prospective requirement in California

1990In People v. Easley (1983) 34 Cal.3d 858 [ 196 Cal.Rptr. 309 , 671 P.2d 813 ], we found factor (k) (former CALJIC No. 8.84.1) “potentially confusing” in that it spoke only of a “circumstance which extenuates the gravity of the crime.” We therefore imposed the prospective requirement that “trial courts—in instructing on the factor embodied in section 190.3, [factor] (k)—should inform the jury that it may consider as a mitigating factor ‘any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime’ and any other ‘aspect of [the] defendant’s

1990In People v. Easley (1983) 34 Cal.3d 858 [ 196 Cal.Rptr. 309 , 671 P.2d 813 ], we found factor (k) (former CALJIC No. 8.84.1) “potentially confusing” in that it spoke only of a “circumstance which extenuates the gravity of the crime.” We therefore imposed the prospective requirement that “trial courts—in instructing on the factor embodied in section 190.3, [factor] (k)—should inform the jury that it may consider as a mitigating factor ‘any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime’ and any other ‘aspect of [the] defendant’s

2016Indeed, Justice Thomas explicitly recognized the penalty case exception line of cases, describing that principle as “well established.” ( Chavez, supra, 538 U.S. at pp. 767-768.) Further, the opinion acknowledged that a signed immunity waiver precludes the signatory from objecting on Fifth Amendment grounds to the subsequent use of the statements in a criminal case, even if the statements were compelled, and “[a] waiver of immunity is therefore a prospective waiver of the core self-incrimination right in any subsequent criminal proceeding .…” (Chavez, at p. 768, fn. 2.) Chavez recognized the c

2016Indeed, Justice Thomas explicitly recognized the penalty case exception line of cases, describing that principle as “well established.” ( Chavez, supra, 538 U.S. at pp. 767-768.) Further, the opinion acknowledged that a signed immunity waiver precludes the signatory from objecting on Fifth Amendment grounds to the subsequent use of the statements in a criminal case, even if the statements were compelled, and “[a] waiver of immunity is therefore a prospective waiver of the core self-incrimination right in any subsequent criminal proceeding .…” (Chavez, at p. 768, fn. 2.) Chavez recognized the c

1988We noted in People v. Easley, supra, 34 Cal.3d 858 , that section 190.3, factor (k) (which is reproduced in former CALJIC No. 8.84.1) speaks only of a "circumstance which extenuates the gravity of the crime." In order to better serve constitutional concerns we imposed the prospective requirement that "trial courts — in instructing on the factor embodied in section 190.3, [factor] (k) — should inform the jury that it may consider as a mitigating factor `any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime' and any other `aspect of [

1988We noted in People v. Easley, supra, 34 Cal.3d 858 , that section 190.3, factor (k) (which is reproduced in former CALJIC No. 8.84.1) speaks only of a “circumstance which extenuates the gravity of the crime.” In order to better serve constitutional concerns we imposed the prospective requirement that “trial courts—in instructing on the factor embodied in section 190.3, [factor] (k)—should inform the jury that it may consider as a mitigating factor ‘any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime’ and any other ‘aspect of [the]

2015(Cf. Mitsubishi *253 Motors v. Soler Chrysler-Plymouth (1985) 473 U.S. 614, 637, fn. 19 [ 87 L.Ed.2d 444 , 105 S.Ct. 3346 ] [upholding arbitrability of statutory antitrust claims under the federal Sherman Act ( 15 U.S.C. § 1 et seq.) with the caveat that “in the event . . . choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the [arbitration] agreement as against public policy”].) Our determination of substantive unconscionability with respect

2015(Cf. Mitsubishi *253 Motors v. Soler Chrysler-Plymouth (1985) 473 U.S. 614, 637, fn. 19 [ 87 L.Ed.2d 444 , 105 S.Ct. 3346 ] [upholding arbitrability of statutory antitrust claims under the federal Sherman Act ( 15 U.S.C. § 1 et seq.) with the caveat that “in the event . . . choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the [arbitration] agreement as against public policy”].) Our determination of substantive unconscionability with respect

1986(See Eddings v. Oklahoma (1982) 455 U.S. 104, 113-114 [ 71 L.Ed.2d 1, 10-11 , 102 S.Ct. 869 ]; Lockett v. Ohio (1978) 438 U.S. 586, 604-605 [ 57 L.Ed.2d 973, 989-990 , 98 S.Ct. 2954 ].) In Easley, supra, we announced a prospective requirement that such an "expanded factor (k)" instruction be given. ( 34 Cal.3d at p. 878, fn. 10 .) In People v. Davenport (1985) 41 Cal.3d 247 [ 221 Cal. Rptr. 794 , 710 P.2d 861 ], we ruled that omission of such an instruction in a pre- Easley trial was grounds for reversal if prejudicial.

