm the dispositional order.

First Holding:

To withstand a challenge on the ground of vagueness, a probation condition must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated. The question is not whether a greater degree of precision would be desirable in principle, but whether it is constitutionally compelled. The vagueness doctrine demands no more than a reasonable degree of certainty. When reviewing the language of a probation condition, we assign it the meaning that would appear to a reasonable, objective reader. A probation condition is overbroad if it imposes limitations on a person’s constitutional rights but is not closely tailored to the purpose of the condition.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 890

People v. Hall (2017) 2 Cal.5th 494, 503

People v. Olguin (2008) 45 Cal.4th 375, 382

Second Holding:

Although the minor did not assert his constitutional challenge in the trial court, that challenge presents pure questions of law that can be resolved without reference to the particular sentencing record developed in the trial court and therefore may be raised for the first time on appeal. We review this constitutional challenge de novo.

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 889

In re Malik J. (2015) 240 Cal.App.4th 896, 901

Third Holding:

The minor argues that the conditions are vague as to whether they are limited to illegal mind-altering substances, or apply to legal mind-altering substances as well. Specifically, he contends it is ambiguous whether the term “illegal” modifies “mind altering substances” or simply modifies “drugs,” the term “illegal” directly precedes. We do not think a reasonable, objective reader would parse the conditions to apply the term “illegal” to “drugs” but not to “mind altering substances.”

Authority:

People v. Olguin (2008) 45 Cal.4th 375, 382

Fourth Holding:

Defendant correctly notes condition No. 18 does not contain a prescription exception. Again, because condition No. 18 is limited to illegal substances, a prescription exception strictly speaking is unnecessary, and therefore, read by itself, the language of condition No. 18 is neither vague nor overbroad. In tandem with condition No. 17, however, the presence of a prescription exception in one condition and not the other arguably could create confusion. To remedy any such confusion, we modify condition No. 18 to include a prescription exception. Condition No. 18 is modified to read, “You must not be around persons you know to be users or sellers of illegal drugs or mind altering substances except as prescribed by a physician.”

Authority:

In re Sheena K. (2007) 40 Cal.4th 875, 892 [approving reviewing court’s insertion of language to secure the constitutional validity of the probation condition]

In re Luis F. (2009) 177 Cal.App.4th 176, 192 [tailoring probation condition to remedy vagueness and overbreadth]

Amelioration, Discretion, Duty of the court, Sentencing, Standard of review

Case: 000358

Posted on by Gary McCurdy

Error and/or relief

The matter is remanded for the trial court to properly consider its discretion on whether to strike the prior serious felony conviction in light of the presence of one or more mitigating circumstances enumerated in section 1385(e), in the absence of a finding of danger to public safety.

First Holding:

Senate Bill No. 81, effective January 1, 2022, added subdivision (c) to section 1385. Section 1385(c) provides, “(1) Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute. (2) In exercising its discretion under [subdivision (c)], the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in [the subparagraphs to subdivision (c)(2)] are present.

Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. Endanger public safety means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.

The mitigating circumstances identified in the subparagraphs include, among others, that multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed. And they include that the application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.

Authority:

PEN 1385

Second Holding:

Absent a danger to public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice. This furtherance of justice inquiry requires a trial court’s ongoing exercise of discretion. Thus, notwithstanding the presence of a mitigating circumstance, trial courts retain their discretion to impose an enhancement based on circumstances long deemed essential to the furtherance of justice inquiry

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1033–1036

Third Holding:

In determining whether dismissing an enhancement would endanger public safety, the plain words of the statute do not support a trial court’s singular focus on whether the defendant currently poses a danger. Although the current dangerousness of the defendant is an appropriate factor to consider, as it will have some bearing on whether dismissing the enhancement would endanger the public, a crucial part of the inquiry is how the dismissal will impact the length of the defendant’s sentence. Thus, a currently dangerous defendant who will be released from prison within a short timeframe might be found by the trial court to pose a greater danger to the public than a defendant who is currently dangerous but who has no prospect of release from prison until he is elderly.

Authority:

People v. Gonzalez (2024) 103 Cal.App.5th 215, 225, 228

Fourth Holding:

We review a trial court’s decision not to strike a sentence enhancement under section 1385 for abuse of discretion. The abuse of discretion standard is highly deferential. When a discretionary power is statutorily vested in the trial court, its exercise of that discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.

