issues but any potential adverse consequences.
Sentencing issues and waiver are covered in other training articles. Waiver
should be dealt with in a sometimes coordinated attack, giving the court several
reasons not to default the issue. Here is a recap from the sentencing module of
the different theories by which a finding of waiver can be avoided:
– Ineffective Assistance of Counsel:
This can be productive under the right circumstances because there is rarely a
tactical reason not to oppose an erroneously harsh sentence. (
People v. Cotton
(1991) 230 Cal.App.3d 1072, 1086.)
– Issue is Constitutional and Does Not Need Factual Development:
(
Hale v. Morgan
(1978) 22 Cal.3d 388, 394; see also
People v. Partida
(2005) 37
Cal.4th 428, 436 [court held defendant could make a “vary narrow due process
argument” for the first time on appeal – that is, that “asserted error in admitting
the evidence over his Evidence Code section 352 objection had the additional
legal consequence of violating due process”]; see also
In re Sheena K.
(2007) 40
Cal.4th 875, 885-886 [the doctrine of forfeiture on appeal does not apply to
challenges to probation conditions based on “facial constitutional defects” that do
“not require scrutiny of individual facts and circumstances”].)
10
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– Waiver Applies to the Parties and Not the Court:
The court may reach an issue without an objection. (
People v. Williams
(1998) 17
Cal.4th 148, 161, fn. 6.)
The second major additional consideration in reviewing sentencing issues is the
consideration of potential adverse consequences that can occur with respect to
the sentence, custody credits, fines and fees, and other disabilities of conviction.
Three adverse consequences seem to recur with respect to the imposition of
sentence on crimes and enhancements:
– Failure to impose a mandatory sentence on an enhancement or to impose any
sentence at all on one or more counts of conviction.
– Erroneous imposition of a one-third consecutive sentence when the sentence
required was a full consecutive one, such as sentences for certain in-prison
offenses, for Three Strike life sentences or sexual offense sentencing under
Penal Code section 667.6, subdivision (d).
– Failure to state reasons for striking a strike under Penal Code section 1385, or
failing to place the reasons in the minutes. (
People v. Williams, supra,
17 Cal.4th
at pp. 161-162.)
Again, adverse consequences are discovered by careful research, including
review of the applicable statutes. And the appellant must be advised so a
determination can be made whether to proceed with the appeal. But some can
be corrected when the trial court still has jurisdiction. For example, in the
Williams
situation, the trial court might be requested to place a statement of
reasons in the minutes.
Custody Credit.
