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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.

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Cases are posted on the Recent Victories page only after the remittitur issues or the Supreme Court rules on a petition for review.

March 2022

Johnson, Linnéa M. — People v. Elias, D078137 — Penal Code Section 1170.95 — Joan P. Weber, Judge — Opinion by Huffman, J., with O’Rourke, J., Irion, J. The Court of Appeal found that the trial court erred when it denied appellant’s Penal Code section 1170.95 petition because it engaged in impermissible fact-finding in discerning appellant’s role in the crime and determining that he was convicted under a currently permissible theory. Instead, the trial court should have issued an order to show cause and held an evidentiary hearing. Denial of the petition is reversed. (I) APJ
Note: the Supreme Court has granted the Attorney General’s petition for review in light of People v. Strong (S266606).

Romero, Lynda A. — People v. Dintelman, D078065 — Assembly Bill 518 — Kelly L. Hansen, Judge — Opinion by McConnell, P.J., with Aaron, J., Dato, J. The Attorney General conceded and the Court of Appeal agreed that because Assembly Bill 518 passed while appellant’s sentence was not yet final he is entitled to the benefit of this ameliorative law. Appellant’s sentence is therefore reversed and the case is remanded for the trial court to consider upon which count sentence should be imposed and which one stayed per Penal Code section 654. (I) JMK

Gardner, Cliff — People v. Polson, D078158 — Senate Bill 775 — Marco Nunez, Judge — Opinion by Huffman, J., with Aaron, J., Guerrero, J. Appellant was convicted of voluntary manslaughter and sought relief under Penal Code section 1170.95. After the denial of relief was originally affirmed based on a finding that the new law did not apply to voluntary manslaughter, a petition for review was granted. Upon enactment of Senate Bill 775, which modifies the law so that it may apply to voluntary manslaughter, the Supreme Court transferred the case back to the Court of Appeal with directions to reconsider. On transfer, both parties and the Court of Appeal agreed that an order to show cause should issue in the trial court. Denial of the petition is reversed and the case remanded for further proceedings. (I) HCC

Booher, Robert — People v. Munguia, D078641 — Senate Bill 775 — John D. Molloy, Judge — Opinion by Huffman, J., with Aaron, J., Do, J. After the denial of appellant’s Penal Code section 1170.95 petition for re-sentencing, based on a conviction of attempted murder, was originally affirmed, appellant sought rehearing, based upon enactment of Senate Bill 775. On rehearing, respondent conceded and the Court of Appeal agreed that appellant might now be entitled to relief under the new law. Denial of the petition is reversed and case is remanded with directions to issue an order to show cause. (I) HCC

Jones, Cynthia M. — People v. Jimenez, E074849, (2021) 73 Cal.App.5th 862 — Involuntary Confession — Steve Malone, Judge — Opinion by Ramirez, P.J., with McKinster, J.; Raphael, J., dissenting. Appellant’s murder conviction is reversed because his confession should have been excluded as involuntary and admission of his confession was prejudicial. Appellant had been spotted in a field with his two minor sons next to a trash can where the murder victim was later found. Appellant was then observed dropping his sons off before leading police on a high speed chase. When interviewed, the boys denied being involved in the murder. During appellant’s interview, the police told appellant that, even though they did not believe the boys were involved with the murder, they would have to charge the boys if appellant did not explain what happened. In response, appellant confessed to being solely responsible for the murder of a man he believed was setting up his mother for a home invasion robbery. The Court of Appeal found that the police unduly coerced the confession by threatening to charge appellant’s sons with murder if he did not speak.
In response to the Attorney General’s argument that there was no undue coercion because the police had probable cause to charge the boys, the Court of Appeal found there was no probable cause because that’s what the police told appellant during his interview. In response to the Attorney General’s argument that the claim was forfeited by trial counsel’s failure to object below, the Court of Appeal found that, given the special policy considerations precluding the use of involuntary statements, review is permitted when a claim is based on evidence that is not in conflict. In this case, the only evidence relevant to the question of voluntariness was the video-recording of the interview itself, which the Court of Appeal could review independently. Finally, the Court of Appeal found the violation prejudicial because appellant offered an alternative explanation for what happened in this case and his confession was the only evidence of premeditation and intent to kill. (I) APJ

