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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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

February 2020

Weis, Lizabeth — People v. Gillespie, D069389 — Senate Bill 1393/Senate Bill 620/Penal Code Section 1170.95 — Kenneth K. So, Judge — Opinion by McConnell, P.J., with Benke, J., Irion, J. Matter remanded for trial court to exercise its discretion with respect to a serious felony prior enhancement and a firearm enhancement, because Senate Bills 1393 and 620 apply retroactively to this case. In addition, appellant’s conviction for attempted murder is affirmed, but without prejudice to appellant filing a petition under Penal Code section 1170.95 in the trial court. (I) MCR The Supreme Court has granted review; further action in the matter is deferred pending consideration and disposition of related issues in People v. Lopez (S258175).

Crawford, James — People v. Trujillo, D071715, (2019) 15 Cal.App.5th 574 — Electronics Search Condition — Daniel B. Goldstein, Judge — Opinion by Haller, J., with McConnell, P.J., O’Rourke, J. After the case was remanded back to the Court of Appeal by the Supreme Court for reconsideration in light of In re Ricardo P. (2019) 7 Cal.5th 1113, the Attorney General conceded and the Court of Appeal agreed that there was an insufficient basis in this case for finding that the condition is reasonably related to future criminality. Because appellant’s probation was set to expire in January of 2020, the Court of Appeal agreed to strike the condition rather than remand for modification. (I) APJ

Irza, Helen — People v. Bird, D072801 — Electronics Search Condition/Clerical Error — Polly H. Shamoon, Judge — Opinion by Guerrero, J., with O’Rourke, J., Dato, J. Pursuant to the Supreme Court’s opinion in In re Ricardo P. (2019) 7 Cal.5th 1113, the Court of Appeal found that appellant’s electronic search condition is unreasonable because the offense for which appellant was found guilty did not involve electronic devices and a warrantless search of electronics is not justified on the theory that the condition will help prevent future criminality. The matter is remanded so the trial court may consider whether to impose a more targeted or alterative condition consistent with Ricardo P. Additionally, a discretionary fine must be stricken from the order granting probation because it is inconsistent with the trial court’s oral pronouncement. (S) HSI

Olsen, Nancy — People v. Mazur, D073268 — Lesser Included Offenses — Laura W. Halgren, Judge — Opinion by Benke, J., with O’Rourke, J., Guerrero, J. Appellant was convicted of two counts of grand theft and two counts of grand theft from an elder adult based on the same acts or course of conduct. Court of Appeal reversed the two grand theft convictions as lesser included offenses. (I) LAR

O’Connor, Sheila — People v. Jenkins, D073662, (2019) 40 Cal.App.5th 30 — Mental Health Diversion/Senate Bill 1393 — Melinda J. Lasater, Judge — Opinion by Benke, J., with McConnell, P.J., Dato, J. The Court found that Penal Code section 1001.36 applies retroactively to appellant’s case and he should be allowed an opportunity to make a “prima facie showing” in the trial court that he is eligible for mental health diversion. If he is found ineligible for diversion, Senate Bill No. 1393 will then apply, giving the trial court discretion to strike appellant’s serious felony prior enhancements. The judgment is conditionally reversed and matter remanded to the trial court with direction to hold a mental health diversion hearing. If appellant is found ineligible for diversion, the trial court will then hold a new sentencing hearing in order to consider striking appellant’s serious felony enhancements. (I) MCR

The Supreme Court has granted review; further action in the matter is deferred pending consideration and disposition of related issues in People v. Frahs (S252220).

Stralla, Ava — People v. Toralva, D073690 — Senate Bill 1393 — Albert T. Harutunian III, Judge — Opinion by Aaron, J., with Benke, J., Haller, J. Matter is remanded for trial court to exercise its discretion with regard to appellant’s five-year serious felony prior enhancement in light of Senate Bill No. 1393. (I) APJ

Holzer, William — People v. Gaynor, D073763, (2019) 42 Cal.App.5th 794 — Sentencing — Richard R. Monroy, Judge — Opinion by Aaron, J., with Haller, J., Guerrero, J. Court of Appeal agreed that the sentence on two counts must be stayed pursuant to Penal Code section 654 where appellant committed various fraud-related offenses in the course of trying to cash a single check. Further, matter must be remanded for court to reconsider the restitution fine given the application of Penal Code section 654. (I) PMI

Wallingford, Jerome — People v. Stringer, D073877, (2019) 41 Cal.App.5th 974 — Instructional Error/Lesser Included Offenses — Frederick Maguire, Judge — Opinion by McConnell, P.J., with Benke, J., Dato, J. Court of Appeal agreed that the trial court prejudicially erred when it misinstructed the jury that a finding of aggravated kidnaping could be based on the act of kidnaping a person “to get money or something valuable” without adding that the money or something valuable must be sought from a third party and not the kidnaping victims themselves. Matter is remanded to allow the People an opportunity to retry two counts of aggravated kidnaping. Furthermore, two counts of simple kidnaping are reversed as lesser included offenses of two separate counts of aggravated kidnaping which were not reversed on appeal. (I) AMJ

