California Criminal Trial Manual

Motions

Timeliness // PC 1004 (Demurrer) // PC 1009 (Motion to Amend) // PC 995 // PC 995a // Trombetta/Youngblood Motion // Joinder/Consolidation // Challenge/Disqualify Judge // PC 1385(a) (Dismissal Interests of Justice) // Striking Strikes (Romero) // PC 1385(c) (Presumption to Dismiss Enhancements) // Stare Decisis

Timeliness (Local Rule 9.1(a).)
  • All motions shall be served & filed at least 15 calendar days before the time of the hearing
  • All opposition motions shall be served & filed at least 5 court days before the time of the hearing
  • All reply motions shall be served & filed at least 2 court days before the time of the hearing
PC 1004 (Demurrer)

General Rule

  • Function. Demurrers are used to challenge defects that appear on the face of the accusatory pleading. (PC 1004.)
    • D can demur to a pleading instead of entering a plea if one of the grounds in § 1004 exists. (PC 1002, PC 1004.)
  • 5 Bases to Demur:
    • (1) Lack of Jurisdiction
    • (2) Uncertainty
    • (3) Misjoinder
    • (4) No Offense Stated
    • (5) Prosecution Barred
  • Procedure
    • Demurrer must be made before entry of a plea, either at the time of arraignment or at whatever later time the defendant is required to answer the complaint, unless the court allows the defendant to withdraw the plea and interpose a demurrer.
    • Argument on the objections presented by demurrer must be heard at the time the demurrer is entered unless the court grants a continuance for exceptional cause. (PC 1006.)
    • After argument on the motion, the court must make an order either overruling or sustaining the demurrer. (PC 1007.)
    • Demurrer Overruled. If the demurrer is overruled, the defendant must immediately enter a plea unless the court extends the time for doing so. (PC 1007.)
    • Demurrer Sustained. If the trial court sustains a demurrer and if the defect can be remedied, it must permit the prosecutor to file an amended pleading within a set time, not exceeding 10 calendar days. (PC 1007; Hudson v. Superior Court (2017) 7 Cal.App.5th 999, 1011 [leave to amend proper when defect on face of indictment could be cured without changing nature of offense charged]; People v. Bailey (1946) 72 Cal.App.2d Supp. 880, 884 [leave to amend should be granted for remediable defect].)
      • If the defect cannot be remedied by amendment, the court should sustain the demurrer without leave to amend, and dismiss the case. (PC 1007; PC 1008.)
      • Dismissal is also required if the prosecution fails to amend the pleading or files an untimely amendment. (PC 1008.)
    • If the case is dismissed and the defendant is in custody, the court must order his discharge. (PC 1008.)
    • Appeal. The prosecution may appeal an order sustaining a demurrer. (PC 1238(a)(2), 1466(a)(3).)
    • When a magistrate sustains a demurrer and dismisses the case, the prosecution may move to reinstate the complaint. (PC 871.5(a).)

Lack of Jurisdiction

Uncertainty

  • A defendant may demur on the ground that a complaint or information does not substantially conform to the PC § 950 and § 952 requirements relating to statement of the offense. (PC 1004(b).)
  • A statement in the statute’s language, or in any language giving the accused notice of the offense charged, although not of the particular circumstances, is generally held to be sufficient in the face of a general demurrer. (Brown v. Superior Court (1965) 234 Cal.App.2d 628, 632.)
  • Claim Forfeited. A defendant who waives a preliminary hearing forfeits the right to complain of vagueness in the accusatory pleading. (People v. Butte (2004) 117 Cal.App.4th 956, 959.)
  • Literal compliance with PC § 952 is insufficient if the accusation fails to give constitutionally adequate notice of what the accused must defend against. (People v. Jordan (1971) 19 Cal.App.3d 362.)
  • Burglary & Similar Offenses. When a statute defines a material element by referring to other forbidden acts, the pleading must specify the forbidden acts.
  • Enhancements are subject to demurrer. (People v. Equarte (1986) 42 Cal.3d 456, 466.)
  • Curing Deficiency. Uncertainty or lack of notice in the pleading may be cured by discovery or evidence adduced at the preliminary hearing. (People v. Jones (1990) 51 Cal.3d 294, 317.)

