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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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

July 2021

Stralla, Ava — People v. Floyd, D077026 — Abstract of Judgment — Amalia L. Meza, Judge — Opinion by Aaron, J., with Benke, J., Irion, J. The matter is remanded to the trial court to correct a clerical error where the abstract of judgment incorrectly lists Penal Code section 368, subdivision (b)(1) as authority for the enhancement imposed in count one rather than the correctly pronounced section 368, subdivision (b)(2). (I) LKH

Bowman, Elisabeth — People v. Molina, D077214 — Electronic Search Condition/AB 1950/Fines/Fees — Polly H. Shamoon, Judge — Opinion by Guerrero, J., with Huffman, J., Do, J. Court of Appeal agreed that electronic search condition was not reasonably related to appellant’s offense of carrying a concealed dirk or dagger. Matter remanded for trial court to strike or modify the condition. In addition, appellant’s term of probation must be reduced to two years per AB 1950. Matter remanded for court to impose probation in accordance with the new law. Court of Appeal declined to address Attorney General’s argument that it must be allowed to withdraw the plea, noting lack of evidence in the record that plea was based on length of probationary period. Finally, on remand, appellant may object to fines and fees based on ability to pay. If the court orders non-punitive fines or fees, it must do so by separate order and not as a condition of probation. (A) CBM

Mazur, Janice — In re Adrian H., D077906 — Division of Juvenile Justice (DJJ) Commitment — Kathleen M. Lewis, Judge — Opinion by Huffman, J., with McConnell, P.J., Dato, J. At disposition, the juvenile court ordered minor to DJJ and set the maximum commitment time at the eight-year upper term designated for the adjudicated offense. Because Welfare and Institutions Code section 731 has since been modified to allow a maximum term no longer than the middle term for the offense, the maximum commitment time must be reduced to a six-year term. The modified law applies retroactively under the principles of In re Estrada (1965) 63 Cal.2d 740 because minor’s case was not final at the time of the amendment and reflected an ameliorative change. (I) CBM

Stralla, Ava — People v. Loza, D078323 — Fines/Fees at Re-Sentencing — David M. Gill, Judge — Opinion by Huffman, J. with O’Rourke, J., Irion, J. In appellant’s first appeal, the Court of Appeal found appellant had forfeited his challenge to various fines and fees based on inability to pay. The matter was remanded, however, for the trial court to strike a prison prior enhancement. On remand, the trial court stuck the enhancement but believed that the scope of the remand order did not allow reconsideration of fines and fees. Attorney General conceded and Court of Appeal agreed that the trial court erred. Because the Court of Appeal had vacated the sentence and remanded for re-sentencing, the trial court had jurisdiction to restructure the entire sentence, including fines and fees. The matter is again remanded for re-sentencing. (I) LAR

Vento, Christine — People v. Flores, E072843 — Third-Strike Sentencing/Senate Bill 136 — Thomas Kelly, Judge — Opinion by Slough, J., with Miller, J., Raphael, J. The trial court erred in calculating appellant’s third-strike sentence in two ways. Because the court chose to use “option 3" of the three methods prescribed for calculating a third-strike sentence, it was required to calculate the minimum term of appellant’s indeterminate sentence as the selected lower, middle or upper term for the offense plus any applicable enhancements. The court first erred by doubling the enhancements when calculating the minimum term when there is no authority to do so. The court also erred when it used the enhancements for calculating the minimum term but struck them from the total sentence imposed. This was error because the enhancements once stricken under Penal Code section 1385 could not be used for any aspect of the sentence. Case remanded for re-sentencing. On remand, the parties agree that the prison prior enhancement cannot be used for any part of the sentence per SB 136. (I) JMK

Mortazavi, Dawn — People v. Rizzardi, E074274 — Probation Costs/Fees/Assembly Bill 1950 — Michael A. Knish, Judge — Opinion by Fields, J., with Miller, J., Slough, J. The trial court erred by conditioning appellant’s probation on the payment of various specified fees and costs. The matter is remanded with directions for the trial court to order the payment of fees and costs as a separate order of the court and not as a condition of probation. In addition, because Assembly Bill 1950 applies retroactively to this case, on remand appellant may seek a reduced probation term. (I) HCC

Love, Christopher — People v. Yen, E074333 — Pre-sentence Incarceration Costs/Abstract of Judgment — Steven G. Counelis, Judge — Opinion by Fields, J., with Raphael, J., Menetrez, J. The trial court erred in ordering appellant to pay the costs of pre-sentence incarceration because appellant was sentenced to prison and Penal Code section 1205.1c, subdivision (a), authorizes reimbursement only when the probation is granted or a conditional sentence imposed. In addition, the abstract of judgment must be corrected to reflect a conviction of ammunition possession rather than firearm possession. (I) HCC

Johnson, Lauren K. — In re A.H., E075891 — Reasonable Services Finding — Christopher B. Marshall, Judge — Opinion by McKinster, J., with Fields, J., Menetrez, J. In this appeal from the termination of parental rights, the Court of Appeal agreed that the juvenile court erred when it found CFS (Children and Family Services) had provided reasonable services to father at the time it terminated services and set the matter for a hearing on the termination of parental rights. Preliminarily, the court found that the claim was not precluded by father’s failure to raise it via writ at the time reunification services were terminated. The Court of Appeal declined to find forfeiture because the court clerk sent notice of writ rights to an incorrect address and there was nothing in the record to show father had received actual notice. Father’s claim prevailed on the merits because the record shows father received no services and, while he may have made statements indicating he was not interested in reunification, the record did not show a valid waiver of his right to services in accordance with Welfare and Institutions Code section 361.5, subdivision (b)(14). The termination of parental rights and the finding that father was offered reasonable services are reversed. The matter is remanded for father to receive reasonable services or execute a valid waiver of his right to them. (I) LMF

Peterson, Christy P. — In re S.R. et al., E076177, (2021) 64 Cal.App.5th 303 — Indian Child Welfare Act (ICWA) — Steven A. Mapes, Judge — Opinion by Slough, J., with Miller, J., Raphael, J. The Court of Appeal conditionally reversed the order terminating mother’s parental rights to her two children due to inadequate investigation under the ICWA. In this case, both mother and father initially denied Indian ancestry, but by the time of the permanency planning review hearing, the maternal grandparents had completed forms specifying that the children’s great-grandmother, who was living, was a member of the Yaqui tribe of Arizona. The Court of Appeal found that this very specific evidence of Indian ancestry was sufficient to trigger a the duty to inquire further under Welfare and Institutions Code section 224.2, subdivision (e), even if it did not directly establish that the children or parents are members or eligible for membership in the tribe. On remand, the juvenile court must direct the department to make a meaningful inquiry into the children’s Indian ancestry, including interviews with extended family members and notice to the tribe. (I) CMS

Webb, Reed — In re A.M., E076343 — Senate Bill 823 — Pamela P. King, Judge — Opinion by Miller, J., with Ramirez, P.J., Slough, J. Attorney General conceded and Court of Appeal agreed that minor was entitled to the benefit of Senate Bill No. 823, which was made into law two months before the disposition in this case. Accordingly minor’s maximum term of confinement, which the court had set at the upper term of four years, is reduced to the middle term of three years, which is the maximum allowed under the new law. (I) APJ

Mortazavi, Dawn S. — People v. Daniels, G057928 — Probation Conditions/AB 1950 — Michael A. Leverson, Judge — Opinion by Goethals, J., with Bedsworth, J., Fybel, J. Court of Appeal agreed that the following two of appellant’s probation conditions are over-broad in that they delegate unlimited discretion to the probation officer: one requiring appellant to participate in any plan for psychiatric, psychological, alcohol or drug treatment and the other prohibiting appellant from associating with persons disapproved of by the probation officer. Matter remanded for trial court to either strike the conditions or tailor them and provide direction to the probation officer. In addition, the term of probation must be reduced from five years to two per AB 1950. (I) APJ