1986(See Eddings v. Oklahoma (1982) 455 U.S. 104, 113-114 [ 71 L.Ed.2d 1, 10-11 , 102 S.Ct. 869 ]; Lockett v. Ohio (1978) 438 U.S. 586, 604-605 [ 57 L.Ed.2d 973, 989-990 , 98 S.Ct. 2954 ].) In Easley, supra, we announced a prospective requirement that such an "expanded factor (k)" instruction be given. ( 34 Cal.3d at p. 878, fn. 10 .) In People v. Davenport (1985) 41 Cal.3d 247 [ 221 Cal. Rptr. 794 , 710 P.2d 861 ], we ruled that omission of such an instruction in a pre- Easley trial was grounds for reversal if prejudicial.

2015“While an appellate court may invalidate a legally defective probation condition, even without a timely objection, ordinarily objections to inapplicable or unreasonable conditions must be timely made in the trial court.” (In re Sean A. (2010) 191 Cal.App.4th 182, 190 .) Specifically, in People v. Welch (1993) 5 Cal.4th 228 (Welch), our Supreme Court announced the prospective rule that forfeiture applies to an appellant’s claim that a probation condition is unreasonable under Lent if no objection on 7 that ground was made in the trial court. ( Welch, supra, 5 Cal.4th at pp. 234-238; see Sheena

2015“While an appellate court may invalidate a legally defective probation condition, even without a timely objection, ordinarily objections to inapplicable or unreasonable conditions must be timely made in the trial court.” (In re Sean A. (2010) 191 Cal.App.4th 182, 190 .) Specifically, in People v. Welch (1993) 5 Cal.4th 228 (Welch), our Supreme Court announced the prospective rule that forfeiture applies to an appellant’s claim that a probation condition is unreasonable under Lent if no objection on 7 that ground was made in the trial court. ( Welch, supra, 5 Cal.4th at pp. 234-238; see Sheena

1988(People v. Brown (1985) 40 Cal.3d 512, 541 [ 93 L.Ed.2d 934 , 107 S.Ct. 837 ], revd. on other grounds, California v. Brown (1987) 479 U.S. 538 [ 93 L.Ed.2d 934 , 107 S.Ct. 837 ], see People v. Easley, supra, 34 Cal.3d 858, 878 .) However, in order to avoid any potential misunderstanding, in People v. Easley, supra, we imposed the prospective requirement that trial courts expressly inform the jury that it may consider character and background evidence as well as mitigating evidence that relates to the crime. ( 34 Cal.3d at p. 878, fn. 10 .) Failure of trial courts prior to Easley to give the cl

1988(People v. Brown (1985) 40 Cal.3d 512, 541 [ 93 L.Ed.2d 934 , 107 S.Ct. 837 ], revd. on other grounds, California v. Brown (1987) 479 U.S. 538 [ 93 L.Ed.2d 934 , 107 S.Ct. 837 ], see People v. Easley, supra, 34 Cal.3d 858, 878 .) However, in order to avoid any potential misunderstanding, in People v. Easley, supra, we imposed the prospective requirement that trial courts expressly inform the jury that it may consider character and background evidence as well as mitigating evidence that relates to the crime. ( 34 Cal.3d at p. 878, fn. 10 .) Failure of trial courts prior to Easley to give the cl

2025(People v. Connors (2016) 3 Cal.App.5th 729, 737 [rejecting the same challenge defendant raises here].) 8 Second, defendant argues a court’s imposition of an unreasonable probation condition exceeds the court’s jurisdiction to impose only reasonable conditions and may be challenged on appeal as an unauthorized sentence notwithstanding the failure to object at trial.

