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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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

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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