Lubliner, Steven S. — People v. Yates, E075152 — Ineffective Assistance of Counsel/Sentencing — Steven G. Counelis, Judge — Opinion by McKinster, J., with Fields, J., and Menetrez, J., dissenting. Appellant was convicted of 20 counts of animal cruelty and received consecutive sentences on all counts. The Court of Appeal agreed that trial counsel was ineffective for failing to request concurrent sentences, which are not unusual in such cases. Counsel had nothing to lose by requesting concurrent sentences and a declaration attached to the habeas petition stated he simply made a mistake. Given that the instances of neglect which led to the charges constituted a continuous course of conduct rather than individual acts of abuse, and also given evidence that appellant suffers from a mental disease, trial counsel’s failure was likely prejudicial. The judgment is reversed and matter remanded. (I) JMK
Note: the Supreme Court has granted review of a separate issue in the case pending resolution of People v. Ramirez (S262010).

Mazur, Janice — People v. Awardo, E075299 — Assembly Bill 1540/Penal Code Section 1170.03 — J. David Mazurek, Judge — Opinion by McKinster, J., with Miller, J., Fields, J. Four days after the Governor signed Assembly Bill 1540, the Court of Appeal affirmed the trial court’s summary denial of a recommendation from the California Department of Corrections and Rehabilitation that appellant’s sentence be recalled and that he be re-sentenced pursuant to Penal Code former section 1170, subdivision (d)(1). The Court of Appeal then granted appellant’s petition for rehearing and upon rehearing agreed with the parties that the appeal would not be over before January 1, 2022, when Penal Code section 1170.03 would become effective. Given this reality, the case is remanded for the trial court to comply with the new mandates of Penal Code section 1170.03: appointment of counsel, the opportunity to present evidence, and a written ruling delineating the court’s reasons if the court denies the re-sentencing request. (I) CBM

Ballantine, Jean — People v. Laster, E076182 — Assembly Bill 1540/Penal Code Section 1170.03 — Daniel W. Detienne, Judge — Opinion by Codrigton, J., with Ramirez, P.J., Fields, J. Appeal followed after the trial court denied a recommendation from the California Department of Corrections and Rehabilitation (CDCR) that appellant’s sentence be recalled and that the trial court exercise its discretion to strike appellant’s five-year serious felony enhancement under Penal Code section 667, subdivision (a)(1) (discretion the court did not have at the time of sentencing). While the appeal was pending, the Legislature enacted new section 1170.03 and, in supplemental briefing, the parties agreed that the matter must be remanded for proceeding under the new law. The Court of Appeal found that the trial court abused its discretion in declining to strike the enhancement because the it focused primarily on the factors it had considered when it originally sentenced appellant and ignored or minimized appellant’s commendable post-conviction conduct. The Court of Appeal noted that the Legislature explicitly intended the court to apply ameliorative laws in effect on or after the offense or conviction date and that the new statute also provides a presumption favoring recall and re-sentencing in the case of a CDCR recommendation unless the defendant presents an unreasonable risk of danger, which was not an issue in this case. The matter is remanded to allow the trial court to reconsider the request. (I) HCC

Willis Newton, Joanne D. — In re D.R., E076757 — Welfare and Institutions Code Section 388 Motion — Donal B. Donnelly, Judge — Opinion by Fields, J. with Ramirez, P.J., Codrington, J. In this minor’s appeal, the Court of Appeal found that the trial court abused its discretion in granting Mother’s Welfare and Institutions Code section 388 motion requesting additional reunification services and vacating the pending section hearing to terminate parental rights. Mother failed to establish changed circumstances or that the changed order was in the child’s best interest. While she had engaged in some services she had not obtained stable housing or employment or proven she could maintain her sobriety. The court’s comment that “if mother is able to reunify it will not cause harm to the child,” revealed it was improperly focused on Mother’s ability to reunify rather than permanence and stability for the child who was bonded with the care-givers/de facto parents. (I) CMS

