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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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

September 2019

Annicchiarico, David — People v. Thurnan, D072678 — Senate Bill 1393/Custody Credits — Amalia Meza, Judge — Opinion by O’Rourke, J., with Irion, J., Benke, J. The Court of Appeal remanded to the trail court to recalculate appellant’s custody credit and exercise sentencing discretion under SB 1393. (I) HSI

The Supreme Court has granted review of a separate issue (S255134); further action in this matter is deferred pending consideration and disposition of issues in People v. Aledamat (S248105).

Ferguson, Rachel — People v. Ross, D072874 — Ineffective Assistance of Counsel/Penal Code Section 1170.18 (Prop. 47) — Evan Kirvin, Judge — Opinion by Huffman, J., with Aaron, J., McConnell, P.J. Trial counsel was ineffective for failing to investigate and determine that appellant’s prior conviction for receiving stolen property should be reduced to a misdemeanor so that it could not be used to enhance appellant’s sentence as a prison prior enhancement in the current case. Counsel sought and obtained relief for client by filing a petition for writ of habeas corpus in the trial court after it was denied in the Court of Appeal without prejudice to filing in superior court. (A) HSI

Scott, Patricia — People v. Ordaz, D072977 — Fines and Fees — Patrick Magers, Judge — Opinion by Aaron, J., with McConnell, P.J., O’Rourke, J. The trial court erred in calculating appellant’s court operations fee and criminal conviction fee. Penal Code section 1465.8 requires a court operations fee of $40 per conviction and Government Code section 70373 requires a $30 criminal conviction fee per conviction. Because appellant suffered 10 convictions, the court operations fee should be $400 and the criminal conviction fee should be $300, rather than the $440 and $330 that had been ordered. The trial court is to prepare an amended abstract of judgment reflecting the modified fees. (I) LKH

King, Nancy J. — People v. Gutierrez, D073103 — Senate Bill 1393 — Patricia K. Cookson, Judge — Opinion by Haller, J., with Dato, J., Benke, J., concurring in part. Matter was remanded only for resentencing, pursuant to SB 1393, to allow the court to consider whether to exercise discretion to strike appellant’s prior serious felony enhancement. (I) LAR

Weis, Lizabeth M. — People v. Garcia, D073393 — Senate Bill 1393 — Kenneth K. So, Judge — Opinion by Aaron, J., with McConnell, P.J., Nares, J. Matter remanded for resentencing to allow the trial court to consider whether to exercise its discretion to strike appellant’s prior serious felony enhancement. (I) LAR

Kent, Jill — People v. Rivera, D073575 — Penal Code Section 1170.18 (Prop. 47)/Senate Bill 1393 — Harry M. Elias, Judge — Opinion by McConnell, P.J., with Nares, J., Irion, J. Where jury instructions allowed jury to find appellant guilty of violating Vehicle Code section 10851, subdivision (a), based on a theory of theft and did not require the jury to find that the value of the vehicle was over $950, matter is remanded to allow the People an opportunity to retry appellant for a felony violation or to accept a reduction of the existing conviction to a misdemeanor. Re-sentencing also ordered for the trial court to consider whether to exercise its newly acquired discretion to strike punishment for the prior serious felony conviction finding. (S) JMK

Ball, Lindsey — People v. Harmon aka Miller, D073975 — Certificate of Probable Cause/Penal Code Section 1170.18 (Prop. 47) — K. Michael Kirkman, Judge — Opinion by McConnell, P.J., with Benke, J., Aaron, J. Court of Appeal agreed that appellant’s guilty plea conviction of burglary must be reduced to misdemeanor shoplifting and no certificate of probable cause was needed because this was a sentencing issue and did not affect the validity of the plea. (I) HCC The Supreme Court has granted review of a separate issue (S257061); further action in this matter is deferred pending consideration and disposition of issues in People v. Jimenez (S249397).

Auwarter, Neil — People v. Mao, D074093 — Probation Conditions — Timothy R. Walsh, Judge — Opinion by Huffman, J., with O’Rourke, J., Dato, J. Appellant, a father of school-aged children, was convicted of possessing a concealed firearm in a vehicle and placed on probation. The Court of Appeal struck, as unreasonable, two probation conditions banning the father from school grounds and from courthouses. (S) NFA

Villanueva, Pauline — In re Cassandra G., D074226 — Probation Condition — Aaron Katz, Judge — Opinion by Aaron, J., with Haller, J., Dato, J. Following People v. Relkin (2016) 6 Cal.App.5th 1188, the Court of Appeal found the probation condition requiring appellant to “report all law enforcement contacts to the Probation Officer within three calendar days” to be unconstitutionally vague. The condition did not give appellant, a minor, sufficient notice as to which types of contacts with law enforcement she is required to report. Case remanded to the trial court to either strike or clarify the scope of the condition. (A) CBM

Coolman, Alex — People v. Mendez, D074664 — Senate Bill 1393/Fines and Fees — Sim von Kalinowski, Judge — Opinion by Irion, J., with McConnell, P.J., Aaron, J. Court of Appeal remanded for re-sentencing to allow the trial court to exercise its discretion whether to dismiss the enhancement for appellant’s serious felony prior. At resentencing, appellant may also argue inability to pay fines and assessments under Dueñas. (I) LKH

Stevenson, Theresa — People v. Chaidez, D074872 — Penal Code Section 1170.126 (Prop. 36)/Senate Bill 1393 —Melinda Lasater, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. Trial court erred in denying appellant’s Prop. 36 petition based on the erroneous belief that because appellant was convicted of two serious felonies, he was not eligible for relief with respect to two non-serious felonies. Matter remanded for court to reconsider re-sentencing under Prop. 36. If court decides to re-sentence, court may also consider dismissing serious felony prior enhancement under SB 1393. (I) HCC

Popper, Jamie — People v. Baumgartner, D075102 — Senate Bill 620 — Harold T. Wilson, Judge — Opinion by Aaron, J. with McConnell, P.J., O’Rourke, J. Sentence must be vacated and the matter remanded for re-sentencing to permit the trial court to exercise its discretion to determine whether to strike or dismiss the firearm enhancements in light of SB 620. (I) PMI

Klein, Jill M. — People v. Perzabal, D075131 — Miranda Violation — Victoria E. Cameron and Otis Sterling III, Judges — Opinion by Haller, J., with Benke, J., Dato, J. Court of Appeal agreed that appellant’s statements were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436, when police continued to question appellant without the required advisements even after the interrogation became custodial. Referencing its own opinion in People v. Saldana (2018) 19 Cal.App.5th 432, 457, the court noted that while the interview in appellant’s own home did not start out as custodial, it became custodial when officers shifted from “rapport-building, open-ended questions to an ‘unrelenting number of accusatory questions.’” The admission of appellant’s statements was prejudicial because the case was close (“he said, she said”), Doe’s disclosures were delayed and changed over time; appellant presented a strong defense case; prosecutor stressed appellant’s statements in argument; jury deliberations were lengthy; and jury convicted appellant only on the counts partially corroborated by his statements. (I) APJ

Multhap, Eric S./Robertson, Thomas E. — People v. Shelman/Tuggle, D075365 — Senate Bill 620 — J. David Mazurek, Judge — Opinion by Haller, J., with Irion, J., Dato, J. Case remanded for the limited purpose of trial court determining whether or not to strike the firearm enhancement pursuant to SB 620. (I) LAR

Buckley, Christian — People v. Cortez, D075374 — Abstract of Judgment — Ronald M. Christianson, Judge — Opinion by Haller, with Irion. J., Dato, J. Abstract of Judgment ordered corrected to strike firearm enhancements that were never found true by the jury, to reflect a gang enhancement rather than the gang substantive offense, to delete a determinate term of 25 years, and to specify the gun enhancement imposed. (I) CBM

Capriola, William— People v. Sexton, D075380, (2019) 37 Cal.App.5th 457 — Senate Bill 1393 — Elaine M. Kiefer, Judge — Opinion by Dato, J., with McConnell, P.J., Aaron, J. Remanded to allow court discretion to strike prior serious felony enhancements. (I) HCC

Hinkle, Stephen — People v. Brimmer, D075533 — Senate Bill 1393 — Jorge Hernandez, Judge — Opinion by Nares, J., with O’Rourke, J., Irion, J. Remanded to allow court discretion to strike serious felony prior enhancements. (I) PMI The Supreme Court has granted review of a separate issue (S257184); further action in this matter is deferred pending consideration and disposition in People v. Frahs (S252220).

Schwartzberg, Richard — People v. Mascio, D075553 — Penal Code Section 1001.36/Clerical Error — Steven G. Counelis, Judge, Judge — Opinion by Nares, J., with Aaron, J., Dato, J. The court found that appellant may be eligible for the newly created pretrial diversion program for defendants with a qualifying mental disorder (Pen. Code, § 1001.36, subds. (a) & (b)(1)). Appellant’s judgment was not final on appeal at the time the law became effective and his case potentially meets the threshold for diversion, so remand is required to determine appellant’s eligibility. The minute order should also be corrected to comport with the oral pronouncement dismissing both counts 2 and 3. (I) LKH

Brisbois, Patrica — People v. Castrellon, E065592 — Senate Bill 620 — Mary E. Fuller, Judge — Opinion by Ramirez, P. J., with Slough, J., Fields, J. The matter was remanded with directions to consider whether to strike any or all of the firearm enhancements. (I) HCC

Bjerkhoel, Alissa — People v. Carattini — Battered Women’s Shelter Fee — Elia J. Pirozzi, Judge — Opinion by Fields, J., with Miller, J., Raphael, J. Although appellant was charged with corporal injury on a co-inhabitant, he pleaded guilty to assault with force likely to produce great bodily. The court’s imposition of a $500 battered women’s shelter fee was therefore not authorized. Matter is remanded with directions to strike the fee. (I) HCC

Lathrop, Stephen — People v. Brito, E070867 — Senate Bill 1393/Custody Credits — Jeffrey Prevost, Judge — Opinion by McKinster, J., with Fields, J., Raphael, J. Matter remanded to the trial court to exercise its discretion pursuant to the recently enacted SB1393 to determine whether to strike the prior serious felony prior enhancement. In addition, the judgment must be modified to award additional days of presentence custody credits and that the abstract of judgment must be modified to correctly reflect the sentence. (I) HCC

Somers, Robert F. — People v. Tyler, E071094 — Sentencing — Jorge C. Hernandez, Judge — Opinion by Ramirez, P.J., with Slough, J., Fields, J. The trial court imposed consecutive sentences for two offenses that came out of the same set of facts. Because trial court stated that it wanted to impose “the bare minimum,” the Court of Appeal determined that the trial court was unaware of its discretion to impose concurrent sentences, and any failure to exercise discretion is an abuse of discretion. The Court of Appeal affirmed in part, reversed in part, and remanded with directions. (A) HSI

Kraus, Paul — In re A.P., E071220 — Probation Conditions — Winston S. Keh, Judge — Opinion by Miller, J., with Fields, J., Raphael, J. The court held the electronic search condition was unreasonable under People v. Lent. (A) HCC

Schuck, John F. — People v. McGhee, E071574 — Conduct Credits — Patrick L. Christianson, Judge — Opinion by Fields, J., with Miller, J., Raphael, J. Attorney General conceded and Court of Appeal agreed that trial court erred in refusing to calculate and award conduct credits after parole was revoked and custody time imposed. Since parties agreed about the correct number of credits due, Court of Appeal ordered the minute order corrected to include 10 days of conduct credit. (I) APJ

Stafford, Victoria — People v. Gonzalez, G055245 — Senate Bill 620/Senate Bill 1393 — Kim Menninger, Judge — Opinion by Goethals, J., with Bedsworth, J., Aronson, J. Remanded for sentencing court to consider its SB 620 discretion to strike gun use enhancement and SB 1393 discretion to strike a prior serious felony enhancement, and to make the record clear it considered its Romero discretion to strike a prior felony strike. (I) NFA

Ferrentino, Correen — People v. Rodriguez, G055741 — Senate Bill 1393 — Kathleen E. Roberts, Judge — Opinion by Moore, J., with Bedsworth, J., Thompson, J. Attorney General conceded, and Court of Appeal agreed, case should be remanded so the court could exercise its newly granted discretion to dismiss appellant’s serious felony prior enhancement. (I) CBM

Harris, Donna L. — People v. Jordan, G055765 — Evidence — Beatriz M. Gordon, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Aronson, J. Court found it was reasonably probable appellant would have obtained a more favorable result had the erroneously admitted evidence of co-defendant’s prior burglary (appellant not involved) been excluded from his trial. (I) LAR

Beckham, Sylvia — People v. Hernandez, G056051— Improper Limitation of Cross-Examination — Gregg L. Prickett, Judge — Opinion by O’Leary, P.J., with Moore, J., Goethels, J. The court’s ruling precluding cross-examination of the victim about his interest in a U-Visa (given to crime victims) impermissibly prevented a full picture of the victim’s potential bias. Because the victim told a significantly different story than appellant’s version of events, this error cannot be deemed harmless. (I) PMI

Siegel, Joshua — People v. Munoz, G056052 — AIDS Testing — Jonathan S. Fish, Judge — Opinion by Thompson, J., with O’Leary, P.J., Moore, J., concurring. Because there was no probable cause determination that the crime involved the transfer of bodily fluids, the order requiring appellant to submit to testing for AIDS per Penal Code section 1202.1 is vacated. Matter remanded to allow prosecution to request a hearing. (I) PMI

Nordin, Ken — People v. Rojas-Chavez, G056057 — Order of Testimony — John Conley, Judge — Opinion by Moore, J., with Fybel, J., Ikola, J. Convictions of conspiracy to commit robbery and attempted robbery reversed because trial court ordered appellant to begin his defense before the prosecution had rested because the victim was temporarily unavailable to testify due to illness. The victim testified after the defense had rested and the prosecutor pursued a line of questioning that was directly responsive to appellant’s testimony. The court reversed because the procedure prevented appellant from making a meaningful decision about whether to testify and gave the prosecution an unfair advantage. (I) DKR

Brines, Cindy — In re Gilberto A., G056319 — Insufficient Evidence — Douglas Hatchimonji, Judge — Opinion by Fybel, J., with O’Leary, P.J., Bedsworth, J. The juvenile court’s true finding that minor committed robbery was reversed for insufficient evidence and reduced to petty theft. Minor got upset when shop owner said they did not have the special type of dice minor wanted to buy. Minor cursed and pushed the owner. Then, on his way out of the store, minor grabbed some cigarettes. Because the evidence showed the intent to steal was formed after the use of force, a robbery true finding could not be sustained. (I) ABM

Somers, Robert F. — People v. McVey II, G056328 — Custody Credits — Sheila F. Hanson, Judge — O’Leary, P.J., with Moore, J., Goethals, J. Appellant was awarded 23 additional days of custody credit for time spent in residential rehabilitation programs. (I) LAR

Schechter, Aaron — People v. Graham, G056855 — Senate Bill 1393 — Jonathan S. Fish, Judge — Opinion by Ikola, J., with Fybel, J., Goethals, J. Remanded for the limited purpose of allowing the court to consider whether to dismiss the five-year prior serious felony enhancement pursuant to SB 1393. (I) PMI

Rosciam, Cathryn Lintvedt — People v. LaDuke, D072597, (2018) 30 Cal.App.5th 95 — Electronics Search Conditions of Probation — Blaine K. Bowman, Judge — Opinion by Huffman, J., with Nares, J., Aaron, J. The unpublished portion of the opinion struck as unreasonable the electronics search condition of probation. Despite the lack of a previous objection to the condition, the Court of Appeal chose to consider appellant’s unreasonableness challenge to forestall a later claim of ineffective assistance of counsel. (A) NFA

August 2019

Annicchiarico, David — People v. Thurman, D072678 — Senate Bill 1393/Credits — Amalia Meza, Judge — Opinion by O’Rourke, J., with Benke, J., Irion, J. Sentence is vacated and the matter is remanded to the trial court with directions to permit appellant to bring a motion to dismiss the serious felony prior enhancement in light of Senate Bill 1393, and to exercise its discretion as may be appropriate. The trial court is also directed to recalculate appellant’s presentence custody credits. (I) MCR

The Supreme Court has granted review (S255134) based upon a separate issue in this appeal; further action is deferred pending consideration and disposition in People v. Aledamat (S248105).

