Tag Archives: Trial court procedure

Appellate Principles, Fifth Amendment, Jury trial, Sixth Amendment

Case 001055

Posted on by Gary McCurdy

Error and/or relief

The trial court’s failure to ensure that all 12 jurors were present together in court when the verdict was rendered violated the defendant’s statutory and constitutional right to a unanimous 12-person verdict and resulted in the recording of an invalid verdict.

(Gary note: During deliberations, the jury reached a unanimous verdict on some counts and the foreman signed the verdicts while the jury continued to deliberate on remaining counts. At some point the foreman was allowed to go on vacation, and an alternate juror took his place.

(When the final verdicts were read in open court, the jury was polled and all 12 confirmed the verdict. The problem is that the foreman who signed the jury verdict forms had been replaced, so only 11 of the jurors who voted on those verdicts were present in open court and were polled.)

First Holding:

The right to a trial by jury is a fundamental constitutional right guaranteed to a criminal defendant by both the state and federal constitutions. An essential aspect of that right is the right to a unanimous jury verdict. In California, a defendant may not be convicted except by 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity.

Authority:

U.S. Const., 6th and 14th Amends.

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

People v. Collins (2001) 26 Cal.4th 297, 304

Ramos v. Louisiana (2020) 590 U.S. 83, 92-93

People v. Collins (1976) 17 Cal.3d 687, 693, superseded by statute on another ground as stated in People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19

Second Holding:

To safeguard the right to a unanimous jury verdict, the Legislature has set forth in prescriptive detail the procedures that trial courts must follow in receiving a jury verdict. Section 1147 requires all 12 jurors to be present when the trial court receives the verdict.

It provides that when the jury have agreed upon their verdict, they must be conducted into court by the officer having them in charge. Their names must then be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried.

Section 1149 requires that upon the jury appearing in court, the court, or clerk, must ask the jurors whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.

Authority:

PEN 1147

PEN 1149

People v. Carbajal (2013) 56 Cal.4th 521, 530

People v. Bailey (2018) 27 Cal.App.5th 376, 382

Third Holding:

Sections 1163 and 1164 govern jury affirmation of the verdict by polling and the recording of the verdict.

Under section 1163, once the verdict has been rendered, either party may ask the court to poll the jurors individually before the verdict is recorded. Upon such a request, each juror must be asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation.

Under section 1164, the jurors may also be polled, upon request, after the clerk has recorded the verdict. If any juror disagrees with the verdict at that point, the jury will again be sent out; but if no disagreement is expressed, the verdict is complete, and the jury shall be discharged from the case.

A verdict is complete when it has been rendered in compliance with these provisions, i.e., once it has been received and read by the clerk, acknowledged by the jury, and recorded.

Authority:

PEN 1163

PEN 1164

People v. Hendricks (1987) 43 Cal.3d 584, 597

People v. Bento (1998) 65 Cal.App.4th 179, 188

People v. Garcia (2012) 204 Cal.App.4th 542, 551

Fourth Holding:

Acknowledgement of the verdict in open court by all 12 members of the jury is not a mere procedural formality. It is essential to the validity of the verdict. If the jury returns a written verdict but fails to unanimously endorse the verdict in open court, the verdict cannot normally be sustained based solely on the written form. It is the oral declaration of the jurors, not the submission of the written verdict forms, that constitutes the return of the verdict. In other words, there is no verdict absent unanimity in the oral declaration.

Authority:

People v. Traugott (2010) 184 Cal.App.4th 492, 500-502, 506 (conc. opn.)

People v. Thornton (1984) 155 Cal.App.3d 845, 858-860

People v. Garcia (2012) 204 Cal.App.4th 542, 549-550

People v. Green (1995) 31 Cal.App.4th 1001, 1009

People v. Bailey (2018) 27 Cal.App.5th 376, 382

Fifth Holding:

It follows from these authorities that a criminal defendant has a fundamental right under the California Constitution to a trial by a 12-person jury. This right requires that all 12 jurors deliberate and reach a unanimous verdict voted upon and, upon request by any party, declared orally by each of the 12 jurors. In the absence of such a declaration, there is no verdict.

Authority:

People v. Traugott (2010) 184 Cal.App.4th 492, 500

People v. Bailey (2018) 27 Cal.App.5th 376, 387 [The right to a jury trial includes the right to a unanimous 12-person verdict, orally affirmed by each individual juror. In the absence of an express waiver by the defendant, an 11-person verdict violates that right—regardless of the reason it occurs.]