Reynolds, Eric — People v. Statiras, D073891 — Electronics Search Condition — Polly H. Shamoon, Judge — Opinion by O’Rouke, J., with Huffman J., Haller, J. Following the California Supreme Court’s decision in In re Ricardo P. (2019) 7 Cal.5th 1113, the electronic search condition in this case is deemed unreasonable because there was an insufficient basis for finding that the condition is reasonably related to future criminality. The Court of Appeal remanded the matter and directed the trial court to consider whether to impose a narrower electronics search condition that comports with Ricardo P. (A) HSI

Babcock, Russell — People v. Thompson, D073892 — Senate Bill 1393 — Esteban Hernandez, Judge — Opinion by O’Rourke, J., with Aaron, J., Dato, J. The case is remanded for the trial court to conduct a new sentencing hearing to consider whether to exercise its discretion to dismiss the punishment based on the prior serious felony convictions. (I) AMJ

Garcia, Matthew — People v. Alvarez, D074252 — Modification of Probation Conditions — Desiree A. Bruce-Lyle, Judge — Opinion by Irion, J., with McConnell, P.J., Dato, J. After pleading guilty and providing a general waiver of the right to appeal, appellant was placed on probation in 2016 by the Riverside County Superior Court. In 2018, appellant’s mandatory supervision was transferred to San Diego County Superior Court where, over defense objection, the court modified appellant’s probation conditions. Court of Appeal found the San Diego court lacked jurisdiction to modify the conditions because there was no change in circumstances to justify the modification. The court rejected respondent’s contention that a certificate of probable cause was required, because the general appellate waiver did not include modifications of probation conditions. Further, the issue was not forfeited because the issue involves a pure question of law. (A) AMJ

Aros, Christine — In re Eddie P., D074294 — Probation Conditions — Aaron H. Katz, Judge — Opinion by Huffman, J., with McConnell, P. J., Haller, J. Synergistic effect of two probation conditions prohibiting minor from creating of a social media page and knowingly participating in social media sites, effectively banned minor’s use and access to social media. Relying on In re L.O. (2018) 27 Cal.App.5th 706, the Court of Appeal found the ban to be unconstitutionally over-broad. No objection was required because the court was able to determine the issue by reference to the condition’s plain language and without examination of the factual record. Condition modified to indicate minor cannot use social media without the express permission of the probation officer. (I) CBM

Villanueva, Pauline — People v. Johnson, D074305 — Fines/Fees — David A. Danielsen and Daniel B. Goldstein, Judges — Opinion by Aaron, J., with Benke, J., O’Rourke, J. The Court of Appeal found that the trial court erred in imposing three separate court security fees under Penal Code section 1465.8 where appellant suffered only one conviction and the other two counts were dismissed. The two $40 security fees imposed for the two dismissed counts are stricken. (A) MCR

Haggerty, Ed — People v. Morales Tudela, D074340 — Insufficient Evidence — Haehnle, Judge — Opinion by Guerrero, J., with McConnell, P.J., Irion, J. Appellant, an aide worker on buses contracted by a service center to transport developmentally disabled people, was convicted of completed and attempted lewd act on a dependent adult by a caretaker based on the complaints of a rider. Court of Appeal reversed for insufficient evidence. Although the transportation company was contracted by a caretaker non-profit, the transportation company itself and its employees did not fall within the meaning of “caretaker” under Penal Code section 288(c)(2), based on the plain meaning of the statutory language. (I) ABM

Buckley, Christian — People v. Dunsmore, D074656 — Senate Bill 1393/Fines — Theodore M. Weathers, Judge — Opinion by Benke, J., with McConnell, P.J., Dato, J. In 2011, the case was remanded by the Court of Appeal for imposition of mandatory fines and fees which the trial court had declined to impose. The proceedings on remand did not occur until 2018, at which time the trial court imposed the mandatory fines and fees as ordered. In addition, however, it also increased from $200 to $1,000 the only fine that had been imposed previously at the original sentencing. The increase was error. The Court of Appeal again remanded the case to strike the higher fine and reimpose the previous fine. Any argument regarding a hearing on appellant’s ability to pay can be made on remand. In addition, matter remanded for court to consider striking the serious felony five-year enhancement pursuant to Senate Bill No. 1393. The Court of Appeal rejected the Attorney General’s argument that the case was final for all purposes except fines and fees prior to enactment of the new law. (I) APJ

Edwards, John — People v. Priest, D074829 — Penal Code Section 654 — John M. Thompson, Judge — Opinion by Huffman, J., with Haller, J., Dato, J. Court of Appeal agreed that the concurrent sentence for appellant’s criminal threat conviction must be stayed pursuant to Penal Code section 654 because the threat was uttered at the same time and as part of the same course of conduct as appellant’s separately punished assault with a firearm offense. The trial court is ordered to stay the sentence for the threat conviction and a corresponding conduct enhancement. (I) HSI

Ferguson, Rachel — People v. Keene, D074871, (2019) 43 Cal.App.5th 861— Senate Bill 136 — Polly H. Shamoon, Judge — Opinion by Huffman, J., with McConnell, P.J., Dato, J., concurring. Case remanded with directions to strike appellant’s one-year prison prior enhancement because such enhancement was no longer valid under Senate Bill No. 136, which became effective while appeal was pending. (A) SDS