Aros, Christine M. — People v. Delano, D073240 — Drug Enhancement Sentence Error — Dwayne K. Moring, Judge — Opinion by O’Rourke, J., with Guerrero, J., Irion, J. Superior court lacked authority to stay lesser weight enhancements when it imposed a greater weight enhancement under Health and Safety Code section 11370.4. Matter remanded for superior court to exercise its discretion to impose or strike the previously stayed enhancements. (I) AMJ

The Supreme Court has granted review (S254249) based upon a separate issue in this appeal; further action is deferred pending consideration and disposition of In re Ricardo P. (S230923) and People v. Trujillo (S244650).

Kessler, Daniel — People v. Mitchell, D073263 — Senate Bill 1393 — Hernandez, Esteban, Judge — Opinion by Aaron, J., with O’Rourke, J., Guerrero, J. Case remanded for resentencing so that the trial court may consider whether to exercise its discretion to strike appellant’s two prior serious felony enhancements under Senate Bill 1393. Court rejected respondent’s argument that remand would be futile, finding that there is no clear indication the trial court would not have stricken the enhancements if authorized to do so. (I) AMJ

Ulibarri, Patricia — People v. Skorniak, D073299 — Restitution/Credits — Runston G. Maino, Judge — Opinion by Haller, J., with Irion, J., Dato, J. Because the San Diego Police Department was not a direct victim of appellant’s crime, judgment modified to strike the victim restitution award of $1,250 to pay for the sexual assault exam. Further appellant is entitled to an additional day of custody credit. (I) PMI

Johnson, Linnea — People v. Aguayo, D073304, (2019) 31 Cal.App.5th 758 — Penal Code Section 1001.36/Mental Health Diversion — Dwayne K. Moring, Judge — Opinion by Haller, J., with Irion, J., Dato, J. In the unpublished portion of its opinion, the court conditionally reversed the judgment and remanded with directions to conduct a diversion eligibility hearing under newly enacted Penal Code section 1001.36. (I) HCC

The Supreme Court as granted review based on a separate issue in this appeal (S254554); further action is deferred pending consideration and disposition of People v. Aledamat (S248105).

O’Connor, Sheila — People v. Michael Vasquez, D073703 — Criminal Protective Order — Theodore M. Weathers, Judge — Opinion by Dato, J., with Haller, J., Irion, J. Court of Appeal ordered the criminal protective order modified. The mother of two victims could not be included in the list of protected persons because she herself was not a victim of the crimes of which the defendant was convicted. Further, there was insufficient evidence in the factual basis of the plea that appellant committed extortion against the mother. Thus, the trial court thus lacked authority under Penal Code section 136.2, subdivision (i), to include her on the criminal protective order. (I) CBM

Bostwick, James — People v. Carter et al., D073865, (2019) 34 Cal.App.5th 831 — Sentencing/ Clerical Error — Shahla S. Sabet, Judge — Opinion by Guerrero, J., with Irion, J., Dato, J., concurring. Appellant Hall was originally sentenced to a total of 12 years: 11 years for voluntary manslaughter, a concurrent 2 years for attempted robbery, and a consecutive 1 year for a street gang firearm enhancement attached to the attempted robbery. In response to a letter from the Department of Corrections, the court corrected the sentence by imposing a one-year consecutive term for attempted robbery and a two year concurrent sentence for the enhancement. This sentence was unauthorized. Because the court ordered the attempted robbery sentence to be served consecutively, the enhancement must also be imposed consecutively. The Court of Appeal corrected the sentencing error by striking the term for the street-gang firearm enhancement. (I) LKH

Aros, Christine — People v. Torres, D073866 — Senate Bill 1393 — Marco Nunez, Judge — Opinion by Irion, J., with Nares, J., Dato, J. Case remanded for resentencing so trial court can exercise its discretion to strike the five-year enhancement for appellant’s prior serious felony conviction. (I) ABM

Young, Kent — People v. Minafee, D073982 — Probation Conditions — Polly H. Shamoon, Judge — Opinion by Benke, J., with Nares, J., Aaron, J. Electronic and cell phone search condition found unconstitutionally overbroad. Due to the large amount of unrelated data that can be held on a cell phone or other electronic device, and to comply with the constitutional requirement for a close fit between the purpose of the restriction and the burden it imposes on defendant, condition ordered modified to restrict searches to searches reasonably calculated to reveal material prohibited by law or evidence of illegal conduct, and to further define the areas of the phone or electronic media that can be searched, such as text messages and phone logs. In addition, gang conditions ordered stricken because nothing about the crime was gang-related, defendant had no prior gang-related convictions, he had no gang identification, there is no indication of criminality related to gang association and defendant’s age. Finally, requirement that appellant report “contacts” with law enforcement is unconstitutionally vague and the matter is remanded for trial court to either delete or further define and limit the type of contacts that must be reported. (A) AMJ

Buckley, Christian C. — People v. Barnhill, D073999 — Jury Misconduct — Lantz Lewis, Judge — Opinion by Nares, J., with McConnell, P.J., Irion, J. Where appellant’s motion for new trial included credible reports of jury misconduct, the trial court abused its discretion in not conducting an evidentiary hearing. Court of Appeal conditionally vacated the judgment and remanded to superior court with directions to conduct an evidentiary hearing on the subject of the reported jury misconduct. The trial court is further directed to permit appellant to file a motion for new trial on the grounds of jury misconduct within a reasonable time after the conclusion of the evidentiary hearing, should he so desire. (I) LAR

Rosciam, Cathryn — People v. James, D074013 — Dueñas Remand — David M. Gill, Judge — Opinion by McConnell, P.J., with Nares, J., Huffman, J., concurs in the result. Although counsel filed a Wende brief and had initially rejected the Dueñas issue because the probation report indicated appellant had some access to money, the court requested supplemental briefing on Dueñas. Counsel filed a supplemental brief as well as a request in the trial court to correct the fines/fees. The Court of Appeal remanded the case to the trial court “solely for the court to consider [appellant’s] pending informal request to correct the fines and fees imposed. . . .” (I) CBM

Traicoff, Kristin — People v. Pascual, D074100 — Dual Convictions — David G. Brown, Judge — Opinion by Nares, J., with McConnell, P.J., Aaron, J. Court of Appeal agreed that appellant’s convictions of grand theft and grand theft by embezzlement, based on the same conduct, constitute two convictions for a single offense. Therefore, one conviction must be vacated. Because the grand theft conviction is more commensurate with appellant’s culpability and the evidence, the embezzlement conviction is vacated. (A) APJ

The Supreme Court has granted review on a separate issue in this appeal (S256070); further action in this matter is deferred pending consideration and disposition of In re Ricardo P. (S230923) and People v. Trujillo (S244650).

Aros, Christina — In re Eddie P., D074294 — Overbroad Probation Condition — Aaron H. Katz, Judge — Opinion by Huffman, J., with McConnell, P.J., Haller, J. Court ordered probation conditions create a total and complete ban on minor’s use of social media. Agreeing with the court in In re L.O. (2018) 27 Cal.App.5th 706, the Court of Appeal here concluded a complete bar to all access to social media, without any ability for the probation officer to allow such use as would be beneficial, is an overbroad restriction on free speech. Court ordered probation conditions about the access to and use of social media modified by adding at the end of each one: “without the express permission of the probation officer.” (I) CBM

Cohen, Raquel — People v. Guthrie, D074321 — Penal Code Ssection 1001.36/Mental Health Diversion — Carlos O. Armour, Judge — Opinion by McConnell, P.J., with O’Rourke, J., Dato, J. Judgment reversed and remanded for mental health diversion eligibility determination and dismissal of charges upon completion if diversion is appropriate. (A) PMI

Aros, Christine — In re Eric M., D074491 — Juvenile Court Wobbler Offense — William D. Lehman, Judge — Opinion by Nares, J., with Benke, J., Huffman, J. Juvenile case remanded for court to make the determination whether the minor’s resisting arrest offense was a felony or misdemeanor under In re Manzy W. (1997) 14 Cal.4th 1199, 1204. (I) ABM

Cannon, Gregory L. — People v. Jacks, D074573 — Senate Bill 1393 — Ronald M. Christianson, Judge — Opinion by Benke, J., with McConnell, P.J., Irion, J. Remanded for trial court to exercise discretion whether to strike serious felony prior enhancements. Court of Appeal disagreed with the People that remand was not necessary based on the record. (I) AMJ

Aros, Christine — People v. Block, D074624 — Penal Code Section 654— Francis M. Devaney, Judge — Opinion by Huffman, J., with Haller, J., Dato, J. Appellant was convicted of attempting to take a vehicle and attempted petty theft based upon the same conduct. In addition, appellant was convicted of attempted petty theft and tampering with a vehicle based on the same separate conduct. Appellant received concurrent terms of 90 days on the attempted petty theft convictions. Court of Appeal agreed that those sentences were required to be stayed under Penal Code section 654 because the attempted thefts were based on the same conduct as separately punished offenses. The court chose to reach the issue despite mootness because otherwise section 654 issues regarding minor offenses will evade review. (I) JMK

Nall, Christopher — People v. Rios, D074698 — Insufficient Evidence/Penal Code Section 1001.36/Mental Health Diversion/Senate Bill 1393 — Jeffrey J. Prevost, Judge — Opinion by Guerrero, J., with McConnell, P.J., Huffman, J. The Court of Appeal agreed that the evidence did not support the trial court’s findings regarding appellant’s two prior prison terms, and the two newly-enacted statutes allowing mental health diversion and bestowing discretion to strike prior serious felony enhancements are retroactive and applicable. Matter remanded for further proceedings. (I) AMJ

The Supreme Court has granted review on the diversion issue (S255361); further action in this matter is pending consideration and disposition of the related issue in People v. Frahs (S252220).

Lathrop, Stephen — People v. Gonzalez, D075363 — Insufficient Evidence/Correction of Abstract/Senate Bill 1393 — Randall D. White, Judge — Opinion by Nares, J., with Benke, J., Huffman, J. The evidence was insufficient to support the court’s finding that appellant’s prior conviction for discharging a firearm with gross negligence qualified as a strike (which requires personal use). Matter remanded to permit People to retry the allegation. In addition, the trial court must to exercise its discretion as to whether to strike separate five-year prior serious felony enhancements under Senate Bill 1393. Finally, clerical errors in abstract must be corrected. (I) AMJ

LeRoy, Doris M. — People v. Modica, D075386 — Senate Bill 620 — Eric M. Nakata, Judge — Opinion by Nares, J., with McConnell, P.J., Irion, J. Court of Appeal agreed with appellant that it was not clear what the court would have done had it known it could dismiss the firearm enhancements in this case. Accordingly, matter remanded for court to exercise its discretion under Senate Bill 620. (I) APJ

Vento, Christine — People v. Canizales, S221958, (2019) 7 Cal.5th 591 — Murder Kill Zone — Steven A. Mapes, Judge — Opinion by Cantil-Sakauye, C.J., with Chin, J., Corrigan, J., Liu, J., Cuéllar, J., Kruger, J., Groban, J. The Supreme Court determined that a jury may convict a defendant under the kill zone theory only when the jury finds that: “(1) the circumstances of the defendant’s attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm . . . around the primary target; and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm.” Here, appellants Canizales and Windfield were jointly charged on counts of first degree murder and two attempted murders. The Court found that there was not sufficient evidence for kill zone theory instructions and “that the error requires reversal of the attempted murder convictions at issue because those convictions may have been based on the kill zone theory.” (I) NFA

Wrubel, Suzanne — People v. Covarrubias, E069051— Senate Bill 1393 — Jeffrey Prevost, Judge — Opinion by Miller, J., with McKinster, J., Raphael, J. concurring. Matter remanded for resentencing pursuant to Senate Bill 1393 so trial court can exercise its discretion to impose or strike serious felony prior enhancements. (I) LKH

The Supreme Court has granted review on a separate issue (S256360); further action in this matter is deferred pending consideration and disposition in People v. Aledamat (S248105).

Staley, John — People v. Boyd, E069343 — Penal Code Section 654/Clerical Error — David A. Gunn, Judge — Opinion by McKinster, J., with Miller, J., Raphael, J.. On resentencing after reduction of one count to a misdemeanor, the court erroneously failed to stay the sentence on one count pursuant to Penal Code section 654 as it had correctly done at the previous sentencing. The abstract of judgment also incorrectly indicates that appellant was convicted of assault with a deadly weapon rather than assault with force likely to cause great bodily injury. The judgment is modified to stay the sentence imposed on count 2 and the abstract of judgment is ordered corrected. (I) MCR

Paradis, Renee — People v. Rabanales, E069368 — Penal Code Section 17 — Debra Harris, Judge — Opinion by Fields, J., with Ramirez, P.J., Codrington, J. Where the trial court made ambiguous statements with regard to its authority to reduce a felony conviction to a misdemeanor pursuant to Penal Code section 17, subdivision (b), matter is remanded for court to properly exercise its discretion. (I) HCC

Klein, Jill M. — People v. Dudzinsky, E069417 — Penal Code Section 1001.36/Senate Bill 1393 — Debra Harris, Judge — Opinion by Raphael, J., with McKinster, J., Miller, J. Court of Appeal remanded the case for retroactive application of new law, Penal Code section 1001.36, which allows trial courts to consider mental health diversion to defendants with qualifying disorders that the court finds significantly contributed to the charged offense. Further, if, on remand, the trial court finds appellant does not qualify for diversion or if appellant is granted diversion but fails, trial court must consider dismissing two serious felony enhancements in light of new discretion under Senate Bill 1393. (I) APJ

The Supreme Court granted review on an unrelated issue (S255889); further action in this matter is deferred pending consideration and disposition in People v. Aledamat (S248105).

Cuny, Linda — People v. Collins, E069430 — Probation Condition — Mark E. Johnson, Judge — Opinion by Codrington, J., with Miller, J., Slough, J. Police contact reporting condition deemed vague and overbroad. By requiring that appellant report any contact with law enforcement, the condition fails to differentiate between casual contact unrelated to criminality and contact which might warrant further investigation. Matter remanded for modification of condition. (A) AMJ

The Supreme Court granted review on a separate issue (S253952); further action in this matter is deferred pending disposition and consideration of In re Ricardo P. (S230923) and People v. Trujillo (S244650).

