Criminal Appeal

Is Waiver Waivable? - Split Decision From Ninth Circuit

U.S. v. Castillo (9th Cir. Sept. 22, 2006)

In a 2-1 opinion authored by Judge Beezer (and joined by Judge Tallman) the Ninth Circuit held that an appeal from the denial of a motion to suppress must be dismissed when the defendant has entered an unconditional guilty plea, even if the government has not raised the jurisdictional defect. In contrast, the government can waive a claim that an appeal should be dismissed because the taking of the appeal conflicts with a waiver of appellate rights that was a term of a plea agreement.

Judge Bybee dissented, finding the two situations indistinguishable and suggesting that only the en banc court could hold as the majority did.

A.G. Wins, Petitions for Rehearing, Wins Again; Due Process Violation Preserved By Cal. Evid. Code Section 352 Objection. People v. Partida, no. B161356 (Cal.Ct.App. (2d Dist., Div. 8), July 30, 2004) (opinion on rehearing).

In its original opinion in this case (Jan. 27, 2004), the Court of Appeal held that the admission of expert gang evidence was error, but harmless. (Read my post on the original opinion here.) The AG petitioned for rehearing, noting that the court of appeal had not addressed the issues of waiver of the due process claim and ineffective assistance of counsel. The court granted rehearing and, after supplemental briefing, issued a new opinion yesterday, again affirming. This time the court expressly found no waiver, concluding that, although the defendant did not state a due process objection to the evidence in the trial court, the due process claim was preserved for several reasons (1) "a reviewing court may consider on appeal a claim raising a pure question of law on undisputed facts” (citing cases including People v. Yeoman (2003) 31 Cal.4th 93, 118); (2) because the defendant's 352 objection had been shot down, a due process objection to the same evidence would have been futile ("a due process analysis would virtually duplicate the section 352 analysis"); (3) "the policy reasons for finding a waiver has occurred would not be advanced by finding of a waiver in this case"; (4) "after taking all the previously stated reasons into consideration we would, if necessary, elect to exercise our discretion to consider the due process issues."

Despite prevailing on rehearing on this interesting waiver question and again obtaining a holding that the trial court violated section 352, the defendant-appellant lost again, as the court found any error harmless.

Failure to Double Term, Under 3 Strikes Law, on Subordinate Count and Failure to Exercise Discretion to Strike Strike as to That Count Requires Remand for Resentencing, Despite Prosecutor's Failure to Object. People v. Ayers, no. B165908 (Cal.Ct.App. 2/7, June 24, 2004)

Cal. Supremes to Review Scope of Guilty Plea Appeal CPC Requirement. People v. Shelton, S124503.
According to the court's weekly summary, "This case presents the following issues: (1) Was defendant required to obtain a certificate of probable cause (Pen. Code, § 1237.5; Cal. Rules of Court, rule 31) in order to claim on appeal that the manner of calculating the maximum sentence he agreed to in a plea agreement violated Penal Code section 654? (2) Was defendant’s post-plea claim that a portion of the sentence to which he had agreed was unauthorized barred as an impermissible challenge to the plea itself?"

My post: here; court of appeal opinion: here.

In the Court of Appeal, Deborah Prucha of the Central California Appellate Program represented the defendant-appellant and Deputy A.G. Maggy Krell represented the state.

Waiver Rule as Applied in Juvenile Appeals to Be Reviewed. The Cal. Supreme Court weekly summary for last week identifies the following question presented for In re Sheena K., no. S123980:

Is a challenge to a condition of juvenile probation as unconstitutionally vague or overbroad waived or forfeited by the failure to object to the condition at the time of the dispositional hearing in juvenile court?

Read my post from last week on Sheena K. here.

Cal. Supreme Court to Review Juvenile Probation Condition Case. The California Supreme Court granted review today in In re Sheena K., no. S123980. The Court of Appeal (2d Dist., Div. 2) had vacated a probation condition that barred a minor from associating with anyone disapproved of by the probation officer. The court found the condition unconstitutionally vague and overbroad. The court reached the merits of this claim, despite the fact that the minor had not challenged the condition in the juvenile court. The court reached the merits because the issue was a pure question of law and because the minor merely requested modification of the condition such that it did not infringe her constitutional rights, rather than challenging the subject matter of the condition. It's not clear from the docket or the order list whether the issues presented include the waiver question.

Read the court of appeal opinion here. Read my original post on the court of appeal opinion here.

In the court of appeal, Steven A. Torres represented the minor and Deputy A.G. Yun K. Lee represented the state.

By waiving a preliminary hearing, appellant forfeited his claim that the trial court erred in failing to sustain a demurrer to the information based on his assertion that the charges were unconstitutionally vague.
People v. Butte, no. C041978 (Cal.Ct.App. (3d Dist. Apr. 14, 2004) (partially published)).