Behravesh, Justin— People v. Ayala, D075074 — Electronic Search Condition/Fines/Fees — Polly H. Shamoon, Judge — Opinion by Guerrero, J., with McConnell, P.J., Irion, J. Court of Appeal rejected the Attorney General’s argument that the electronic search condition was a stipulated part of the plea agreement and found that it must be stricken as unreasonable under In re Ricardo P. (2019) 7 Cal.5th 1113. Judgment reversed with directions to strike the electronic search condition; court may impose more targeted or alternative condition. Court shall also consider any objection based on appellant’s ability to pay restitution fine and fees. (A) PMI

Ferguson, Rachel — People v. Darbinyan, D075089 — Senate Bill 136 — Daniel S. Belsky, Judge — Opinion by Huffman, J., with Dato, J., Guerrero, J. Pursuant to Senate Bill No. 136, appellant’s one-year prison prior enhancement is ordered stricken. The trial court is directed to amend the abstract of judgement to reflect this change. (A) LKH

Love, Christopher — People v. Stepney, D075171 — Calculating Credits/Buckhalter — Ingrid A. Uhler, Judge — Opinion by Guerrero, J., with McConnell, P. J., Aaron, J. When, on remand, the trial court dismissed one of appellant’s firearm enhancements under Senate Bill 620, it erred in failing to recalculate the actual pre-sentence credits due at the time of re-sentencing. Under People v. Buckhalter (2001) 26 Cal.4th 20, 37, the court was required “to credit [appellant] with all actual days he had spent in custody, whether in jail or prison, prior to that time.” Amended abstract of judgement must be prepared to reflect an award of 1,088 days actual credit and the date of the re-sentencing hearing, as opposed to the date of the original sentencing. (I) CBM

The Supreme Court has granted review; further action in this matter is deferred pending consideration and disposition of related issues in People v. Tirado (S257768).

Dain, Anthony — People v. Edwards, D075214 — Fines/Fees — Louis Hanoian, Judge — Opinion by Dato, J., with Huffman, J., Aaron, J. Matter remanded for hearing on ability to pay fines and fees pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157. (I) ABM

Stralla, Ava — People v. Loza, D075287 — Senate Bill 136 — David M. Gill, Judge — Opinion by Huffman, J., with Haller, J., Dato, J. Case remanded to trial court with directions to strike appellant’s prison prior enhancement under Senate Bill 136 and re-sentence. (I) LAR

Stevenson, Theresa — People v. Gomez, D075367— Insufficient Evidence — Jorge Hernandez, Judge — Opinion by Huffman, J., with McConnell, J., O’Rourke, J. First degree murder conviction reduced to second degree murder based on Court of Appeal finding that the record disclosed insufficient evidence to support a reasonable determination that appellant had a preconceived plan to kill the victim or had deliberated before shooting him. (I) SDS

Peterson, Michelle May — People v. Lamoureux, D075794, (2019) 42 Cal.App.5th 241 — Penal Code Section 1170.95/Senate Bill 1437 — John D. Molloy, Judge — Opinion by O’Connell, P.J., with Irion, J., O’Rourke, J. dissenting. After the trial court denied appellant’s Penal Code section 1170.95 petition based on a finding that the new law is unconstitutional, the Court of Appeal reversed. The Court of Appeal found that Senate Bill No. 1437 does not unconstitutionally modify Proposition 7 or Proposition 115 because it does not address the same subject matter as Proposition 7 and, while it addresses a matter related to the subject matter of Proposition 115, it does not augment or restrict the list of predicate felonies that would support a felony-murder conviction. Further, the new law does not violate the separation of powers doctrine in that it does not misappropriate the core function of the execute branch to grant reprieve, pardon, or commutation and it does not allow final judgements to be reopened to provide ameliorative relief. Finally, the new law does not violate Marsy’s Law. (I) CBM

Turkat-Shirn, Megan — In re Daniel H., D076331 — Indian Child Welfare Act (ICWA) — Gary M. Bubis, Judge — Opinion by Irion, J., with Huffman, J., Haller, J. The Court of Appeal found the juvenile court erred by failing to require a full investigation of father’s claim of possible Indian heritage. It remanded the matter for full compliance with the ICWA. (I) MAC

Torres, Steven — People v. Taylor, E069293, (2019) 43 Cal.App.5th 390 — Penal Code Section 654/Fines/Fees — Kyle S. Brodie, Judge — Opinion by Menetrez, J., with Codrington, J., Raphael, J. Trial court erred in not staying sentence on four forcible lewd act convictions involving one victim because the four acts underlying those convictions were also the basis for his conviction and sentence on four aggravated sexual assault counts. Case also remanded for trial court to determine whether defendant has an ability to pay court operations and facilities fees. (I) LAR