Kross, Jeffrey — People v. Winn, E069635 — Senate Bill 1393 — Michael B. Donner, Judge — Opinion by Codrington, J., with Miller, J., Slough, J. The case is remanded so trial court can exercise its discretion to impose or strike appellant’s prior serious felony enhancement pursuant to Senate Bill 1393. (I) LKH

Lindsley, Kevin — People v. Montowine, E069822 — Insufficient Evidence — John D. Molloy, Judge — Opinion by McKinster, J., with Miller, J., Raphael, J. Appellant was convicted of selling methamphetamine, possessing methamphetamine while armed with a firearm, possession of a firearm by a felon, and possession of ammunition by a felon, all based on evidence she brokered a sale between two men of meth, guns and ammo. Appellant waited outside a residence while the sale was made and then collected a finder’s fee. The Court of Appeal reversed the latter three counts because there was insufficient evidence she did anything other than aid the sale. The seller already had possession of the meth, guns & ammo, and appellant did nothing to aid him in that possession; she only aided him in selling them. (A) NFA

Lampkin, David — People v. Angulo, E069943 — Senate Bill 1393 — Thomas E. Kelly, Judge — Opinion by McKinster, J., with Miller, J., Raphael, J. Matter remanded so that the trial court may exercise discretion to dismiss appellant’s prior serious felony enhancement pursuant to Senate Bill 1393. The court also observed that the trial court may have incorrectly double-counted the prison priors and the prior serious felony enhancements. The case is remanded for re-sentencing. (I) MCR

Schechter, Aaron — People v. Streeter et al., E069982 — Restitution Fine — Charles J. Umeda, Judge — Opinion by Fields, J., with Codrington, J., Raphael, J. With respect to appellant Streeter, restitution and parole revocation fines must be recalculated in light of the fact that trial court reduced one of the offenses to a misdemeanor but still counted it as a felony conviction when applying the statutory formula. (A) HCC

Holzer, William — People v. Streeter et al., E069982 — Insufficient Evidence — Charles J. Umeda, Judge — Opinion by Fields, J., with Codrington, J., Raphael, J. With respect to appellant Patterson, Court of Appeal found insufficient evidence supported appellant’s lone conviction for active participation in a street gang where he sat as a passenger in a vehicle during a police pursuit but did nothing to directly perpetrate or aid and abet felonious conduct by his co-defendant.Streeter. Judgment reversed. (I) HCC

Rusasill, Denise — People v. John, E070022, (2019) 36 Cal.App.5th 168 — Unlawful Plea Bargain — Dwight W. Moore, Judge — Opinion by McKinster, J., with Miller, J., Raphael, J. A plea of guilty cannot be combined with a plea of NGI to the same charges. Order denying appellant’s motion to withdraw plea reversed along with trial court’s approval of plea agreement and order committing defendant to Patton State Hospital. On remand, the defendant shall enter a new plea. (I) PMI

Polsky, David —People v. Johnson, E070242 — Senate Bill 1393 — Elaine M. Kiefer, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. Sentence reversed and remanded for the trial court to exercise its discretion with respect to whether to strike one or both of the prior serious felony conviction enhancements. (I) JMK

Bases, Arielle — People v. Quarker, E070332 — Mental Health Diversion — Michael A. Knish, Judge — Opinion by Codrington, J., with Fields, J., Raphael, J. Adopting the rationale of People v. Frahs (2018) 27 Cal.App.5th 784, review granted Dec. 27, 2018, S252220) and following In re Estrada (1965) 63 Cal.2d 740 principles, the Court of Appeal found the benefits of mental health diversion under Penal Code section 1001.36 apply retroactively. Although there was evidence in the appellate record that appellant may suffer from mental disorders, the appellate court declined to make a factual determination whether appellant had sufficiently demonstrated any of the eligibility factors. Judgement conditionally reversed and matter remanded for trial court to conduct a diversion eligibility hearing under section 1001.36. (I) CBM

The Supreme Court has granted review (S256412); further action in this matter is deferred pending consideration and disposition of related issues in People v. Frahs (S252220).

Smith, Barbara — People v. Anthony, E070519 — Correction to Abstract of Judgment —Lisa M. Rogan, Judge — Opinion by Ramirez, P.J., with Raphael, J., Menetrez, J. After the superior court failed to take sufficient corrective action, appellant contended, respondent conceded, and the Court of Appeal agreed and directed the trial court to correct the abstract of judgment to reflect a final prison term of 25 years to life on one count and three years concurrent on another, with no remaining time on counts reduced to misdemeanors under Proposition 47. (I) HCC

Sandoval, Tyrone — People v. Sanchez, E070718 — Senate Bill 1393 — Steve Malone, Judge — Opinion by Codrington, J., with Ramirez, P.J., Fields, J.. Appellant successfully argued that she is eligible for re-sentencing pursuant to Senate Bill 1393. Although appellant accepted a stipulated sentence at the time of her guilty plea, her plea agreement is deemed to incorporate subsequent changes in the law and she can therefore receive the benefits of Senate Bill 1393 without negating the validity of the plea. (People v. Hurlic (2018) 25 Cal.App.5th 50, 57.) The People conceded that Senate Bill 1393 applies to appellant’s case but argued that remand is not required. The matter is remanded so the trial court can exercise its discretion whether to strike appellant’s serious felony prior enhancement. (I) HSI

Davidson, Suzanne — In re P.H., E071322 — Juvenile Court’s Dismissal of Petition Affirmed — Matthew C. Perantoni — Opinion by McKinster, J., with Miller, J., Raphael, J. After updated medical evidence downgraded the initial diagnosis that the child suffered severe injuries and abuse, the court weighed the evidence, found the parents of minor were not the cause of injuries to the child, and dismissed the petition. In this appeal by the Department and the minor, Court of Appeal affirmed the juvenile court’s order. (I) MAC

Knight, Richard — In re Berlyn M. et al., E071923 — Conditional Reversal Based on the Indian Child Welfare Act (ICWA) — Annemarie G. Pace, Judge — Opinion by Raphael, J., with Ramirez, P.J., Menetrez, J. Mother argued that the juvenile court and the agency failed to investigate possible Indian history of the parents prior to the juvenile court’s findings that the ICWA did not apply. Based on the error, the case was conditionally reversed for compliance with the ICWA. (I) LLF

Gambale, Erica — In re E.P., G054375, (2019) 35 Cal.App.5th 792 — Insufficient Evidence — Lewis W. Clapp, Judge — Opinion by Aronson, J., with Fybel, J., Thompson, J. On remand from the Supreme Court in light of People v. Colbert (2019) 6 Cal.5th 596, Court of Appeal found that Colbert did not change its conclusion that minor committed a shoplifting and not a burglary when he stole items from the locker room of an ice-skating rink. There was insufficient evidence the locker room was “objectively identifiable as off-limits to the public” under Colbert. Furthermore, because the minor committed the offense of shoplifting rather than burglary, he could not also suffer a true finding for receiving stolen property; thus, true findings on receiving stolen property also reversed. (I) SDS

Harris, Donna L. — People v. Bolding, G055187, (2019) 34 Cal.App.5th 1037 — White Collar Crime Enhancement — Richard M. Kling, Judge — Opinion by Fybel, J., with O’Leary, P.J., Ikola, J. Court of Appeal agreed that five-year white collar crime enhancement must be reversed because appellant was not convicted of two or more related felonies, a material element of which is fraud or embezzlement, as the statute requires. Appellant was convicted of grand theft under an embezzlement theory, but the multiple convictions of money laundering did not require fraud or embezzlement, so there was no second qualifying offense. Sentence reduced by half. In addition, appellant is entitled to two additional days of pre-sentence custody credit because court’s calculation erroneously left out the day appellant was taken into custody. (I) APJ

Weis, Lizabeth — People v. Gonzales, G055328 — Senate Bill 1393 — Cheri T. Pham, Judge — Opinion by Moore, J., with Bedsworth, J., Thompson, J. Court remanded to trial court with directions to exercise its discretion whether to strike the four five-year serious felony enhancements pursuant to Senate Bill 1393. This was ordered even though the trial judge stated at sentencing that even if it had discretion to do so, the court would not dismiss the serious felony priors. (I) LAR

LeRoy, Doris — People v. Pena, G056070 — Proposition 57/Juveniles — John Conley, Judge — Opinion by O’Leary, P.J., with Fybel, J., Thompson, J. Appellant, age 17 at the time of the offenses, was charged directly in adult court and convicted of conspiracy to murder and other offenses. During appeal, Proposition 57 was enacted, eliminating direct filing in adult court against minors and requiring the prosecution seeking adult treatment to seek a transfer hearing in Juvenile Court to determine fitness for juvenile treatment. Since Proposition 57 was retroactively applicable to appellant’s non-final judgment, the Court of Appeal remanded to the Juvenile Court for a fitness hearing. (I) NFA

Crawford, James/Weinberg, Allen — People v. Ramirez et al., G056522, (2019) 35 Cal.App.5th 55 — Proposition 57/Juvenile Transfer — Gregg L. Prickett, Judge — Opinion by Aronson, J., with Bedsworth, J., Moore, J. After their original appeals from convictions of gang-related murder resulted in remands for resentencing, the trial court tranferred the matter to juvenile court because both appellants were juveniles when the murders were committed and Proposition 57 had been enacted between the time of remand and resentencing. The People appealed. In response to respondents’ argument that the appeal should be dismissed because there was no judgment after reversal of their sentences, the Court of Appeal determined that the transfer was appealable as an order after judgment affecting substantial rights, distinguishing a complete reversal, from a remand for resentencing which left the judgment intact. On the merits, the court rejected all of the People’s arguments and affirmed the transfer. The Court of Appeal rejected the argument that the transfer was beyond the scope of the remand for resentencing, concluding, “the trial court had jurisdiction to consider any and all factors that would affect sentencing.” The Court of Appeal also rejected the argument that transfer was improper because respondents had aged out of the system, finding that under the plain meaning of the statutory scheme, the age of the offender at the time of the offense was controlling. (I) HCC

July 2019

Haggerty, Edward — In re Dorval, D068961 — Penal Code Section 1170.18 (Prop. 47) — Laura W. Halgren, Judge — Opinion by Aaron, J., with Benke, J., O’Rourke, J. Under Proposition 47, appellant’s strike conviction for grand theft of a firearm was redesignated a misdemeanor. The Court of Appeal denied appellant’s request to dismiss the strike. The California Supreme Court granted review and transferred the case back to the Court of Appeal to reconsider after People v. Buycks (2018) 5 Cal.5th 857. The Attorney General conceded and the Court of Appeal construed appellant’s supplemental opening brief as a petition for writ of habeas corpus, granted relief, and vacated his sentence. It directed the trial court to dismiss appellant’s strike prior and to resentence him. (I) PMI

Schaefer, Laura — People v. Carr, D072834 — Senate Bill 620 — John Thompson Judge — Opinion by Benke, P.J., with O’Rourke, J., and Dato, J. Attorney General conceded and Court of Appeal agreed that new law, allowing trial court discretion to strike firearm enhancement, applies retroactively to this case. Matter remanded for trial court to consider exercising its discretion.. (I) LKH

Ferguson, Rachel — In re Ross, D072874 — Penal Code Section 1170.18 (Prop. 47) — Evan P. Kirvin, Judge – Opinion by Huffman, J., with McConnell, P.J., Aaron, J. Concurrent with his appeal, petition filed a petition for writ of habeas corpus in the Court of Appeal arguing that his prison prior enhancement must be stricken because the underlying felony should have been reduced to a misdemeanor pursuant to Proposition 47 prior to his sentencing and trial counsel was ineffective for not pursuing the reduction. After the Court of Appeal denied the petition without prejudice to refiling in superior court, petitioner then re-filed in the San Diego County Superior Court and the court issued an order to show cause. (A) HSI

Auwarter, Neil — People v. Leonard, D073397 — Realignment Sentencing — Christopher J. Plourd, Judge — Opinion by O’Rourke, J., with Nares, J., Guerrero, J. Appellant was serving a 6-year prison term when he committed and pleaded guilty to the current offense-- possessing methamphetamine in prison (§ 4573.6, subd. (a)). The sentencing court imposed a 3-year term for the new offense, fully consecutive as required by section 1170.1, subdivision (c), because it was an in-prison offense. The court also ordered this fully consecutive term be served in prison, despite the fact § 4573.6 is a ordinarily punishable by a term in county jail under Realignment. The sentencing court apparently relied on section 1170.1, subdivision (a), which mandates that where the term for a Realignment offense is imposed as a subordinate term consecutive to a prison term, the entire aggregate sentence must be served in prison.

Appellant argued, and the Court of Appeal agreed, that because a full-strength term imposed under section 1170.1, subdivision (c), is not subordinate, but is rather a new term that begins when the previous term ends, the aggregate sentence rule of section 1170.1, subdivision (a), does not apply. Accordingly, unless appellant has a prior offense disqualifying him from Realignment jail sentencing, the term for the new offense must be served in jail rather than prison. Further, the Realignment presumption of a “split sentence” with a period of release under mandatory supervision should also apply. Remanded for re-sentencing accordingly, unless the trial court determines appellant has a prior offense precluding Realignment jail sentencing. (S) NFA

Bewicke, Aurora — People v. Austin, D073523 — Parole Revocation — Lorna A. Alksne,, Judge — Dato, J., with Benke, J., Guerrero, J. A special condition of appellant’s parole restricted him from contacting the “crime victim(s)” in his underlying case, specified as “Lisa [H.] or Brent [M.].” A later order in the case sought to clarify “for any parole officer” that the “crime victim” in the case was Brent, not Lisa. Parole ignored that notation and filed a petition to revoke parole based on appellant’s contact with Lisa. At the revocation hearing, defense counsel argued that the condition was not reasonable, but the trial court found it did not have discretion to modify the parole condition.

The Court of Appeal found that trial counsel did, indeed, have discretion to modify an unreasonable or unconstitutionally vague probation condition and that the condition in this case was unconstitutionally vague given the circumstances. Matter is remanded for trial court to consider whether to modify the condition. (A) HCC

Stevenson, Theresa — People v. Bazile, D073920 — Penal Code section 654/Senate Bill 1393/Credits — Harry M. Elias, Judge — Opinion by Huffman, J., with Benke, J.,Guerrero, J. Appellant cannot serve sentences for both kidnaping and rape when the rape was the purpose of the kidnaping. Sentence for kidnaping must be stayed pursuant to Penal Code section 654. In addition, case must be remanded for trial court to consider striking five-year serious felony prior enhancements pursuant to Senate Bill 1392. Finally, minute and abstract of judgment must be corrected to reflect an additional day of presentence custody credit. (I) JMK

Garcia, Matthew — In re P.V., D074296 — Penal Code Section 954 — Aaron H. Katz, Judge — Opinion by O’Rourke, J., with Benke, J., Aaron, J. The juvenile court sustained allegations that the minor both imported methamphetamine into the state and transported methamphetamine, based on a single act of attempting to enter the United States from Mexico with methamphetamine wrapped to his torso. Court of Appeal found that the Legislature’s purpose in enacting Health and Safety Code section 11379, subdivision (a) was to proscribe unlawful distribution or trafficking of controlled substances and the 2013 amendment to the law shows no legislative intent to break transportation out into a separate offense. Instead, the analyses reflect the Legislature’s understanding that the various acts of importing, distributing, or transporting are forms of the same felony offense. Because appellant could not suffer two sustained allegations for the same offense based upon the same conduct. Matter was remanded to vacate one or the other of the counts. (A) HCC

Peabody, Jennifer/Siroka, Matthew — People v. Moore/Smith, D074567 — Senate Bill 620 — Lisa M. Rogan, Judge — Opinion by Haller, J., with Nares, J., Irion, J. Remanded for the sentencing court to exercise its newly granted discretion under Penal Code section 12022.53, subdivision (h), to strike firearm use enhancements. (I) NFA

Matsumoto, Ellen M. — People v. Mixon, D074572 — Senate Bill 1393 — John M. Tomberlin, Judge — Opinion by Aaron, J., with Huffman, Acting P.J., and Dato, J. Sentence reversed and case remanded to the trial court for the limited purpose of conducting a re-sentencing hearing at which the trial court shall consider whether to exercise its discretion to strike the five-year serious felony prior. (I) LAR

