modification hearing in California

2023(People v. Sanchez (2016) 63 Cal.4th 411, 461-462 [with respect to a challenge to the witness certainty language in the predecessor instruction to CALCRIM No. 315, the defendant’s challenge to the inclusion of the certainty language was forfeited because the defendant did not request a modification of the instruction].) Defendant asserts if this court finds he forfeited his claim, he received ineffective assistance of counsel.

2021(People v. Sánchez (2016) 63 Cal.4th 411, 461-462 [with respect to a challenge to the witness certainty language in the predecessor instruction to CALCRIM No. 315, the defendant’s challenge to the inclusion of the certainty language was forfeited because the defendant did not request a modification of the instruction].) A finding of forfeiture is especially appropriate where, as here, inclusion of the language on eyewitness certainty might have been beneficial to the defendant in that the evidence “involved many identifications, some certain, some uncertain,” and “[d]efendant would surely want

2010(See People v. Riel (2000) 22 Cal.4th 1153, 1220 [ 96 Cal.Rptr.2d 1 , 998 P.2d 969 ] [contemporaneous objection rule applies to cases in which the modification hearing was conducted after this court’s decision in People v. Hill (1992) 3 Cal.4th 959 [ 13 Cal.Rptr.2d 475 , 839 P.2d 984 ] became final].) In any event, defendant’s claims lack merit as the weight of the evidence supported the jury’s verdict.

2010(See People v. Riel (2000) 22 Cal.4th 1153, 1220 [ 96 Cal.Rptr.2d 1 , 998 P.2d 969 ] [contemporaneous objection rule applies to cases in which the modification hearing was conducted after this court’s decision in People v. Hill (1992) 3 Cal.4th 959 [ 13 Cal.Rptr.2d 475 , 839 P.2d 984 ] became final].) In any event, defendant’s claims lack merit as the weight of the evidence supported the jury’s verdict.

2016“Because [he] failed to object on these—or any—grounds, and because the modification hearing postdated our decision in People v. Hill (1992) 3 Cal.4th 959 [ 13 Cal.Rptr.2d 475 , 839 P.2d 984 ], [he] has forfeited these claims.” (People v. Rodriguez (2014) 58 Cal.4th 587, 650 [ 168 Cal.Rptr.3d 380 , 319 P.3d 151 ].) We would also reject the contention on the merits.

2016“Because [he] failed to object on these—or any—grounds, and because the modification hearing postdated our decision in People v. Hill (1992) 3 Cal.4th 959 [ 13 Cal.Rptr.2d 475 , 839 P.2d 984 ], [he] has forfeited these claims.” (People v. Rodriguez (2014) 58 Cal.4th 587, 650 [ 168 Cal.Rptr.3d 380 , 319 P.3d 151 ].) We would also reject the contention on the merits.

2015(People v. Lang (1989) 49 Cal.3d 991, 1024 [ 264 Cal.Rptr. 386 , 782 P.2d 627 ] [“A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party requested appropriate clarifying or amplifying language.”].) D.

2013No forfeiture The Attorney General argues Odom forfeited his appellate challenge by failing to object to or seek a modification of the instruction at trial. 8 “A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying instruction.” (People v. Lang (1989) 49 Cal.3d 991, 1024 ; People v. Campos (2007) 156 Cal.App.4th 1228, 1236 .) But no forfeiture will be found where “the instructional error affected the defendant’s substantial rights.” (People v. Franco (

2012Moreover, the claim lacks merit. “ ‘We have never decided whether a defendant who waives a jury trial on the issue of penalty is entitled to a modification hearing under section 190.4, subdivision (e).’ ” (People v. Horning, supra, 34 Cal.4th at p. 912, quoting People v. Diaz, supra, 3 Cal.4th at p. 575.) We noted in Horning that such a hearing after a penalty phase court trial would not be entirely futile because the requirement that the trial court state on the record the reasons for its findings “ ‘enables us to review the propriety of the penalty determination made by the trial court sitti

2004“We have never decided whether a defendant who waives a jury trial on the issue of penalty is entitled to a modification hearing under section 190.4, subdivision (e).” (People v. Diaz, supra, 3 Cal.4th at p. 575.) We noted in Diaz that the statutory language is ambiguous, sometimes referring to a verdict of death by the “trier of fact” and sometimes referring to the “jury’s” findings.