Brandt, Nancy — People v. Martell, E069369, (2019) 42 Cal.App.5th 225 — Proposition 47— John M. Tomberlin, Judge — Opinion by Slough, J., with Fields, J., Ramirez, P.J., dissenting. Appellant’s conviction of felony unlawful driving or taking of a vehicle was reversed because the trial court failed to instruct the jury, pursuant to Proposition 47, that it had to find the value of the vehicle exceeded $950 to convict him of a felony. The error was prejudicial because there was a reasonable chance the jury convicted appellant on a taking theory (rather than a driving theory, which would not require a finding with respect to the value of the vehicle). Matter remanded to the trial court for the People to decide whether to accept a reduction to a misdemeanor or retry as a felony if they can bring that action in good faith. (I) DKR

Somers, Robert — People v. Perera, E069946 — Penal Code Section 1473.7 — Ronald L. Taylor, Judge — Opinion by Ramirez, P.J., with Fields, J., Slough, J., concurring. The Court of Appeal reversed the trial court finding that appellant’s Penal Code section 1473.7 motion was not timely and remanded for a hearing on the merits. (I) LAR

Webb, Reed — People v. Navarro, E070865 — Proposition 57 — Angel M. Bermudez, Judge — Opinion by McKinster, J., with Miller, J., Slough, J. Appellant is eligible for a juvenile court transfer hearing because his case was not final at the time Proposition 57 was passed. The judgment is conditionally reversed and remanded for the juvenile court to hold a transfer hearing pursuant to Proposition 57. (I) LKH

Varnell, Rachel— People v. Hyatt, E070948 — Senate Bill 1393 — Richard A. Erwood, Judge — Opinion by Codrington, J., with Fields, J., Raphael, J. Matter remanded for trial court to exercise discretion under Senate Bill No. 1393 to strike appellant’s serious felony prior enhancement. (I) PMI

Ballantine, Jean — People v. Bocanegra, E072592 — Recall of Sentence — Steven A. Mapes, Judge — Opinion by Codrington, J., with Fields, J., Raphael, J. In a case where the Department of Corrections and Rehabilitation recommended a recall of appellant’s sentence and a re-sentencing under Penal Code section 1170, subdivision (d)(1), the trial court was wrong to deny the request based on a finding that it lacked jurisdiction. Matter remanded for trial court to exercise its discretion whether to recall the sentence and to reconsider all of its sentencing choices if the sentence is recalled. (I) DKR

Williams, Nicole — In re A.F. et al., E072756 — Indian Child Welfare Act (ICWA) — Annemarie G. Pace, Judge — Opinion by Fields, J., with Codrington, J., Raphael, J. The Court of Appeal affirmed the juvenile court’s decision denying Mother’s petition under Welfare and Institutions section 388, but remanded the matter to the trial court with directions to ensure the child welfare agency further investigate the Indian Child Welfare Act. (I) MAC

Jones, Cynthia — People v. Zamora, G055827— Motion to Disclose Juror Information — Michael A. Leversen, Judge — Opinion by Goethals, J., with Bedsworth, J., Aronson, J. Matter remanded for a new hearing on appellant’s motion to disclose juror identifying information. Trial court erred by denying appellant’s motion based on mistaken belief trial counsel was required to provide 20 days notice. (I) SDS

Harris, Donna — People v. Bedolla, G056166 — Penal Code Section 1473.7 — Sheila F. Hanson, Judge — Opinion by Aronson, J., with Bedsworth, J., Fybel, J. Because appellant’s initial motion under Penal Code section 1474.7 was heard without the benefit of subsequent amendments to that law, matter remanded for appellant to show he is entitled to relief on grounds available under the amended law. (I) MCR

O’Connor, Sheila — People v. Navarro, G056410 — Fines/Fees — Michael J. Cassidy, Judge — Opinion by O’Leary, P.J., with Thompson, J., Goethals, J. Attorney General agreed that the court operation assessment and the conviction assessment should be reversed because they were imposed without a hearing regarding appellant’s ability to pay. Court of Appeal reversed those two assessments. (I) MCR

Bjerkhoel, Alissa — People v. Catalan-Araneda, G056484 — Restitution Hearing — Julian W. Bailey, Judge — Opinion by Thompson, J., with Aronson, J., Ikola, J. Matter remanded for a new restitution hearing because trial court erred and violated appellant’s constitutional and statutory rights to be present when it held a hearing without appellant or his attorney present and without a waiver of appellant’s presence. (I) SDS

Miller, Gerald — People v. Andrade, G056497 — Proposition 57 — Gregg L. Prickett, Judge — Opinion by Aronson, J., with Bedsworth, J., Moore, J. In this People’s appeal, the Court of Appeal affirmed the trial court’s order transferring the matter to juvenile court for a fitness hearing under Proposition 57. The judgment in this case was not final when the new law became effective because appellant had been granted habeas relief, vacating his sentence. (I) SDS

Behravesh, Justin — People v. Jacobs, G056578 — Suppression of Evidence — Robert Fitzgerald, Judge — Opinion by Ikola, J., with Bedsworth, J., Moore, J. After his suppression motion was denied, appellant pleaded guilty to unlawful possession of a firearm and ammunition. Appellant was homeless and came out of the forest to ask nearby residents for food. One resident called the police who approached and detained appellant, who then said he had a gun in his pocket. Court of Appeal agreed there was no probable cause for the detention and ruled the gun and ammunition were the fruit of the poisonous tree. Matter remanded for trial court to suppress evidence obtained as a result of the unlawful detention and give appellant the opportunity to withdraw his guilty plea. (A) ABM