Norris, Ronda — People v. Redd, D074716 — Senate Bill 620 — Angel Bermudez and Stephen J. Gallon, Judges — Opinion by Benke, J., with O’Rourke, J., Irion, J. Matter remanded to permit the trial court to exercise its discretion to strike or dismiss the firearm enhancements under newly enacted Senate Bill 620. (I) HCC

Fabian, Carl — People v. Angulo, D074717 — Jury Instructions/Senate Bill 620 — William Powell, Judge — Opinion by O’Rourke, J., with McConnell, P.J., and Nares, J. concurring. Imperfect self-defense is not available when a defendant’s own wrongful conduct has led to circumstances that justify the victim’s use of force. Appellant argued and Attorney General conceded that the limiting instruction was not warranted in this case where appellant’s conduct did not justify the victim’s use of force. In this case, where the victim came to appellant’s home demanding money and then lunged at appellant with garden shears, the victim’s attack was not justified. While Attorney General argued the instruction was harmless in this case, Court of Appeal found it was prejudicial because appellant and the victim were involved in criminal enterprises and the jury might have thought appellant owed the victim money, thus his ‘wrongful’ conduct in withholding it justified the victim’s attack. Further, the prosecutor argued separately, and erroneously, to the jury that because appellant and victim were involved in a criminal enterprise, appellant could not be the victim of robbery. This line of argument also supported the jury’s misuse of the improper instruction. Matter remanded for new trial. The new law regarding firearm enhancements will apply at any re-sentencing. (I) LKH

Rogers, Tracy — People v. Gonzalez, D074726 — Senate Bill 1393 — Thomas M. Kelly, Judge — Opinion by Irion, J., with Benke, J., Huffman, J. Matter remanded for the trial court to consider striking serious felony prior enhancement under Senate Bill 1393, which applies retroactively to this case. (I) HCC

Berley, Diane — People v. Crowder, D074884 — Senate Bill 620/Senate Bill 1393/ Abstract of Judgment — Mac R. Fisher, Judge — Opinion by McConnell, P.J., with Haller, J., Irion, J. Amended statutes permitting the trial court to strike a firearm enhancement and a serious felony five-year enhancement apply retroactively so matter must be remanded for trial court to exercise its discretion. Court of Appeal rejected respondent’s argument that remand was not necessary because the trial court had declined to strike prior strikes and would be unlikely to dismiss the punishment for the serious felony enhancements or the gun enhancement. Instead, Court of Appeal found this was not a case where the court expressed a clear intent to impose a maximum sentence, as evidenced by the fact it chose a midterm sentence for the firearm enhancement. If the enhancements are imposed on remand, abstract of judgment must be corrected to reflect correct statutory references for each. (I) HCC

Nalls, Christopher — People v. Manning, D074891 — Dual Conviction/Penal Code Section 654 — J. David Mazurek, Judge — Opinion by O’Rourke, J., with Nares, J., Haller, J. Attorney General conceded and Court of Appeal agreed that appellant’s conviction of false imprisonment must be vacated because the offense is necessarily included in the greater offense of kidnaping for rape, of which appellant was also convicted. Further, the sentence for kidnaping for rape must be stayed pursuant to Penal Code section 654 because the kidnaping was incidental to the rape, of which appellant was also convicted and for which he was separately sentenced. (I) APJ

Cannon, Gregory — People v. Tapia, D074895 — Ex Post Facto/Visitation — Ingrid Abramson Uhler, Judge — Opinion by Dato, J., with Benke, Acting P.J., Haller, J. Court of Appeal vacated the conviction and sentence for engaging in sodomy with a child 10 years old or younger on ex post facto grounds. Penal Code section 288.7, subdivision (a) became effective on September 20, 2006, and the information alleged the acts occurred between October 23, 2004 and October 22, 2008. Because a reasonable juror could have found appellant guilty based upon an act that occurred prior to the statute’s effective date, the Court of Appeal reversed the conviction. In addition, the order prohibiting visitation between appellant and Jane Doe is stricken because the prohibiting statute does not apply when the child victim has reached 18 years of age. The trial court is directed to re-sentence appellant on the remaining convictions and issue corrected abstracts of judgments. (I) LKH

Beckham, Sylvia — People v. Caveney, D074897 — Pre-sentence Conduct Credits — Michael Knish and Katrina West, Judges — Opinion by Haller, J., with Nares, J., O’Rourke, J. Where trial court ordered 365 days in custody and determined that the time was served based on appellant service of 280 actual days pre-sentence, it was implicit that appellant also earned conduct credit. Matter remanded for trial court to expressly award appellant 280 days of pre-sentence conduct credit. (I) LKH

LeRoy, Doris M. — People v. Rodriguez, D075138 — Senate Bill 620/Abstract of Judgment — Ronald M. Christianson, Judge — Opinion by Haller, J., with Dato, J., Guerrero, J. Court of Appeal rejected respondent’s argument that remand for re-sentencing in light of Senate Bill 620, authorizing discretion to strike firearm enhancements, would be futile. In addition, on remand, the Court of Appeal directed correction of abstract of judgment recording errors. (I) CBM

Buckley, Christian — People v. Lewis, D075164 — Jury Trial Admonition — Howard H. Shore, Judge — Opinion by McConnell, P.J., with O’Rourke, J., Irion, J. Appellant was not advised by the court that he had a right to a jury trial for the granted 5300 petition, so appellant was not afforded the opportunity to decide whether to waive the jury trial right. Appellant and County Counsel submitted a joint motion for stipulated reversal. (I) LMF

Stubb, Paul Jr. — People v. Moore, E063358 — Penal Code Section 1170.18 (Prop. 47) — Victoria E. Cameron, Judge — Opinion by Codrington, J., with Ramirez, P.J., and McKinster, J. After Supreme Court transferred the matter to the Court of Appeal, the court vacated the decision affirming the trial court’s ruling denying Prop 47 relief, and reconsidered the matter in light of recent Supreme Court Prop. 47 decisions. The Court of Appeal concluded the trial court did not err in denying the Prop 47 petition, but the ruling should be affirmed without prejudice to defendant filing a new petition in the trial court supported by evidence establishing the value of the stolen property. (A) LAR

Brisbois, Patricia — People v. Fontenot, E068007 — Proposition 57/Senate Bill 620 — Lisa M. Rogan, Judge — Opinion by Huffman, J., with O’Rourke, J., Dato. Appellant was convicted of a first degree murder committed in 2011 and a second degree murder committed in 2009. The first degree murder was accompanied by a multiple victim special circumstance finding, resulting in a sentence of life without the possibility of parole for the 2011 murder.

The Court of Appeal held that under a retroactive application of Proposition 57, remand is required for a juvenile fitness hearing as to the 2009 offense because appellant was 17 at the time of that offense. Further, if appellant is found fit for juvenile court, then the multiple murder special circumstance on the 2011 murder must be stricken because even if the 2009 murder is found true in juvenile court, it will not constitute a “conviction” within the meaning of the multiple victim special circumstance. However, if appellant is found unfit for juvenile court, then the 2009 adult court murder conviction will stand, as will the special circumstance on the 2011 murder.

Further, on remand the sentencing court must exercise its newly granted discretion under Senate Bill 620 to consider striking one or both of the firearm use enhancements. (I) NFA

Weinberg, Allen G. -- People v. Winston, E068933 -- Senate Bill 1393/Abstract of Judgment -- R. Glenn Yabuno, Judge. Opinion by Menetrez, J., with Slough, J., concurring, and Miller, J., concurring in the result. Judgment reversed and remanded to the trial court to exercise its discretion in whether or not to dismiss the prior serious felony enhancement. In addition, various corrections to the abstract of judgment required. (I) LAR

Kington, Benjamin — People v. Zamora, E069607, (2019) 35 Cal.App.5th 200 — Sentencing/Senate Bill 1393/Senate Bill 620 — Patrick F. Magers, Judge — Opinion by Menetrez, J., with Miller, J., Slough, J. One of appellant’s three serious felony prior enhancements ordered stricken because the underlying felony conviction was not suffered in a case that was brought and tried separately from the others, as required by Penal Code section 667, subdivision (a). Matter remanded for the trial court to exercise its discretion to impose or dismiss the remaining serious felony prior enhancement under Senate Bill 1393. Also, on remand, trial court must exercise its discretion under Senate Bill 620 to determine whether to strike the firearm enhancements imposed on four counts. (I) LAR

Love, Christopher — People v. Colindres, E069707 — Senate Bill 1393 — Jeffrey L. Gunther, Judge — Opinion by Menetrez, J., with McKinster, .J., Miller, J. Matter remanded for trial court to exercise its discretion to impose or dismiss serious felony prior enhancement under Senate Bill 1393. (I) LKH

Weinberg, Allen — People v. Todd, E069739 — Credits/Abstract of Judgment — Charles Umeda, Judge — Opinion by Codrington, J., with Fields, J., Raphael, J. Appellant entitled to an additional 100 days of conduct credit. Two clerical errors in the abstract of judgment must also be corrected. (I) LAR

Angres, Robert — People v. Kirby, E070006 — Credits — Keifer, Judge — Opinion by Fields, J., with Ramirez, P.J., Slough, J. Although conduct credits do not apply to time spent in state hospital while incompetent, client was entitled to 10 days of custody credits for the ten days after he was declared competent but waited in the hospital before being sent back to court.. (I) ABM

Zarmi, David — People v. Cross, E070662 — Senate Bill 180 — Bambi J. Moyer, Judge — Opinion by Codrington, J., with Ramirez, P.J., Fields, J. Appellant’s four drug prior enhancements must be stricken because they are no longer authorized under Senate Bill 180. Appellant is eligible for re-sentencing because his case was not yet final at the time Senate Bill 180 took effect. The Attorney General conceded. The case is remanded to the trial court to strike appellant’s four drug prior enhancements, and the trial court may reconsider the entire sentence. (A) LKH

Grimm, Cynthia — People v. Belcher, G054415 — Strike Priors — Kimberly Menninger, Judge — Opinion by Thompson, J., with O’Leary, P.J., Goethals, J.. Appellant was convicted in 2016 of a forcible rape that occurred in 1995. Six prior strike allegations were also found true, including three priors from the state of Nevada. However, the three Nevada strike priors occurred after the conduct in this case and cannot therefore be considered prior convictions. The Attorney General conceded. The true findings on appellant’s three Nevada strike priors are stricken. (I) LKH

Jones, Jason — People v. Dearborne, G054763, (2019) 34 Cal.App.5th 250 — One Strike Sentencing/Penal Code Section 654/Senate Bill 1393 — Menninger, Kimberly, Judge — Opinion by Ikola, J., with Aronson, P.J., Fybel, J. The Court of Appeal ordered one count of pimping stayed pursuant to Penal Code section 654 because it was committed with the same criminal intent and objective as the human trafficking offense which formed the basis of a separately sentenced conviction; in fact, intent to pimp was an element of the human trafficking conviction. In addition, matter remanded for the trial court to consider whether to impose concurrent or consecutive sentences for forcible rape in concert and forcible oral copulation in concert convictions, where record shows that the court erroneously believed consecutive sentences were mandatory. Finally, on remand, court must consider whether to strike or dismiss a serious felony prior enhancement, under Senate Bill 1393 and correct pre-sentence custody credits to add two days. (I) LKH

Torres, Steven — People v. Herrera, G054945 — Senate Bill 620/SB 1393/Gang-Gun Enhancements — Gary Paer, Judge — Opinion by Aaronson, J., with Fybel, J., Thompson, J. Matter remanded for re-sentencing for the trial court to exercise its discretion with respect to a firearm enhancement and a serious felony prior enhancement under new laws which are retroactively applicable to appellant. Further, the trial court imposed both the firearm enhancement under Penal Code section 12022.5, subdivision (a), and a gang enhancement under section 186.22, subdivision (b)(1)(B) which was erroneous under People v. Le (2015) 61 Cal.4th 416, 429. Thus, if the trial court declines to dismiss the gun enhancement, it cannot also impose the gang enhancement. (I) CBM

Brisbois, Patricia L. — People v. Lunaty, G055497 — Insufficient Evidence/Military Service-Post-Traumatic-Stress Disorder Sentencing Factor — Jonathan S. Fish, Judge — Opinion by Goethals, J., with Bedsworth, J., Fybel, J. Attorney General conceded and Court of Appeal agreed that insufficient evidence supported four convictions of assault where the record showed absolutely no assault of the alleged victim and the charges were based on assaults of a subsequent victim and an assumption that appellant would have done the same to the named victim. In addition, matter remanded for court to take into consideration appellant’s military service and post-traumatic stress disorder as a mitigating factor with respect to sentencing as required by Penal Code section 1170.91. (I) APJ

Bauguess, Susan S. — People v. Boardman, G055897 — Senate Bill 1393 — Thomas M. Goethals, Judge — Opinion by Aronson, Acting P.J., with Ikola, J., Thompson, J. Case remanded to the trial court for the purpose of exercising its discretionary authority to strike or dismiss the prior serous felony enhancements under section Penal Code section 667, subdivision (a), imposed at the time of sentencing. (I) LAR

Schuck, John F. — People v. Martin, G056276 – Senate Bill 1393 — Lance Jensen, Judge — Opinion by Moore, J., with Bedsworth, J., Goethals, J. Court agreed the case should be remanded so the trial court can exercise its newly conferred discretion to dismiss a five-year enhancement for a prior serious felony conviction. (I) LAR

June 2019

Haggerty, Edward — In re Dorval, D068961 — Penal Code Section 1170.18 (Prop. 47) — Laura W. Halgren, Judge — Opinion by Aaron, J., with Benke, J., O’Rourke, J. In response to a motion filed under Proposition 47, the trial court reduced appellant’s conviction for grand theft of a firearm to a misdemeanor. The court, however, denied appellant’s request to dismiss the strike in another case, which was based upon the now reduced prior. Court of Appeal affirmed the denial. The California Supreme Court granted review and transferred the case back to the Court of Appeal to reconsider after People v. Buycks (2018) 5 Cal.5th 857, which held that a defendant in appellant’s position may be entitled to relief via petition for writ of habeas corpus if the judgment in his strike case was not final when Proposition went into effect. The Attorney General conceded appellant is entitled to relief and the Court of Appeal construed appellant’s supplemental opening brief as a petition for writ of habeas corpus, granted relief, and vacated his sentence. It directed the trial court to dismiss appellant’s strike prior and to re-sentence him. (I) PMI

Buckley, Christian — People v. Grizzle, D072975 — Senate Bill 1393 — Laura Halgren, Judge — Opinion by Huffman, J., with McConnell, P.J., O’Rourke, J. People conceded and the Court of Appeal agreed that Senate Bill 1393 applies retroactively. The court remanded the matter in order for the trial court to exercise its new discretion to strike or impose the punishment for the serious felony prior. (I) AMJ

Shudde, Athena — People v. Jones, D073170 — Senate Bill 1393 — David G. Brown, Judge — Opinion by O’Rourke, J., with Nares, J., Guerrero, J. Under Senate Bill 1393, the trial court now has discretion to strike appellant’s serious felony prior enhancements. The new law applies retroactively to all cases not final when it took effect. The case is remanded so the trial court can consider whether to strike or dismiss appellant’s serious felony enhancements. (I) HSI