Kraus, Paul R. — People v. Bishopp, G058089 — Motion to Withdraw Plea-Ineffective Assistance of Counsel/Subpoena Power — Gary S. Paer, Judge — Opinion by Aronson, J., with Moore, J., Thompson, J. Court of Appeal reversed the trial court’s order denying appellant’s motion to withdraw his guilty plea because appellant was denied due process and prevented from pursuing his claim of ineffective counsel when the trial court denied his request to subpoena police records. Specifically, appellant sought to review records that would show what happened to cell phone video which he believed would show he did not resist arrest and, thus, could not be guilty of charges he resisted arrest or committed robbery. The cell phone video had been taken by appellant’s wife and the phone was seized by police. Although appellant told his trial attorney that the cell phone video would exonerate him, trial counsel failed to investigate. Because information about what happened to the cell phone could have been relevant to appellant’s defense by either providing exonerating evidence or supporting a claim regarding the destruction of evidence, the trial court’s denial of appellant’s request deprived him of the ability to show that trial counsel’s failure to investigate was prejudicial. Matter remanded for further proceedings. (A) MCR

Multhaup, Eric — People v. Huynh, G058444 — Penal Code Section 1170.95 — Julian W. Bailey, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Moore, J. The trial court denied appellant’s Penal Code section 1170.95 petition at the prima facie stage based on a finding that appellant was the actual killer and noting that the jury had found true a personal use of the deadly weapon enhancement. On appeal, the Attorney General did not argue that the deadly weapon finding was sufficient to preclude relief and the Court of Appeal agreed that this would be an insufficient basis. Instead, the Attorney General argued that the criminal street gang special circumstance rendered appellant ineligible for relief as a matter of law. Court of Appeal disagreed. While the special circumstance required a finding of intent to kill, it did not show that the conviction rested on a theory of direct aiding and abetting. Similarly, the true finding on the premeditation and deliberation allegation did not necessarily mean that appellant encouraged or assisted the perpetrator in carrying out the murder. Because the jury’s findings did not prove, as a matter of law, that appellant was convicted of murder under direct aiding and abetting theory and because he could have been convicted under the natural and probable consequences theory, it was error to deny the petition at the preliminary stage. Case remanded so the trial court can issue an order to show cause. (I) CBM

King, Nancy — People v. Quan, G058451 — Penal Code Section 1170.95 — Steven D. Bromberg, Judge — Opinion by Aronson, J., with Bedsworth, J., Moore, J. The trial court erred in denying appellant’s Penal Code section 1170.95 petition based on a finding that the new law is unconstitutional. Court of Appeal found the law is constitutional and remanded for further proceedings on the merits of the petition. (I) CBM

Bauguess, Susan — People v. Kaye, G058606 — Assembly Bill 1950 — Richard J. Oberholzer, Judge — Opinion by Aaronson, J., with Ikola, J., Thompson, J. While this appeal from a revocation of probation was pending, Assembly Bill 1950 became law and shortened the allowable length of probationary terms. The parties agreed that this new law applies retroactively and under the new law appellant’s misdemeanor probationary period would have lapsed before appellant was alleged to have violated it. Therefore, the court was without jurisdiction to revoke and modify the terms of probation. The Court of Appeal remanded the matter to the trial court with instructions to reduce appellant's probation to a one-year period and deem it completed. The court rejected the Attorney General’s argument that the prosecution should be allowed to rescind the plea agreement, finding that the grant of probation in this case was not based on a plea agreement. (I) LKH

Gold, Peter — People v. Duarte, G058965 — Abstract of Judgment — Gary S. Paer, Judge — Opinion by Fybel, J., with Aronson, J., Ikola, J. The Court of Appeal ordered the abstract of judgment corrected to reflect the oral pronouncement with respect to the security and assessment fees. (I) LKH

Tripp, Pamela Rae — In re Ma. V., G059433, (2021) 64 Cal.App.5th 11 — Insufficient Evidence Jurisdiction/Disposition — Katherine E. Lewis, Judge — Opinion by O’Leary, P.J., with Thompson, J., Goethals, J. Court of Appeal agreed that insufficient evidence supported the juvenile court’s jurisdictional rulings which were focused on issues that had been resolved by the time of the jurisdictional hearing 10 months after the children were removed. The perpetrator of domestic violence had been gone from the home for over 10 months, mother smoked marijuana pursuant to a valid prescription and the use did not present a current risk to the children, and, most importantly, mom was attending to the mental health needs of her eldest child, who’s care had been the most at issue. In addition, removal of the children was not warranted where mother had a long-standing arrangement with her mother to help care for her children. In closing, the Court of Appeal noted that the fact mom was a victim of domestic violence and was less than friendly with the social workers should not have been held against her. (I) LMF

Siegel, Joshua L. — People v. Shivers, D073457 — Senate Bill 180 — David Gunn, Judge — Opinion by Haller, J., with Benke, J., Dato, J. After sentencing and conclusion of briefing in this appeal, the Legislature enacted Senate Bill 180, removing prior convictions of Health and Safety Code section 11352 from the list of offenses giving rise to a sentence enhancement under Health and Safety Code section 11370.2. Because the new law is retroactive per In re Estrada (1965) 63 Cal.2d 740 and People v. Millan (2018) 20 Cal.App.5th 450, the Court of Appeal ordered the case remanded so trial court could strike the three-year enhancement and re-sentence. (I) LAR

June 2021

Coolman, Alex — People v. Carramusa, D076632 — Marsden Hearing — Runston Maino, Judge — Opinion by Irion, J., with McConnell, P.J. , Dato, J. This is appellant’s second appeal after his first appeal resulted in a remand for the trial court to consider dismissing his serious felony prior enhancement under Senate Bill 1393. In addition, and in response to a petition for writ of habeas corpus based on a claim that trial counsel was ineffective for not challenging the validity of the prior as a serious felony under People v. Gallardo (2017) 4 Cal.5th 120, the Court of Appeal noted that the defense could bring a motion to withdraw the plea on remand.

In the proceedings on remand, the same trial attorney was appointed and did not make a motion to withdraw the plea based on Gallardo. When appellant moved for new counsel under People v. Marsden (1970) 2 Cal.3d 118, he was inarticulate in doing so and referenced a letter he had previously written to the court. Due to misunderstanding, it is apparent that the court reviewed a letter other than the letter intended by appellant. In addition, there was a second letter filed that would have been relevant to the Marsden motion but which was not reviewed by the court. When the court asked counsel why his client might believe he was incompetent, trial counsel offered no information about the habeas filed during the first appeal and no information about the Gallardo argument. The record does not show that the court was otherwise aware of the petition. Because the lack of a full and adequate hearing was prejudicial, the matter is remanded for the court to hold a renewed Marsden hearing and, regardless of the outcome, for appellant to file a motion to withdraw the plea if he chooses to do so. (I) CBM

Olsen, Nancy — People v. Price, D076731 — Abstract of Judgment/Sentence — David M. Gill, Judge — Opinion by O’Rourke, with Benke, J., Haller, J. Matter remanded for trial court to correct the abstract judgment to reflect that appellant’s sentences for attempted murder crimes is life with the possibility of parole, not seven years to life as originally ordered by the court and reflected on the abstract of judgment. (I) CBM

O’Connor, Sheila — In re Douglas S., D076943 — Delinquency Disposition — Browder Willis, Judge — Opinion by Aaron, J., with Haller, J., Guerrero, J. Remanded for calculation of the maximum period of confinement where the Juvenile Court failed to make that determination at disposition when it committed minor to Youthful Offender Unit Program. (I) NFA

Norman, Jan — People v. Green, D077138 — Restitution — David G. Brown, Judge — Opinion by Huffman, J., with Aaron, J., Do, J. Appellant contended the court erred by awarding $102,841.71 in victim restitution when the actual amount of loss could not be determined at the time. Respondent conceded, and the Court of Appeal agreed that the court abused its discretion by setting the restitution amount instead of providing for the amount to be determined at the direction of the court when the amount of loss could be ascertained and remanded the matter for a restitution hearing. (I) HCC

Lopas, Deanna — People v. Lizarraga, D077478 — Terms of Probation — William D. Quan, Judge — Opinion by Do, J., with McConnell, P. J., Benke, J. Trial court suspended imposition of sentence and granted appellant a three-year term of formal probation. It erred when it made various fines and fees a condition of probation, including those ordered pursuant to Penal Code sections 1203.1b and 1465.8, and Government Code section 70373. The order of probation is modified to reflect specific assessments and fees are separate orders and not conditions of probation. (People v. Kim (2011) 193 Cal.App.4th 386, 842-843.) (A) LAR

Grove, Kimberly — People v. Didyavong, D077933 — Penal Code Section 1170.95 — John M. Thompson, Judge — Opinion by Huffman, J., with O’Rourke, J., Guerrero, J. The Court of Appeal reversed with instructions to issue an order to show cause. The trial court had summarily denied appellant's petition after it appointed counsel, reviewed the record of conviction, and concluded that appellant had failed to state a prima facie case. Appellant argued the court engaged in improper judicial fact-finding. Attorney General conceded and the Court of Appeal concluded the record did not establish lack of eligibility as a matter of law. (I) LKH.