Larson, Eric — In re Andrew Vu, G056590 — Chiu Error — Francisco P. Briseno, Judge — Opinion by Goethals, J., with O’Leary, P.J., Bedsworth, J. The Court of Appeal agreed that two of the four theories upon which appellant was tried for first degree murder were invalid under People v. Chiu (2014) 59 Cal.4th 155: 1) that appellant aided and abetted the target crime of assault with a firearm and murder was a natural and probable consequence; and 2) that appellant conspired to commit the same target crime and murder was a natural and probable consequence. (Note, Chiu’s proscription extends to conspiracy under In re Lopez (2016) 246 Cal.App.4th 350.) Because the jury rendered a “not true” finding on the gang special circumstance attached to the murder count, it necessarily also apparently concluded appellant did not harbor a specific intent to kill. Therefore, the Court of Appeal could not be certain beyond a reasonable doubt that the erroneous instructions played no role in the jury’s guilt finding on the murder count. The first degree murder conviction is reversed and the matter remanded for the prosecution either to accept a second degree murder conviction or to retry appellant for first degree murder under theories that do not violate Chiu. (I) CBM

Siegel, Joshua — People v. Trujillo, G056609 — Pre-sentence Custody Credits — Gary S. Paer, Judge — Opinion by Moore, J., with Bedsworth, J., Thompson, J. Trial court erred in denying appellant pre-sentence conduct credit on the basis that he is serving an indeterminate sentence. Trial court ordered to correct credits to reflect an additional 225 days under Penal Code section 2933.1. (I) HSI

Brisbois, Patricia — People v. Flores, G056669 — Senate Bill 620— Gary S. Paer, Judge — Opinion by Bedsworth, J., with Aronson, J., Dunning, Ret. J. Remanded for hearing, in appellant’s presence, for trial court to exercise its discretion to strike one or both firearm-discharge enhancements. (I) PMI

Rosciam, Cathryn— People v. Guerrero, G056876 — Senate Bill 136 — David A. Hoffer, Judge — Opinion by Moore, J., with Fybel, J., Goethals, J. Sentence for two prison priors reversed and case remanded to trial court for re-sentencing. (I) JMK

Weinberg, Allen — People v. Ayache, G057132 — Proposition 57 — Sheila F. Hanson, Judge — Opinion by Aronson, J., with Bedsworth, J., Moore, J. In this People’s appeal, Court of Appeal affirmed trial court’s transfer of matter to juvenile court for a fitness hearing under Proposition 57. The judgment was not final in this case when the new law became effective because a re-sentencing was pending after relief was granted on habeas corpus under Miller v. Alabama (2012) 567 U.S. 460. (I) HCC

January 2020

Kreit, Alex — People v. Kratt, D073864 — Instructional Error — Harry M. Elias, Judge — Opinion by Irion, J., with McConnell, P.J., Benke, J. Appellant was convicted of burglary based upon the fact he triggered an alarm and was found inside a closed church 45 minutes afterwards. There were no signs of rummaging and a water bottle was found on a counter. Appellant told police he entered the church to get some tea and made other nonsensical statements.

After initial declaration of deadlock, the jury was sent back to further deliberate and then sent the following question: “If the defendant . . . filled a water bottle in the kitchen does that meet burden of proof for ‘intent’ . . . [?]” to which the court answered, “Yes.” The People on appeal conceded this was error, but argued it was harmless. The Court of Appeal disagreed based on the state of the evidence and the fact the jury was deadlocked prior to the response. (I) HCC

Staley, John — People v. Jennings, D074352, (2019) 42 Cal.App.5th 664 — Insufficient Evidence/Jury Instructions/Senate Bill 136 — Michael S. Groch, Judge — Opinion by Haller, J., with Huffman, J., Guerrero, J. Appellant was convicted of burglary and it was found that he had suffered a prison prior. The Court held that because appellant’s conviction involved entering a commercial establishment to commit larceny during business hours, the prosecution was required to prove that the property he intended to take exceeded $950. Because the prosecution did not present any evidence of the value of the property appellant intended to take, there is insufficient evidence to support appellant’s burglary conviction. The trial court also erred by failing to instruct the jury sua sponte that it must determine whether the value of the property involved exceeded $950. Finally, appellant’s prison prior must be stricken under Senate Bill 136, since his case was not final when the new law passed. Appellant’s burglary conviction and prison prior are reversed and the case is remanded for resentencing. (I) LKH

Cannon, Gregory — People v. Meier, D074589 — Senate Bill 1393/Mental Health Diversion — David M. Gill, Judge — Opinion by Aaron, J. with McConnell, P.J., O’Rourke, J. Reversed and remanded for re-sentencing to allow the trial court to exercise its discretion in deciding whether to: (1) strike a prior serious felony enhancement under Senate Bill 1393, and (2) grant mental health diversion under Penal Code section 1001.36. (I) AMJ

The Supreme Court has granted review (S259175); further action in this matter is deferred pending consideration and disposition of related issue in People v. Frahs (S252220).