2020The People assert, “When a defendant fails to request a modification to a standard jury instruction, he forfeits any claim of error on appeal that the wording of the instruction is defective. [Citation.] In other words, when a proposed instruction correctly states the law but the defendant believes it is misleading or confusing under the specific facts of the case, he is obliged to offer corrections or clarifications of the instruction to avoid forfeiting the issue on appeal. [Citation.]” “ ‘Generally, a party may not complain on appeal that an instruction correct in law and responsive to the

2001But killing with malice aforethought, when perpetrated by means of poison, is first degree murder"].) To the extent defendant claims that the giving of CALJIC No. 8.20 without modification constituted error, we observe that defendant did not request a modification of this standard instruction, an instruction that was appropriate under the facts of this case. "`Generally, a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying *84 or amplifying language.'" ( People v.

2022The plain language of the instruction, however, made clear that it pertained to the intent element of Quintero’s assault claim. “ ‘ “In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” ’ ” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 (Ramos).) Nothing in the record suggests that the jury conflated the standards for each cause of action or expressed any confusion.

2022The plain language of the instruction, however, made clear that it pertained to the intent element of Quintero’s assault claim. “ ‘ “In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.” ’ ” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 (Ramos).) Nothing in the record suggests that the jury conflated the standards for each cause of action or expressed any confusion.

2022(See People v. Sánchez (2016) 63 Cal.4th 411, 461 (Sánchez); People v. Sullivan (2007) 151 Cal.App.4th 524, 561 .) We also rejected defendant’s contention that the certainty factor was erroneous, noting that we were bound by the California Supreme Court cases that have specifically approved the factor, such as Sánchez, supra, at pages 461-462, People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232 (Johnson), and People v. Wright (1988) 45 Cal.3d 1126, 1144 (Wright).

2021(See People v. Sánchez (2016) 63 Cal.4th 411, 461 (Sánchez); People v. Sullivan (2007) 151 Cal.App.4th 524, 561 .) We also rejected defendant’s contention that the certainty factor was erroneous, noting that we were bound by the California Supreme Court cases which had specifically approved the factor, such as Sánchez, supra, at pages 461-462, People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232 (Johnson), and People v. Wright (1988) 45 Cal.3d 1126, 1144 (Wright).) We granted defendant’s petition for rehearing following the recent publication of Lemcke, supra, 11 Cal.5th 644 .

2022(See People v. Sánchez (2016) 63 Cal.4th 411, 461 (Sánchez); People v. Sullivan (2007) 151 Cal.App.4th 524, 561 .) We also rejected defendant’s contention that the certainty factor was erroneous, noting that we were bound by the California Supreme Court cases that have specifically approved the factor, such as Sánchez, supra, at pages 461-462, People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232 (Johnson), and People v. Wright (1988) 45 Cal.3d 1126, 1144 (Wright).

2021(See People v. Sánchez (2016) 63 Cal.4th 411, 461 (Sánchez); People v. Sullivan (2007) 151 Cal.App.4th 524, 561 .) We also rejected defendant’s contention that the certainty factor was erroneous, noting that we were bound by the California Supreme Court cases which had specifically approved the factor, such as Sánchez, supra, at pages 461-462, People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232 (Johnson), and People v. Wright (1988) 45 Cal.3d 1126, 1144 (Wright).) We granted defendant’s petition for rehearing following the recent publication of Lemcke, supra, 11 Cal.5th 644 .

2022In Horning, the trial court had given a detailed statement of reasons for its penalty phase verdict, and we observed that ‘[n]othing in section 190.4 suggests the court must state its reasons twice.’ ” (Ibid., quoting People v. Horning (2004) 34 Cal.4th 871, 912 (Horning).) Since the trial court in Weaver stated its reasons twice, there was no conceivable error.