We presume that the trial court acted to achieve legitimate sentencing objectives. The burden is on the party challenging the sentencing decision to show that the court abused its discretion. We may not presume error from a silent record. Unless the record affirmatively demonstrates otherwise, the trial court is deemed to have considered all the relevant sentencing factors set forth in the rules. In addition as a general rule a trial court is presumed to have been aware of and followed the applicable law. Thus, where a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order. A trial court abuses its discretion by rendering a sentencing decision based on impermissible factors or on an incorrect legal standard. Defendants are entitled to sentencing decisions made in the exercise of the informed discretion.

Authority:

People v. Carmony (2004) 33 Cal.4th 367, 371

People v. Mendoza (2023) 88 Cal.App.5th 287, 298

People v. Knowles (2024) 105 Cal.App.5th 757, 765

People v. Stowell (2003) 31 Cal.4th 1107, 1114

People v. Knoller (2007) 41 Cal.4th 139, 156

People v. Nakano (2023) 89 Cal.App.5th 623, 635 [an abuse of discretion occurs when the trial court applies the wrong legal standard]

People v. Flores (2020) 9 Cal.5th 371, 431

Fifth Holding:

When the trial court does not conclude that dismissal would result in a danger to public safety, the court must assign great weight to any mitigating factors, if present, and exercise its discretion in determining whether dismissal would be in the furtherance of justice. The term “great weight” did not create a presumption in favor of dismissal, but should be interpreted to mean that absent a danger to public safety, the presence of an enumerated mitigating circumstance will generally result in the dismissal of an enhancement unless the sentencing court finds substantial, credible evidence of countervailing factors that may nonetheless neutralize even the great weight of the mitigating circumstance, such that dismissal of the enhancement is not in furtherance of justice.

Without credible evidence to support findings on aggravating circumstances, judges could disregard mitigating factors without a proper basis for doing so. This would be incompatible with the great weight the Legislature has attached to the enumerated mitigating circumstances. Section 1385(c)(2)’s mandate to give great weight to enumerated mitigating circumstances requires a sentencing court to engage in a holistic balancing with special emphasis on the enumerated mitigating factors.

Authority:

People v. Walker (2024) 16 Cal.5th 1024, 1033–1036

People v. Ortiz (2023) 87 Cal.App.5th 1087, 1094

Sixth Holding:

On appeal, we presume that a judgment or order of the trial court is correct, all intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.

Authority:

People v. Giordano (2007) 42 Cal. 4th 644, 666

Seventh Holding:

The court did not explicitly conclude that dismissal of the enhancements would result in a danger to public safety. Indeed, the trial court did not discuss public safety in its findings, nor did it make any statements related to the possibility of the defendant committing further crimes if his sentence were to be reduced, and he were to be released early, following dismissal of the enhancements. when the trial court does not conclude that dismissal would result in a danger to public safety, the court must assign “great weight” to any mitigating factors, if present, and exercise its discretion in determining whether dismissal would be in the furtherance of justice.

Walker and Gonzalez had not been decided at the time of the trial court’s ruling, and that in making its findings, the trial court did not use the word “mitigating factors,” or specifically discuss the mitigating factors listed under section 1385(c). While we acknowledge that a silent record does not, on its own, reflect an abuse of discretion , we find it is not evident from the instant record and findings that the trial court would have still exercised its discretion not to dismiss the enhancement if it had the guidance provided in those cases. The trial court did not make any indication that the defendant would pose a danger to public safety if he were to be released early as a result of a reduced sentence.

Further, while the trial court’s final order cited the serious nature of the defendant’s offenses, as well as his criminal history. it is unclear if such findings reflected the trial court engaging in a holistic balancing with special emphasis on the enumerated mitigating factors as required under Walker. Under these circumstances, we conclude that remand for resentencing is required. In reaching our decision, we do not express any position on how the court should exercise its discretion under section 1385 regarding dismissal of the section 667(a) enhancement.

Authority:

People v. Stowell (2003) 31 Cal.4th 1107, 1114

People v. Salazar (2023) 15 Cal.5th 416, 424 [noting that if the trial court is unaware of the scope of its informed discretion at the time of sentencing and fails to exercise it in making a sentencing decision, the appellate court must remand for resentencing unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion]

People v. Gonzalez (2024) 103 Cal.App.5th 215, 228

People v. Walker (2024) 16 Cal.5th 1024, 1036

Jury trial, Standard of review

Case: 000355

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it overruled defendant’s objection to the prosecutor’s use of a peremptory challenge to excuse a prospective Hispanic juror who reported negative experiences with law enforcement and the criminal justice system, where the prosecutor did not overcome the presumptive invalidity of the challenge by clear and convincing evidence.