Love, Christopher — People v. Johnson, E073496 — Penal Code section 1170.95 — Raymond L. Haight, III, Judge — Opinion by Ramirez, P.J., with McKinster, J., Menetrez, J. The Court of Appeal reversed the superior court’s finding that Senate Bill 1437 is unconstitutional. Of note, Presiding Justice Ramirez, the author, who had previously dissented, reversed course. The cause was remanded for a prima facie hearing. (I) HCC

Cannon, Gregory — People v. Mackay, E074154 — Assembly Bill 1950 — James T. Latting, Judge — Opinion by Fields, J., with Ramirez, P. J., McKinster, J. The order granting probation is modified and reduced to two years per Assembly Bill 1950, which amended Penal Code section 1203.1 to limit the probation term for most felony offenses to two years and applies retroactively to this case. (I) AMJ

Love, Christopher — People v. Yen, E074333 — Pre-sentence Incarceration Costs/Abstract of Judgment — Steven G. Counelis, Judge — Opinion by Fields, J., with Raphael, J., Menetrez, J. The Attorney General conceded and the Court of Appeal agreed that the trial court’s order under Penal Code section 1203.1c, requiring him to pay pre-sentence incarceration costs, was unauthorized in this case, where appellant was sentenced to state prison rather than committed to local custody as the statute requires. In addition, the abstract of judgment is ordered corrected to reflect a conviction of possession of ammunition rather than possession of a firearm. (I) HCC

Allen, Michael — People v. Thomas, E075400 — Probation Conditions — Harold T. Wilson, Jr., Judge — Opinion by Miller, J., with Slough, J., Raphael, J. The Attorney General conceded and the Court of Appeal agreed that the condition requiring appellant to have no “negative contact” with the victim is unconstitutionally vague and needs to be modified to specify the type of prohibited contact. In addition, a charged count and a prior strike allegation was required to be dismissed per the plea agreement. (I) LKH.

Staley, John— People v. Grace, E075433 — Dismissal After Successful Completion of Probation — Harold W. Hopp, Judge — Opinion by Slough, J., with Fields, J., Raphael, J. Appellant petitioned for dismissal of convictions upon successful completion of probation, pursuant to Penal Code section 1203.4. The trial court held he was not entitled to dismissal as he had committed other offenses after termination of probation. The Court of Appeal reversed, finding dismissal was required as a matter of right under the statute. (I) JMK

Coffey, Marissa — In re C.S., E076100 — Indian Child Welfare Act (ICWA) — Susanne S. Cho, Judge — Opinion by Raphael, J., with Miller, J., Slough, J., The Court of Appeal concluded the juvenile court erred in finding ICWA did not apply where father claimed Blackfeet heritage but there was no evidence notices had been served (no green receipts were provided) and there was no tribal response. In addition, the agency and the court failed in their duty of inquiry. No evidence was presented that the social worker questioned extended family members, who were known to the agency, about Blackfeet heritage or pertinent information for noticing the tribe. The court had a duty to ascertain whether the agency conducted an adequate investigation and cannot assume the agency complied with its duty of inquiry just because it had some information for noticing the tribe. A limited remand to allow proper inquiry was order. (I) LMF

Uhre, Emily Page — In re A.J., E076568 — Indian Child Welfare Act (ICWA) — Erin K. Alexander, Judge — Opinion by Ramirez, P.J., with McKinster, J., Raphael, J. Although the paternal grandmother submitted a form indicating that she and another relative had Indian ancestry, no investigation was done. Children and Family Services (CFS) conceded that this was a statutory violation. The parties stipulated to a limited remand with directions to conduct an inquiry into Indian heritage. The Court of Appeal reversed the order terminating parental rights as to both parents and ordered investigation and notice. If A.J. is determined to be an Indian child, the court is to conduct a new hearing under Welfare and Institutions Code section 366.26 in conformity with ICWA. If there is no response from the tribe or it is determined A.J. is not Indian, all previous findings and the termination of parental rights will be reinstated. (I) MAC

Fitzer, Richard L. — In re J.N., G057242 — Lewis W. Clapp, Judge — Opinion by O’Leary, P.J., with Fybel, J., Ikola, J. Court agreed there was insufficient evidence to support the finding minor committed street terrorism because there was no evidence he willfully promoted, furthered, or assisted in felonious conduct by gang members where he only committed misdemeanor vandalism. (I) LAR

Auwarter, Neil — People v. Cruz, G058176 — Penal Code section 1170.95 — James Edward Rogan, Judge — Opinion by, Fybel, J., with O’Leary, P.J., Goethals, J. Court of Appeal found Senate Bill 1437 is constitutional, reversing the trial court’s dismissal of appellant’s section 1170.95 petition. Matter is remanded for a hearing on the merits of appellant’s eligibility for relief under section 1170.95. (S) NFA

Kraus, Paul — People v. Bosworth, G058681 — Restitution — Julian W. Bailey, Judge — Opinion by Ikola, J., with Aronson, J., Goethals, J. The Court of Appeal reversed two victim restitution awards and ordered the total award reduced by $15,128.16. The trial court erred in failing to offset the victim restitution awards by the amounts already paid by appellant's insurance company. Thus, the restitution award as to one victim is reduced by $15,000 and the award as to the other victim is reduced by $128.16. (A) LKH

Bostwick, James — People v. Espinoza, G059230 — Self-Defense Instructional Error — Michael A. Leversen, Judge — Opinion by Fybel, J., with Moore, J., Aronson, J. Where appellant was charged with both assault with a deadly weapon and robbery, based on an altercation that ended with him taking a knife from the alleged victim, the Court of Appeal agreed that the trial court prejudicially erred in refusing to instruct the jury on self-defense with respect to the robbery charge. The Court recognized that self-defense is not normally a defense to robbery, but found that in this case, where appellant testified that the alleged victim threatened him was a knife, that he disarmed the victim and later threw away the knife, self-defense could apply. Given that the jury acquitted appellant of the assault charge, with respect to which a self-defense instruction had been given, the court found it was reasonably probable the jury would have acquitted appellant of the robbery charge for the same reason. The judgment is reversed and the case is remanded for a retrial on the robbery charge. (I) HCC

McGowan, Jesse — In re Henry P., G059316 — Reunification Services — Jeremy D. Dolnick, Judge — Opinion by Goethals, J., with Bedsworth, J., Ikola, J. The Court of Appeal held that the juvenile court erred by terminating mother’s reunification services and placing the child in long-term foster care. Insufficient evidence supported the court’s finding that mother was a perpetrator of domestic violence rather than a victim of it. In addition, the court mis-applied the burden of proof by requiring mother to demonstrate she could safely parent the child, rather than requiring the child welfare agency to prove it would be detrimental to return the child to mother. The matter is remanded for reconsideration of conditions for child’s return to mother and facilitation of return. (I) MAC

May 2021

Fabian, Carl — People v. James, D076831 — Serious Felony Priors/Senate Bill 136 — Lantz Lewis, Judge - Opinion by Huffman, J., with Haller, J., Guerrero, J. The three serious felony priors at issue here were based on convictions for three serious felonies prosecuted in a single proceeding in 2009. The trial court imposed a five-year consecutive term for each of the enhancements. The parties agreed and the Court of Appeal held that the sentence was contrary to the provisions of section 667, subdivision (a)(1) which requires that the priors be brought and tried separately. In addition, prison prior must be stricken, rather than stayed, per Senate Bill 136. Case remanded for re-sentencing. (I) LAR

Dinata-Hansen, Shay — People v. Rodriguez, D076917 (2021) 60 Cal.App.5th 995 — Penal Code Section 1437.7 — Harry Elias, Judge — Opinion by McConnell, P.J., with Benke, J., O’Rourke, J. Court of Appeal agreed that trial court erred in denying appellant’s petition to vacate his conviction under Penal Code section 1437.7 where the record showed appellant was not made aware of the immigration consequences of his plea. Appellant’s initial trial attorney had carefully negotiated a plea agreement to avoid immigration consequences; specifically, the agreement called for a grant of probation and no more than 120 days in custody. By the time the plea was entered, however, appellant was represented by a new attorney and, while the agreement remained the same, appellant signed a pre-printed form erroneously acknowledging that immigration consequences would result from the plea. By the time of sentencing, the agreed-upon disposition was no longer available due to appellant’s incarceration in another case. Appellant was not advised of this consequence, but did sign a Penal Code section 1381 demand to be sentenced in absentia. The trial court deviated from the plea agreement and sentenced appellant to a concurrent prison sentence, which made appellant subject to deportation. Because the eventual disposition resulted in deportation consequences about which appellant had not been advised, the Court of Appeal found that the matter must be remanded for vacation of appellant’s conviction. (A) JMK