Szydlik, Jason — People v. Bulich, G059257 — Fines and Fees — Andre Manssourian, Judge — Opinion by Zelon, J., with O’Leary, P.J., Goethels, J. Following a probation violation, the court sentenced appellant and imposed fines and fees. On appeal appellant asserted three errors: an error on the minute order reflecting that the court had imposed a higher domestic violence fee than it actually had; duplicative fines and fees following revocation; and an ambiguous oral pronouncement regarding stayed fines and fees. The court remanded the case for correction of minute orders regarding the first two errors and for a hearing on which fines and fees were stayed. (A) JMK

Nordin, Kenneth H. — People v. Smith, G059572 — Right to be Present — Ingrid Adamson Uhler, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Zelon, J. The trial court held a re-sentencing hearing outside appellant’s presence when, due to COVID precautions, the California Department of Corrections and Rehabilitation would not transport him to the court. On appeal, appellant argued that re-sentencing him outside his presence violated his constitutional rights. The reviewing court agreed, finding appellant had not waived his right to be present and that the court had also failed to formally dismiss one of appellant’s strikes. The Court of Appeal remanded the case so that the court could designate a proper sentence on remand under the full re-sentencing rule and in appellant’s presence, unless appellant waives his presence. (I) JMK

Stralla, Ava R. — People v. Dominguez, G059684 — Dual Convictions/Senate Bill 567 — Michael A. Leversen, Judge — Opinion by Bedsworth, J., with Goethals, J., Sanchez, J. The prosecution obtained convictions on two counts of possessing child pornography based on a single possession of images, albeit of two separate minors. Appellant argued, and the Court of Appeal agreed, that the single possession could support only a single conviction, regardless of the number of minors depicted. The reviewing court reversed one conviction and remanded the matter for re-sentencing. At re-sentencing, appellant is entitled to the benefit of Senate Bill 567 making the middle term the presumptive term. (I) APJ

Min, Elena S. — In re A.U., G060569 — Indian Child Welfare Act (ICWA) — Antony C. Ufland, Judge — Opinion by Bedsworth, J., with Goethals, J., Marks, J. The Court of Appeal remanded for compliance with the ICWA and related California law while conditionally affirming the order terminating parental rights. The juvenile court erred when it did not inquire of mother about the children’s Indian child statuses and order her to complete a parental notification of Indian status form. It further erred in failing to make any ICWA finding after deferring such finding at the detention hearing. In addition, the Agency did not provide any details regarding its initial inquiry of mother or make any inquiry of the maternal grandmother or one of the children’s paternal grandparents regarding possible Indian child status under the ICWA. Such errors were not harmless because there was readily obtainable information available from extended family members likely to bear meaningfully upon whether the children were Indian children even though mother denied Native American ancestry and all paternal grandparents were from Mexico. (I) LLF

Knight, Richard L. — In re Ryan E., G060702 — Indian Child Welfare Act (ICWA) — Jeremy D. Dolnick, Judge — Opinion by Zelon, J., with O’Leary, P.J., Goethals, J. The Court of Appeal conditionally reversed and remanded to ensure compliance with the inquiry duties under the ICWA. There was insufficient evidence the Agency attempted to locate and interview any extended family members, such as father’s biological parents. The statute requires such initial inquiry of extended family members even if the parents deny Indian heritage. Such failure to inquire was not harmless because father identified the city in which his biological father lived and the state in which his biological mother lived, the Agency did not attempt to locate or interview father’s parents about possible Indian heritage, and information from those relative would likely have shed meaningful light on whether the child is an Indian child. (I) LMF

February 2022

Johnson, Linnéa M. — People v. Elias, D078137 — Penal Code Section 1170.95 — Joan P. Weber, Judge — Opinion by Huffman, J., with O’Rourke, J., Irion, J. Court of Appeal agreed with appellant that neither a robbery special circumstance finding nor a multiple-victim special circumstance finding was sufficient to warrant denial of appellant’s Penal Code section 1170.95 petition at the prima facie stage of review. Because the robbery special circumstance finding was made before the definitions of ‘major participant’ and ‘reckless indifference to human life’ shifted based on decisions in People v. Banks (2015) 61 Cal.4th 688 and People v. Clark (2016) 63 Cal.4th 522, that finding alone could not be the basis for denying appellant’s petition at the prima facie stage. In addition, the multiple-victim special circumstance could not be the basis for denying the petition because that finding required the jury to find an intent to kill only one of the two victims in this case. Accordingly, the denial is reversed and the matter is remanded for the issuance of an order to show cause and an evidentiary hearing. (I) APJ The Supreme Court has granted the Attorney General’s petition for review in light of People v. Strong (S266606).