2012Moreover, the claim lacks merit. “ ‘We have never decided whether a defendant who waives a jury trial on the issue of penalty is entitled to a modification hearing under section 190.4, subdivision (e).’ ” (People v. Horning, supra, 34 Cal.4th at p. 912, quoting People v. Diaz, supra, 3 Cal.4th at p. 575.) We noted in Horning that such a hearing after a penalty phase court trial would not be entirely futile because the requirement that the trial court state on the record the reasons for its findings “ ‘enables us to review the propriety of the penalty determination made by the trial court sitti

2015“Because the court’s unanimity instruction regarding the counts listed was not reasonably likely to be understood as [defendant Mayle] asserts, his substantial rights were not affected and therefore a timely objection and/or request for modification or clarification was required to preserve the claim of error for purposes of appeal. [Citations.]” (People v. Milosavljevic (2010) 183 Cal.App.4th 640, 648-649 [ 107 Cal.Rptr.3d 792 ] (Milosavljevic), fn. omitted.) Finally, because the contention that the instruction was deficient and caused prejudice to defendant Mayle is without merit, we need no

2015“Because the court’s unanimity instruction regarding the counts listed was not reasonably likely to be understood as [defendant Mayle] asserts, his substantial rights were not affected and therefore a timely objection and/or request for modification or clarification was required to preserve the claim of error for purposes of appeal. [Citations.]” (People v. Milosavljevic (2010) 183 Cal.App.4th 640, 648-649 [ 107 Cal.Rptr.3d 792 ] (Milosavljevic), fn. omitted.) Finally, because the contention that the instruction was deficient and caused prejudice to defendant Mayle is without merit, we need no

1999Once decided, always decided. “[F]actual issues considered and [previously] resolved . . . are fused and form the foundational mosaic upon which [a past] . . . judgment rests; they cannot be singly or jointly analyzed anew upon a subsequent modification hearing.” (In re Marriage of Schaffer, supra, 158 Cal.App.3d at p. 934 .) Correct Standard, Different Result “Although a trial court has broad discretion in . . . modifying an award of spousal support, it is without authority to [do so] . . . unless there has been a material change of circumstances subsequent to the last prior order.” (In re Ma

1999Once decided, always decided. “[F]actual issues considered and [previously] resolved . . . are fused and form the foundational mosaic upon which [a past] . . . judgment rests; they cannot be singly or jointly analyzed anew upon a subsequent modification hearing.” (In re Marriage of Schaffer, supra, 158 Cal.App.3d at p. 934 .) Correct Standard, Different Result “Although a trial court has broad discretion in . . . modifying an award of spousal support, it is without authority to [do so] . . . unless there has been a material change of circumstances subsequent to the last prior order.” (In re Ma

1990(See People v. Siripongs (1988) 45 Cal.3d 548, 585-586, fn. 12 [ 247 Cal.Rptr. 729 , 754 P.2d 1306 ].) Thus, we have stated that “the Eighth Amendment considerations” expressed in Booth/Gathers “are not implicated” in a modification hearing under section 190.4.

1990(See People v. Siripongs (1988) 45 Cal.3d 548, 585-586, fn. 12 [ 247 Cal.Rptr. 729 , 754 P.2d 1306 ].) Thus, we have stated that “the Eighth Amendment considerations” expressed in Booth/Gathers “are not implicated” in a modification hearing under section 190.4.

2022(People v. Lemcke (2021) 11 Cal.5th 644, 647-648 (Lemcke).) Putting aside the question of whether defendant forfeited the issue by failing to request a modification to the instruction at trial, any error was harmless.