Misjoinder

  • When more than one offense is charged, a defendant may demur on the ground that joinder is not authorized by PC 954. (PC 1004(c).)
PC 1009 (Motion to Amend Complaint/Information)
PC 995
PC 995a (Amending Minor Errors in the Information)
  • When D files a PC 995 motion alleging errors in the information, prosecution may be able to move for leave to amend the alleged errors in the information under PC 995a.
  • Before a trial court may institute further proceedings to correct preliminary hearing errors, section 995a requires it make two separate findings:
    • (1) a minor error of omission, ambiguity, or technical defect which,
    • (2) can be expeditiously cured. (PC 995a(b)(1).)
  • PC 995a amendments can only be used once for each information filed. (PC 995a(b)(3).)
  • Minor Error of Omission, Ambiguity, or a Technical Defect
  • Expeditiously Cured
Trombetta/Youngblood Motion
Joinder/Consolidation
  • PC 954: can join 2 or more different offenses CONNECTED TOGETHER IN THEIR COMMISSION … [OR] SAME CLASS OF CRIMES/OFFENSES so long as no prejudice
    • Accusatory pleadings may be consolidated for trial where they charge two or more different offenses that are connected in their commission or are of the same class of offenses. (PC § 954.)
  • Common Characteristics. Offenses are of same class where they possess common characteristics or attributes. (Aydelott v. Superior Court (1970) 7 Cal.App.3d 718.)
  • Common Element of Substantial Importance. Offenses committed at different times and places against different victims are connected together in their commission when they are linked by a common element of substantial importance. (People v. Westerfield (2019) 6 Cal.5th 632, 686.)
    • Motive. Motive or intent may be such a common element.
    • The element of intent to feloniously obtain property runs like a single thread through the various offenses. (People v. Lucky (1988) 45 Cal.3d 259, 276.)
  • Same Class:
    • Assaultive crimes against the person
    • Lewd conduct towards minors
  • Prejudice Analysis
Challenge/Disqualification of Judge

Code of Civ. Proc. 170.6

  • Code of Civ. Proc. 170.6(a)(1) states “A judge, court commissioner, or referee of a superior court of the State of California shall not try a civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact when it is established in this section that the judge or court commissioner is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.” (CCP 170.6(a)(1).)
  • Prejudice is established, for purposes of CCP 170.6, by a motion “supported by an affidavit or declaration under penalty of perjury, or an oral statement under oath that the assigned judge ‘is prejudiced against a party or attorney … so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge.’” (CCP 170.6(a)(2).)
    • Good Faith Belief is Sufficient. “So long as the motion is duly presented, and the affidavit or declaration under penalty of perjury is duly filed or an oral statement under oath is duly made, thereupon and without further proof, a different judge must be assigned to try the cause or hear the matter.” (Maas v. Superior Court (2016) 1 Cal.5th 962, 972.)
    • When a litigant has met the requirements of section 170.6, disqualification of the judge is mandatory, without any requirement of proof of facts showing that the judge is actually prejudiced. The disqualification is automatic and based solely on the party’s asserted good faith belief that there is prejudice. (Ibid.)
  • Hearing. Courts have defined the term ‘hearing’ within the meaning of section 170.6 as “wherein the court is called upon to rule upon some disputed issue of law or fact based upon legal argument or evidence or both before the court.” (Grant v. Superior Court (2001) 90 Cal.App.4th 518, 526.)
    • Settlement Conferences & Case Management Conferences generally NOT considered “hearings” for CCP 170.6 purposes. (Ibid.)
  • As a general rule, a challenge of a judge is permitted under section 170.6 any time before the commencement of a trial or hearing. (Shipp v. Superior Court (1992) 5 Cal.App.4th 147, 150.)
  • Three Exceptions:
    • 10-day/5-day Rule: “Where the judge, other than a judge assigned to the case for all purposes … is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least five days before that date. (CCP 170.6(a)(2).)
    • Master Calendar Rule: If directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial. (CCP 170.6(a)(2).)
    • All Purpose Assignment Rule: If directed to the trial of a cause which has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance. (CCP 170.6(a)(2).)

