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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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

January 2019

King, Nancy — People v. Cdebaca, D072031 — Senate Bill 620 — K. Michael Kirkman, Judge — Opinion by McConnell, P.J., with Benke, J., Guerrero, J. Attorney General conceded and Court of Appeal agreed that Senate Bill 620, which amended Penal Code section 12022.53 by adding subdivision (h), to allow courts discretion to strike or dismiss a gun enhancement in the interest of justice, applied retroactively to the case. Matter remanded for exercise of discretion. (I) AMJ

Klein, Jill M. — People v. Woldmskel, D072756 — Penal Code Section 654/Mental Health Diversion/Senate Bill 1393 — David M. Gill, Judge — Opinion by McConnell, P.J., with Benke, J., Aaron, J. Court of Appeal found that sentences for assault and false imprisonment should have been stayed under Penal Code section 654 because appellant committed them with the same criminal intent with which he committed the crime of inflicting corporal injury on a spouse, for which appellant was separately sentenced. The court also directed the sentencing court to consider Mental Health Diversion under newly enacted sections 1001.35 and 1001.36, and to exercise its newly enacted discretion to strike a prior serious felony enhancement under SB 1393. (I) NFA

Mazur, Janice R. — People v. Rodriguez, D072907 — Penal Code Section 1001.36/Senate Bill 1393 — Frederick Maguire, Judge — Opinion by McConnell, P.J., with Haller, J., Aaron, J. During the pendency of this appeal, two new laws went to effect: Penal Code section 1001.36, which makes certain defendants eligible for diversion based on mental health conditions, and Senate Bill 1393, which allows the trial court to dismiss a serious felony prior enhancement, which had previously been mandatory. Court of Appeal found that both new laws apply retroactively to this appellant and remanded for a diversion eligibility hearing. If appellant qualifies, then the court may grant diversion. If the court determines that appellant is not eligible for diversion, or if appellant does not successfully complete diversion, the court shall conduct a new sentencing hearing, at which it may exercise its discretion to impose or strike the five-year serious felony prior enhancement. (I) APJ

Klein, Jill M. — People v. Grajeda, D073096 — Right to Counsel/Presentence Credits/Senate Bill 620 — Stephan G. Saleson, Judge — Opinion by McConnell, P.J., with Irion, J., Guerrero, J. On appeal from a post-judgment resentencing order from the District Court, appellant argued (1) he was denied the right to counsel at the resentencing hearing; (2) his abstract of judgment still does not reflect the correct amount of presentence conduct credits; and (3) he is entitled to request the court to strike or dismiss his firearm enhancement under recently amended section 12022.53, subdivision (h). The Court of Appeal agreed with each contention. Accordingly, it remanded the matter to the trial court to hold a new sentencing hearing. (I) HSI

Stralla, Ava R. — People v. Hamlett, D073197 — Pitchess Motion — Sharon B. Majors-Lewis and Margie G. Woods, Judges — Opinion by Benke, J., with Haller, J., Aaron, J. Judgment of conviction conditionally reversed because appellant met his burden under Pitchess v. Superior Court (1974) 11 Cal.3d 531, requiring the court to review personnel files of two officers involved in appellant’s detention and arrest. Because the credibility of those officers was important to appellant’s suppression motion, which was denied before he pleaded guilty, the case must be remanded for an in camera review of the personnel files and possible re-hearing of the suppression motion in the event new information is provided to the defense. If the files contain no discoverable information, the judgment is to be reinstated. (I) APJ

Buckley, Christian — People v. Videl, D073238 — Unauthorized Sentence/Senate Bill 620 — K. Michael Kirkman, Judge — Opinion by Huffman, J., with McConnell, P.J., O’Rourke, J. Trial court incorrectly imposed two five-year enhancements (one for each serious prior felony) to each of three counts instead of adding 10 years to the total sentence. On remand, court is ordered to strike the Penal Code section 667, subdivision (a) enhancements attached to two counts, for a total reduction of 20 years. Additionally, because Senate Bill 620 applies to all nonfinal judgments, the case is remanded for resentencing to allow the trial court to exercise its discretion under Penal Code section 12022.53, subdivision (c). (I) LKH

Stralla, Ava — People v. Stutelberg, D073266, (2018) 29 Cal.App.5th 314 — Instructional Error — Leo Valentine, Jr., Judge — Opinion by Dato J., with Irion J., Guerrero J. Court of Appeal reversed assault with deadly weapon conviction because instructions allowed jury to convict appellant on a legally inapplicable theory - that a box cutter could be an inherently deadly weapon - and the error was not harmless in this case. (I) SDS