2017(Cf. Irving v. Superior Court (1979) 93 Cal.App.3d 596, 599 [ 155 Cal.Rptr. 654 ] [no personal waiver of mandatory 10-day rule under § 859b for in-custody defendant, where defendant consented to continuance of prelintinary hearing *685 “when the court erroneously informed him that he would not be waiving time” in giving such consent].) There may be some temptation to treat defendant’s agreement to relinquish his supposed right to a prelintinary examination by May 12, 2014, as a prospective waiver of his actual right to such hearing within 60 days of his subsequently entered plea.

2017(Cf. Irving v. Superior Court (1979) 93 Cal.App.3d 596, 599 [ 155 Cal.Rptr. 654 ] [no personal waiver of mandatory 10-day rule under § 859b for in-custody defendant, where defendant consented to continuance of prelintinary hearing *685 “when the court erroneously informed him that he would not be waiving time” in giving such consent].) There may be some temptation to treat defendant’s agreement to relinquish his supposed right to a prelintinary examination by May 12, 2014, as a prospective waiver of his actual right to such hearing within 60 days of his subsequently entered plea.

2016(People v. Posey (2004) 32 Cal.4th 193, 215 [ 8 Cal.Rptr.3d 551 , 82 P.3d 755 ] (Posey).) Lollowing People v. Simon (2001) 25 Cal.4th 1082, 1086-1087 [108 *554 Cal.Rptr.2d 385, 25 P.3d 598 ] (Simon), Posey, at page 200, set forth a prospective rule that a defendant must raise a claim of improper venue to the court prior to the commencement of trial.

2016(People v. Posey (2004) 32 Cal.4th 193, 215 [ 8 Cal.Rptr.3d 551 , 82 P.3d 755 ] (Posey).) Lollowing People v. Simon (2001) 25 Cal.4th 1082, 1086-1087 [108 *554 Cal.Rptr.2d 385, 25 P.3d 598 ] (Simon), Posey, at page 200, set forth a prospective rule that a defendant must raise a claim of improper venue to the court prior to the commencement of trial.

2016(People v. Posey (2004) 32 Cal.4th 193, 215 [ 8 Cal.Rptr.3d 551 , 82 P.3d 755 ] (Posey).) Lollowing People v. Simon (2001) 25 Cal.4th 1082, 1086-1087 [108 *554 Cal.Rptr.2d 385, 25 P.3d 598 ] (Simon), Posey, at page 200, set forth a prospective rule that a defendant must raise a claim of improper venue to the court prior to the commencement of trial.

2016(People v. Posey (2004) 32 Cal.4th 193, 215 [ 8 Cal.Rptr.3d 551 , 82 P.3d 755 ] (Posey).) Lollowing People v. Simon (2001) 25 Cal.4th 1082, 1086-1087 [108 *554 Cal.Rptr.2d 385, 25 P.3d 598 ] (Simon), Posey, at page 200, set forth a prospective rule that a defendant must raise a claim of improper venue to the court prior to the commencement of trial.

2015“While an appellate court may invalidate a legally defective probation condition, even without a timely objection, ordinarily objections to inapplicable or unreasonable conditions must be timely made in the trial court.” (In re Sean A. (2010) 191 Cal.App.4th 182, 190 .) Specifically, in People v. Welch (1993) 5 Cal.4th 228 (Welch), our Supreme Court announced the prospective rule that forfeiture applies to an appellant’s claim that a probation condition is unreasonable under Lent if no objection on 7 that ground was made in the trial court. ( Welch, supra, 5 Cal.4th at pp. 234-238; see Sheena

2013Noting that the contract before it contained both a choice-of- forum clause and a choice-of-law clause, the court commented, “[I]n the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the agreement as against public policy.” (Mitsubishi, supra, 473 U.S. at p. 637, fn. 19 .) “[S]o long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both i

2013Noting that the contract before it contained both a choice-of- forum clause and a choice-of-law clause, the court commented, “[I]n the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies for antitrust violations, we would have little hesitation in condemning the agreement as against public policy.” (Mitsubishi, supra, 473 U.S. at p. 637, fn. 19 .) “[S]o long as the prospective litigant effectively may vindicate its statutory cause of action in the arbitral forum, the statute will continue to serve both i

2007Hawkins v. Peart (Utah 2001) 37 P.3d 1062, 1065-1066 [voiding agreement signed on behalf of minor releasing liability for future negligence concerning horseback riding], and cases and other authorities cited.) [32] In addition, we observe that Vermont has voided agreements releasing liability for future ordinary negligence in the context of recreational skiing and racing; [33] Connecticut has acted similarly concerning "snow tubing" and horseback riding lessons; [34] West Virginia has voided a release of liability for ordinary negligence executed by a university student who was injured while p