Kent, Jill — People v. Mancera, D074636 — Probation Conditions — Dwayne K. Moring, Judge — Opinion by Haller, J., with Huffman, J., Irion, J. Electronic search condition is stricken in light of In re Ricardo P. (2019) 7 Cal.5th 1113 because there is an insufficient basis for finding the condition is reasonably related to future criminality. (S) JMK

Rudasill, Denise — People v. Caldwell, D074753 — Senate Bill 1393 — Laura W. Halgren, Judge — Opinion by Irion, J., with Haller, J., Aaron, J. Case remanded for trial court to use its discretion under Senate Bill 1393 to consider striking the five-year term imposed based on a serious felony prior. (I) ABM

Donaldson, Britton — In re JaLnn H., D074832 — Probation Conditions — Ana L. Espana, Judge — Opinion by McConnell, P.J., with Benke, J., Huffman, J. Court of Appeal agreed that a probation condition requiring appellant to “report all law enforcement contacts” to the probation officer is unconstitutionally vague on its face with regard to the term “contacts.” The matter was remanded to the juvenile court to either modify or strike the reporting condition. (A) HSI

Polsky, David — People v. Anthony Eredia, D075170 — Senate Bill 1391 — Steven Counelis, Judge — Opinion by Huffman, J., with Irion, J., Aaron, J. Where appellant was 15 years old at time of homicide, Court of Appeal remanded with directions to trial court to return matter to juvenile court for disposition under Senate Bill 1391, which applies retroactively to non-final judgments. (I) SDS

O’Connor, Sheila — People v. Webb, D075699 — Fines/Fees — Albert Harutunian III, Judge — Opinion by Huffman, J., with McConnell, P.J., O’Rourke, J. The portion of the judgment imposing fines, fees, and assessments is vacated. Case remanded to trial court with directions to conduct a new hearing on appellant’s ability to pay in light of People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019 (S257844). (I) LAR

Jones, Cynthia — People v. Magallon, E069524 — Mental Heath Diversion/Senate Bill 1393/Prison Prior — Bernard Schwartz, Judge — Opinion by Raphael, J., with Miller, J. , Codrington, J. Court of Appeal held that one of appellant’s prison priors should have been stricken rather than imposed and stayed because the underlying conviction had already been used to support a serious felony prior enhancement (this opinion issued in May of 2019, prior to Senate Bill 136, which might now invalidate the prison prior altogether). Moreover, appellant is eligible for remand under Senate Bill 1393 to allow the trial court to exercise its discretion over whether to strike any of his serious felony priors. Finally, the Court of Appeal found that appellant is eligible to be considered for mental health diversion under Penal Code section 1001.36. Both Senate Bill 1393 and Penal Code section 1001.36 apply retroactively because appellant’s judgment was not final when the new laws came into effect.

The case is remanded to conduct a mental health diversion hearing. If appellant is found ineligible for diversion, the trial court is then directed to consider whether to dismiss his serious felony priors and to strike (rather than stay) any prison prior that cannot be applied to the new sentence. (I) HSI

The Supreme Court has granted review (S256647); further action in this matter is deferred pending consideration and disposition of related issue in People v. Frahs, (S252220).

Hart, Mark Alan — People v. Morasch, E069759 — Pre-sentence Credit — Elaine M. Kiefer, Judge — Opinion by Fields, J., with Ramirez, P.J., McKinster, J. Where appellant is first arrested and placed in custody in Sacramento before being brought to Riverside for trial, pre-sentence custody credit award must include these initial days spent in custody in Sacramento. Attorney General conceded error, and Court of Appeal agreed. (I) CBM

Kington, Benjamin — People v. Henderson, E070253 — Senate Bill 1393 — William Jefferson Powell IV, Judge — Opinion by Fields, J., with Ramirez, P.J., Miller, J. Matter remanded for sentencing court to consider its discretion to strike a prior serious felony enhancement pursuant to Senate Bill 1393, which became effective after sentencing. (I) NFA

Scott, Patricia A. — People v. Goodman, E070255 — Unauthorized Sentence — J. David Mazurek, Judge — Opinion by McKinster, J., with Miller, J., Slough, J. Because Penal Code section 288.7, subdivision (b), is not among the offenses specified for enhanced punishment within the scope of the One Strike Law (section 667.61, subd. (c)), both the jury’s findings and the trial court’s sentence - pursuant to section 667.71 - on three counts were contrary to law. Court of Appeal ordered true findings vacated and enhancements dismissed. (I) LAR

Reynolds, Eric — People v. Wehr, E070345, (2019) 41 Cal.App.5th 123 — Penal Code Section 1170.18 (Prop. 47) — Dan W. Detienne, Judge — Opinion by Menetrez, J., with Raphael, J., and Slough, J., concurring. Following the logic of People v. Page (2017) 3 Cal.5th 1175, and its interpretation of Proposition 47, the court ruled that the offense of receiving a stolen vehicle is a misdemeanor unless the People prove that the vehicle was worth $950 or more. Case remanded for reduction to a misdemeanor or retrial requiring proof of vehicle value. (A) ABM

The Supreme Court has granted review (S259233); further action in this matter is deferred pending consideration and disposition of related issue in People v. Orozco (S259233).