Code of Civ. Proc. 170.1

  • A judge shall be disqualified if, “[f]or any reason…a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” (Code Civ. Proc. § 170.1(a)(6)(A)(iii).)
  • The applicable disqualification standard is an objective one: if a fully informed, reasonable member of the public would fairly entertain doubts that the judge is impartial, the judge should be disqualified. (Jolie v. Superior Court (2021) 66 Cal.App.5th 1025, 1040.)
Vindictive Prosecution
  • Overview. D is protected both from actual vindictiveness and the apprehension of retaliation for exercising a legal right. (North Carolina v. Pearce (1969) 395 U.S. 711, 725; People v. Puentes (2010) 190 Cal.App.4th 1480, 1484.)
  • Step 1: Presumption of Vindictiveness (D burden)
    • In General. D raises a presumption of vindictiveness where he shows (1) “the prosecution has increased the charges” (2) “in apparent response to” (3) “the defendant’s exercise of a procedural right.” (Twiggs v. Superior Court (1983) 34 Cal.3d 360, 371.)
      • “[T]he presumption of unconstitutional vindictiveness is a legal presumption which arises when the prosecutor increases the criminal charge against a defendant under circumstances which … are deemed to present a reasonable likelihood of vindictiveness. (In re Bower (1985) 38 Cal.3d 865, 879.)
    • No Presumption From Failed Plea Bargain
      • “The courts have consistently refused to apply the presumption in the context of failed pretrial plea bargains.” (People v. Bracey (1994) 21 Cal.App.4th 1532, 1546.)
      • Absent proof of vindictiveness or other improper motive, increasing the charges or punishment when a plea bargain is refused does not constitute unconstitutional punishment or retaliation for the exercise of a defendant’s rights. (People v. Grimes (2016) 1 Cal.5th 698, 736.)
      • It is not a constitutional violation … for a prosecutor to offer benefits, in the form of reduced charges, in exchange for a defendant’s guilty pleas, or to threaten to increase the charges if the defendant does not plead guilty. In the pretrial setting, there is no presumption of vindictiveness when the prosecution increases the charges or, as here, the potential penalty.” (People v. Jurado (2006) 38 Cal.4th 72, 98.)
      • To hold that a prosecutor’s desire to induce a guilty plea … may play no part in his charging decision, would contradict the very premises that underlie the concept of plea bargaining itself. (Bordenkircher v. Hayes (1978) 434 U.S. 357, 364-365.)
    • Filing Unrelated Charges Does Not Trigger the Presumption of Vindictiveness
  • Step 2: Overcome Presumption of Vindictiveness (P burden)
    • “[O]nce the presumption of vindictiveness is raised the prosecution bears a heavy burden of rebutting the presumption with an explanation that adequately eliminates actual vindictiveness. In this regard, the trial court should consider the prosecutor’s explanation in light of the total circumstances of the case in deciding whether the presumption has been rebutted.” (Twiggs v. Superior Court (1983) 34 Cal.3d 360, 374.)
    • “In order to rebut the presumption of vindictiveness, the prosecution must demonstrate that (1) the increase in charge was justified by some objective change in circumstances or in the state of the evidence which legitimately influenced the charging process and (2) that the new information could not reasonably have been discovered at the time the prosecution exercised its discretion to bring the original charge.” (In re Bower (1985) 38 Cal.3d 865, 879.)
  • WHEN ARE THESE GRANTED AS A MATTER OF RIGHT?
    • Successfully completed probation or had probation terminated early for good behavior (as opposed to having probation terminated for a PV)
      • There does not technically need to have been a probation violation admitted for there to be a finding of non-compliance with probation.  Failure to pay restitution as ordered as a term of probation -> non-compliance with the terms of probation.
PC 1385(a) (Dismissal in the Interests of Justice)
Striking Strikes (Romero)
PC 1385(c) (Presumption to Dismiss Enhancements)
  • “The court shall dismiss an enhancement if it is in the furtherance of justice to do so.” (PC 1385(c)(1).)
  • PC 1385(c)(2) enumerates certain mitigating circumstances which the trial court, when exercising discretion, is to “weigh[] greatly” in favor of dismissal of an enhancement, unless “dismissal of the enhancement would endanger public safety.” (PC 1385(c)(2).) Includes:
    • Discriminatory racial impact
    • Multiple enhancements alleged in a single case
    • Enhancement could result in sentence of over 20 years
    • Current offense connected to mental illness, prior victimization or childhood trauma
    • Current offense is not a violent felony
    • Whether D was a juvenile when committed current or prior offenses
    • Enhancement is based on a prior conviction that is over five years old
    • If firearm used in offense, firearm was inoperable or unloaded
  • Does not apply to Three Strikes Allegations. (People v. Olay (2023) 98 Cal.App.5th 60; People v. Burke (2023) 89 Cal.App.5th 237, 244; People v. Dain (2024) 99 Cal.App.5th 399.)
  • PC 1385(c)(2) does not create a rebuttable presumption for dismissal of an enhancement. (People v. Walker (2024) 16 Cal.5th 1024.)
    • “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.” (Ibid.)
  • Dismissal endangers public safety. “In most cases, ‘if the trial court finds that dismissal of an enhancement would endanger public safety, then it is hard to see how dismissal would further the interests of justice’ notwithstanding the applicability of any mitigating factors identified in subdivision (c)(2).” (People v. Walker (2024) 16 Cal.5th 1024.)
  • “Weighs Greatly.” PC 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. (People v. Ortiz (2023) 87 Cal.App.5th 1087, 1098.)
    • “If the court does not conclude that dismissal would endanger public safety, then mitigating circumstances strongly favor dismissing the enhancement.” (People v. Walker (2024) 16 Cal.5th 1024.)
    • 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. (People v. Walker (2024) 16 Cal.5th 1024.)
  • Split of Authority on Effect of PC 1385(c)(2)
Stare Decisis
  • Stare decisis requires the trial court to follow decisions of higher state courts. This rule is summarized in Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450:
    • The decisions of [the Supreme Court] are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon … all the superior courts of this state, as this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.
  • No Horizontal Store Decisis. There is “no horizontal stare decisis” requiring on California Court of Appeal to follow a prior decision on the same issue by another Court of Appeal. (People v. Kisling (2014) 223 Cal.App.4th 544, 547-548; People v. McDonald (2013) 214 Cal.App.4th 1367, 1377.)
    • Where Court of Appeal decisions on an issue conflict, the lower court may follow whichever line of authority it finds persuasive.