2007Hawkins v. Peart (2001) 2001 UT 94 [ 37 P.3d 1062, 1065-1066 ] [voiding agreement signed on behalf of minor releasing liability for future negligence concerning horseback riding], and cases and other authorities cited.) 32 In addition, we observe that Vermont has voided agreements releasing liability for future ordinary negligence in the context of recreational skiing and racing; 33 Connecticut has acted similarly concerning “snow tubing” and horseback riding lessons; 34 West Virginia has voided a release of liability for ordinary negligence executed by a university student who was injured whi

2003(Nov. 7, 2000) text of Prop. 36, § 8, p. 69 [“Except as otherwise provided, the provisions of this act shall become effective July 1, 2001, and its provisions shall be applied prospectively”]; DeLong, supra, 93 Cal.App.4th at pp. 567-568.) As held in DeLong , because Proposition 36 applies prospectively, only defendants who have been “convicted” on or after July 1, 2001, are entitled to disposition under the act. { DeLong, supra, 93 Cal.App.4th at pp. 568-570 [date of conviction and not date of commission of offense determines Prop. 36 eligibility]; see generally In re Estrada (1965) 63 Cal.2d

2003(Nov. 7, 2000) text of Prop. 36, § 8, p. 69 [“Except as otherwise provided, the provisions of this act shall become effective July 1, 2001, and its provisions shall be applied prospectively”]; DeLong, supra, 93 Cal.App.4th at pp. 567-568.) As held in DeLong , because Proposition 36 applies prospectively, only defendants who have been “convicted” on or after July 1, 2001, are entitled to disposition under the act. { DeLong, supra, 93 Cal.App.4th at pp. 568-570 [date of conviction and not date of commission of offense determines Prop. 36 eligibility]; see generally In re Estrada (1965) 63 Cal.2d

2003The term “convicted” has no uniform or unambiguous meaning in California. {Boyll v. State Personnel Board (1983) 146 Cal.App.3d 1070, 1073 [ 194 Cal.Rptr. 717 ].) It sometimes refers to a verdict or guilty plea, and other times it means a verdict or guilty plea and the judgment pronounced on the verdict or plea. {Ibid.) For example, when a civil disability is a consequence of a conviction, the term generally includes the guilty verdict or plea and the judgment {id. at p. 1074), but for purposes of imposing a sentencing enhancement, “conviction” means only the ascertainment of guilt {People v.

2003The term “convicted” has no uniform or unambiguous meaning in California. {Boyll v. State Personnel Board (1983) 146 Cal.App.3d 1070, 1073 [ 194 Cal.Rptr. 717 ].) It sometimes refers to a verdict or guilty plea, and other times it means a verdict or guilty plea and the judgment pronounced on the verdict or plea. {Ibid.) For example, when a civil disability is a consequence of a conviction, the term generally includes the guilty verdict or plea and the judgment {id. at p. 1074), but for purposes of imposing a sentencing enhancement, “conviction” means only the ascertainment of guilt {People v.

2003(Nov. 7, 2000) text of Prop. 36, § 8, p. 69 [“Except as otherwise provided, the provisions of this act shall become effective July 1, 2001, and its provisions shall be applied prospectively”]; DeLong, supra, 93 Cal.App.4th at pp. 567-568.) As held in DeLong , because Proposition 36 applies prospectively, only defendants who have been “convicted” on or after July 1, 2001, are entitled to disposition under the act. { DeLong, supra, 93 Cal.App.4th at pp. 568-570 [date of conviction and not date of commission of offense determines Prop. 36 eligibility]; see generally In re Estrada (1965) 63 Cal.2d

2003(Nov. 7, 2000) text of Prop. 36, § 8, p. 69 [“Except as otherwise provided, the provisions of this act shall become effective July 1, 2001, and its provisions shall be applied prospectively”]; DeLong, supra, 93 Cal.App.4th at pp. 567-568.) As held in DeLong , because Proposition 36 applies prospectively, only defendants who have been “convicted” on or after July 1, 2001, are entitled to disposition under the act. { DeLong, supra, 93 Cal.App.4th at pp. 568-570 [date of conviction and not date of commission of offense determines Prop. 36 eligibility]; see generally In re Estrada (1965) 63 Cal.2d