2021(People v. Sánchez (2016) 63 Cal.4th 411, 461-462 [with respect to a challenge to the witness certainty language in the predecessor instruction to CALCRIM No. 315, the defendant’s challenge to the inclusion of the certainty language was forfeited because the defendant did not request a modification of the instruction].) A finding of forfeiture is especially appropriate where, as here, inclusion of the language on eyewitness certainty might have been beneficial to the defendant in that the evidence “involved many identifications, some certain, some uncertain,” and “[d]efendant would surely want

2016(Lopez, supra, 198 Cal.App.4th at p. 1118 ; People v. Mejia (2012) 211 Cal.App.4th 586, 624 [referring to CALJIC No. 3.00 which also contains the “equally guilty” language]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165 .) Defendant forfeited his instructional error claim because the CALCRIM No. 400 instruction given was generally accurate and defendant did not 15 request a modification of the instruction at trial.

2015Former CALCRIM No. 400, including the “ ‘ “equally guilty” ’ ” language is “ ‘generally correct in all but the most exceptional circumstances . . . .’ ” (People v. Nero, supra, 181 Cal.App.4th at pp. 517-518, italics omitted, quoting People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165 [ 91 Cal.Rptr.3d 874 ].) A. Forfeiture As we held in Lopez, supra, 198 Cal.App.4th at pages 1118 and 1119, defendant Mayle forfeited this contention because he did not raise it in the trial court and ask for a modification of the instruction, which generally states the law correctly.

2026(See, e.g., Ellis, 235 Cal.App.4th at p. 842 ; Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 504 .) But here we have the opposite situation.

2015(Id.; see also Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 504-509 [distinguishing between cases affecting only monetary position of parties such as attorney’s fees awards and those affecting substantial rights; only the latter extend the time to appeal].) Appellant’s reliance on Erickson does not require a different result.

2018Because the modification to the instruction stated that the reasonable doubt standard must instead be applied, " ' "[t]he People must still prove each element of every charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you may consider one charge as proof of another charge." ' [Citation.]" ( Cruz, at p. 1185, 206 Cal.Rptr.3d 835 , quoting Villatoro, supra , 54 Cal.4th at p. 1167 , 144 Cal.Rptr.3d 401 , 281 P.3d 390 , italics added.) Cruz , supra , 2 Cal.App.5th 1178 , 206 Cal.Rptr.3d 835 , seems to me on point.

2018Because the modification to the instruction stated that the reasonable doubt standard must instead be applied, " ' "[t]he People must still prove each element of every charge beyond a reasonable doubt and prove it beyond a reasonable doubt before you may consider one charge as proof of another charge." ' [Citation.]" ( Cruz, at p. 1185, 206 Cal.Rptr.3d 835 , quoting Villatoro, supra , 54 Cal.4th at p. 1167 , 144 Cal.Rptr.3d 401 , 281 P.3d 390 , italics added.) Cruz , supra , 2 Cal.App.5th 1178 , 206 Cal.Rptr.3d 835 , seems to me on point.

2015(In re Fields (1990) 51 Cal.3d 1063, 1079 [ 275 Cal.Rptr. 384 , 800 P.2d 862 ].) Here, we need not determine whether counsel’s performance was deficient for not seeking a modification of former CALCRIM No. 400 because it is not reasonably probable that a modification of the instruction would have resulted in a verdict more favorable to defendant Mayle.

2015(In re Fields (1990) 51 Cal.3d 1063, 1079 [ 275 Cal.Rptr. 384 , 800 P.2d 862 ].) Here, we need not determine whether counsel’s performance was deficient for not seeking a modification of former CALCRIM No. 400 because it is not reasonably probable that a modification of the instruction would have resulted in a verdict more favorable to defendant Mayle.