Bjerkhoel, Alissa — People v. Garrison, D077149 — Penal Code Section1161/Insufficient Evidence — Blaine A. Bowman, Judge — Opinion by Haller, J., with O’Rourke, J., Aaron, J. In this case, where appellant was found guilty of numerous sex offenses against more than one minor victim, the jury found the multiple victim allegations not true as to some of the qualifying counts. Given the inconsistency and over objection, the trial court directed the jury to resume deliberations. The jury ultimately came back with true findings on all of the multiple victim allegations. On appeal, the Court of Appeal agreed with appellant that Penal Code section 1161 does not permit reconsideration of a not-true finding unless it is ambiguous or unintelligible and in this case the inconsistent findings did not qualify for reconsideration. In addition, with respect to one count, where the only evidence was that when appellant reached to touch a leg and the victim rolled over to make him stop, the Court of Appeal concluded the evidence was insufficient to establish force or duress under Penal Code section 288, subdivision (b). Matter remanded for re-sentencing. (I) HCC

Stralla, Ava — People v. Gooden, D077814 — Penal Code section 1170.95/Prima Facie Case — Howard H. George, Judge — Opinion by Benke, J., with O’Rourke, J., Irion, J. The Attorney General conceded and the Court of Appeal agreed with appellant’s contention that the trial court erred when it denied his Penal Code section 1170.95 petition without a hearing. Because appellant’s petition made a prima facie case for relief, the trial court was required to issue an order to show cause and conduct an evidentiary hearing rather than rely on a prior Court of Appeal opinion to find sufficient evidence appellant was a major participant and acted with reckless indifference to human life. Order denying the petition is reversed and the case is remanded with directions to issue an order to show cause and undertake proceedings as required by Penal Code section 1170.95. (I) CBM

Brisbois, Patricia — People v. Farrow, E072877 — Senate Bill 136/Restitution Fine — Thomas E. Kelly, Judge — Opinion by Raphael, J., with Ramirez, P.J., Menetrez, J. The two prison prior enhancements, which were imposed and stayed by the trial court, are ordered stricken under Senate Bill No. 136. In addition, the minute order and the abstract of judgment are ordered to be corrected to reflect that the $300 restitution fine was suspended due to Farrow's inability to pay it. (I) AMJ

Lampkin, David P. — People v. Schumann, E074167 — Penal Code Section 1170.95 — Steve Malone, Judge — Opinion by Ramirez, P.J., with Codrington, J., Slough, J. Court of Appeal reversed the trial court’s denial of appellant’s Penal Code section 1170.95 petition which was based on a finding that the new statute is unconstitutional. Matter remanded for further proceedings on the merits of appellant’s petition. (I) APJ

Williams, Rex Adam — People v. Vance, Jr., E074239 — Penal Code Section 1170.95 — Steve Malone, Judge — Opinion by Ramirez, P.J., with Codrington, J., Slough, J. Trial court’s summary denial of appellant’s petition based on lack of constitutionality is reversed. Matter remanded for further proceedings. (I) APJ

Zarmi, David — People v. Hernandez, E074760 — Correction of Minute Order — Becky Dugan, Judge — Opinion by Slough, J., with Codrington, J., Raphael, J. The sentencing minute order erroneously reflected that the court ordered appellant not to own or control a firearm. Since the trial court did not orally pronounce that order, Court of Appeal ordered that the reference be stricken from the minute order. (A) HCC

Conroy, Marisa — In re J. C. et al., G059465 — Jurisdiction — Jeremy D. Dolnick, Judge — Opinion by Thompson, J., with Aronson, J., Ikola, J. Court of Appeal overturned the juvenile court’s order removing custody of the children from Mother. The Court found that no substantial evidence supported the removal. Although Mother originally had a domestic violence problem with Father, Mother had since obtained a restraining order against him, completed a domestic violence program, and changed the locks to the home. Father then moved out-of-state, to somewhere in the Midwest. The Court of Appeal found there was no substantial evidence that domestic violence would recur. Mother had previous drug use but completed treatment, and there was no evidence of current drug use. There was no evidence Mother had anger management issues, except for her confrontations with the social worker. Matter remanded for a new dispositional hearing. (I) MAC

April 2021

Dinata-Hanson, Shay — People v. Edwards, D076088 — Senate Bill 136 — Robert F. O’Neill, Judge — Opinion by O’Rourke, J., with Benke, Guerrero, J. The Court of Appeal vacated the sentence and remanded the matter for the trial court to strike the two one-year prison prior enhancements which are no longer valid under Senate Bill 136. On remand, the People can either accept the reduction in sentence or withdraw their approval of the plea agreement. (A) LKH Petition for review granted and case on hold pending resolution of related issue in People v. Hernandez (S266317).

Stralla, Ava R. — People v. Rockhold, D076615 — Senate Bill 136 — Michael D. Washington, Judge — Opinion by Benke, J., with Huffman, J., Guerrero, J. Three one-year prisons prior enhancements stricken pursuant to Senate Bill 136. (I) LAR

Stevenson, Theresa — People v. Levi, D076803 — Lesser Included Offenses — Joan P. Weber, Judge — Opinion by Dato, J., with Irion, J., Guerrero, J. Respondent conceded and Court of Appeal agreed that appellant’s drunk driving convictions must be dismissed as offenses necessarily included within his conviction of gross vehicular manslaughter while intoxicated. (I) HCC

Beugen, Heather L. — People v. Jackson, D076819 — Insufficient Evidence/Senate Bill 136 — David G. Brown, Judge — Opinion by Benke, J., with Dato J., and O’Rourke, J., concurring in the result. Court of Appeal agreed that insufficient evidence supported two counts of forgery based on signing a false signature where there was no witness to the check-signing and no evidence that the handwriting matched appellant’s. Two convictions reversed. In addition, three prison prior enhancements must be dismissed under Senate Bill 136. (I) APJ

Auwarter, Neil — People v. Ashton, D077343 — Electronics Search Condition — Polly M. Shamoon, Judge — Opinion by, Benke, J., with Dato, J., Do, J. Citing In re Ricardo P. (2019) 7 Cal.5th 1113, the Court of Appeal struck an electronics search condition of probation as unreasonable where appellant’s convictions of vehicle taking and driving under the influence were unrelated to any electronic device. (S) NFA

Gambale, Erica — People v. Fryklind, D077856— Penal Code Section 1170.95 — Howard H. Shore, Judge — Opinion by Huffman, J., with Haller, J., Irion, J. The Attorney General conceded and the Court of Appeal agreed that the trial court erred when it denied relief on appellant’s petition at the prima facie stage based on a finding of fact that could only be made after issuing an order to show cause. The case was reversed and remanded back for the trial court to issue the order to show cause and hold further proceedings. (I) LKH

Peña, Michelle — In re G.G., D077948 — Termination of Parental Rights — Rohanee Zapanta, Judge — Opinion by Benke, J., with McConnell, P.J., O’Rourke, J. After services were terminated and while the Welfare and Institution Code section 366.26 hearing was pending, mother suffered a mental health crisis and was shot in the abdomen by police during an altercation. She required several surgeries while in custody. The .26 hearing was continued in order to produce mom, but by the time of the continued hearing, trial counsel was unable to locate her in either the hospital or custody. The juvenile court found no good cause for a second continuance, deciding that mother was in custody and could have called trial counsel. The Court of Appeal reversed, finding it was error to conduct the .26 hearing in mother’s absence where, under Penal Code section 2625, mother had a right to attend the hearing and had not waived her presence. A continuance would not have been contrary to the minor’s interests because she was in a long-term placement with the maternal grandmother and the error was not harmless. Because the agency recommended adoption or guardianship and the mother consistently visited, she could have testified at the trial about the nature of her relationship with her child and the extent of her medical incapacity. There was a reasonable likelihood mother would have obtained a more favorable result, a legal guardianship, had she been able to assert the beneficial relationship exception. The case is remanded for a new section 366.26 hearing. (I) LMF