Scott, Patricia — People v. Bahrambeygui, D073203 — Penal Code Section 654/Insufficient Evidence Great Bodily Injury/Senate Bill 620 — Marco D. Nuñez, Judge — Opinion by Huffman, J., with Nares, J., Aaron, J. Appellant was convicted of two burglaries and other offenses based upon his conduct in first entering an apartment and threatening/assaulting the occupant, and then entering a second time and seriously beating up the occupant. Court of Appeal agreed that appellant’s sentence for criminal threats and accompanying enhancement for personal use of a shotgun, related to the first burglary, must be stayed pursuant to Penal Code section 654, because the threatening statements and gun use were part of the same act as the assault for which appellant was separately punished. Further, the sentence for assault must be stayed because if was the offense intended when appellant committed the burglary, for which he was separately punished. The enhancement for inflicting great bodily injury, attached to the assault sentence, must be stricken because it is not supported by evidence of any injury during the first entry. With respect to the second burglary, the sentence for battery, which was the object of that second burglary, must be stayed because appellant was separately punished for the burglary. Finally, the Court of Appeal remanded for the trial court to consider dismissal of firearm enhancements under Senate Bill 620, rejecting respondent’s argument that a remand for that purpose would be futile. (I) HCC

Hermansen, Kurt — People v. Flores, D073215, (2019) 34 Cal.App.5th 270 — Client Controls Admission of Guilt — Blaine K. Bowman, Judge — Opinion by Dato, J., with McConnell, P.J., Irion, J. Published reversal of convictions in two separate cases, one for attempted murder of a police officer and the other for manufacturing an assault weapon, based on McCoy v. Louisiana (2018) __ U.S. __ [138 S.Ct. 1500]. In Marsden hearings, appellant complained that his trial counsel was admitting that appellant engaged in culpable behavior despite appellant’s express and unambiguous desire to maintain his innocence of any involvement. With respect to the attempted murder, counsel reasonably argued that appellant drove a car into a police officer writing a ticket, but that premeditation and deliberation were not proved. With respect to the manufacture of an assault weapon, counsel admitted appellant possessed the weapon, but argued it was not “knowing” because appellant did not understand the prohibited nature of the weapon. The Court of Appeal agreed that McCoy applied, the errors were structural, and the convictions must be reversed for a new trial. The opinion rejected the government’s attempt to limit McCoy to a capital context. (I) ABM

Burz, Dacia A. — People v. Ackerman, D073260 — Jury Instruction/Senate Bill 620 — Amalia L. Meza, Judge — Opinion by Nares, J., with Haller, J., Aaron, J. Where the evidence showed two possible threats and the prosecution failed to make a clear election as to which the jury should consider as the basis for the single threat charge, the court erred in failing to give a unanimity instruction. The Court of Appeal found that the instructional error lowers the prosecution’s burden of proof and, thus, applied the standard of prejudice for constitutional violations. In this case, the error was prejudicial given the prosecution’s argument, a jury question and court’s response, and the finding on an attendant knife use allegation. Additionally, the matter is remanded to the trial court with directions to exercise its discretion under Senate Bill 620 as to whether to strike the firearm enhancement. (I) PMI

Kotler, Bruce L. — People v. Tolliver, D073318 — Pitchess Hearing — Lantz Lewis, Judge — Opinion by Irion, J., with McConnell, P.J., Dato, J. In response to appellant’s request that the Court of Appeal independently review the materials reviewed by the trial court when it conducted its in camera review of peace officer personnel files, pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, the Court of Appeal found that the trial court did not actually review the files and instead engaged in a question/answer procedure with the Sheriff’s attorney and the custodian of records. This was error. Court of Appeal issued a limited remand for trial court to properly conduct an in camera review of the files and order a new trial only if discoverable information is found and defense counsel can establish that the failure to disclose it was prejudicial. (A) LAR

Edwards, John — People v. Ameen, D074014 — Probation Conditions — Daniel G. Lamborn, Judge — Opinion by Haller, J., with Huffman, J., O’Rourke, J. Court of Appeal disapproved as unconstitutionally vague a probation condition purporting to require appellant have “[n]o negative contact [with] law enforcement.” Remanded for clarification of this condition. (I) NFA

Lampkin, David — People v. Crawford, D074088 — Senate Bill 1393/Unauthorized Sentence — Ruth B. Montenegro, Judge — Opinion by Huffman, J., with Aaron, J., Dato, J. Matter remanded to permit the trial court to exercise discretion to strike appellant’s serious felony prior enhancement under Senate Bill 1393. In addition, the trial court erred when it imposed and stayed a great bodily injury enhancement attached to a conviction for battery with serious bodily injury. Penal Code section 12022.7 provides that the enhancement shall not be applied to any offense where infliction of great bodily injury is an element of the offense and the remedy is to strike, not stay, the enhancement. (I) HCC

Ball, Lindsey — People v. Franklin, D074162 — Jury Instructions — Michael D. Washington, Judge — Opinion by Irion, J., with McConnell, P.J., Nares, J. Appellant was convicted of receiving stolen property with a value exceeding $950, a felony. The trial court prejudicially erred by failing to instruct the jury sua sponte on the elements of theft so that the jury could determine whether the property appellant received was stolen with the intent to permanently deprive the owner of the property. Appellant’s conviction for receiving stolen property is reversed. (I) DKR

Olsen, Nancy — People v. Mahone, D074670 — Senate Bill 1393 — Eugenia A. Eyherabide, Judge — Opinion by Huffman, J., with O’Rourke, J., Aaron, J. Sentence remanded for a hearing under amended Penal Code section 1385 so that the trial court can exercise its discretion on whether to strike the serious felony prior enhancements. (I) AMJ

Ferguson, Susan — People v. Huddleston, E068160 — Jury Instructions — John M. Tomberlin, Judge — Opinion by McKinster, J., with Slough, J., Fields, J. Appellant was convicted of felony unlawful driving or taking of a vehicle but the prosecution neither alleged nor proved the value of the vehicle exceeded $950. If the verdict were based on theft of the vehicle, the conviction would only be a misdemeanor without proof of vehicle value over $950. Reversal is required in this case because the jury instructions allowed appellant’s conviction under Vehicle Code section 10851 to be based upon both a legally valid theory (felony unlawful driving) and invalid theory (felony taking of vehicle of unproven value). Appellant’s conviction on count 1 is reversed and remanded either to be reduced to a misdemeanor or retried as a felony. (I) MCR

Brownell, Gordon S. — People v. Odu, E068334 — Serious Felony Prior Enhancement — Richard A. Erwood, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Court of Appeal agreed that the true finding as to one of appellant’s two serious felony prior allegations must be stricken because the charges underlying both offenses were not brought and tried separately. Court found that remand for exercise of discretion with regard to the remaining enhancement would be futile. (I) APJ

Bauguess, Susan C. — People v. Runnels, E068878 — Drug Prior Enhancement/Penal Code Section 654/Fines and Fees — Randall Donald White, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. Matter was remanded to trial court with instructions to: (1) strike the two Health and Safety Code section 11370.2, subdivision (c) enhancements because they no longer apply under new law; (2) stay the sentence for being a felon in possession of a firearm, pursuant to Penal Code section 654, because appellant’s sentence on another count was already enhanced for being armed; (3) specify the booking fees and pre-sentence costs it meant to impose; and (4) reconsider the amount of the restitution and parole revocation fines. (I) LAR

Johnson, Mark — People v. Arnold, E069015 — Sentencing Jurisdiction/Senate Bill 180 — R. Glenn Yabuno, Judge — Opinion by Miller, J., with Codrington, J., Raphael, J. Under a plea agreement, appellant was sentenced to 58 years and 8 months with the promise that the sentence would be reduced to 15 year and 8 months if he timely returned for re-sentencing and remained law abiding while released on his own recognizance. Appellant returned as scheduled and was sentenced to 15 years. Immediately afterward, when appellant was taken into custody, it was discovered that he had numerous bundles of narcotics hidden in his rectum. This offense, and an in-custody assault, formed the basis of a new complaint. When it was filed, the trial court purported to recall the sentence in appellant’s prior case. Subsequently, appellant admitted that he had violated the terms of his prior release by failing to remain law abiding (because of the drugs he possessed) and he also pleaded guilty to charges in the new complaint. In exchange, appellant received a sentence of 3 years in the new case, concurrent to a sentence of 53 years and 4 months in the prior case.

The Court of Appeal found that the trial court lacked jurisdiction to recall and increase appellant’s executed 15-year sentence in the prior case. The Court of Appeal rejected respondent’s claim that the court was entitled to an equitable remedy because appellant perpetrated a fraud on the court. The Court of Appeal also rejected respondent’s argument that the prosecution should be allowed to withdraw from the plea agreement in the later case because that agreement only called for a concurrent 3-year sentence, which is what the prosecution got. While the Court of Appeal also agreed that three enhancements for prior drug convictions must be stricken because they are no longer valid under new law, that finding is rendered moot by the ordered reinstatement of appellant’s 15-year sentence, which does not include the drug prior enhancements. (I) HCC

Miller, Gerald J. — People v. Mendoza, E069292 — Senate Bill 1393 — Otis Sterling III, Judge — Opinion by Ramirez, P.J., with Fields, J., Raphael, J. Matter is remanded to the trial court with directions to exercise its discretion under Penal Senate Bill 620 as to whether to strike the firearm enhancement. (I) PMI

Bases, Arielle — People v. Smith, E069348 — Penal Code Section 1170.18 (Prop. 47) — David A. Gunn, Judge — Opinion by Slough, J., with McKinster, J., Miller, J. The trial court denied appellant’s Proposition 47 petition on the grounds that he posed an unreasonable risk of danger to public safety. However, under Penal Code section 1170.18, subdivision (c), a petition may be denied on public safety grounds only if the petitioner is at risk of committing a new super-strike. Because the information provided in appellant’s case does not support such a finding, the trial court abused its discretion in denying appellant’s petition. The order denying appellant’s Propostion 47 petition is reversed. (I) HSI

Lubliner, Steven — People v. Granger, E069355 — Correction of Restitution Award — Bridgid M. McCann, Judge — Opinion by Codrington, J., with Miller, J., Slough, J. Victim restitution was ordered in favor of a single entity. Subsequently, a different party applied for an order for restitution from the court clerk. The abstract of judgment noted that new party as an additional judgment creditor. The Court of Appeal agreed that it was error to add the additional judgment creditor. It ordered correction of the abstract of judgment to reflect the trial court’s oral pronouncement of judgment. To avoid future confusion, it also directs the court clerk to amend the probation order to reflect the correct order. (I) PMI

Quinn, Stephane — People v. Garza, E069534 — Probation Conditions — Arjuna Saraydarian, Judge (Retired) — Opinion by Codrington, J., with Ramirez, P.J., Fields, J. Because the sentencing memorandum is ambiguously worded and the costs and fees cannot be imposed as conditions of defendant’s probation, the trial court is directed to modify the sentencing memorandum by clarifying that appellant is not required to pay probation supervision costs, mandatory fees, and attorney fees as a condition of probation. (A) PMI

McPartland, Michael B. — People v. Young, E069694 — Senate Bill 620 — John M. Monterosso, Judge — Opinion by Slough, J., with McKinster, J., Codrington, J. Sentenced reversed and remanded to allow the trial court to exercise its newly minted discretion to strike the firearm enhancements under amended Penal Code section 12022.5. (I) LAR

Gambale, Erica — People v. Wilson, E070348 — Senate Bill 1393 — Samuel Diaz, Jr., Judge — Opinion by McKinster, J., with Slough, J., Menetrez, J. Appellant contended Senate Bill 1393 applies retroactively, and, thus, the matter should be remanded to the trial court to allow it to exercise its discretion to dismiss his prior serious felony enhancement. The People conceded that Senate Bill 1393 applied, but argued that remand was unnecessary. The court agreed with appellant and remanded. (I) HCC

Schechter, Aaron — People v. Franklin, E071072 — Restitution/Notice — Rodney A. Cortez, Judge — Opinion by Codrington, J., with Ramirez, P.J., Fields, J. Appellant argued the victim restitution order should be reversed because he was not provided with proper notice that the People were seeking victim restitution for a $10,000 bank loss. Respondent conceded that appellant did not receive proper notice of the $10,000 portion of the restitution order and requested that the Court of Appeal vacate the restitution order and remand the matter to the trial court for a new restitution hearing. The Court of Appeal vacated that portion of the order and remanded. (I) HCC

Love, Jack/Keller, Roni— In re A.M., et al., E071128 — Out-of-County Case Transfer — Erin K. Alexander, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. Both parents appealed from the juvenile court’s order transferring the case back to another county. The San Bernardino court held a transfer-in hearing for a case from Sonoma county. Rather than accept the case, however, the court ordered the case transferred back to Sonoma county. Both parents lived in San Bernardino county. The Court of Appeal reversed, holding that the San Bernardino juvenile court was obligated to accept the transferred-in case, under California Rule of Court 5.612, subdivision (a). (I) MAC

Burz, Dacia A. — People v. Osborne, et al., G054153 — Ineffective Assistance of Counsel — Cheri T. Pham, Judge — Opinion by O’Leary, P.J., with Thompson, J., Goethals, J. Appellant’s convictions for human trafficking, robbery, and kidnaping for robbery are reversed. The Court of Appeal found trial counsel was ineffective for failing to file a Penal Code section 995 motion on all three counts where there was substantial evidence that appellant acted under duress, as found by the magistrate at the preliminary hearing. Appellant was prejudiced where the prosecutor filed twice and it is reasonably probable appellant would have prevailed in her opposition to a third filing based on a lack of excusable neglect and there was a reasonable probability the outcome of the proceeding would have been different on these counts. (I) PMI

Stralla, Ava R. — People v. Gonzales, G054927 — Senate Bill 1393 — Kimberly Menninger, Judge — Opinion by Ikola, J., with O’Leary, P.J., Goethals, J. Court of Appeal rejected Attorney General’s argument that remand would be futile and agreed with appellant that matter must be remanded for trial court to exercise its newly conferred discretion to dismiss a serious felony five-year enhancement. Despite comments the trial court made at sentencing and its denial of appellant’s motion to dismiss a strike prior, the Court of Appeal could not categorically conclude that the court would not exercise its discretion to dismiss the five-year enhancement. (I) APJ

Sagel, Ami Seth — People v. Padilla, G055028 — Penal Code Section 1170.18 (Prop. 47)/Prison Priors — Melissa R. McCormick, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Aronson, J. Appellant was enhanced with two one-year prison prior enhancements. Under Proposition 47, the conviction supporting a 2010 prison prior conviction was reduced to a misdemeanor. Because of the reduction, the Court of Appeal concluded that the washout rule nullified appellant’s prison terms and reversed both enhancements. (A) AMJ

Johnson, Mark — People v. Reyes, G056854 — Unauthorized Sentence/Custody Credit/Clerical Error — Lance Jensen, Judge — Opinion by Aronson, J., with Fybel, J., Ikola, J. Appellant was resentenced on remand after a successful appeal. (People v. Reyes (March 28, 2018, G053096 [nonpub. opn.].) However, in spite of the Court of Appeal’s order, the trial court still failed to specify a term for appellant’s stayed kidnaping sentence. The court also did not recalculate appellant’s custody credits to account for all actual time already served. Finally, the abstract of judgment incorrectly indicates that the enhancement for appellant’s attempted murder conviction is under Penal Code section 664, subdivision (a) instead of Penal Code section 12022.53, subdivision (b). The Attorney General conceded on all points. The post-judgment sentencing order is reversed in part and the case is remanded to correct these errors. (I) MCR