Gilbert, Jane L. — People v. Urrutia, D073399 — Probation Condition/Electronics Search Waiver — Evan P. Kirvin, Judge — Benke, J. with Huffman J., Haller, J. concurring in the result. Over objection, the court imposed a general Fourth Amendment waiver, including an electronic search term. Relying on its recent decision in People v. Acosta (2018) 20 Cal.App.5th 225, presently on review, the Court of Appeal directed the trial court to strike the electronics portion of the Fourth Amendment Waiver because nothing in the record supported the additional intrusion into appellant’s privacy rights. The court joins other courts that have found the electronic search condition not applicable when the facts and circumstances show no basis for concluding that such a condition would actually prevent the defendant from committing any future crimes. (I) PMI

Popper, Jamie — People v. Arriola, D073852 — Senate Bill 620 — Steven Malone, Judge — Opinion by Aaron, J. with Haller, J., O’Rourke, J. Court of Appeal remanded the case for resentencing to allow the trial court to exercise its discretion to dismiss a 25-years-to-life firearm enhancement under Senate Bill 620/Penal Code section 12022.53, subdivision (h), which applies retroactively to appellant. (I) LKH

Klein, Jill M. — People v. Ellison, D074036 — Senate Bill 620 — Bernard J. Schwartz, Judge — Opinion by Irion, J., with O’Rourke, J., Guerrero, J. The Court of Appeal agreed the matter should be remanded for resentencing to allow the trial court to exercise its discretion to strike the firearm use enhancement pursuant to Senate Bill 620/Penal Code section 12022.53, subdivision (h). (I) HSI

Holzer, William — People v. Arroyo, D074178 — Penal Code Section 654 — Charles J. Koosed, Judge — Opinion by Irion, J., with Nares, J., O’Rourke, J. The trial court erred in not staying the punishments for mayhem and burglary convictions. The mayhem conviction arose out of the same act or course of conduct that resulted in the attempted manslaughter conviction, and the record did not contain substantial evidence to support the trial court’s finding that defendant had multiple objectives. The burglary conviction arose out of the same act or course of conduct that resulted in both the attempted manslaughter conviction and the mayhem conviction in that the entry was for the purpose of committing the assault. Prison terms for those convictions ordered stayed. (I) AMJ

Bauguess, Susan — People v. Dean, D074700 — People’s Appeal of Granted New Trial Motion/Penal Code Section 1001.36 — Jeffrey E. Prevost, Judge — Opinion by McConnell, P.J., with O’Rourke, J., Dato, J. Court of Appeal affirmed trial court order granting defendant’s motion for new trial on the issue of sanity. The court rejected the People’s claim that the trial court erroneously considered evidence outside of the record when it commented on its familiarity with one of the two experts who testified. The Court of Appeal considered this an “innocuous remark” whereby the trial court was simply contrasting the testimony of one expert against the other expert’s with whom the court was unfamiliar. Based on all of the evidence of defendant’s bizarre conduct and the expert testimony, the Court of Appeal concluded the trial court acted within its discretion in granting the motion for new trial on sanity. The court conditionally affirmed the granting of a new sanity trial and also ordered, on remand with no judgment, the trial court to first consider Penal Code section 1001.36 diversion. If defendant succeeds on diversion, the case shall be dismissed; if not, the new sanity trial shall take place. (I) HCC

Swiller, Paul — In re M.B., D074772 — Indian Child Welfare Act (ICWA) — Michael Popkins, Judge — Opinion by Haller, J., with Nares, J., Dato, J., The child welfare agency failed to file the mandatory ICWA documents with the juvenile court. The child welfare agency conceded the issue, and the parties stipulated to reversal. (I) MAC

King, Nancy — People v. Derritt, E064152 — Penal Code Section 1170.18 (Prop. 47)/On Bail Enhancement — Mary E. Fuller, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J. After the primary offense supporting appellant’s on-bail enhancement was reduced to a misdemeanor pursuant to Proposition 47, appellant petitioned to vacate the two-year enhancement and then appealed the trial court’s denial. Following People v. Buycks (2018) 5 Cal.5th 857, the Court of Appeal remanded the case with directions to strike the two-year on-bail enhancement and recalculate the aggregate sentence. Because the underlying judgment was not final on remand from a separate appeal when the primary offense was reduced, appellant was entitled to retroactive relief via petition for writ of habeas corpus. Thus, the court exercised its discretion to treat the appeal as a petition for writ of habeas corpus, in light of the clear grounds for striking the on-bail enhancement and in the interest of judicial economy. (People v. Segura (2008) 44 Cal.4th 921, 928, fn. 4.) (I) CBM