Agreement to a "Lid" or "Maximum Sentence" Does Not Bar Section 654 Argument on Appeal.
Case: People v. Shelton, no. C044625 (Cal.Ct.App. 3d Dist., Mar. 26, 2004) (Partial publication).
Proceeding: Sentencing appeal following guilty plea.

Holding: Where a defendant pleads guilty and agrees to a specified term and where the defendant is sentenced to that specified term, Rule 4.412(b) of the Cal. Rules of Ct. bars the defendant from arguing on appeal that the sentence violates Penal Code section 654, which bars dual punishment for the same act. Rule 4.412(b), however, does not apply where the defendant merely agrees to a "lid" or a "top", reserving the right to argue for a lesser term at sentencing.

Authoring Justice: Associate Justice Fred K. Morrison

Dissent: Associate Justice Vance W. Raye, accepting the majority's holding that Rule 4.412(b) does not apply, would nevertheless apply "the long-standing rule that defendants are estopped from complaining of sentences to which they agreed” to hold that the defendant was estopped from challenging the sentence on section 654 grounds.

Vague Probation Condition Modified. Yesterday (3-2-04), in In re Sheena K., no. B167626, the California Court of Appeal (2d Dist., Div. 2) vacated a probation condition that barred a minor from associating with anyone disapproved of by the probation officer. The court found the condition unconstitutionally vague and overbroad, and ordered it modified to only bar the minor from associating with anyone the minor knows has been disapproved by the probation officer.

The court reached the merits of this claim, despite the fact that the minor had not challenged the condition in the juvenile court. The court reached the merits because the issue was a pure question of law and because the minor merely requested modification of the condition such that it did not infringe her constitutional rights, rather than challenging the subject matter of the condition.

The Perils of Deciding Unbriefed Issues. In the published portion of a partially published opinion in People v. Burnett, no. C042540, the Third Appellate District of the California Court of Appeal yesterday held that the state waived any error in the failure to impose a sex offender fine under section 290.3 of the Penal Code. More interesting than the issue is how it was decided.

The appellant had filed a no-issue Wende/Anders brief. On September 24, 2003, the court of appeal took its first crack at this case and issued an opinion (LexisOne registration required for this link), noting that were no issues requiring briefing, but ordering a number of corrections to the judgment, including imposition of a section 290.3 fine, which the court deemed non-waivable:

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant. However, we have discovered a sentencing error and several errors in the preparation of the amended abstract of judgment.

The trial court failed to impose a fine pursuant to Penal Code section 290.3, which requires the imposition of a $ 200 fine upon a first conviction of an offense specified in Penal Code section 290 or a $ 300 fine for a second conviction and each subsequent conviction. The fine pursuant to section 290.3 is mandatory, as are penalty assessments pursuant to Penal Code section 1464 and Government Code section 76000; therefore, the trial court's failure to impose the fine and penalty assessments is an unauthorized sentence. (People v. Terrell (1999) 69 Cal.App.4th 1246, 1256-1257; People v. Martinez (1998) 65 Cal.App.4th 1511, 1520-1522; People v. Sierra (1995) 37 Cal.App.4th 1690, 1694-1696.)

An unauthorized sentence may be corrected at any time whether or not there was an objection below. (People v. Smith (2001) 24 Cal.4th 849, 854.) In the interest of judicial economy, we modify the judgment without requesting supplemental briefing. A party claiming to be aggrieved by this procedure may petition for rehearing. (Gov. Code, § 68081.)

According to the court of appeal docket, the appellant accepted the invitation and petitioned for rehearing. A grant of rehearing, supplemental briefing and the opinion described above followed. Upon consideration of that briefing, the court of appeal changed its mind and agreed with the defendant-appellant that the court "must presume the trial court made the requisite finding that he did not have the ability to pay, and therefore the failure to impose the fine was not unauthorized."

Justice Vance W. Raye authored the opinion.

Probation Condition License Suspension Limited to 12 Months

The California Court of Appeal (1st Dist., Div. 3) held today that a juvenile court erred in suspending a minor's driver's license indefinitely as a condition of probation, following a conviction for vehicular manslaughter. A minor's license may be suspended as a condition of probation for no more than 12 months.

Interestingly, the Court reached the merits of the claims despite the fact that it was not raised in the trial court, noting that the issue presented a pure question of law:

we do not happily intervene when neither side brought the position it asserts on appeal to the attention of the trial court. Nonetheless, the issue presented is a pure question of law and implicates an explicit legislative directive nullifying the order that has been entered, so that appellate review remains appropriate. (In re Justin S. [(2001) 93 Cal.App.4th 811, 814-815.)

Justice Stuart R. Pollak authored the opinion in In re Colleen S., no. A100590