May 2019

Fabian, Carl — People v. Jackett, D071898 — Prison Prior/Senate Bill 620/Senate Bill 1393 — Laura W. Halgren, Judge — Opinion by Nares, J., with Haller, J., Irion, J. Court of Appeal agreed that appellant received ineffective assistance of counsel when counsel allowed appellant to admit one of three prison prior enhancements despite the fact that he had not been sentenced to prison in that case until 18 months after the current case was filed and, as such, the prosecution could not have proven the truth of the prior. The Court of Appeal struck appellant’s's admission to the prior and vacated the sentence. The Court also agreed to remand for re-sentencing to allow the trial court to exercise its discretion whether to strike appellant’s firearm enhancement under Senate Bill 620. Finally, the Court granted appellant’s petition for rehearing arguing that Senate Bill 1393 gives the trial court sentencing discretion to strike his five-year sentence enhancement. Appellant can raise his Senate Bill 1393 claim before the trial court at his Senate Bill 620 re-sentencing. (I) HSI

Romero, Lynda A. — People v. Burney, D072150 — Senate Bill 620 — Eugenia A. Eyherabide, Judge — Opinion by Nares, J., with Haller, J., Irion, J. The People conceded and the Court of Appeal agreed the matter should be remanded for re-sentencing to allow the trial court to exercise its discretion to strike the firearm use enhancement under Senate Bill 620. (I) SDS

Aros, Christine — People v. Shook, D072663 — Senate Bill 1393 — Albert T. Harutunian III, Judge — Opinion by O’Rourke, J., with McConnell, P.J., and Aaron, J. The Court of Appeal agreed the matter should be remanded to permit appellant to bring a motion to dismiss the serious felony prior enhancement in light of Senate Bill 1393 and for the trial court to exercise its discretion if appropriate. (A) PMI

Kent, Jill — People v. Haulcy, D072701 — Senate Bill 1393 — Harry M. Elias, Judge — Opinion by Huffman, J., with Benke, J., Aaron, J. The Court of Appeal remanded for sentencing court to exercise its Senate Bill 1393 discretion to strike appellant’s prior serious felony enhancement in the interest of justice. (I) NFA

Stevenson, Theresa Osterman — People v. Handy, D072821 — Senate Bill 1393 — Richard R. Monroy, Judge — Opinion by Huffman, J., with O’Rourke, J., Aaron, J. Because the case was not yet final when Senate Bill 1393 was enacted into law, the new law applies retroactively to appellant. The case was remanded to the superior court so it can consider whether to strike appellant’s serious felony prior enhancement. (I) CBM

King, Nancy — People v. Gates, D072915 — Right to Self-Representation — Carlos O. Armour and Harry M. Elias, Judges — Opinion by Huffman, J., with Benke, J., Nares, J. The trial court erred in denying appellant’s second motion to represent himself at trial where all three requirements were met to grant the motion: appellant was competent and made a knowing and intelligent choice; motion was timely; and motion was made unequivocally. Judgment reversed and case remanded for further proceedings. (I) AMJ

Kent, Jill — People v. Schaper, D073262 — Restitution Fines/Pre-sentence Credits — Daniel B. Goldstein, Judge — Opinion by Irion, J., with Haller, J., Guerrero, J. The restitution and parole revocation fines reversed because the amount imposed ($17,600) exceeds the amount authorized by law. The matter is remanded to trial court for the limited purpose of exercising its discretion to impose a restitution and parole revocation fine in an amount between $300 and $10,000. Also, trial court is ordered to amend abstract of judgment to reflect an additional day of pre-sentence credit for actual time served. (I) LAR

Coleman, Jared — People v. Jimenez, D073313, (2019) 32 Cal.App.5th 409 — Senate Bill 1393 — Richard S. Whitney, Judge — Opinion by Guerrero, J., with Huffman, Haller, J. Under Senate Bill 1393, the trial court now has discretion to strike appellant’s serious felony prior enhancement. The Attorney General conceded the law applies retroactively to appellant. The case is remanded so the trial court can consider whether to strike or dismiss appellant’s serious felony enhancement. (I) HSI

Keiter, Mitchell — People v. Wallace, D073373 — Penal Code Section 654/Clerical Error — Poli Flores, Judge — Opinion by Nares J., with Haller, J., O’Rourke, J. Court of Appeal found that appellant’s convictions for arranging a meeting with a minor for lewd purposes and contacting a minor with intent to commit a sexual offense were based on conduct that was incidental to the ensuing crimes of lewd acts committed against the minor. Because appellant was separately sentenced for the lewd acts, appellant’s sentences for the incidental offense should have been stayed pursuant to Penal Code section 654. Also, the abstract of judgment should be corrected to reflect that appellant’s count 1 conviction was under Penal Code section 286, subdivision (b)(2), not section 288. (I) HSI

Peabody, Jennifer — People v. Brown, D073591 — Senate Bill 1393 — Stephen J. Gallon, Judge — Opinion by O’Rourke, J., with Huffman, J., Haller, J. After the Court of Appeal denied appellant’s petition for rehearing for consideration of issue under Senate Bill 1393, the Supreme Court remanded to the Court of Appeal for consideration of the issue. Attorney General did not oppose remand for the trial court to exercise discretion to dismiss the five-year serious felony prior enhancement and the Court of Appeal agreed. (I) APJ

Jones, Cynthia M — People v. Gravely, et al., D073591 — Penal Code Section 654/Sentencing/Order Granting New Trial Affirmed — Stephen J. Gallon, Judge — Opinion by O’Rourke, J., with Huffman, J., Haller, J. The People appealed the trial court’s order granting appellant’s new trial motion on his attempted murder charge. The Court of Appeal affirmed the trial court order. In a cross-appeal, with respect to sentencing on remaining counts, the Court of Appeal agreed with appellant that the trial court erred in failing to stay the sentence on his conviction for kidnaping, when the kidnaping was for the purpose of torture and the torture offense was separately punished. The Court of Appeal also agreed that the trial court may not have understood its discretion to impose the determinate sentence concurrent to the indeterminate sentence, so the matter must be remanded for the trial court to exercise its informed discretion. (I) APJ

Angres, Robert — People v. Robbins, D073614 — Senate Bill 1393 — Becky Lynn Dugan and Elisabeth Sichel, Judges — Opinion by Aaron, J., with Nares, J., Irion, J. Sentence vacated and remanded for re-sentencing to permit the trial court to exercise its discretion to impose or strike a five-year prior serious felony enhancement under Senate Bill 1393. (I) AMJ

Gordon, Laura — People v. Barraza, D073966 — Penal Code Section 667.6 — Jeffrey F. Fraser, Judge — Opinion by Irion, J., with Nares, J., O’Rourke, J. Penal Code Section 667.6, subdivision (d) applies only when the defendant is convicted of two or more offenses listed under subdivision (e). Here, appellant’s offense under Penal Code section 288, subdivision (b)(1) was listed in subdivision (e) of section 667.6, but the other offenses under 288, subdivision (a) were not. Based on the prosecution’s representation and defense counsel’s acquiescence, the trial court applied section 667.6, subdivision (d) mandatory consecutive sentencing when imposing sentence. Both appellant and respondent agreed and the appellate court concurred, that the trial court erred. Case is remanded for re-sentencing. (I) HCC

Klein, Jill — People v. Haynes, D074060 — Senate Bill 620/Senate Bill 1393 — Fisher, Mac, Judge — Opinion by Nares, J., with O’Rourke, J., Irion, J. The case is remanded for re-sentencing to allow the trial court to exercise its discretion under Senate Bill 620 to dismiss the firearm enhancement and under Senate Bill 1393 to dismiss the serious felony prior enhancement. (I) LKH

Conner, Randall — People v. Snell, D074101 — Senate Bill 1393 — Yvonne Esperanza Campos, Judge — Opinion by Nares, J., with Huffman, J., O’Rourke, J. Under Senate Bill 1393, the trial court now has discretion to strike appellant’s serious felony prior enhancement. The Attorney General conceded. The case is remanded so the trial court can consider whether to strike or dismiss appellant’s serious felony enhancement. (I) HSI

Dellaca, Tanya — People v. Merendon, D074192 — Sentencing Enhancements/Credits — Harold T. Wilson, Judge — Opinion by Dato, J., with Irion, J., Guerrero, J. The conviction underlying one of appellant’s prison prior enhancements was reduced to a misdemeanor during the course of the appeal. Court of Appeal agreed that the enhancement was no longer valid and must be stricken. In addition, a three-year enhancement based on a prior drug conviction must be stricken in light of recent amendments to the authorizing statute. The matter was remanded for re-sentencing. (I) APJ

Stanton, Marta I. — People v. Mosqueda, D074192 — Sentencing Enhancements/Credits — Harold T. Wilson, Judge — Opinion by Dato, J., with Irion, J., Guerrero, J. The matter must be remanded for resentencing so that the trial court can decide, under the new discretion granted by Senate Bill 1393, to dismiss the serious felony five-year enhancement it previously imposed. In addition, the Attorney General conceded that appellant’s credits must be corrected because the trial court under-calculated by 127 days. (I) APJ

O’Connor, Sheila — People v. Randall, D074217 — Restitution Fine — Esteban Hernandez, Judge — Opinion by Benke, J., with Haller, J., O’Rourke, J. Because appellant was sentenced to county jail for a full term of custody, Penal Code section 1202.45 precludes imposing of a parole revocation restitution fine. The $3,000 revocation fine is stricken. (I) PMI

Buckley, Christian C. — People v. Taylor, D074449 — Insufficient Evidence of Strike/Serious Felony Priors — Bridgid M. McCann, Judge — Opinion by Aaron, J., with McConnell, P.J., O’Rourke, J. Judgment reversed with respect to trial court’s findings that two prior convictions qualified as both strikes and serious felony priors. The evidence proved no more than that appellant suffered two convictions under former Penal Code section 245, subdivision (a)(1). Because convictions under that section could have been based either on assault by means of force likely to cause great bodily injury or on assault with a deadly weapon, and because only the latter qualifies as a strike or serious felony prior, the evidence needed to show that the convictions were based upon qualifying conduct. The matter is remanded to the trial court for the limited purpose of retrying the prior strike and serious felony conviction allegations and thereafter re-sentencing appellant. (I) LAR

Brisbois, Patricia — People v. Rye, D074454 — Abstract of Judgment — Bernard Schwartz, Judge — Opinion by O’Rourke, J., with Benke, J., Huffman, J. The trial court is directed to correct numerous errors in the abstract of judgment relating to the type of trial, the amount of restitution, the dates when the crimes were committed, and the date of one conviction. (I) PMI

Matsumoto, Ellen M. — People v. Baker, D074463 — Dual Conviction/Senate Bill 1393 — Michael B. Donner, Judge — Opinion by Guerrero, J., with Haller, J., Irion, J. Attorney General conceded and Court of Appeal agreed that conviction of possessing child pornography must be dismissed because it is an offense necessarily included within the offense of possessing child pornography by a person required to register as a sex offender. Appellant had been convicted of both based on the same conduct. In addition, under Senate Bill 1393, the matter must be remanded for trial court to exercise its discretion to impose or strike the five-year serious felony enhancement. (I) APJ

Mortazavi, Dawn — People v. Moton, D074691 — Accessory After the Fact — J. David Mazurek, Judge — Opinion by McConnell, P.J., with Haller, J., Guerrero, J. Court of Appeal agreed appellant could not properly be convicted of being both an aider and abettor to robbery and an accessory after the fact based solely on the fact he drove the getaway car. Accessory conviction reversed. (A) HCC

Schuck, John — People v. Martinez, D074695 — Clerical Errors/Senate Bill 1393 — Patrick F. Magers, Judge — Opinion by Guerrero, J., with McConnell, P.J., Huffman, J. Appellant’s abstract of judgment incorrectly includes gang enhancements on each of his six vandalism convictions even though the enhancements were not orally imposed and not available for imposition because the gang allegations had already been used to elevate the offenses from misdemeanors to wobblers. In addition, because the jury convicted appellant of vandalism with no monetary finding, all references to “greater than $5000” on the abstract of judgment must be deleted. Finally, appellant is eligible for re-sentencing under Senate Bill 1393. Matter remanded for trial court to exercise its discretion to impose or strike the serious felony prior enhancement, consider reduction of wobbler offenses to misdemeanors and correct the abstract of judgment. (I) HSI

Siegel, Joshua — People v. Murphy, D074702 — Senate Bill 1393 — Thomas Kelly, Judge — Opinion by Dato, J., with Nares, J., Irion, J. Senate Bill 1393, creating sentencing court discretion to strike serious felony priors, is retroactive to cases, like this one, not yet final on appeal. Case remanded “for a full resentencing hearing, at which the court may consider whether to strike appellant’s serious felony enhancements.” (I) ABM

Staley, John L. — People v. George, D074744 — Senate Bill 1393 — Timothy R. Walsh, Judge — Opinion by Huffman, J., with McConnell, P.J., Irion, J. Attorney General conceded and Court of Appeal agreed that Senate Bill 1393 applies retroactively to appellant and the matter must be remanded for trial court to exercise its discretion to impose or dismiss appellant’s five-year serious felony prior enhancement. (I) APJ

Wrubel, Sharon — People v. Fuentes, D074886 — Amended Pleadings/Ineffective Assistance of Counsel/Senate Bill 620 — Candace J. Beason, Judge — Opinion by Nares, J., with Huffman, J., Aaron, J. Prosecution charged appellant with attempted murder. After appellant waived preliminary examination, prosecution filed an amended information adding a charge of shooting at a dwelling based on the same incident. A jury convicted appellant of both counts. The Court of Appeal reversed the shooting at a dwelling count because Penal Code section 1009 precludes charging additional counts after a defendant has waived preliminary hearing; and while there was no defense objection at trial, defense counsel was ineffective in failing to object. The Court of Appeal also remanded for the sentencing court to exercise its newly-granted Senate Bill 620 discretion to strike the firearm discharge enhancement attached to the attempted murder count. (I) NFA

Boyer, Ron — People v. LaVoie, E068328, (2019) 29 Cal.App.5th 875 — Amendment of Prior Convictions After Discharge of the Jury/Senate Bills 620 and 1393 — W. Charles Morgan, Judge — Opinion by Ramirez, P.J., with Miller, J., Raphael, J. After appellant waived jury trial on prior conviction allegations, the trial court allowed the prosecution to make various modifications to those allegations, and appellant admitted them. The Court of Appeal held that the modification with respect to one of the two prior strike allegations was substantial enough that is was error for trial court to allow the amendment and trial counsel was ineffective for not objecting. The substituted strike prior is stricken and the matter remanded for re-sentencing. Additionally, appellant is entitled to remand in accordance with Senate Bills 620 and 1393, for trial court to exercise its discretion to dismiss the firearm enhancement and a prior serious felony enhancement. (I) LKH.