Baugess, Susan — People v. Sapienza, E070547 — Mental Health Diversion — Elaine M. Kiefer, Judge — Opinion by McKinster, J., with Fields, J., Raphael, J. Order imposing sentence but suspending execution for a grant of probation is not a final judgment for purposes of retroactivity. Thus, a probationer can obtain relief under new law so long as the probationary proceedings have not been reduced to a final judgment. Judgment is conditionally reversed and case is remanded to determine whether appellant is eligible for diversion under section Penal Code section 1001.36. (I) JMK

Bases, Arielle — People v. Garcia, E072792 — Senate Bill 136 — John M. Davis, Judge — Opinion by Menetrez, J., with Slough, J., Fields, J. Parties agreed Senate Bill 136 applied to appellant’s case and the one-year prison prior enhancement was stricken and case remanded for re-sentencing. (I) LAR

Capriola, William — People v. Rogers, E072948 — Credits/Abstract of Judgment — Michael A. Smith, Judge — Opinion by Slough, J., with Codrington, J., Fields, J. Case is remanded for an updated calculation of actual custody credits, which the trial court was required to do when re-sentencing (People v. Buckhalter (2001) 26 Cal.4th 20) even though the new sentence was identical to the original sentence. Abstract ordered to be corrected where it incorrectly stated appellant received the upper term. (I) NFA

Lindsley, Kevin J. — People v. Blanco, E073176, (2021) 61 Cal.App.5th 278 — Instructional Error — Katrina West, Judge — Opinion by Miller, J., with Ramirez, P.J., Fields, J. Court of Appeal agreed that the offense of bringing a controlled substance into a penal institution requires that the amount be useable and that the failure to so instruct the jury in this case was prejudicial. Conviction reversed and matter remanded to trial court. (I) APJ

Holzer, William — People v. Hernandez, E073858 — Penal Code Section 1170.95 — Eric M. Nakata, Judge — Opinion by Fields, J., with Miller, J., Slough, J The Court of Appeal reversed the trial court's order denying the Penal Code section 1170.95 petition, and remanded the matter for further proceedings on the merits of the petition. The trial court erred in striking the petition based on its conclusion that the statute is unconstitutional. (I) LKH

Johnson, Mark D. — People v. Wilson, E073930 — Penal Code section 654/Senate Bill 136 — Debra Harris, Judge — Opinion by Miller, J., with Codrington, J., Slough, J. After the case was remanded for the trial court to re-sentence appellant and make clear the factual bases for its decisions with regard to the application of Penal Code section 654, the trial court again imposed a sentence without explaining its decisions in applying section 654. Case again remanded for trial court to consider whether appellant’s sentence for kidnaping and the attendant enhancement for inflicting great bodily injury must be stayed pursuant to section 654 because the offense is based on conduct that also underlies appellant’s conviction for torture. In addition, prison prior enhancement ordered stricken pursuant to Senate Bill 136. (I) APJ

Gambale, Erica — People v. Reyna, E073936 — Multiple Drunk-Driving Convictions/Penal Code section 654 — Cara D. Hutson, Judge — Opinion by Codrington, J., with Ramirez, P.J., Slough, J. Although appellant’s single act of drunk driving injured two different people, in two different cars, it constituted only a single drunk driving crime under the principles of Wilkoff v. Superior Court (1985) 38 Cal.3d 345. Thus, appellant could be charged with only one set of offenses under Vehicle Code section 23153, subdivisions (a) and (b) and there was no factual basis to support the other set to which appellant pleaded no contest. Two counts ordered dismissed and sentences vacated. In addition, with respect to the remaining counts, the trial court improperly stayed a consecutive sentence under Penal Code section 654. As discussed in People v. Cantrell (2009) 175 Cal.App.4th 1161, 1164, application of section 654 requires the imposition and staying of a full midterm sentence. The sentence is ordered modified. (I) CBM

Missakian, C. Matthew — In re Poslof, Sr., E074992 — Parole — Gregory S. Tavill, Judge — Opinion by Miller, J., with Raphael, J., and Menetrez, J. Petition for extraordinary writ granted. Petitioner had been denied early parole consideration based on his prior strike convictions requiring him to register as a sex offender. The Court of Appeal held that petitioner is entitled to a writ of habeas corpus and early parole consideration because he is currently serving a term for a nonviolent felony offense and has already served the full term of that offense. The CDCR regulations-California Code of Regulations, title 15, sections 3491, subdivision (b )(3), and 3496, subdivision (b), excluding sex offender registrants from early parole consideration, are invalid. (I) LAR

Kross, Jeffrey — People v. Castorena, E075013 — Senate Bill 136/Retroactivity — Stephen J. Gallon, Judge — Opinion by Miller, J., with Raphael, J., Menetrez, J. In 2016, after appellant pleaded guilty to various crimes and admitted five prior prison-term enhancements, the trial court ordered him to serve a split sentence: four years in custody and four years on mandatory supervision. In October 2019, appellant’s mandatory supervision was revoked and appellant was ordered to serve the remainder of the term in custody. In January 2020, Senate Bill number 136 became effective, invalidating prison prior enhancements. Trial counsel brought a motion to recall the sentence based on the new law and then appealed the denial of this post-judgment ruling. In addition, appellate counsel obtained leave to file a late notice of appeal from the October 2019 judgment. The Court of Appeal held that the 2016 imposition of a split sentence did not constitute a final judgment for purposes of retroactivity, even though that sentencing and subsequent revocation and reinstatements of supervision were appealable. By the time the trial court revoked appellant’s mandatory supervision and ordered him to serve the remaining time in jail, the case had not yet “reached the final disposition in the highest court authorized to review it.” (People v. Lopez (2020) 57 Cal.App.5th 409, 413, review granted January 27, 2021, S266016; see also People v. Martinez (2020) 54 Cal.App.5th 885, review granted November 10, 2020, S264848.) Further, because Senate Bill 136 completely invalidates prison prior enhancements and does not involve an exercise of judicial discretion, the government was not allowed to withdraw from the plea under People v. Stamps (2020) 9 Cal.5th 685. The Court of Appeal ordered the five enhancements stricken. (I) CBM

Bewicke, Aurora — People v. Johns, E075817 — Penal Code Section 1170.95 — Michael A. Smith, Judge — Opinion by Fields, J., with Ramirez, P.J., McKinster, J. Trial court erred in concluding that Senate Bill 1437 is unconstitutional. The court’s denial is reversed and the matter is remanded for trial court to conduct further proceedings on the merits of the petition under Penal Code section 1170.95. (I) AMJ

Schwartzberg, Richard — People v. Nunez, No. G058344 — Penal Code Section 1170.95 — Gary S. Paer, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Moore, J. Court of Appeal reversed the trial court order denying appellant’s Penal Code section 1170.95 petition on grounds of unconstitutionality. Because the new law is not unconstitutional, matter is remanded for further proceedings. (I) HCC

Owen, Kristen — People v. Gonzalez, G058691 — Corpus Delicti — Julian W. Bailey, Judge — Opinion by O’Leary, P.J., with Ikola, J., Goethals, J. One of several counts of sexual abuse of a child reversed under corpus delicti rule where appellant made an admission in an interview with police, but the child’s account was ambiguous as to whether the incident occurred. The child’s ambiguous recounting was not sufficient evidence to corroborate appellant’s admission. (I) NFA

Kehoe, James — People v. Vallejo, G059005 — Insufficient Evidence — John D. Conley, Judge — Opinion by Thompson, J., with Fybel, J., Goethals, J. Criminal threats conviction reversed for insufficient evidence. Appellant’s words were not intended to instill fear of a future or additional crime but were meant to make victim go away and put an end to ongoing assault with knife. (I) JMK

March 2021

Torres, Steven — People v. Eugene, E070456 — Penal Code Section 29805/Firearm Possession — Stephen J. Gallon, Judge — Opinion by Menetrez, J., with Miller, J., Codrington, J. Conviction under Penal Code section 29805 of unlawful possession of a firearm by a person previously convicted of an enumerated offense was reversed because appellant’s previous conviction under section 25850 was not an offense enumerated in section 29805. (I) NFA