Stanton, Marta — People v. Chaidez, D078168 — Prop. 36/Timeliness — Melinda J. Lasater, Judge — Opinion by Guerrero, J., with Haller, J., Aaron, J. This is the third appeal in this case. Appellant filed his first Prop. 36 petition in 2016, which was denied as untimely. The Court of Appeal affirmed without prejudice to appellant refiling with a showing of good cause for the delay. Appellant re-petitioned making a showing, but the superior court did not reach the question of timeliness and instead denied the petition because two of the multiple counts were ineligible for Prop. 36 treatment. The Court of Appeal reversed, concluding the superior court had erred because Prop. 36 is decided count by count, and multiple counts were eligible for consideration. The Court of Appeal remanded for a determination of timeliness and dangerousness. On remand, with respect to timeliness, appellant argued that he had been placed in the SHU and, thus, did not have normal prison library access or communications with the general populations and as a result had been ignorant of Prop. 36. But the superior court rejected this explanation and again found that the first petition had been untimely. The court did not reach the question of dangerousness. The Court of Appeal found the trial court abused its discretion on the question of timeliness and remanded for the trial court to address dangerousness. (I) HCC

Bitar, Andrea S. — People v. Thomas, D078289 — Penal Code Section 1170.95 — Joan P. Weber, Judge — Opinion by Dato, J., with Haller, J., Guerrero, J. Court of Appeal found that a felony murder special circumstance finding which predates the narrowing of applicability per People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 does not categorically render a Penal Code section 1170.95 petitioner ineligible for relief. Thus, the trial court erred in denying appellant’s petition solely on that basis. The case is remanded to permit the trial court to assess that matter in the first instance and decide whether appellant has made a prima facie showing that he is entitled to re-sentencing relief. (I) LAR The Supreme Court has granted the Attorney General’s petition for review in light of People v. Strong (S266606).

Peterson, Christy C./Barry, Leslie A. — In re G.F., D078517 — Welfare and Institutions Code Section 388/Parental-Benefit Exception to Termination of Parental Rights — Gary M. Bubis, Judge — Opinion by Do, J., with Haller, J., Guerrero, J. Court of Appeal agreed that Father’s petition under Welfare and Institutions Code section 388 petition made at least a prima facie showing that it would be in the child’s best interest to return the child to parents’ care and reinstate services; thus, the juvenile court erred in summarily denying the petition. In this case, parents made great progress in the course of the dependency proceedings, staying sober for two years and regaining custody of their child before father’s relapse and mother’s failure to report the relapse resulted in a second removal of the child from their care. Under these circumstances, Father’s showing that he completed outpatient substance abuse treatment and maintained a strong bond with his child, after the second removal, warranted a hearing on his petition. In addition, the termination of parental rights must be reversed because, in finding that the parent-benefit exception to termination did not apply, the juvenile court relied on several factors that the Supreme Court has since been identified as improper in In re Caden C. (2021) 11 Cal.5th 614. Matter remanded for a hearing on Father’s 388 petition and, depending on the outcome, a new section 366.26 hearing held in accordance with principles articulated in Caden C. and the opinion in this case. (I) LMF

Schwartzberg, Richard — People v. Mascio, D078644— Senate Bill 136/Pre-sentence Custody Credits — Steven G. Counelis, Judge — Opinion by Aaron, J., with Haller, J., Guerrero, J. This is an appeal from a remand following a conditional reversal for the trial court to consider whether appellant is appropriate for mental health diversion. In this appeal, prison prior enhancements, which are now invalid under Senate Bill 136, are ordered stricken and the matter is remanded to permit the trial court to exercise its sentencing discretion given the changed circumstances. In addition, the trial court failed to calculate appellant’s pre-sentence custody credits, so the trial court is ordered to re-calculate appellant's credits and prepare an amended abstract of judgment. (I) LKH