Vorobyov, Gene D. — People v. Kimball, Jr., E068330 — Proof of Priors — Stephen J. Gallon, Judge — Opinion by Ramirez, P.J., with Fields, J., Menetrez, J. Attorney General conceded and the Court of Appeal agreed the evidence was insufficient to prove appellant’s Montana convictions for sexual assault qualified as strike priors under California law where the trial court relied on a sentencing document from the prior case to determine that the victims were under 14. Under People v. Gallardo (2017) 4 Cal.5th 120, the trial court could not rely on the sentencing document because it did not present facts the jury necessarily found true in rendering verdicts or admitted by appellant as a factual basis for his guilty plea. Accordingly, the matter is remanded to allow the government to prove that the prior convictions involved victims under 14 years old. In addition, appellant is entitled to more conduct credit than he was awarded. (I) APJ

Harguindeguy, Marianne — People v. Garcia, E068394 — Senate Bill 1393 — Kelly L. Hansen, Judge — Opinion by McKinster, J., with Slough, J., Fields, J. Case remanded to allow trial court to consider newly authorized discretion under Senate Bill 1393 to dismiss serious felony prior enhancement. Although appellant admitted the enhancement and the court imposed sentence on the same before the Legislature changed the law, there was no indication the plea agreement required the parties to apply only the law in existence at the time the agreement was made. Instead, the general rule applied – plea agreements are “deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good . . .” (See People v. Hurlic (2018) 25 Cal.App.5th 50, 57.) Application of the change in the law thus did not violate the terms of the plea agreement. (Doe v. Harris (2013) 57 Cal.4th 64, 73-74.) (I) CBM

Smith, Kevin — People v. Margaros, E068504 — Pre-sentence Credits — Christian F. Thierbach, Judge — Opinion by McKinster, J., with Ramirez, P.J., Raphael, J. The Attorney General conceded and the Court of Appeal agreed that the trial court erroneously limited pre-sentence conduct credits to 15% under Penal Code section 2933.1 even though appellant was not convicted of violent felony. The Court ordered abstract of judgment modified to reflect correct credits. (I) CBM

Williams, Rex — People v. Rowley, E068954 — Proposition 64 — Becky Dugan, Judge — Opinion by McKinster, J., with Miller, J., Raphael, J. Reversal of trial court’s denial of appellant’s Proposition 64, Health and Safety Code section 11361.8 recall motion to reduce felony conviction for possessing marijuana for sale to a misdemeanor pursuant to Health and Safety Code section 11359. Trial court had denied the motion because appellant had suffered a “super-strike” conviction for murder. However, under section 11359, a super-strike conviction disqualifies a defendant from relief only if the super-strike conviction precedes the charging of the marijuana offense; here, the charging of the marijuana offense preceded the murder conviction. (A) NFA

Capriola, William J. — People v. Anderson, E069057 — Jury Instruction CALCRIM Number 1191A — John M. Davis, Judge — Opinion by Ramirez, P.J., with McKinster, J.; Raphael, J., concurring and dissenting. Appellant was charged with sexual penetration based upon a specific act that occurred in a bedroom. However, while on the stand, the victim testified to an additional act that occurred in a hotel room. The jury was instructed pursuant to CALCRIM 1191A, that they could rely upon an (unspecified) uncharged act of sexual penetration as propensity evidence if they found it was proven by a preponderance. In addition, however, the prosecutor argued that they could rely on either act of sexual penetration as the basis for finding appellant guilty of the charged penetration and a unanimity instruction was given telling the jury they must unanimously agree as to which act constituted the charged offense.

The majority opinion found that the prosecutor’s reliance on both acts as the possible basis for the charged offense meant that there was no uncharged act in the case and the jury was erroneously allowed to rely on a charged offense as propensity evidence, even if it was only proved by a preponderance rather than beyond a reasonable doubt as required under People v. Cruz (2016) 2 Cal.App.5th 1178. The court further found that the error was structural and reversed the judgment as to the affected count. In addition, a sex offender fine imposed with respect to a non-qualifying offense is reversed..

The dissenting opinion concluded that the instruction on CALCRIM Number 1191A was superfluous because there was no evidence of an uncharged offense and the standard of prejudice should have been harmless error. The dissent would have found no prejudice because no reasonable juror would have found the same conduct to be both charged and uncharged. (I) PMI

Lubliner, Steven — People v. Crump, E069142 — Unauthorized Sentence/Custody Credits — John M. Tomberlin, Judge — Opinion by Ramirez, P.J., with McKinster, J., Raphael, J. Appellant was convicted of assault by means of force likely to cause great bodily injury and simple battery. The Court of Appeal ruled that appellant’s 365 day sentence for the battery conviction is unauthorized because it exceeds the statutory maximum. Moreover, the sentence should have been stayed pursuant to Penal Code section 654 because both the assault conviction and the battery conviction arose from the same course of conduct. Finally, the court also found that appellant was entitled to an extra day of custody credit. The superior court is directed to correct appellant’s battery conviction sentence and correct his custody credits. (I) MCR

Shetty, Siri — People v. Sanford, E070143 — Criminal Protective Orders — Michael B. Donner, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. The Court of Appeal agreed that insufficient evidence supported the court’s issuance of a criminal protective order as to appellant’s wife where the only evidence of appellant’s commission of offenses against his wife were the hearsay statements of the wife related to the court on the previous day. (S) SDS

Gambale, Jennifer — People v. Martinez, E070248 — Senate Bill 1393 — Eric Helgesen, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. Senate Bill 1393 gives courts discretion to strike or dismiss the five-year sentence enhancement for prior serious felony convictions. The case is remanded for re-sentencing to allow the trial court to exercise its discretion. (I) LKH

Moller, Richard — In re M.B., E071415 — Sealing Record — Pamela P. King, Judge — Opinion by Codrington, J., with Fields, J., Raphael, J. Reversed and remanded for trial court to consider the merits of minor’s request to seal juvenile records. The juvenile court, in denying minor’s request to seal the records, mistakenly believed minor was categorically ineligible due to a robbery conviction. (I) AMJ

Klippi, Elizabeth — In re E.O., E071636 — Indian Child Welfare Act — Steven A. Mapes, Judge — Opinion by Codrington, J., with Fields, J., Raphael, J. Father argued that the agency failed to investigate claims of possible Indian heritage for both mother and father. County Counsel conceded the error and recommended a conditional reversal to allow the agency to comply with the investigation and noticing requirements of the Indian Child Welfare Act. The opinion conditionally reversed the trial court’s orders and remanded with instructions to comply with the Indian Child Welfare Act. (I) LLF

Katz, Paul — People v. Quirino, G050926 — Gang Enhancement/Prior Prison Term Enhancement/Senate Bill 620 — M. Marc Kelly, Judge — Opinion by Ikola, J., with Bedsworth, J., Fybel, J. Court of Appeal found insufficient evidence supports findings that appellant’s possession of a gun and possession of methamphetamine while armed were for the benefit of his gang. Both gang enhancements ordered stricken. In addition, appellant’s one-year prior prison term enhancement based on a felony that was reduced to a misdemeanor under Proposition 47 must be stricken. Finally, the laboratory fee must be stricken as unauthorized and the case is remanded to allow the trial court to exercise its discretion as to whether to strike the firearm enhancement under Senate Bill 620. (I) PMI

Haggerty, Edward — People v. Chandler, G054869 — Senate Bill 1393 — David A. Hoffer, Judge — Opinion by O’Leary, P.J., with Ikola, J., Goethals, J. Matter remanded for trial court to consider whether to exercise discretion to strike a prior serious felony enhancement under Senate Bill 1393, and to correct the number of actual pre-sentence custody credits. (I) NFA

Weinberg, Allen G. — People v. Mendez, G054985 — Senate Bill 620/Abstract of Judgment — Michael J. Cassidy, Judge — Opinion by Goethals, J., with Fybel, J., Ikola, J. Attorney General conceded and the Court of Appeal agreed that remand and resentencing was required to allow the trial court the opportunity to consider whether to impose or strike appellant’s firearm enhancement under Senate Bill 620. On remand, the trial court should also ensure that the new abstract of judgment correctly describes appellant’s conviction under Penal Code section 246 as discharging a firearm at an “occupied building,” not an “inhabited dwelling.” (I) SDS

Bewicke, Aurora — In re Frank F., G055231 — Pitchess — Lewis W. Clapp, Judge — Opinion by Fybel, J., with Moore, J., Goethals, J. Matter remanded to the juvenile court to conduct a new in-camera review of police personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. The sealed record reviewed by the Court of Appeal showed that the trial court delegated to the custodian of records the determination of what might be discoverable to the defense rather than making an independent determination. (A) AMJ

Jones, Jason L. — People v. Hagen, G055280 — Senate Bill 1393/Pre-sentence Credits — Lance P. Jensen, Judge — Opinion by Ikola, J., with Fybel, J., Thompson, J. Affirmed as modified and remanded with directions. The trial court erred in calculating pre-sentence conduct credits using the 15% limitation imposed by Penal Code section 2933.1, because appellant was not convicted of a violent felony as defined in Penal Code section 667.5, subdivision (c). Further, after a petition for rehearing was denied raising a Senate Bill 1393 issue, a petition for review granted and the California Supreme Court transferred the case to the Court of Appeal to reconsider the cause in light of Senate Bill 1393. The Court of Appeal directed the trial court to exercise its discretion on whether to strike the prior serious felony enhancement. (I) AMJ

Wasley, Kendall Dawson — People v. Atkins, G055294 — Proof of Priors — Karen L. Robinson, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Ikola, J. Attorney General conceded and the Court of Appeal agreed that insufficient evidence supported trial court’s finding that appellant suffered prior convictions in Vermont that would qualify as felony drunk driving convictions under California law. The case was remanded to retry the priors and/or for the trial court to re-sentencing appellant on reduced offenses. (I) APJ

Siegel, Josh — People v. Jackson, G055383 — Marsden Hearing/Proof of Priors/Senate Bill 1393 — Steven D. Bromberg, Richard M. King, and Sheila F. Hanson, Judges — Opinion by Moore, J., with O’Leary, P.J., Fybel, J. The Court of Appeal agreed that the trial court erred by failing to hold a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 in response to appellant’s hand-written request before trial. Judgment conditionally reversed for a hearing. In addition, appellant’s Florida convictions for robbery while carrying a deadly weapon could not be used as serious prior felony enhancements because the Florida statute does not include all elements of a serious felony under California law. Matter remanded for further proceedings. Finally, legislative changes from Senate Bill 1393 have given the courts discretion to strike or dismiss the serious felony prior enhancements in the interests of justice. Thus, on remand, court must exercise this discretion with respect to any valid serious felony prior enhancement. (I) LKH

Sandoval, Tyrone — People v. Usher, G055558 — Presentence Credits/Terms of Probation — Cheryl L. Leininger, Judge — Opinion by Fybel, J., with O’Leary, P.J., Ikola, J. Appellant is entitled to two days of pre-sentence conduct credits even though appellant spent only two days in custody prior to sentencing. In order to earn conduct credit for pre-sentence custody time, the defendant must be ordered to serve at least four days in custody post-sentencing; it is not required that he have served four days in custody prior to sentencing. Further probation conditions must be modified to reflect that appellant is required to seek training, schooling, or employment as approved by the probation officer and maintain a residence as approved by the probation officer. Finally, probation condition restricting defendant’s association “with persons known to you to be parolees, on post-release community supervision, convicted felons, users or sellers of illegal drugs, or otherwise disapproved of by probation or mandatory supervision” is unconstitutionally overbroad because it has no meaningful standards to prevent the probation officer from infringing on her right to freedom of association.Term modified by deleting the phrase: “or otherwise disapproved of by probation or mandatory supervision.” (A) CBM

Owen, Kristen — People v. Molina, G055709 — Penal Code Section 654 — Jonathan Fish, Judge — Opinion by Goethals, J., with O’Leary, P.J., Moore, J. Court of Appeal determined that appellant’s sentence for battery must be stayed under Penal Code section 654 because the battery and attempted murder (for which appellant was separately sentenced) were committed with the same objective. (I) LKH

Auwarter, Neil — People v. Rafael, G055925 — Pinpoint Instructions — Kimberly Menninger, Judge — Opinion by Ikola, J., with Bedsworth, J., Moore, J. Robbery conviction reversed where trial court refused a defense pinpoint instruction conveying that if defendant used force or fear only after abandoning property he took, then no robbery occurred. The error was prejudicial because the evidence would have permitted jurors to conclude appellant took beer from a store, but then abandoned it before menacing the store owner, who was pursuing appellant through a parking lot. (S) NFA

Johnson, Linnéa — People v. Lopez, G056130 — Senate Bill 1393/Clerical Error — Cheryl L. Leininger, Judge — Opinion by Fybel, J., with O’Leary, P.J., Ikola, J. Court of Appeal agreed that Senate Bill 1393 applies retroactively to appellant and the matter must be remanded for resentencing with directions to the trial court to decide whether it will exercise its discretion to strike the prior serious felony enhancement. In addition, abstract of judgment must be corrected to conform with the court’s oral pronouncement of judgment. (I) PMI

April 2019

Cannon, Gregory L./Ulibarri, Patricia J. — People v. Johnson/Guthrie, D071011, (2019) 25 Cal.App.5th 588 — Senate Bill 1393/Senate Bill 620 — Charles G. Rogers, Judge — Opinion by Nares, J., with Huffman, J., Irion, J. The Court of Appeal agreed with appellants that the matter must be to be remanded to allow the superior court to consider whether appellant Johnson’s firearm enhancement should be stricken under Senate Bill 620, and to determine whether appellant Guthrie’s serious felony prior enhancement should be stricken under Senate Bill 1393. (I) LAR

Ulibarri, Patricia — People v. Keller, D072199, D072974 — Senate Bill 1393 — Esteban Hernandez, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Huffman, J. Following People v. Garcia (2018) 28 Cal.App.5th 961, the court found that Senate Bill 1393, authorizing discretion to dismiss serious felony prior enhancements applied retroactively to appellant’s case. Sentence vacated and case remanded for resentencing. (I) CBM

Staley, John L./Ferguson, Susan L. — People v. Goodall/Schwickert, D072757 — Senate Bill 180 — Joan P. Weber, Judge — Opinion by Huffman, J., with Benke, J., Nares, J. Court of Appeal agreed as to both appellants that all three-year enhancements for prior drug-related convictions must be stricken as no longer authorized under Senate Bill 180. Because appellants’ case was not yet final when Senate Bill 180 took effect, it applies retroactively to appellants. (I) SDS

Stevenson, Theresa O. — People v. Moreno, D073234 — Senate Bill 1393 — Harry M. Elias, Judge — Opinion by Aaron, J., with Huffman, J., Nares, J. Sentence is vacated and the matter is remanded for sentencing at which the court shall consider whether to exercise its discretion to strike appellant’s prior serious felony enhancement under Senate Bill 1393. (I) PMI

Romero, Lynda — People v. Pride, D073360, (2019) 31 Cal.App.5th 133 — Senate Bill 1393 — Louis R. Hanoian, Judge — Opinion by McConnell, P.J., with Nares, J., Haller, J. Under Senate Bill 1393, the trial court now has discretion to strike appellant’s serious felony prior. The Attorney General conceded. The case is remanded so the trial court can consider whether to dismiss appellant’s serious felony prior enhancement. (I) HSI

Sagel, Ami — In re T.C., D073810 — Probation Condition — Aaron H. Katz, Judge — Opinion by Huffman, J., with Haller, J., Guerrero, J. Probation condition requiring minor to report all law enforcement “contacts” is unconstitutionally vague warranting remand for trial court to modify or strike it. No forfeiture for failure to object because a constitutionally vague condition can be raised for the first time on appeal. (A) AMJ

Bacalski, Cherise — People v. Cortes, D073905 — Proposition 36 — Runston G. Maino, Judge — Opinion by Nares, J., with O’Rourke, J., Guerrero, J. Appellant successfully argued the trial court erred in denying him Proposition 36 probation and drug treatment. Appellant had two post-Proposition 36-related convictions. In the first case, appellant was initially assigned to a drug treatment program, but was later sentenced to prison for committing probation violations. In the second case, appellant successfully completed drug treatment. The Court of Appeal agreed appellant was not “unamenable to any and all forms of available drug treatment” within the meaning of section 1210, subdivision (b). Appellant had never been to residential treatment - the treatment he now requested. And although appellant’s instant offense shows he relapsed, Proposition 36 gives offenders multiple chances because recovery is a difficult road. (A) SDS