Sixth Holding:

When the jury rendered their verdict only 11 of the 12 jurors who deliberated together to reach the verdicts on the defendant’s charges were present in court to orally declare the verdicts. The initial foreperson who signed all of the defendant’s verdict forms had been excused due to a pre-planned vacation.

Because it is the oral declaration of the jurors, and not the submission of the written verdict forms that constitutes the return of the verdict, the defendant’s statutory and constitutional right to a unanimous verdict rendered by all 12 members of the jury was violated. Absent the express consent of the defendant, a valid verdict cannot be rendered by only 11 jurors.

Authority:

People v. Traugott (2010) 184 Cal.App.4th 492, 500

People v. Garcia (2012) 204 Cal.App.4th 542, 550

Seventh Holding:

Only 11 of the jurors who deliberated together to reach the verdicts on the defedant’s charges were present to render the verdict. The alternate juror who replaced the initial foreperson may have agreed with the verdicts on the defendant’s charges, but that juror did not participate in those deliberations, and his or her affirmation of the defendant’s verdicts was not sufficient to satisfy the 12-person requirement.

It is not enough that 12 jurors reach a unanimous verdict if 1 juror has not had the benefit of the deliberations of the other 11. A defendant may only be convicted by the 12 jurors who have heard all the evidence and argument and who together have deliberated to unanimity. It is those 12 jurors who must appear together in court when the verdict is rendered, and upon request, individually affirm the verdict.

Authority:

People v. Collins (1976) 17 Cal.3d 687, 693

Eighth Holding:

When the verdict has been read and recorded in the presence of all 12 jurors, minor procedural errors and technical violations of the statutory requirements for receiving the jury verdicts” are subject to harmless error analysis.

However, when only 11 members of the jury are present to render the verdict, the error is considered structural, and reversal is required.

Authority:

People v. Anzalone (2013) 56 Cal.4th 545, 556-558, 560

People v. Traugott (2010) 184 Cal.App.4th 492, 505 [the denial of a 12-person jury rendering a unanimous verdict is clearly structural and, as such, reversible per se]

Borns v. Butts (1979) 98 Cal.App.3d 208, 210 [prejudice is inherent in the entry of an invalid verdict and judgment], overruled on other grounds in Juarez v. Superior Court (1982) 31 Cal.3d 759, 768-769.

Ninth Holding:

Both the state and federal constitutions prohibit placing a person in jeopardy more than once for the same offense. Unless sound reason exists, California courts will not interpret the California double jeopardy clause more broadly than its federal counterpart.

Authority:

U.S. Const., 5th Amend. [no person shall be subject for the same offense to be twice put in jeopardy of life or limb]

Cal. Const. art. I, sec. 15 [Persons may not twice be put in jeopardy for the same offense]

People v. Eroshevich (2014) 60 Cal.4th 583, 588

People v. Wilson (2023) 14 Cal.5th 839, 852

Tenth Holding:

The legal standards governing double jeopardy are well established. At its core, the double jeopardy clause protects an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. Jeopardy attaches when a defendant is placed on trial in a court of competent jurisdiction, on a valid accusatory pleading, before a jury duly impaneled and sworn.

Authority:

People v. Eroshevich (2014) 60 Cal.4th 583, 588

Green v. United States (1957) 355 U.S. 184, 187

Curry v. Superior Court of San Francisco (1970) 2 Cal.3d 707, 712

Eleventh Holding:

Once jeopardy has attached, the question of whether double jeopardy principles bar a second trial depends on how the first trial ended. An acquittal is accorded special weight. The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal. Similarly, when the jury is discharged without having issued a verdict, courts will treat that circumstance as equivalent in law to an acquittal and retrial will be barred unless the defendant consented to the discharge or legal necessity required it.

Authority:

People v. Wilson (2023) 14 Cal.5th 839, 852

Curry v. Superior Court of San Francisco (1970) 2 Cal.3d 707, 712

Twelfth Holding:

The rules differ when the trial ends in a conviction. As a general rule, it is well established that if the defendant secures on appeal a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial. It has long been settled that the Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction.

We therefore apply the general rule that when the defendant secures a reversal of his conviction based on trial errors other than insufficiency of evidence, he is subject to retrial.