First Holding:

Intentional discrimination is not the correct standard for determining whether the exercise of a peremptory challenge was improper. The court did not first require the prosecutor to overcome the presumptive invalidity of the challenge under the more demanding standard set forth in Code of Civil Procedure section 231.7(e). We may not impute to the trial court findings it did not make, but in this case, the record is devoid of any evidence that the prospective juror’s negative experiences with law enforcement and the criminal justice system bore on his inability to be fair and impartial. Under these circumstances, the prosecutor did not overcome the presumptive invalidity of the peremptory challenge, the trial court erred in overruling defendant’s objection, and section 231.7 compels reversal of the judgment and remand for a new trial.

Authority:

CCP 231.7(e) and (j)

People v. Guzman (2025) 115 Cal.App.5th 464, 475

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

Second 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.

Authority:

People v. Parker (2017) 2 Cal.5th 1184, 1210–1211

People v. Lenix (2008) 44 Cal.4th 602, 612

Third Holding:

The Fourteenth Amendment’s mandate that race discrimination be eliminated from all official acts and proceedings of the State is most compelling in the judicial system. This is so because it is not only litigants who are harmed when the right to trial by impartial jury is abridged. Taints of discriminatory bias in jury selection—actual or perceived—erode confidence in the adjudicative process, undermining the public’s trust in courts.

Authority:

Powers v. Ohio (1991) 499 U.S. 400, 412, 415

People v. Gutierrez (2017) 2 Cal.5th 1150, 1154

Miller-El v. Dretke (2005) 545 U.S. 231, 238

Fourth Holding:

Under the Batson/Wheeler test, the ultimate question for the trial court in ruling on an objection to a peremptory challenge is whether the party exercising the objection engaged in ‘purposeful discrimination. Recognizing the limitations of the Batson/Wheeler inquiry, the Legislature enacted AB 3070 (2019–2020 Reg. Sess.) to add Code of Civil Procedure section 231.7, which creates new procedures for identifying unlawful discrimination in the use of peremptory challenges. The Legislature intended that the new law be broadly construed to further the purpose of eliminating the use of group stereotypes and discrimination, whether based on conscious or unconscious bias, in the exercise of peremptory challenges.

Authority:

CCP 231.7

People v. Guzman (2025) 115 Cal.App.5th 464, 475

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

People v. Ortiz (2023) 96 Cal.App.5th 768, 791–792

Batson v. Kentucky (1986) 476 U.S. 79

People v. Wheeler (1978) 22 Cal.3d 258

Fifth Holding:

Section 231.7 prohibits the use of a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups. If a party or the trial court objects to the use of a peremptory challenge, the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised.

If the reason for the exercise of the peremptory challenge is not presumptively invalid under section 231.7(e) or (g) (which set forth specific reasons that are presumptively invalid), the reason is to be evaluated in light of the totality of the circumstances to determine if there is a substantial likelihood that an objectively reasonable person, who is aware that unconscious bias and purposeful discrimination have resulted in the unfair exclusion of potential jurors in California, would view membership or perceived membership in any of the protected groups as a factor in the use of the peremptory challenge. The court need not find purposeful discrimination to sustain the objection.

Authority:

CCP 231.7

People v. Barnes (2024) 107 Cal.App.5th 560, 577–578

Sixth Holding:

The trial court’s denial of an objection under section 231.7 is reviewed de novo, with the trial court’s express factual findings reviewed for substantial evidence. The appellate court shall not impute to the trial court any findings, including findings of a prospective juror’s demeanor, that the trial court did not expressly state on the record. The reviewing court shall consider only reasons actually given under subdivision (c) and shall not speculate as to or consider reasons that were not given to explain either the party’s use of the peremptory challenge or the party’s failure to challenge similarly situated jurors who are not members of the same cognizable group as the challenged juror, regardless of whether the moving party made a comparative analysis argument in the trial court. Should the appellate court determine that the objection was erroneously denied, that error shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a new trial.