Lampkin, David P. — People v. Thomas, E070352 — Franklin Hearing — John M. Davis, Judge — Opinion by Miller, J., with McKinster, J., Slough, J. Case remanded to the trial court for the limited purpose of giving the parties an opportunity to supplement the record with information relevant to appellant’s youth offender parole hearing. (I) LAR

Johnson, Mark — People v. Saldivar, E070787 — Senate Bill 1393 — Mac R. Fisher, Judge — Opinion by Miller, J., with McKinster, J., Slough, J. Court of Appeal agreed that imposition of serious felony enhancement required remand for trial court to exercise its discretion to strike or impose. (I) HCC

Timbadia, Tasha — People v. Geer, E070812 — Mental Health Diversion — John M. Monterosso, Judge — Opinion by Codrington, J., with Fields, J., Raphael, J. Court of Appeal held that Penal Code section 1001.36 applies retroactively and remand would not be futile. Judgment conditionally reversed and matter remanded to allow the trial court to conduct a hearing to determine whether appellant is eligible for pretrial mental health diversion. (A) AMJ

The Supreme Court has granted review (S259742); further action in this matter is deferred pending consideration and disposition of related issue in People v. Frahs (S252220).

Melcher, William — People v. Fryhaat, E070847, (2019) 35 Cal.App.5th 969 — Penal Code 1473.7 — Gregory S. Tavill, Judge — Opinion by Codrington, J., with Ramirez, P.J., Fields, J. Attorney General conceded and Court of Appeal agreed that trial court erred in summarily denying appellant’s motion for relief under Penal Code section 1473.7 where that statute provides a right to a hearing on such motions. Further, the Court of Appeal rejected the Attorney General’s argument that appellant’s right to be present at such a hearing would be satisfied by a telephone or video-conference appearance. Instead, the Court of Appeal held that if a moving party cannot attend a hearing because he or she is in federal custody awaiting deportation, or for other good cause, the trial court should appoint counsel. Matter remanded with directions to evaluate request for appointment of counsel and hold a hearing in the presence of appellant or conflict free counsel. (I) SDS

Schechter, Aaron — People v. Rodriguez, E070987 — Fines and Fees — Samuel Diaz, Jr., Judge — Opinion by Miller, J., with Codrington, J., Slough, J. Based on the Attorney General’s concession, the Court of Appeal agreed that a remand for rehearing is appropriate and that the trial court should determine appellant’s ability to pay the court operations and facilities fees and the restitution fine. (I) HSI

Matsumoto, Ellen — People v. Estrada, E071086 — Senate Bill 1393 — Jorge C. Hernandez, Judge — Opinion by Ramirez, P.J., with Miller, J., Menetrez, J. Case is remanded so trial court can exercise discretion on whether to strike serious felony prior enhancement pursuant to Senate Bill 1393. (I) LKH

Brisbois, Patricia — People v. Maradiga, E071366 — Mandatory Consecutive Sentencing/Fines and Fees — L. Jackson Lucky IV, Judge — Opinion by Slough, J., with McKinster, J., Menetrez, J. Matter must be remanded for re-sentencing where trial court mistakenly believed three counts of violating Penal Code section 288.7 required full term and consecutive sentencing even though the offense is not listed for mandatory consecutive sentencing under Penal Code section 667.6. The Court of Appeal rejected the Attorney General’s argument that remand is unnecessary given the court’s other statements at sentencing. In addition, the $1500 pre-sentence confinement fee imposed under Penal Code section 1203.1c, subdivision (a), is unauthorized and must be stricken because appellant was sentenced to prison, not granted probation. (I) MCR

Adraktas, Stephanie — People v. Torres, E071632 — Senate Bill 180 — Ronald L. Taylor, Judge — Opinion by Codrington, J., with McKinster, J., Slough, J. Trial court ordered to strike the four three-year drug prior enhancements because they are no longer valid under Senate Bill 180. (I) PMI

Bases, Arielle — People v. Marks, E071665 — Senate Bill 136/Fines/Fees — Dean Benjamini, Judge — Opinion by Ramirez, P.J., with McKinster, J., Menetrez, J. Because Senate Bill 136 applies retroactively to appellant, three prison prior enhancements must be stricken. Matter remanded for re-sentencing where appellant may raise any issue related to ability to pay fines and fees. (I) HCC

Shudde, Athena — People v. Mejia, G052967, (2019) 40 Cal.App.5th 42 — Jury Instructions/ Senate Bill 1393/Sentencing Errors — John Conley, Judge — Opinion by O’Leary, P.J., with Ikola, J., and Bedsworth, J. dissenting. The Court of Appeal agreed with appellant’s argument that there is no principled reason for distinguishing between murder and attempted murder for the sake of allowing a finding of premeditation and deliberation to be based on the natural and probable consequences doctrine. Therefore, the finding in People v. Chiu (2014) 59 Cal.4th 155, which disallows such a finding in a murder case, applies equally in this attempted murder case. Because jury in this case was erroneously and prejudicially instructed they might find the attempted murder was premeditated and deliberate under the natural and probable consequences doctrine, the finding must be vacated and the matter remanded to give the prosecution an opportunity to try appellant on the special finding as a direct perpetrator.