Lindsley, Kevin — People v. Escobargodinez, E071824 — Penal Code Section 654/Sentencing— Corey G. Lee, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Court of Appeal agreed that where appellant was convicted of both transporting a controlled substance and using a false compartment with intent to transport a controlled substance based on the same conduct, the sentence for one count must be stayed pursuant to Penal Code section 654. In addition, because trial court did not seem to understand it had discretion to dismiss or run concurrent a weight enhancement, matter remanded for court to exercise informed discretion. On remand, appellant may raise any issue regarding ability to pay relevant fines and fees. (I) JMK

Haggerty, Edward — People v. Dodd, E072051 — Senate Bill 136 — J. David Mazurek, Judge — Opinion by, McKinster, J., with Miller, J., Menetrez, J. Four prison prior enhancements are stricken pursuant to Senate Bill 136. (I) NFA

Lindsley, Kevin J. — People v. Lucaci, E072740 — Insufficient Evidence/Preclusion Rule/Restitution — Bambi J. Moyer, Judge — Opinion by Miller, J., with Ramirez, P.J., Fields, J. Attorney General conceded and Court of Appeal agreed that insufficient evidence supported one conviction of grand theft by false pretenses where the victim insurance company did not pay out on appellant’s false claim and instead began its investigation of appellant’s criminal conduct. The grand theft conviction is reduced to attempted grand theft. In addition, the Court of Appeal agreed with appellant’s claim that a separate grand theft conviction must be reversed because appellant was also convicted of insurance fraud based on the same conduct and a conviction of the latter more specific offense precludes conviction of the former more general offense. Court of Appeal agreed that even though the offense of grand theft includes an element - loss - that the offense of insurance fraud does not, the preclusion rule applies because the offense of insurance fraud will commonly result in loss, and the question of whether or not loss results depends upon acts of the victim rather than acts of the defendant. Court of Appeal also reversed a burglary conviction for insufficient evidence where appellant was granted access to the building by a co-conspirator who had knowledge of appellant’s felonious intent. Finally, the order of $194,223.34 in direct victim restitution must be stricken because it is based on uncharged insurance claim. Matter remanded for limited re-sentencing on the reduced attempted grand theft offense and for revised restitution calculation. (I) APJ

Wells, Mary Woodward — People v. Newsome, E073206 — Penal Code Section 1170.95 — Jon D. Ferguson, Judge — Opinion by, Fields, J., with Miller, J., Raphael, J. The summary denial of appellant’s Penal Code section 1170.95 petition is reversed. Trial court erred in finding that the new law is unconstitutional and petition must be considered on the merits. (I) NFA

Holzer, William — People v. Gutierrez, E073880 — Senate Bill 136/Plea Agreement — Steve Malone, Judge — Opinion by Fields, J., with Miller, J., Slough, J. Matter remanded to the trial court with directions to strike two prison prior enhancements pursuant to Senate Bill 136 and dismiss allegations the plea agreement indicated would be dismissed. (I) JMK

Williams, Rex — People v. Enciso, E074103 — Penal Code Section 1473.7 — Burke Strunsky, Judge — Opinion by Fields, J., with Codrington, J., Slough, J. Attorney General conceded and Court of Appeal agreed that trial court erred in summarily denying appellant’s Penal Code 1473.7 motion to vacate based on a finding that appellant was currently in criminal custody. Because this finding was unsupported by the record and judicially noticed records show appellant is not in criminal custody but is in ICE custody, appellant’s motion must be considered on the merits. In addition, appellant is entitled to appointed counsel on remand because his petition stated a prima facie case for relief. Matter remanded for further proceedings. (I) AMJ

Kraus, Paul R. — People v. Chapman, G057823 — Senate Bill 136 — John Conley, Judge — Opinion by Moore, J., with Aronson, J., Fybel, J. Two prison prior enhancements must be stricken pursuant to Senate Bill 136 and case remanded for re-sentencing. (I) APJ

Schuck, John F. — People v. Ramirez, G058916 — Miranda Violation — Michael A. Leversen, Judge — Opinion by Thompson, J., with Moore, J., Ikola, J. The Court of Appeal agreed the trial court erred in denying appellant’s motion to suppress statements obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), where appellant invoked his Miranda rights but continued to be asked questions, including on the way to the station house. The Court of Appeal found that appellant’s statements in the patrol vehicle, making it clear that he wanted to be segregated from “Black people” in custody, did not constitute a withdrawal of his prior invocation. As a result, additional statements that he assaulted the victim because the victim was Black and that he hated all Black people, should have been suppressed. Because these statements were the only evidence of appellant’s racial motivation, his conviction for the civil rights violation (hate crimes) and the true finding on the hate crime enhancement are reversed and the sentences vacated. (I) LAR

Bewicke, Aurora — People v. Rebollar, D076572 — Probation — Polly H. Shamoon, Judge — Opinion by McConnell, P.J., with Benke, J., Irion, J. The Court of Appeal remanded the matter to allow the trial court to exercise its sentencing discretion in light of Assembly Bill1950, amending section 1203.1, subdivision (a) to limit the probation term for felony offenses to two years, except in circumstances not present here. With respect to challenged probation conditions, if the trial court grants probation on re-sentencing, drug, alcohol, and mental health conditions should be stricken unless the People can show a closer connection between the conditions and a legitimate government interest. (I) HCC

Dellaca, Tanya — People v. Ali, G057549 — Pre-Sentence Conduct Credits — Michael A. Leverson, Judge — Opinion by Thompson, J., with Aronson, J., Goethals, J. Court of Appeal ordered the award of 160 days additional pre-sentence conduct credits where trial court had incorrectly awarded only 15% conduct credits under Penal Code section 2933.1 even though appellant was not convicted of a “violent felony.” (I) NFA

Zarmi, David — People v. McDonald, G057603 — Senate Bill 136 — Jonathan S. Fish, Judge — Opinion by Moore, J., with Aronson, J., Goethals, J. Three prison priors that had been stayed by the trial court are ordered stricken under Senate Bill 136. (A) APJ

Melcher, William — People v. Fitzgerald, G058833 — Penal Code Section 1170.95 — Kimberly Menninger, Judge — Opinion by Goethals, J., with O’Leary, P.J., Fybel, J. Denial of petition for re-sentencing under Penal Code section 1170.95 is reversed and matter remanded for reconsideration where trial court made incorrect factual conclusions regarding the nature and bases of appellant’s convictions. In addition, the trial court failed to rule on appellant’s primary argument that re-sentencing was appropriate because at the original sentencing the trial the court made the “exceedingly rare” finding of lesser culpability under People v. Dillon (1983) 34 Cal.3d 441. (I) JMK

Owen, Kristen — People v. Eric Gertner, E072053 — Insufficient Evidence — Michael A. Knish, Judge — Opinion by Ramirez, P.J., with McKinster, J., Fields, J. Appellant’s conviction of falsely identifying oneself to a police officer is reversed for insufficient evidence that appellant was detained or arrested when he identified himself, as required by the statute. (I) NFA

Vandevelde, Ken — People v. Wilkerson, D076954 — Probation Conditions — Christopher J. Plourd, Judge — Opinion by McConnell, P.J., with Benke, J., O’Rourke, J. Condition requiring appellant to attend Alcoholics Anonymous meetings is unconstitutionally coercive. On remand, should the court grant a term of probation conditioned on participation in a substance abuse program, it should allow appellant the choice to attend an alternative substance abuse program approved by probation that does not require the acknowledgment of a higher power. (A) JMK

February 2021

Dain, Anthony — People v. Smith, No. D074546 — Senate Bill 1393 — Joan P. Weber, Judge — Opinion by Irion, J., with McConnell, P.J., Huffman, J. Remanded for trial court to exercise discretion as to whether to strike five-year serious felony prior enhancement under Senate Bill 1393. (I) HCC

Bewicke, Aurora — People v. Rebollar, D076572 — Probation Conditions/Assembly Bill 1950 — Polly H. Shamoon, Judge — Opinion by McConnell, P. J., with Benke, J., Irion, J. The Court of Appeal remanded to superior court to consider reduction of probation period to two years under Assembly Bill 1950. With respect to challenged probation conditions, appellant may challenge electronic search condition and stay-away order on remand. The alcohol/substance abuse conditions are ordered stricken unless the People can show a closer connection between the conditions and a legitimate government interest, i.e., that such conditions are reasonably directed at curbing appellant’s future criminality. (A) HCC