Authority:

CCP 231.7(j)

Discretion, Duty of the court, Effective assistance of counsel, Sentencing, Sixth Amendment

Case: 000353

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the defendant’s Sixth Amendment rights by imposing a sentence based on aggravating circumstances that were neither admitted by him nor tried to a jury. The trial court conducted an inadequate inquiry when the defendant requested that new counsel be substituted.

[GARY NOTE: The unpublished opinion lays out several observations that it characterizes as possibly arguable deficiencies in counsel’s performance that would support a finding that it would be necessary to substitute new counsel as the defendant requested. Many of the specifics have been redacted from the filed opinion itself, as the Marsden hearing is a confidential inquiry conducted outside the presence of the prosecution and the public, and the matters stated by any participants (the defendant, the attorney for the defendant, the court) at the hearing are not subject to public disclosure.]

First Holding:

The defendant is entitled to resentencing because the trial court violated his Sixth Amendment rights by relying on aggravating circumstances based on facts that had not been admitted or tried to a jury. Although the defendant did not preserve this claim in the trial court, his failure to do so does not forfeit his Sixth Amendment right to a jury trial.

Authority:

People v. French (2008) 43 Cal.4th 36, 47-48

Second Holding:

In Cunningham, the United States Supreme Court held that, except for prior conviction allegations, the Sixth Amendment requires any fact that exposes a defendant to a greater potential sentence to be found by a jury beyond a reasonable doubt. The sentencing scheme in effect in California at the time violated the Sixth Amendment right to a jury trial because it allowed a defendant’s prison sentence to be increased beyond the statutory maximum based on facts that had not been found true beyond a reasonable doubt by a jury or admitted by the defendant. The statutory maximum, for Sixth Amendment purposes, is the maximum sentence the court may impose without finding any additional facts beyond those necessary to support the verdict. Cunningham explained that California could comply with the Sixth Amendment either by requiring jury findings for any facts necessary to impose an aggravated sentence or, alternatively, by authorizing sentencing courts to exercise broad discretion within a statutory range.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 281, 294

People v. Lynch (2024) 16 Cal.5th 730, 746-747

Third Holding:

California’s current sentencing scheme (in effect at the time of the defendant’s sentencing) adopts the first option Cunningham outlined. Under section 1170(b), when a statute specifies three possible terms, the court must order imposition of a sentence not to exceed the middle term unless 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. After revoking the defendant’s probation, the court found in aggravation that the crime involved great violence, great bodily harm, threats of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, or callousness. But this aggravating factor was not admitted or otherwise proved to the trier of fact.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 294

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

Fourth Holding:

We apply the rigorous Chapman standard of review to determine whether the trial court’s reliance on unproven aggravating circumstances was prejudicial. Under that standard, the violation is prejudicial unless we can conclude, beyond a reasonable doubt, that a jury would have found true all the aggravating facts upon which the challenged sentence was based. The defendant is entitled to a remand for resentencing unless the appellate court can conclude 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. Put another way, the defendant is entitled to a remand unless no reasonable jury would have found in favor of the defendant as to any of the aggravating facts relied upon by the trial court. In conducting this analysis, moreover, we may not assume that the record contains all the evidence that would have been presented had the aggravating circumstances been tried to a jury.

Authority:

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

People v. Lynch (2024) 16 Cal.5th 730, 768, 775

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

Fifth Holding:

Further, because the court imposed an enhancement for great bodily injury under section 12022.7, it was improper to also rely on great bodily injury as a factor in aggravation for purposes of imposing the upper term, although that error is subject to harmless error analysis. The court could, without running afoul of section 1170(b)(5), rely on other aggravating circumstances independent of the great bodily injury enhancement, such as a finding that the offense involved great violence or reflected a high degree of cruelty, viciousness, or callousness.

Authority:

PEN 1170(b)(5) [a court cannot impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]

Rules of Court, rule 4.421(a)(1)

People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735-1736

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

Sixth Holding:

When a defendant requests that his appointed counsel be relieved and new counsel be appointed under Marsden, the trial court must give the defendant an opportunity to explain his concerns about his counsel’s performance and provide examples of deficiencies. The defendant is entitled to substitute counsel when the record clearly shows that the appointed counsel is not providing adequate representation. The trial court abuses its discretion when the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel. The trial court also abuses its discretion if it does not conduct an adequate inquiry into the defendant’s motion. When the defendant has identified shortcomings by counsel, the court must obtain counsel’s response and conduct any further inquiry that is needed to determine whether counsel had adequate explanations for all of the defendant’s complaints.