In addition, on remand, the trial court must consider whether to impose or strike a serious felony prior enhancement under Senate Bill 1393 and correct the following sentencing errors: (1) imposition of a full 10-year sentence for a gun enhancement when the correct term is three years and four months; (2) miscalculation of the sentence on two counts resulting in the erroneous addition of two months. And the abstract of judgment must be corrected to: (1) reflect the oral pronouncement ordering five counts stayed under Penal Code section 654, not served concurrently as indicated on the abstract, and (2) delete a duplicative reference to a serious felony prior enhancement which was imposed only once (not twice). The minutes are also ordered corrected to reflect that the determinate sentence will be served first, followed by the indeterminate sentence. (I) LKH

The Supreme Court has granted review (S258796); further action in this matter is deferred pending consideration and disposition of related issues in People v. Lopez (S258175).

Peabody, Jennifer — People v. Gibson, G055843 — Insufficient Evidence/Pimping — Michael A. Leversen, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Aronson, J. Pimping conviction reversed for insufficient evidence where there was no evidence the alleged prostitute was successful in completing any sexual transactions or that she provided money to appellant. The court also ordered two counts stayed under Penal Code section 654 because they, along with another count for which appellant was sentenced, were part of a single course of assaultive conduct. (I) NFA

Schechter, Aaron J. — People v. Kubicksimmons, G056106 — Mental Health Diversion — Derek G. Johnson, Judge — Opinion by Ikola, J., with Moore, J., O’Leary, P.J., concurring in part and dissenting in part. Matter remanded because appellant is entitled to a hearing to prove her eligibility for mental health diversion pursuant to newly enacted Penal Code section 1001.36. The court found the ameliorative benefits of the statute apply retroactively to defendants whose judgements were not final when it became operative. (A) HSI

Conrad, Leslie — People v. Melton, G056217 — Competency Hearing — Gregg L. Prickett, Judge — Opinion by Moore, J., with Goethals, J., Thompson, J. Murder conviction reversed due to trial court error in finding a retrospective competency hearing was feasible after appellant’s conviction had been vacated in federal court based on his incompetence at a trial held over three decades earlier; on the unique facts of the case, no court could reliably conclude that appellant was mentally competent at the 1982 preliminary hearing, and thus, trial court erred in admitting testimony from that hearing against defendant at his second retrial. (I) SDS

Halka, Waldemar — People v. De La Riva, G056352 — Senate Bill 1393 — Richard M. King, Judge — Opinion by Ikola, J., with O’Leary, P.J., Bedsworth, J. Case remanded for trial court to exercise its discretion under Senate Bill 1393 to consider striking two serious felony prior enhancements. (I) ABM

Brandes, Elisa — People v. Montoya, G056429 — Senate Bill 1393 — Gary S. Paer, Judge — Opinion by Fybel, J., with Moore, P.J., and Goethals, J. Case remanded for trial court to exercise its discretion to consider striking a serious felony prior enhancement under Senate Bill 1393. Additionally, appellant is also due one missing day of pre-sentence custody credit. (I) ABM

Love, Christopher — People v. Lowry, G056523 — Mental Health Diversion/Senate Bill 1393 — Jonathan S. Fish, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Aronson, J. Court of Appeal conditionally reversed for appellant to get a mental health diversion hearing under Penal Code section 1001.36. Court ruled section 1001.36 was retroactive to cases not yet final on appeal at the time of enactment. If diversion is not granted, trial court should exercise discretion whether to impose or strike a five-year serious felony enhancement under Senate Bill 1393. (I) ABM

Owen, Thomas — People v. DeLaTorre, G056725 — Insufficient Evidence/Torture — Gary S. Paer, Judge — Opinion by O’Leary, P.J., with Moore, J., Aronson, J. Two counts of torture reversed for insufficient evidence that appellant harbored the specific intent to cause cruel and extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. (I) LAR

Marshall, Marilee — People v. Hernandez, G056728 — Senate Bill 1393/Fines/Fees — Patrick Donahue, Judge — Opinion by Moore, J., with Goethals, J., Thompson, J. Remand to allow the trial court to exercise its discretion to strike the prior serious felony enhancement pursuant to Senate Bill 1393. Appellant may raise the issue of fines and fees on remand. (I) HSI

O’Connor, Sheila — In re Jonathon L., G057016 — Probation Conditions — Bradley S. Erdosi, Judge — Opinion by Moore, J., with Thompson, J., Dunning (Ret.). Juvenile Court erred in imposing a gang registration condition of probation under Penal Code section 186.30 without making any finding that the minor’s crimes were gang related, as required under that statute. Matter is reversed and remanded for the juvenile court to make a finding regarding whether the crimes were gang related or to strike the gang registration condition. (I) NFA

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