Staley, John — People v. Ruiz, D076580, (2020) 59 Cal.App.5th 372 — Post-Release Community Supervision — Kathleen M. Lewis, Judge — Opinion by McConnell, P.J., with O’Rourke, J., Dato, J. Due to CDCR error, appellant was placed on parole rather than post-release community supervision (PRCS) upon release from prison. While Penal Code section 3000.08, subd. (l), provides that a parolee may challenge the conditions of parole within the first 60 days of supervision and appellant was so advised, appellant was not provided with notice that he could challenge his placement on parole, nor did he understand the mistake in placement until his attorney noticed the error when parole revocation proceedings were initiated. The Court of Appeal held that it would be a due process violation to bar appellant from challenging his placement after the 60 days elapsed and the trial court erred in denying his motion to dismiss on grounds of untimeliness. The order was reversed and the trial court directed to grant the motion to dismiss and transfer appellant from parole to PRCS. (I) JMK

Garcia, Matthew — People v. Tapia, D076793 — Modification of Protective Order — Juan Ulloa, Judge — Opinion by Benke, J., with Haller, J., Guerrero, J. After the government exercised a peremptory challenge and removed the trial court which had been overseeing appellant’s probation term for about a year, the new trial court had only about 30 minutes to familiarize itself with the case before it denied appellant’s request to modify the protective order and allow appellant to return to living with his family. Because the trial court failed to take the necessary time to familiarize itself with the case and because it failed to interview appellant’s sisters as had been contemplated by the recused court, the trial court abused its discretion when it denied appellant’s motion. In addition, the court abused its discretion by failing to consider all the factors in subdivision (b)(6) of section 1203.3 in denying the motion. (A) CBM

Beugen, Heather — People v. Thomas, D077117 — Penal Code Section 1170.95 — Harry M. Elias, Judge — Opinion by Huffman, J., with McConnell, P.J., Aaron, J. Court of Appeal reversed trial court’s summary denial of appellant’s petition for re-sentencing pursuant to Penal Code section 1170.95. The Attorney General conceded and the Court of Appeal agreed that appellant had sufficiently established a prima facie case for relief; therefore, appellant should have been appointed counsel and given an opportunity to brief the issues. The matter is remanded to the trial court for further proceedings. (I) HSI

Romero, Lynda A. — People v. White, E073080 — Penal Code Section 1170.95 — Kyle S. Brodie, Judge — Opinion by Codrington, J., with Miller, J., Menetrez, J. Trial court’s order dismissing appellant’s Penal Code section 1170.95 petition as unconstitutional is reversed. (I) LAR

Pirko, Johanna — People v. Valenzuela, E073607 — Sentencing/Senate Bill 136 — Katrina West, Judge — Opinion by Miller, J., with Ramirez, P.J., Fields, J. Judgment is modified to strike deadly weapon enhancement because use of a deadly weapon is an element of the underlying offense of assault with a deadly weapon. In addition, prison priors ordered stricken per Senate Bill 136. (I) JMK

Gambale, Erica — People v. Wilson, E073753 — Senate Bill 136 — Samuel Diaz, Jr., Judge — Opinion by McKinster, J., with Slough, J., Menetrez, J. In a previous appeal, the matter was remanded for the trial court to exercise its discretion with respect to appellant’s serious felony prior enhancement under Senate Bill 1393. Although the trial court declined to re-sentence appellant, the effect of the remand was to extend finality so that the judgment was not final when Senate Bill 136 became effective. Accordingly appellant’s four prison prior enhancements must be stricken under the new law. (I) HCC

Pirko, Johanna — In re C.A., E074761 — Electronics Search Condition — Samah Shouka, Judge — Opinion by Miller, J., with Codrington, J., Menetrez, J. Minor admitted an allegation of taking a vehicle and her conditions of probation included an electronics search condition because, according to the juvenile court, references in the probation officer’s report raised a concern about the minor being exploited by adult males with whom she had committed prior offenses. Court of Appeal struck the condition as not being reasonably related to minor’s future criminality where there was no evidence electronics were involved in any of minor’s prior criminal conduct. (I) APJ

Missakian, C. Matthew — In re Poslof, E074992 — Proposition 57 — Gregory S. Tavill, Judge — Opinion by Miller, J., with Raphael, J., Menetrez, J. The Court of Appeal granted petitioner’s petition for writ of habeas corpus agreeing that CDCR’s regulations excluding non-violent sex offender registrants from early parole consideration conflicts with Proposition 57's amendment to the California Constitution. Matter is remanded for CDCR to evaluate petitioner for early parole consideration. (I) LAR

Torres, Steven — People v. Aloe, G056882 — Senate Bill 1393/Sentencing — David A. Hoffer, Judge — Opinion by Goethals, J., with Moore, J., Ikola, J. Matter is remanded for trial court to consider striking appellant’s serious felony prior enhancements under Senate Bill 1393. If the enhancement on the determinate sentence is not stricken, trial court should consider appellant’s argument that the enhancement on the determinate sentence must be made concurrent. (I) AMJ

Brisbois, Patricia — People v. Rodriguez, G057841 — Abstract of Judgment — W. Michael Hayes, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Ikola, J. The Court of Appeal ordered appellant’s sentence for attempted murder corrected to reflect a life term with a minimum parole eligibility of 15 years, rather than the 15 to life term ordered by the trial court. (I) LKH

Polsky, David L. — People v. Doan, G057918 — Penal Code Section 1170.95 — Jonathan S. Fish, Judge — Opinion by Ikola, J., with O’Leary, P.J., Moore, J. Court of Appeal reversed trial court’s denial of appellant’s Penal Code section 1170.95 petition where it was erroneously denied on the ground the new law is unconstitutional. Matter remanded for proceedings on the merits of appellant’s petition. (I) APJ

Matulis, Jean/Owen, Thomas — People v. Phabmixay/Nguyen, G058260 — Gang Evidence — Michael A. Leverson, Judge — Opinion by O’Leary, P.J., with Thompson, J., Goethals, J. Because the prosecution did not satisfy its burden of proving appellant and co-appellant committed offenses for a criminal street gang, gang enhancements on two counts are reversed. (I) JMK

Dain, Anthony J. — People v. Phung, G058301 — Penal Code Section 1170.95 — Jonathan S. Fish, Judge — Opinion by Ikola, J., with O’Leary, P.J., Moore, J. Court of Appeal reversed trial court’s denial of appellant’s petition under Penal Code section 1170.95. Court of Appeal found that the new law is constitutional; thus, the trial court’s denial, based on a finding that the new law is unconstitutional, was erroneous. Matter remanded for further proceedings on the merits of appellant’s petition. (I) APJ

Webb, Reed — People v. Marquez, G058719 — Penal Code Section 1170.95 — Michael A. Smith, Judge — Opinion by Fybel, J., with Aronson, J., Ikola, J. Trial court erroneously denied appellant’s petition under Penal Code section 1170.95 on the basis that the new law is unconstitutional. Because the new law is not unconstitutional, matter is remanded for trial court to consider the merits of appellant’s petition. (I) APJ

January 2021

Shudde, Athena/Buckley, Christian/McKim, Joanna — People v. Dean/Garcia/Valdez, D074371 — Juror Misconduct/Senate Bill 136 — Richard R. Monroy, Judge — Opinion by Huffman, J., with Haller, J., Irion, J. The Court of Appeal conditionally reversed the judgments for all appellants, agreeing that the trial court erred in denying the defense request to disclose juror information where the defense had established a prima facie showing of juror misconduct requiring the trial court to notify the jurors of the defense request. The matter is remanded to the superior court with instructions to notify jurors of the defense request and conduct a hearing in accordance with the Code of Civil Procedure section 237. The judgments may be reinstated if no misconduct is found. If the judgments are reinstated, Dean’s and Garcia’s prison priors must be stricken under Senate Bill No. 136, and the abstract of judgment corrected. (I) LKH

Ulibarri, Patricia — People v. Alford, D074513 — Sentencing/ Senate Bill 1393 — Christopher J. Plourd, Judge — Opinion by Benke, J., with Haller, J., Guerrero, J. Court of Appeal reversed for re-sentencing due to two sentencing errors, which the People conceded. The trial court erred when it added multiple five-year serious felony prior enhancements based on a single prior conviction. Only one enhancement to the aggregate sentence was authorized. In addition, on remand, the court must exercise its discretion with respect to the question of whether to impose or dismiss the enhancement pursuant to Senate Bill 1393. (I) AMJ

Klein, Jill — People v. Herrera, D075202 — Senate Bill 136 — David G. Brown, Judge — Opinion by Benke, J., with Aaron, J., Guerrero, J. Appellant’s prison prior enhancements ordered stricken under Senate Bill 136. (I) HCC

