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) 40Cal.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
This Resource provided by Article Originally posted at: – Waiver Applies to the Parties and Not the Court:The court may reach an issue without an objection. (People v. Williams(1998) 17Cal.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 Williamssituation, the trial court might be requested to place a statement of reasons in the minutes. Custody Credit.