Vorobyov, Gene D. — People v. Rodriguez, E066341 — Sentencing/Senate Bill 1393 — Ronald L. Taylor, Judge — Opinion by Ramirez, P.J., with Slough, J., Fields, J. Where the trial court expressed its intent to impose the low term for robbery, but was mistaken about the triad, sentence reduced to the actual low term on the principal count and one-third the actual mid-term for the subordinate consecutive term, without need for remand. In addition, the court erroneously imposed an aggravated armed principal enhancement, which applies only when the underlying offense is one of several specified drug offenses. Since the aggravated enhancement did not apply in this case, enhancement must be reduced to the one-year armed principal enhancement. Overall, sentence is reduced from 25 years, 8 months to 19 years. In addition, on remand, court should consider whether to dismiss the serious felony prior enhancement pursuant to SB 1393. (I) APJ

Staley, John — People v. Danna, E068406 — Restitution Remand — Bert L. Swift, Judge — Opinion by Ramirez, P.J., with Miller, J., Slough, J. Appellant argued that the trial court abused its discretion by ordering restitution without providing a clear statement of the calculation method used. Court of Appeal agreed that where the amount of restitution ordered was less than the loss claimed, but more that the amount requested by the People, the matter must be remanded for the court to set forth its method of calculation. (I) APJ

Ferguson, Susan — People v. Brown, E068477 — Penal Code Section 1170.18 (Prop. 47) — David Gunn, Judge — Opinion by Ramirez, P.J., with McKinster, J., Raphael, J. Trial court denied appellant’s Proposition 47 petition for resentencing because appellant had suffered a prior juvenile adjudication for assault with intent to commit mayhem or a sex offense, which the court found to be disqualifying both as a super strike and as an offense requiring sex-offender registration. However, because appellant was 15 at the time of the prior offense, the court erred in finding the prior to be a disqualifying super strike (a prior juvenile adjudication only qualifies as a serious and/or violent felony if the juvenile was 16 or older at the time.) Additionally, because appellant was required to register under Penal Code section 290.008, not section 290, the registration requirement was also not a disqualifying factor. The order denying the petition is reversed, and the case is remanded for further proceedings in accordance with Penal Code section 1170.18. (I) LKH

Schuck, John — People v. Garcia, E068490 — Senate Bill 1393 — John M. Tomberlin, Judge — Opinion by Fields, J., with Ramirez, P.J., Slough, J. Court of Appeal granted rehearing and remanded the matter to the trial court with directions to resentence appellant pursuant to SB 1393. The court determined that remand would not be futile because the record does not indicate that the court would not have dismissed or stricken the five-year prior had the court had the discretion to do so at the time it originally sentenced appellant. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110.) (I) CBM

Ferguson, Susan — People v. Arias, E069125 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Ramirez, P.J, with McKinster, J., Raphael, J. The trial court denied appellant’s motion to reduce his felony marijuana possession conviction to a misdemeanor because he was convicted of a crime requiring sex offender registration. Court of Appeal found no substantial evidence supported the disqualifying conviction where the People provided no documentation and simply recited a case number which “is not the ‘clear and convincing evidence’ the statute requires to overcome the presumption of eligibility.” Additionally, respondent conceded and the court agreed that appellant is eligible because he committed the disqualifying sex offense after he committed the marijuana offense. (I) PMI

Coffey, Marissa — In re E.W., E070964 — Indian Child Welfare Act (ICWA) — Annemarie G. Pace, Judge — Opinion by Fields, J., with McKinster, J., Raphael, J. The court issued a conditional reversal because the juvenile court failed to indicate whether or not ICWA applied. The court also failed to require the child welfare agency to fully carry out its duties of inquiry and notice. County counsel conceded a limited reversal was appropriate. (I) MAC

Ross, Morgan — In re E.W., E070964 — Indian Child Welfare Act (ICWA) — Annemarie G. Pace, Judge — Opinion by Fields, J., with McKinster, J., Raphael, J. The court issued a conditional reversal because the juvenile court failed to indicate whether or not ICWA applied. The court also failed to require the child welfare agency to fully carry out its duties of inquiry and notice. County counsel conceded a limited reversal was appropriate. (A) MAC