The critical factual inquiry in a Marsden hearing will often involve whether counsel consulted sufficiently with their client, adequately investigated the facts, and properly prepared for the relevant hearing. When the trial court’s inquiry is deficient, we remand the case for a new Marsden hearing. On this record, the trial court lacked an adequate basis to determine whether counsel had properly investigated and prepared the defendant’s mitigation case for the sentencing hearing. Likewise, we lack an adequate record to review the trial court’s denial of Marsden relief. On remand, the trial court should conduct a Marsden hearing to determine whether the defendant is entitled to substitute counsel for purposes of his resentencing.

Authority:

People v. Marsden (1970) 2 Cal.3d 118, 123-124

People v. Taylor (2010) 48 Cal.4th 574, 599

People v. Carter (2024) 15 Cal.5th 1092, 1099, 1102-1104

People v. Ng (2022) 13 Cal.5th 448, 500

People v. Abilez (2007) 41 Cal.4th 472, 488

People v. Ivans (1992) 2 Cal.App.4th 1654, 1666 [stating the trial court must make a careful inquiry before it can intelligently rule on the Marsden motion]

Elements of crime, Sentencing, Standard of review, Sufficiency of and substantial evidence

Case: 000351

Posted on by Gary McCurdy

Error and/or relief

There was insufficient evidence to support the conviction of aggravated sexual assault by sexual penetration under section 289. The One Strike law applies only to certain offenses. The offense resulting in conviction of Count 18 is not one of those offenses, and the One Strike Sentence for that count is modified accordingly.

First Holding:

Section 289 defines various terms pertaining to the conduct it describes as a crime. [Gary note: you just witnessed a little adjustment of precise language to maintain a “G” rating for this movie. If you have an issue involving this section, read it carefully for its definitions. In this case, the conduct in question did not meet the definition for violation of this section.]

Authority:

PEN 289(k)

Second Holding:

When reviewing for substantial evidence, we examine the entire record in the light most favorable to the prosecution to determine if a rational factfinder could find the essential elements of the crime beyond a reasonable doubt. Substantial evidence is reasonable, credible evidence of solid value, even if circumstantial. We will reverse only if upon no hypothesis whatever is there sufficient substantial evidence to support it.

Authority:

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

People v. Redmond (1969) 71 Cal.2d 745, 755

Third Holding:

When insufficient evidence supports a conviction for a greater offense, we may modify the judgment to reflect a conviction for a lesser included offense.

Authority:

People v. Bailey (2012) 54 Cal.4th 740, 748

Fourth Holding:

The only lesser offenses here are time barred. Although the defendant did not raise the statute of limitations in his supplemental brief, a defendant may not inadvertently forfeit the statute of limitations and be convicted of a time-barred charged offense. Because the only applicable lesser included offenses are time-barred, we must reverse the defendant’s conviction for count 19 for insufficient evidence.

Authority:

People v. Williams (1999) 21 Cal.4th 335, 338

Kellett v. Superior Court (1966) 63 Cal.2d 822, 827 [Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.]

Fifth Holding:

The One Strike law, section 667.61, applies only to certain felony sex offenses. The defendant’s Count 18 conviction is not among those offenses. Consequently, we reverse the jury’s two count 18 true findings under section 667.61.

Authority:

PEN 667.61(c)

People v. Anderson (2009) 47 Cal.4th 92, 102

People v. Seals (1993) 14 Cal.App.4th 1379, 1385

Sixth Holding:

The defendant contends his sentence of [hundreds of years to life] constitutes cruel and unusual punishment under the United States and California Constitutions. The defendant forfeited this claim of error. A claim that a sentence is cruel or unusual requires a fact specific inquiry and is forfeited if not raised below. At the sentencing hearing, defense counsel never invoked the state constitutional prohibition against cruel or unusual punishment (Cal. Const., art. I, sec. 17). The defendant did not adequately preserve an objection under the Eighth Amendment either. To the contrary, after imposing the sentence, the court asked if counsel for either side wanted to be heard, and defense counsel responded, “No.” As a result, the defendant’s federal constitutional claim is also forfeited.

Authority:

People v. Baker (2018) 20 Cal.App.5th 711, 720

People v. Boyce (2014) 59 Cal.4th 672, 731