Leroy, Doris — People v. Shyne, E073641— Penal Code Section 1170.95 — Stephan G. Saleson, Judge — Opinion by Codrington, J., with McKinster, J., Fields, J. The order denying appellant's Penal Code section 1170.95 petition is reversed; the matter is remanded with instructions to grant the petition, vacate appellant's felony murder conviction, and re-sentence appellant accordingly. Following an evidentiary hearing, the trial court denied the petition based on its finding that appellant acted with reckless indifference. The Court of Appeal disagreed. The matter is also remanded for the trial court to decide whether to exercise its discretion as to the firearm enhancements imposed on counts 2 and 3, previously stayed under Penal Code section 654. (I) LKH

Moller, Richard Jay — People v. Jenkins, E075550 — Assembly Bill 1950 — Ronald M. Christianson, Judge — Opinion by Miller, J., with Slough, J., Raphael, J. Court of Appeal agreed that new law requires that appellant’s term of probation be reduced to the new maximum of two years. Rejecting the People’s argument that the matter should be remanded for re-sentencing, the Court of Appeal modified the term of probation to two years via the opinion. (I) APJ

Shudde, Athena — People v. Kinzie Noordman, E076063 — Assembly Bill 1540/Penal Code Section 1170.03 — Michael A. Smith, Judge — Opinion by Miller, J., with Shough, J., Raphael, J. California Department of Corrections and Rehabilitation sent a letter to the trial court pursuant to Penal Code section 1170, subdivision (d) recommending appellant’s sentence be recalled so the court may consider re-sentencing appellant. At an in-chambers hearing wherein the parties were not present, the trial court exercised its discretion to not recall appellant’s sentence. Originally, the Court of Appeal affirmed this decision. However, after the Governor signed Assembly Bill 1540 into law, but before it became effective, appellant filed a petition for review. The Supreme Court granted the petition and transferred the case back to the Court of Appeal to vacate its prior decision and reconsider in light of Assembly Bill 1540, and newly created Penal Code section 1170.03. Upon remand, the Court of Appeal reversed the trial court’s order and remanded the case for a further hearing under newly enacted section 1170.03. (I) CBM

Grove, Kimberly — People v. Walker, E077191 — Penal Code Section 1170.91 — Rodney A. Cortez, Judge — Opinion by Codrington, J., with Ramirez, P.J., McKinster, J. Sentenced to two consecutive terms of life without parole (LWOP) for first degree murder, consecutive to a determinate term for arson, appellant petitioned for re-sentencing under Penal Code section 1170.91, based on the effect of certain disorders resulting from his military service. The trial court summarily denied relief on the basis that the LWOP terms made him in eligible. Appellant argued that Penal Code section 1170.91 applied to the determinate arson term, respondent conceded, and the Court of Appeal agreed and remanded. (I) HCC

Matulis, Jean — People v. Howard, G059213, (2022) 74 Cal.App.5th 141 — Franklin Proceeding — Kimberly Menninger, Judge - Opinion by Moore, J., with O’Leary, P.J., Goethals, J. Defendant filed a motion for a proceeding under People v. Franklin (2016) 63 Ca.4th 261 three decades after committing the underlying offense. By that time, he had already introduced youth-related evidence at a prior parole hearing, but he had never requested a Franklin proceeding. The court denied his motion because on its face it failed to show what additional evidence merited preservation. The Court of Appeal held that the court prematurely denied appellant’s request, finding the motion met the legal requirements to initiate the Franklin process. As such, the court should have provided appellant an opportunity to explain the evidence he sought to introduce before determining whether a Franklin proceeding was warranted. (I) LAR