Norman, Jan B. — People v. Evans et al., G054445 — Probation Condition — William Lee Evans, Judge — Opinion by Moore, J., with Bedsworth, J., Fybel J. Appellant argued the probation condition requiring her to “stay away from places commonly used by [drug] sellers to congregate” was unconstitutionally vague. The Court of Appeal agreed and ordered the condition modified to say, “[s]tay away from places you know or reasonably should know to be commonly used by drug sellers to congregate.” The Court rejected respondent’s argument that knowledge was implied in the condition under People v. Hall (2017) 2 Cal.5th 494. (I) HSI

Klaif, Leonard J. — People v. Hanson, G054489 — Sufficiency of Evidence/Sentencing — Gary S. Paer, Judge — Opinion by O’Leary, P.J., with Ikola, J., Goethals, J. Appellant was convicted of burglary based upon his entry into the home of the victims to present them with a fake ring intended to cover up a prior theft. Court of Appeal reversed this burglary count for insufficient evidence as the theft had been completed well before the date when appellant went into victims’ home to give them the “new” ring; appellant formed the intent to steal after taking the victims’ money and old ring, which was long before he created a fake ring to avoid detection. Also, the special finding appellant committed a theft of an amount exceeding $100,000 as described in section 1203.045 was vacated. It was undisputed that none of the individual thefts, standing alone, exceeded $100,000. (I) LAR

Lampkin, David P. — People v. Wilhelm, G054574 —Senate Bill 620 — Thomas M. Goethals, Judge — Opinion by Moore, J., with Fybel, J., Thompson, J. Sentence vacated and remanded for resentencing for the limited purpose of allowing the trial court to consider whether the section 12022.53, subdivision (h) enhancement should be stricken or dismissed under section 1385. (I) PMI

Villanueva, Pauline E. — People v. Mora-Villalobos, G054809 — Probation Condition — Robert R. Fitzgerald, Judge — Opinion by Aronson, J., with Fybel, J., Ikola, J. Court of Appeal agreed with appellant that probation condition prohibiting him from associating with certain enumerated categories of people or those “otherwise disapproved of by probation or mandatory supervision” violates his right to association because the quoted language gives unlimited control to the mandatory supervision officer. Condition modified by striking the quoted language. (A) APJ

Mazur, Janice R. — People v. Phan, G054884 — Insufficient Evidence — Michael F. Murray, Judge — Opinion by Goethals, J., with O’Leary, P.J., Ikola, J. Conviction of domestic violence battery reduced to simple battery where evidence showed appellant yelled at a female passenger in his vehicle before she entered a store, then yelled at her some more when she came back, and yanked her hair or her ear towards the car’s console. No evidence was presented as to the relationship between appellant and the woman. Attorney General conceded the evidence was insufficient and suggested the reduction to simple battery. (I) APJ

Melcher, William — People v. Berch, G055344, (2018) 29 Cal.App.5th 966 — Mandatory Supervision Revocation/Jurisdiction — Edward W. Hall, Judge — Opinion by Fybel, J., with Aronson, J., Thompson, J. Over appellant’s objection to having a commissioner preside over his preliminary and final parole revocation hearings the commissioner revoked defendant’s parole and committed him to 120 days in jail. Court of Appeal reversed, noting that while Government Code section 71622.5 authorizes commissioners to conduct parole revocation hearings as a necessary part of the implementation of the Criminal Justice Realignment Act of 2011, article VI, sections 21 and 22 of the California Constitution limits commissioners to the performance of “subordinate judicial duties” in the absence of a stipulation by the parties. The Court of Appeal held that revoking parole and committing a defendant to jail for violation of parole are not subordinate judicial duties that may be performed by a commissioner in the absence of a stipulation by the parties. Because defendant did not stipulate to the commissioner revoking his parole and committing him to jail, the postjudgment order must be reversed. (A) HCC

Lee, Konrad — In re Richard F., G056116 — Welfare and Institutions Code Section 388 Petition — Caryl A. Lee , Judge — Opinion by Bedsworth, J., with Aronson, J., Goethals, J. Before Richard F. turned 18, his guardian, H.N., petitioned under Welfare and Institutions Code section 388 to have Richard’s guardianship terminated and his dependency case reopened. H.N. argued that if Richard was once more placed in foster care, he would be eligible for funds available for nonminor dependents. The juvenile court denied H.N.’s section 388 petition and while the appeal was pending, Richard turned 18. The Court of Appeal held that even though Richard reached the age of majority during the appeal, the matter was not moot. The Court also reversed the denial of H.N.’s section 388 petition because the juvenile court did not properly consider whether H.N. had demonstrated sufficiently changed circumstances to warrant terminating the guardianship and whether doing so would serve Richard’s best interest. (I) LMF

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