Hart, Mark A. — People v. Kohut, D075492 — Senate Bill 136 — Samuel Diaz, Jr., Judge — Opinion by O’Rourke, J., with Huffman, J., Irion, J. Court of Appeal agreed that under the version of the One-Strike law in effect at the time of appellant’s offenses, he should have been sentenced to only a single term of 15-years-to-life rather than the three consecutive terms of 15-years-to-life imposed by the court for three qualifying sex offenses committed in the course of a single occasion. In addition, one prison-prior enhancement must be stricken under Senate Bill 136. Matter remanded for re-sentencing. (I) APJ

King, Nancy — People v. Nowden, D075767 — Penal Code Section 1170.95 — Frederick L. Link, Judge — Opinion by Huffman, J., with Haller, J., Dato, J. The Court of Appeal reversed the summary denial of appellant’s Penal Code section 1170.95 petition where the denial was based on a finding that appellant was ineligible for relief due to true findings on special circumstance allegations. Although the true findings indicated that appellant was found to be a major participant who acted with reckless indifference to human life based on the law in effect at the time of the jury findings, those findings pre-dated the clarification of that law in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. Given this reality, the trial court could not have found, based on the prior findings alone, that appellant acted as a major participant with reckless indifference to human life. Matter remanded for trial court to conduct a hearing, after receiving briefing from both parties, to determine whether appellant has established a prima facie showing for relief. (I) CBM People’s petition for review granted (S265614), and case is being held pending disposition of a related issue in People v. Lewis (S260598).

Mazur, Janice — People v. Valladares, D075834 — Senate Bill 136 — Amalia Meza, Judge — Opinion by Benke, J., with McConnell, P.J., O’Rourke, J. Prison prior enhancement must be dismissed per Senate Bill No. 136. Case remanded for re-sentencing. (I) APJ

Crooks, Gary — In re Matthew H., D076399 — Penal Code Section 954 — Aaron Katz, Judge — Opinion by Huffman, J., with Haller, J., Dato, J. Where true findings of assault with a deadly weapon and assault with force likely to produce great bodily injury were based on the single act of shooting a pellet rifle at the victim, one finding must be vacated under Penal Code section 954 because the two allegations are different statements of the same offense. Matter remanded for juvenile court to vacate the latter true finding. (I) LKH

Coolman, Alex/Aros, Christine — In re Edgerrin J./Jamar D., D076461, (2020) 57 Cal.App.5th 752 — Motion to Suppress Evidence — Browder A. Willis, Judge — Opinion by Dato, J., with Haller, J., Guerrero, J., Dato, J. concurring. The Court of Appeal reversed the juvenile court’s denial of minors’ suppression motion. The juvenile court erred in finding that the minors’ encounter with police was consensual where four officers in two patrol cars, one with activated emergency lights, pulled up behind minor's parked car and contacted the driver with one officer positioned at each door to prevent the occupants from leaving. This conduct constituted a detention and the citizen’s tip – that there were Black males in a parked Mercedes who were “acting shady” – did not establish reasonable suspicion to justify the detention. Because there was conflicting evidence as to whether law enforcement was aware of other information that might establish reasonable suspicion for the stop and the trial court made no credibility findings in this regard, the matter is remanded for the juvenile court for a hearing. (I) LKH

Behravesh, Justin — People v. Soto, D076509 — Assembly Bill 1950 — Garry G. Haehnle, Judge — Opinion by McConnell, P.J., with Benke, J., Huffman, J. The Court of Appeal vacated the order granting probation and remanded the matter for the trial court to determine whether appellant’s probation term must be reduced to two years under Assembly Bill 1950 which went to effect on January 1, 2021. (A) LKH

Boyer, Ron/Jones, Jason — People v. Quiroz/Bonilla, E069820 — Kill Zone Theory/Sufficiency of Evidence — Bernard Schwartz, Judge — Opinion by Miller, J., with Fields, J., Raphael, J. Applying the Supreme Court's decision in People v. Canizales (2019) 7 Cal.5th 591, which significantly restricted application of the kill zone theory, the Court of Appeal reversed two attempted murder convictions, concluding that kill zone instructions were not supported by the evidence in this case and that the instruction was prejudicial. In addition, because the evidence did not support verdicts based on the remaining theory - specific intent to kill the victims, no re-trial is warranted. Finally, the court reversed conspiracy to commit murder convictions finding there was not substantial evidence that appellants intended to kill the victim of those charges. Appellant Bonilla is also entitled to five additional days of credit for time served. The matter is remanded to the trial court for re-sentencing. (I) LKH

Jones, Cynthia — People v. Guerra, E071895 — Senate Bill 1393 — Thomas D. Glasser, Judge — Opinion by Raphael, J., with McKinster, J., Fields, J. Case remanded for trial court to exercise its discretion pursuant to Senate Bill 1393. (I) AMJ

Gambale, Erica — People v. Jennings, E072096 — Sentencing — Chad W. Firetag, Judge — Opinion by Fields, J., with Codrington, J., Slough, J. Sentence on one count reversed as trial court did not understand it had discretion to sentence appellant concurrently under Penal Code section 1170.15, and record does not indicate court would have declined to sentence concurrently. (I) JMK

Angres, Robert — People v. Amaya, E074093 — Pre-sentence Credits — Becky Dugan, Judge — Opinion by Slough, J., with Codrington, J., Menetrez, J. In this appeal from a re-sentencing, the Court of Appeal agreed that the trial court erred in awarding pre-sentence credits based only on the time that was spent in custody prior to the original sentencing. Instead, per People v. Buckhalter (2001) 26 Cal.4th 20, 23, the court was required to add the days for time spent in custody since the time of original sentencing. Trial court directed to prepare an amended abstract of judgement reflecting 1,097 actual days of confinement. (I) CBM

O’Connor, Sheila — People v. Price, G057277 — Senate Bill 136 — Michael J. Cassidy, Judge — Opinion by Thompson, J., with Bedsworth, J., Aronson, J. Two prison prior enhancements ordered stricken under Senate Bill 136. (I) AMJ

Peabody, Jennifer — People v. Bonilla, G057654 — Penal Code Section 654 — Michael A. Leversen, Judge — Opinion by Thompson, J., with Aronson, J., Goethals, J. The trial court erred in failing to stay, pursuant to Penal Code section 654, the two-year concurrent sentence it imposed for actively participating in a criminal street gang where appellant was separately punished for the attempted murder which was the basis for the gang participation offense. (I) LAR The Supreme Court has granted review on (S265911); further action is deferred pending consideration and disposition of a separate issue in People v. Lemcke (S250108).

Smith, Barbara — People v. Phillips, G057750 — Penal Code Section 1170.95 — Brian S. McCarville, Judge — Opinion by Aronson, J., with Fybel, J., Ikola, J. The Court of Appeal reversed trial court’s prima facie-stage denial of appellant’s Penal Code section 1170.95 petition challenging his convictions of murder and attempted murder. Relying on its recollection of the trial and its reading of the opinion in the direct appeal, the trial court found that appellant was the actual perpetrator and that no jury instruction was given permitting conviction on any theory abrogated by Senate Bill 1437. However, appellant argued, and the Attorney General conceded, the trial court was mistaken in both respects. Both the trial evidence and the opinion in the direct appeal left open the possibility appellant was convicted as an aider and lacked intent to kill. Matter remanded for a determination on the merits of appellant’s eligibility for relief under section 1170.95. (I) NFA

Bostwick, James — People v. Rivera, G058213 — Penal Code Section 1170.95 — James Edward Rogan, Judge — Opinion by Thompson, J., with Bedsworth, J., Moore, J. Where the District Attorney never formally responded to appellant’s contentions that the legislative changes created by Senate Bill No. 1437 did not materially amend Proposition 7 and 115, the Court of Appeal found no reason to depart from the previously published decisions finding the law constitutional. Matter remanded with directions for superior court to conduct proceedings on the merits pursuant to Penal Code section 1170.95. (I) CBM

Power, Richard – People v. Burnett, G058563 — Penal Code Section 1170.95 — Cheri T. Pham, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Thompson, J. Case is remanded for further proceedings under Penal Code section 1170.95 where the trial court incorrectly denied the petition on the ground that Senate Bill 1437/Penal Code section 1170.95 were unconstitutionally inconsistent with voter initiatives. (I) NFA

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