Authority:

People v. Hernandez (2003) 30 Cal.4th 1, 6

United States v. DiFrancesco (1980) 449 U.S. 117, 131

People v. Wilson (2023) 14 Cal.5th 839, 852-853

Lockhart v. Nelson (1988) 488 U.S. 33, 38

In re Hess (1955) 45 Cal.2d 171, 176 [by failing to object to the entry of judgment on the defective verdict and by collaterally attacking the judgment petitioner has impliedly waived any objection to being retried on the charge of which he was improperly convicted]

Sentencing, Sixth Amendment, Standard of review

Case 001054

Posted on by Gary McCurdy

Error and/or relief

The trial court erred by relying on an aggravating factor—namely that the defendant’s prior convictions are numerous or of increasing seriousness (rule 4.421(b)(2))—that was not found true by a jury nor did the defendant stipulate to its truth.

First Holding:

A sentencing court may not impose a determinate upper term sentence unless there are circumstances in aggravation of the crime that justify its imposition, and the aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt at trial.

Other than stipulated facts or the fact of a prior conviction, aggravating facts relied upon to justify an upper term must be resolved by the jury beyond a reasonable doubt. This jury trial right is not merely a state law entitlement, but is constitutionally required for all aggravating facts, other than a prior conviction. 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:

PEN 1170(b)(1), (b)(2)

People v. Lynch (2024) 16 Cal.5th 730, 755, 768

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

Second Holding:

The aggravating circumstance described in rule 4.421(b)(2) of the Rules of Court (prior convictions are numerous or of increasing seriousness), though related to the facts of prior convictions, must be submitted to a jury to determine beyond a reasonable doubt, in the absence of a stipulation or jury trial waiver.

Authority:

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

Third Holding:

While the evidence may have been sufficient to support a finding of increasing seriousness, that is not the proper inquiry when assessing prejudice under Chapman. Instead, we must ask whether any rational fact finder could have come to the opposite conclusion. A rational juror could have reached the opposite conclusion here based on the totality of the defendant’s criminal conduct and the applicable sentences for those transgressions.

Accordingly, we cannot conclude beyond a reasonable doubt that a properly instructed jury would have found the defendant’s criminal convictions were of increasing seriousness. The judgment is reversed, the sentence is vacated, and the matter is remanded for a full resentencing under current law. The prosecution may retry the factors in aggravation, if it wishes to.

Authority:

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

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

Due process, Duty of the court, Sentencing, Sixth Amendment, Standard of review

Case 001048

Posted on by Gary McCurdy

Error and/or relief

The trial court erred in resentencing the defendant in his absence (without a valid waiver) in response to a letter from the Department of Corrections and Rehabilitation (CDCR) indicating an error in the sentencing.

First Holding:

CDCR notified the trial court of errors in sentencing. The court scheduled a resentencing hearing, but did not notify appellant in advance of this hearing. At the hearing, the court explained that the hearing to correct the errors in sentencing, that the prior abstract was incorrect, that the issue concerned improper imposition of sentence on multiple enhancements, and that it would resentence the defendant as if the court had never sentenced him before.

Defense counsel submitted without argument. The court then resentenced appellant to basically the same sentence as before, with the only change being that the indeterminate term of 15 years to life for the section 186.22 gang enhancement was stayed.

The defendant was not present at this hearing and had not properly waived his presence. A criminal defendant’s right to be personally present at trial is guaranteed under the federal Constitution by the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment, as well as by section 15 of article I of the California Constitution and by sections 977 and 1043.

Authority:

U.S. Const., Sixth Amend. and Fourteenth Amend.

Calif. Const., art. I

PEN 977

PEN 1043

People v. Concepcion (2008) 45 Cal.4th 77, 81

Second Holding:

This right to be present extends to all critical stages of the criminal prosecution and includes sentencing and resentencing. The right to be present may be waived. However, this waiver must be expressly authorized by the defendant, or the defendant’s counsel must represent to the court the defendant has so waived.

Authority:

People v. Cutting (2019) 42 Cal.App.5th 344, 347–348

Third Holding:

The trial court clearly stated at the start of the hearing that it would resentence appellant as if we never sentenced him before. In a full resentencing, the court would have the option to revisit other portions of the sentence, including the decision to strike the defendant’s other prior strike conviction or make findings in the sentencing triad based on the mitigating circumstances. As in Cutting, we find the court erred in sentencing the defendant in his absence and without a valid waiver of his right to be present.