2014(Peleg v. Neiman Marcus Group, Inc. (2012) 204 Cal.App.4th 1425, 1463-1464 [ 140 Cal.Rptr.3d 38 ].) “ ‘ “[W]here the contract specifies performance the fact that one party reserves the power to vary it is not fatal if the exercise of the power is subject to prescribed or implied limitations such as the duty to exercise it in good faith and in accordance with fair dealings.” ’ [Citations.]” (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1214 [ 78 Cal.Rptr.2d 533 ].) “[T]he implied covenant of good faith and fair dealing limits the employer’s authority to unilaterally modif

2014(Peleg v. Neiman Marcus Group, Inc. (2012) 204 Cal.App.4th 1425, 1463-1464 [ 140 Cal.Rptr.3d 38 ].) “ ‘ “[W]here the contract specifies performance the fact that one party reserves the power to vary it is not fatal if the exercise of the power is subject to prescribed or implied limitations such as the duty to exercise it in good faith and in accordance with fair dealings.” ’ [Citations.]” (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1214 [ 78 Cal.Rptr.2d 533 ].) “[T]he implied covenant of good faith and fair dealing limits the employer’s authority to unilaterally modif

2014(Peleg v. Neiman Marcus Group, Inc. (2012) 204 Cal.App.4th 1425, 1463-1464 [ 140 Cal.Rptr.3d 38 ].) “ ‘ “[W]here the contract specifies performance the fact that one party reserves the power to vary it is not fatal if the exercise of the power is subject to prescribed or implied limitations such as the duty to exercise it in good faith and in accordance with fair dealings.” ’ [Citations.]” (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1214 [ 78 Cal.Rptr.2d 533 ].) “[T]he implied covenant of good faith and fair dealing limits the employer’s authority to unilaterally modif

2014(Peleg v. Neiman Marcus Group, Inc. (2012) 204 Cal.App.4th 1425, 1463-1464 [ 140 Cal.Rptr.3d 38 ].) “ ‘ “[W]here the contract specifies performance the fact that one party reserves the power to vary it is not fatal if the exercise of the power is subject to prescribed or implied limitations such as the duty to exercise it in good faith and in accordance with fair dealings.” ’ [Citations.]” (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1214 [ 78 Cal.Rptr.2d 533 ].) “[T]he implied covenant of good faith and fair dealing limits the employer’s authority to unilaterally modif

2014(Peleg v. Neiman Marcus Group, Inc. (2012) 204 Cal.App.4th 1425, 1463-1464 [ 140 Cal.Rptr.3d 38 ].) “ ‘ “[W]here the contract specifies performance the fact that one party reserves the power to vary it is not fatal if the exercise of the power is subject to prescribed or implied limitations such as the duty to exercise it in good faith and in accordance with fair dealings.” ’ [Citations.]” (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1214 [ 78 Cal.Rptr.2d 533 ].) “[T]he implied covenant of good faith and fair dealing limits the employer’s authority to unilaterally modif

2014(Peleg v. Neiman Marcus Group, Inc. (2012) 204 Cal.App.4th 1425, 1463-1464 [ 140 Cal.Rptr.3d 38 ].) “ ‘ “[W]here the contract specifies performance the fact that one party reserves the power to vary it is not fatal if the exercise of the power is subject to prescribed or implied limitations such as the duty to exercise it in good faith and in accordance with fair dealings.” ’ [Citations.]” (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1214 [ 78 Cal.Rptr.2d 533 ].) “[T]he implied covenant of good faith and fair dealing limits the employer’s authority to unilaterally modif

2000(See In re Arturo A. (1992) 8 Cal.App.4th 229, 239 [ 10 Cal.Rptr.2d 131 ] [quoting Senate Committee Report to the effect that decision to terminate parent rights will be “ ‘relatively automatic’ ” when court determines that minor cannot be returned home and then terminates reunification services].) Indeed, there was not even a downside risk of any embarrassing information coming out at a modification hearing that might prompt social workers to try to remove any other children who would then have been in her custody, because Eileen was Olga’s only child.

2000(See In re Arturo A. (1992) 8 Cal.App.4th 229, 239 [ 10 Cal.Rptr.2d 131 ] [quoting Senate Committee Report to the effect that decision to terminate parent rights will be “ ‘relatively automatic’ ” when court determines that minor cannot be returned home and then terminates reunification services].) Indeed, there was not even a downside risk of any embarrassing information coming out at a modification hearing that might prompt social workers to try to remove any other children who would then have been in her custody, because Eileen was Olga’s only child.