Bases, Arielle — People v. Butler, G059385 — Application of Excess Credits — Steven D. Bromberg and Gary S. Paer, Judges — Opinion by Goethals, J., with Moore, J., Zelon, J. Attorney General conceded and Court of Appeal agreed that trial court erred in failing to apply excess pre-sentence custody credits to reduce appellant’s parole period. Case remanded for application of credits. (I) APJ

January 2022

Shudde, Athena/Webb, Rebb — People v. Valdez/Valdez, D078638 — Senate Bill 775 — Aaron H. Katz, Judge — Opinion by Huffman, J., with McConnell, P.J., Do, J. Matter remanded to superior court to issue an order to show cause in light of Senate Bill 775. Appellants were convicted of manslaughter based on guilty pleas and their Penal Code section 1170.95 petitions were denied because the statute did not apply to manslaughter at that time. In light of Senate Bill 775, which now makes Penal Code section 1170.95 applicable to manslaughter convictions, the Attorney General conceded that appellant’s are entitled to an evidentiary hearing on their petitions. (I) HCC

Norman, Jan B. — People v. Dawes, D079189 — Mental Competency Assesssment/Involuntary Medication Order — Frederick Maguire, Judge — Opinion by Guerrero, J., with Huffman, J., Irion, J. The Attorney General conceded and Court of Appeal agreed that, when a doubt has arisen as to a defendant’s mental competency, but defendant is not seeking a finding of mental incompetence, the court shall appoint two psychiatrists, licenced psychologists, or a combination thereof, to assist the court in assessing whether appellant is incompetent. Here, the trial court erred when it failed to comply with Penal Code section 1369 by failing to appoint a second mental health expert. (People v. Leelu (2019) 42 Cal.App.5th 1023, 1030.) The finding of incompetency is vacated. Further, because the involuntary medication order stems from the now-improper incompetency finding, it is also vacated. (I) CBM

Hill, Melissa — People v. Cruz, E074038 — Sentencing — James S. Hawkins, Judge — Opinion by Menetrez, J., with Fields, J., Raphael, J. Appellant was convicted of multiple sex offenses against a single child victim. Counsel argued on appeal that the court erred by imposing mandatory full-term consecutive sentences for two offenses under Penal Code section 667.6, subdivision (d), which mandates full consecutive terms for acts involving the same victim on separate occasions. The Court of Appeal agreed that the trial court erred in finding that the two offenses in question occurred on separate occasions. Sentence vacated and remanded for court to exercise its discretion. (I) LAR

Dodd, John L. — In re R.F., et al., E076526, (2021) 71 Cal.App.5th 459 — Notice Prior to Dismissal of Dependency with Exit Orders — Erin K. Alexander, Judge — Opinion by Codrington, J., with Miller, J., Raphael, J. The Court of Appeal agreed that appellant-father was deprived of his due process and statutory rights to notice and an opportunity to be heard when the juvenile court terminated dependency jurisdiction and issued exit orders limiting his visitation by employing an expedited “approval packet” procedure. At the disposition hearing, the child was placed with mother and the court authorized CFS to dismiss the dependency via “approval packet” if and when the mother no longer posed a risk to the child. Although the court warned father that the case could close at any time with family law orders, the record contained no evidence that father was given notice and an opportunity to be heard before the court actually did dismiss jurisdiction with exit orders two months later at a non-appearance review hearing. The Court of Appeal rejected respondent’s arguments that father’s notice of appeal was deficient and that notice to father was sufficient. The Court of Appeal further found that the lack of notice was prejudicial because, even if the juvenile court might have terminated jurisdiction regardless, it is likely father would have obtained more favorable (and less confusing) exit orders regarding visitation had he been given notice and an opportunity to be heard. Juvenile court’s orders are reversed and the matter is remanded for a noticed hearing as required under Welfare and Institutions Code section 364. (I) CMS

Tran, Thien Huong — People v. Palacios, G059229 — Penal Code Section 654 — Maria D. Hernandez, Judge — Opinion by Marks, J., with O’Leary, P.J., Moore, J. Concurrent sentence for assault with a deadly weapon must be stayed under Penal Code section 654 where appellant has also been sentenced for residential burglary based on the intent to assault. (I) HCC

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