Authority:

People v. Cutting (2019) 42 Cal.App.5th 344, 348

Fourth Holding:

On the limited record before us, we cannot conclude beyond a reasonable doubt that his presence at the hearing would not have affected the outcome. The sentence is vacated, and this matter is remanded to the trial court for a full resentencing.

Authority:

People v. Cutting (2019) 42 Cal.App.5th 344, 350 [reversing for a full resentencing under Chapman, noting that “the trial court may or may not have chosen to believe what [the defendant] might have said” regarding mitigating circumstances]

People v. Garcia (2008) 161 Cal.App.4th 475, 484 [a defendant’s postconviction behavior and other possible developments are relevant to the trial court’s consideration upon resentencing], disapproved on other grounds in People v. Picklesimer (2010) 48 Cal.4th 330, 338, fn. 4

Amelioration, Duty of the court, Elements of crime, Sentencing, Standard of review

Case 001047

Posted on by Gary McCurdy

Error and/or relief

The trial court prejudicially applied the wrong standard when it denied the defendant’s motion for recall of his sentence under section 1172.6. We accordingly reverse the order denying the defendant’s petition for resentencing and remand for a new evidentiary hearing.

First Holding:

To the end of ensuring a person’s sentence is commensurate with the person’s individual criminal culpability, SB 1437 (effective January 1, 2019) limited accomplice liability under the felony-murder rule, eliminated the natural and probable consequences doctrine as it relates to murder, and eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person’s participation in a crime.

SB 1437 added section 189(e) (limiting application of the felony-murder rule) and section 188(a)(3) (to be convicted of murder, a principal in a crime shall act with malice aforethought, and malice shall not be imputed to a person based solely on his or her participation in a crime). Under SB 775, effective January 1, 2022, these ameliorative changes to the law expressly apply to attempted murder and voluntary manslaughter.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 986

People v. Lewis (2021) 11 Cal.5th 952, 957, 959

People v. Gentile (2020) 10 Cal.5th 830, 842–843

Second Holding:

SB 1437 also created a procedure, under section 1172.6, for a person convicted of murder, attempted murder, or voluntary manslaughter under the former law to be resentenced if the person could no longer be convicted of those crimes under the current law.

A defendant commences that procedure by filing a petition containing a declaration that, among other things, the petitioner could not presently be convicted of murder or attempted murder because of the changes to section 188 or 189 made by SB 1437.

Authority:

PEN 1172.6(a)(3)

People v. Lewis (2021) 11 Cal.5th 952, 957, 959

People v. Gentile (2020) 10 Cal.5th 830, 847

People v. Strong (2022) 13 Cal.5th 698, 708

Third Holding:

At the prima facie stage, the trial court takes as true the petitioner’s factual allegations and assesses whether the petitioner would be entitled to relief if those allegations were proved. In determining whether the petitioner has made a prima facie case for relief, the trial court may look at the record of conviction, including jury instructions, verdicts and closing argument, to determine readily ascertainable facts such as the crime of conviction.

At the prima facie stage, the trial court does not engage in factfinding that involves the weighing of evidence or exercise of discretion. If a petition establishes a prima facie case for relief, the trial court must appoint counsel if requested, issue an order to show cause, and hold an evidentiary hearing.

Authority:

PEN 1172.6(b)(3), (c), and (d)(1)

People v. Lewis (2021) 11 Cal.5th 952, 957, 971-972

People v. Duchine (2021) 60 Cal.App.5th 798, 815

People v. Harden (2022) 81 Cal.App.5th 45, 56

Fourth Holding:

A defendant is liable as a direct aider and abettor of express malice murder if the defendant aided or encouraged the murder with knowledge of the perpetrator’s unlawful purpose and with the intent or purpose of committing, encouraging, or facilitating the murder’s commission.

Authority:

In re Lopez (2023) 14 Cal.5th 562, 579

People v. McCoy (2001) 25 Cal.4th 1111, 1122 [direct aiding and abetting is based on participants’ combined actus reus and aider and abettor’s own mens rea]

Fifth Holding:

In contrast, a defendant is liable as a direct aider and abettor of implied malice murder if the defendant, by words or conduct, aids the commission of a life-endangering act, not the act’s result. The direct aider and abettor must know that the perpetrator intended to commit the act, intend to aid the perpetrator in committing the act, know that the act is dangerous to human life, and act in conscious disregard to human life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 991

Sixth Holding:

Section 1172.6(d)(3) required the trial court to act as an independent factfinder––resolving the disputed facts and determining for itself, beyond a reasonable doubt, whether the defendant was guilty of murder under current law—not to ask whether a jury could or would convict him if the matter were retried. The trial court’s statements show it did not perform that role here.

(Gary note: The appellate court then recited comments by the trial court that reflected the trial court’s apparent belief that its role was to determine whether there was sufficient evidence to support the jury’s finding. The crux of section 1172.6(d)(3) is that the judge reviewing the section 1172.6 petition must determine whether he or she is convinced beyond a reasonable doubt that the evidence shows that the defendant IS guilty (not “could be found guilty”) of murder under the current elements.)

Authority:

PEN 1172.6(d)(3)

Seventh Holding:

The trial court’s failure to perform the factfinding section 1172.6(d)(3) requires is subject to harmless error review. Reversal is required if it is reasonably probable Lopez would have obtained a more favorable result in the absence of the error. We cannot conclude that the error was not prejudicial. The trial court’s order denying the defendant’s section 1172.6 petition is reversed and the matter is remanded for a new evidentiary hearing under section 1172.6(d)

(Gary note: In the course of its discussion on whether the error was prejudicial, the appellate court discussed the various theories potentially arguable as a theory under which the defendant could be guilty of murder as currently defined. It concluded that it is impossible to determine from the trial court’s comments the findings of fact that would support either theory. It stressed that, for the trial court to deny the defendant’s petition for recall, the trial court was required to find facts that led it to conclude beyond a reasonable doubt that the defendant was guilty of murder under current law. And it did not do that factfinding.)

Authority:

People v. Vance (2023) 94 Cal.App.5th 706, 715–716

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

Sentencing, Sixth Amendment, Standard of review

Case 001040

Posted on by Gary McCurdy

Error and/or relief

The trial court violated Penal Code section 1170(b) by imposing the upper term on one count of shooting at an occupied vehicle based on aggravating circumstances not found true by a jury or admitted by him. We reverse and remand for resentencing.

First Holding:

The Fifth and Sixth Amendments to the United States Constitution require that a jury find beyond a reasonable doubt any fact that increases the penalty for a crime beyond the prescribed statutory maximum. Section 1170(b)(2) codified this requirement by authorizing a court to impose the upper term only when the facts underlying an aggravating circumstance, other than a prior conviction, have been stipulated to by the defendant or have been found true beyond a reasonable doubt.

Authority:

PEN 1170(b)(2)

Apprendi v. New Jersey (2000) 530 U.S. 466, 490

Cunningham v. California (2007) 549 U.S. 270, 282

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

Second Holding:

Allegations of prior convictions may be tried by the court alone. But here, the court did not exclusively rely on aggravating circumstances related to prior convictions. Additionally, one of the aggravating circumstances related to prior convictions—the defendant’s prior convictions as an adult and juvenile were numerous and of increasing seriousness—involves more than the permissible factual finding by a court that the convictions were sustained.

Authority:

PEN 1170(b)(3)

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

Third Holding:

When the sentencing court relies on an aggravating circumstance not found by a jury, the reviewing court must apply the standard of prejudice under Chapman. We must reverse the sentence unless we conclude 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:

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

People v. Lynch (2024) 16 Cal.5th 730, 742–743

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

Fourth Holding:

Whether the defendant was a danger to society is a subjective factual determination. Because the inquiry into the circumstances is comparative and qualitative, we cannot conclude with confidence that the jury would have assessed the facts in the same manner as the trial court.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1089-1090

Fifth Holding:

Because the omission of a jury trial was not harmless beyond a reasonable doubt as to every aggravating fact relied upon by the trial court to impose an upper term, we must reverse the defendant’s sentence.

On remand, the proceedings must comply with the current statutory requirements and the defendant be given the opportunity for a jury trial. The trial court may rely on any properly proven aggravating facts and retains its discretion to impose an upper term sentence. If the court cannot conclude that one or more properly proved circumstances justifies an upper term sentence, it may impose no more than the middle term.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 777-778