Beckham, Sylvia — People v. Elliot, D074043 — Senate Bill 1393 — John M. Tomberlin, Judge — Opinion by Aaron, J., with McConnell, P.J., Huffman, J. Remanded for sentencing court to exercise its newly-granted discretion under Senate Bill 1393 to dismiss defendant Elliot’s prior serious felony enhancement, and to correct abstract of judgment to reflect that victim restitution was awarded jointly and severally with co-defendant. (I) NFA

Buckley, Christian — People v. Chandler, D074044 — Senate Bill 1393 — Victor R. Stull, Judge — Opinion by Dato, J., with McConnell, P.J., Guerrero, J. Remanded for trial court to correct errors in minutes regarding jury verdicts and in abstract of judgment, and for sentencing court to exercise its discretion, newly granted by Senate Bill 1393, to strike a five-year prior serious felony enhancement. (I) NFA

Grimm, Cynthia — People v. Concepcion, D074194 — Senate Bill 620 — John M. Tomberlin, Judge — Opinion by Guerrero, J., with Haller, J., Irion, J. Remanded for re-sentencing to allow the superior court to consider whether to exercise its discretion to strike or dismiss the firearm enhancement in accordance with Senate Bill 620. (I) PMI

Schwartzberg, Richard — People v. Cleveland, D074469 — Senate Bill 1393 — Debra Harris, Judge — Opinion by Haller, J., with Nares, J., Guerrero, J. Attorney General conceded and Court of Appeal agreed that Senate Bill 1393, which grants the trial court discretion to strike a prior serious felony, applies retroactively. Reversed in part for the trial court to exercise its discretion. (I) AMJ

Marshall, Marilee — People v. Ortega, D074576 — Insufficient Evidence — Michael A. Knish, Judge — Opinion by Dato, J., with O’Rourke, J., Guerrero, J. Evidence was insufficient to show appellant evaded police or possessed a firearm “with the specific intent to promote, further, or assist in any criminal conduct by gang members.” Thus, gang enhancements ordered stricken. (I) AMJ

Wrubel, Sharon — People v. Wynn, D074580 — Senate Bills 620 and 1393/Penal Code 654 — John G. Evans, Judge — Opinion by Irion, J., with McConnell, P.J., Benke, J. Court of Appeal remanded, directing sentencing court to stay pursuant to Penal Code section 654 the term for possession of a firearm by a felon where this offense was based on the same act and criminal intent as the murder and accompanying firearm use enhancement for which appellant was separately sentenced. The court also directed the trial court to exercise its newly created discretion under Senate Bill 620 and Senate Bill 1393, respectively, by considering whether to strike the firearm use enhancement and whether to strike a five-year prior serious felony enhancement. (I) NFA

Angres, Robert — People v. Sanchez, D074694 — Mandatory Supervision Conditions — John D. Molloy, Judge — Opinion by Nares, J., with Benke, J., Irion, J. Court of Appeal agreed that supervision condition prohibiting appellant from associating with persons known to use or possess controlled substances is over-broad because it does not distinguish between lawful and unlawful use. Similarly, condition that bars appellant from associating with any unrelated person he knows to be a gang member is void for vagueness because it does not define “gang.” Court of Appeal ordered modifications to distinguish between lawful and unlawful use and to incorporate the definition of “criminal street gang” provided by statute. (I) HCC

Owen, Thomas — People v. Flores, D074714 — Senate Bill 620 — Mac R. Fisher, Judge — Opinion by Huffman, J., with Dato, J., Guerrero, J. Attorney General conceded and Court of Appeal agreed that matter must be remanded for trial court to exercise its discretion, under Senate Bill 620, to dismiss firearm enhancement. (I) APJ

Smith, Kevin — People v. Flores, E068512 — Penal Code Section 1170.18/Prop. 47 — Stephen J. Gallon, Judge — Opinion by Fields, J., with McKinster, J., Slough, J. The true finding on appellant’s fourth prison prior is ordered stricken because the underlying felony conviction had been reduced to a misdemeanor under Prop. 47 prior to sentencing in this case. (I) LKH

Brownell, Gordon — People v. Covin, E068841 — Senate Bill 620 — Lisa Rogan, Judge — Opinion by Miller, J., with McKinster, J., Raphael J. Appellant’s sentence vacated and matter remanded for re-sentencing for the limited purpose of allowing the trial court to consider whether firearm enhancements should be imposed or stricken under Senate Bill 620. (I) MCR

Sheehy, Kevin D. — People v. Marquez, G048762, (2019) 31 Cal.App.5th 402 — Senate Bill 1393 — Gregg L. Prickett, Judge — Opinion by Moore, J., with O’Leary, P.J., Bedsworth, J. Case remanded to the trial court to consider whether to exercise its discretion to strike the punishment for any or all of appellant’s three prior serious felony convictions, and to correct credits. (I) LAR

Smith, Kevin/Bowman, Elizabeth — People v. Mendoza/Galindo, G054774 — Insufficient Evidence — Michael J. Cassidy, Judge — Opinion by Thompson, J., with Moore, J., Aronson, J. Both appellants were convicted of street gang participation on the grounds that they stole a car together. Appellant Mendoza was also convicted of unlawfully taking or driving a vehicle, but appellant Galindo was acquitted on that count. Because appellant Galindo was acquitted of car theft, there was insufficient evidence to prove that the underlying crime for the gang participation offense was committed by two or more gang members, a required element to support the conviction. The convictions of both appellants for street gang participation are reversed. (I)/(A) MCR

Ball, Lindsay— People v. Vargas, G054998 — Probation Conditions — Cheri T. Pham, Judge — Opinion by Goethals, J., with Fybel, J., Thompson, J. Probation condition requiring approval of residence from probation officer and prohibiting appellant from “associat[ing] with persons . . . disapproved of by probation or mandatory supervision” are unconstitutionally over-broad because they confer unfettered discretion to probation officer to decide where appellant can live or with whom he can associate. Matter remanded so trial court can either strike or revise the conditions to provide the probation department with more particularized directions. (I) SDS

Vento, Christine — People v. Ramirez, G055000 — Abstract of Judgment — James Edward Rogan, Judge — Opinion by Thompson, J., with Fybel, J., Goethals, J. Abstract of judgment ordered modified to conform with the trial court’s oral pronouncement of judgment. (I) SDS

Dellaca, Tanya — In re J.G., G055029 — Probation Conditions — Joanne Motoike, Judge — Opinion by Goethals, J., with Fybel, J., Ikola, J. Probation condition that minor "complete any program of counseling if directed" by probation is unconstitutionally vague and over-broad because it improperly delegates judicial authority over the condition to the probation department. The case is remanded with instructions either to strike the condition or to modify it to specify whether the minor is to complete counseling, and if so, what type of counseling the minor is required to complete. (I) PMI

Booher, Robert — People v. Estrada, G055095 — AIDS Testing — Michael J. Cassidy, Judge — Opinion by Thompson, J., with Fybel, J., Ikola, J. The order requiring defendant to submit to testing for AIDS is vacated and the matter is remanded. The prosecutor has 30 days to request a hearing on whether there was probable cause to believe that a bodily fluid capable of transmitting HIV had been transferred from appellant to victim within the meaning of Penal Code section 1202.1, subdivision (e)(6)(A)(iii). (I) PMI

Duxbury, Brett Harding — People v. Morales, G055191 — Juror Removal — David A. Hoffer, Judge — Opinion by O’Leary, P.J., with Moore, J., Goethals, J. At trial, an expert testified as to appellant’s IQ. Just before deliberations, Juror asked the trial court (outside the presence of the other jurors) whether she could consider her own relatively low IQ in deliberations. The court confirmed Juror was not subject to conservatorship, and that she understood the evidence, arguments, and instructions. Yet, the court ultimately discharged Juror because it was not confident that if Juror remained on the panel, appellant would receive the considered judgment and decision of 12 individual jurors. Appellant successfully argued the trial court abused its discretion in discharging Juror. The Court of Appeal held Juror’s inability to perform her duty as a juror did not appear in the record as a “demonstrable reality.” The evidence concerning Juror’s IQ was without foundation and speculative, and the record demonstrated she was not intellectually impaired based on her life activities. Moreover, the notion Juror could not follow the court’s instructions was not manifestly supported by the evidence because Juror heard the court’s instructions, processed them, and identified what she considered an issue with respect to her personal experience, and repeatedly answered she could follow the instructions. Finding the error prejudicial, the Court reversed the judgment. (I) SDS

Sheehy, Kevin — People v. Andrews, G055226 — Right to be Present/Senate Bill 1393 — Steven D. Bromberg, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Aronson, J. Matter remanded for a second re-sentencing because appellant was deprived of his right to be present at the first re-sentencing and because Senate Bill 1393 is now applicable for the court’s determination as to whether to strike a prior serious felony conviction. (I) AMJ

Angres, Robert L.S. — People v. Trujillo, G055320 — Sentencing — Gary S. Paer, Judge — Opinion by Aronson, J., with Fybel, J., Ikola, J. White collar crime enhancement must be reduced from two years to one year because that was the term provided for at the time of sentencing.. (I) PMI

Shetty, Siri — People v. Samarakone, G055406 — Probation Conditions — Michael A. Leversen, Judge — Opinion by Aronson, J., with Thompson, J., Goethals, J. The trial court imposed a condition of probation upon appellant, in part prohibiting her from associating with persons “disapproved of by probation or mandatory supervision.” Appellant argued this condition was unconstitutionally vague and overbroad because it placed no limits on those persons with whom the probation officer may prohibit her from associating, and gave the probation officer unfettered discretion to decide with whom she may associate. The Court of Appeal agreed and ordered the condition deleted. (S) SDS

Larson, Eric R. — In re Sarith Yin, G056336 — Chiu — Francisco P. Briseno, Judge — Opinion by Goethals, J., with Aronson, J., Ikola, J. Petitioner filed a pro per petition for writ of habeas corpus based on the holding in People v. Chiu (2014) 59 Cal.4th 155, that an accomplice cannot be guilty of first degree murder based on the natural and probable consequences theory of liability. Counsel was appointed. The court granted the petition because it could not be concluded beyond a reasonable doubt that the jury relied on the legally valid theory of direct aider and abettor liability - instead of the discredited natural and probable consequences doctrine. First degree murder conviction was vacated. On remand, the prosecution may at its discretion accept a second degree murder conviction or retry petitioner for first degree murder under a legally appropriate theory. (I) LAR

March 2019

Greenberg, Mark D. — People v. Marsh, C078999, (2018) 20 Cal.App.5th 694 — Prop. 57/Juvenile Transfer Hearing — David W. Reed, Judge — Opinion by Butz, J., with Blease, J., Murray, J. The judgment of the criminal court is conditionally reversed and the matter is remanded to the juvenile court with directions to hold a juvenile transfer hearing to determine defendant’s suitability for treatment in juvenile or criminal court within 90 days of the issuance of the remittitur. (I) LAR

Coolman, Alex — People v. Wells, D072602 — Senate Bill 1393 — David G. Brown, Judge — Opinion by McConnell, P.J., with O’Rourke, J., Dato, J. Court of Appeal granted appellant’s request to recall the remittitur and agreed with appellant’s argument that the new law enacted via Senate Bill 1393 applies retroactively to appellant and the matter must be remanded to allow the trial court to exercise its newly granted discretion to dismiss the serious felony five-year prior enhancement. (I) APJ

Shudde, Athena — People v. Shaw, D072841 — Penal Code Section 654/Senate Bill 1393 — Frederic L. Link, Judge — Opinion by Dato, J., with Nares, J., Guerrero, J. On rehearing, judgment modified to stay the terms imposed for assault with a deadly weapon and making a criminal threat pursuant to Penal Code section 654. Also, the matter is remanded for a re-sentencing hearing for the court to exercise its discretion whether to strike the five-year enhancement for the serious felony prior under section 667, subdivision (a)(1). (I) LAR

Burz, Dacia — People v. Perez, D072943 — Sentencing — L. Brooks Anderholt, Judge — Opinion by Nares, J., with Benke, J., Aaron, J. Court of Appeal requested supplemental briefing on the question and then agreed with appellant that the failure to impose five-year enhancements for two serious felony priors was not an unauthorized sentence when prosecutor only charged the priors under the three strikes law but not the prior serious felony conviction statute, indicating “a discretionary charging decision” by the government. (I) ABM

Dain, Anthony — People v. Perez, D072995 — Insufficient Evidence/Clerical Error — William D. Lehman, Judge — Opinion by Guerrero, J., with Benke, J., Dato, J. The Court of Appeal found that a tooth fracture caused by appellant’s conduct does not amount to a disfiguring injury required for the offense to qualify as mayhem because the injury was neither permanent nor visible. Mayhem conviction reversed. In addition, on the abstract of judgment, the description of appellant’s conviction must be amended to conform to the jury’s verdict: assault on a custodial officer by means of force likely to cause great bodily injury, rather than assault with a deadly weapon on a custodial officer. (I) LKH

Johnson, Linnea M. — People v. Wright, D073038, (2019) 31 Cal.App.5th 749 — Senate Bill 180/Validity of Plea — Carlos R. Armour, Judge — Opinion by Nares, J., with O’Rourke, J., Guerrero, J. Attorney General conceded and Court of Appeal agreed that Senate Bill 180, which invalidates the enhancement of certain sentences based on prior drug convictions, applies retroactively to cases that were not final on appeal when the new law went into effect. The Attorney General vigorously objected, however, to relief being granted in this case where the enhanced sentence was a stipulated term of a plea agreement. Attorney General argued that a certificate of probable cause was required and granted too late in this appeal. The Attorney General also argued that the general appeal waiver precluded appellant from challenging the sentence here. Court of Appeal agreed with appellant that the plea is deemed to incorporate future favorable changes in the law and application of the new law to appellant’s sentence does not affect the validity of the plea nor is the future unanticipated change in law covered by the appeal waiver. (I) APJ

Rosciam, Cathryn Lintvedt — People v. Goolsby, D073368 — Right to Be Present — Timothy R. Walsh, Judge — Opinion by Nares, J., with O’Rourke, J., Dato, J. In a procedurally complex case, where appellant was twice convicted of crimes committed while in prison, Court of Appeal agreed that appellant was deprived of his right to be present for post-sentencing corrections of fines and credits, especially when these corrections might have violated material terms of the plea agreements. “Ex Parte Minute Order” is vacated and matter remanded for trial court to determine, with appellant present, the terms of the plea agreements, and, possibly, to allow withdrawal of pleas if any terms were unauthorized, and, otherwise, to correct credits and fines as authorized by law. (I) APJ

Brownell, Gordon S. — People v. Kim, D073595 — Abstracts of Judgment — John M. Moterosso, Judge — Opinion by Nares, J., with Dato, J., Guerrero, J. Abstracts of judgment to be corrected to conform with the court’s oral pronouncement of judgment. (I) HSI

Dain, Anthony — People v. Dunn, D073799 — Senate Bill 1393 — Herbert Exarhos, Judge — Opinion by Guerrero, J., with Haller, J., Irion, J. Case remanded for trial court to exercise discretion as to striking five-year prior serious felony enhancement pursuant to newly enacted Senate Bill 1393 and to correct an error in the abstract of judgment. (I) NFA

Lathrop, Stephen — People v. Bryant, D074040 — Senate Bill 1393 — Charles E. Stafford, Jr., Graham A. Cribbs, Alfonso Fernandez, Judges — Opinion by Guerrero, J., with Nares, J., Haller, J. After granting a motion to recall the remittitur to permit supplemental briefing regarding Senate Bill 1393, which removed the statutory prohibition on striking a five-year serious felony conviction enhancements, Court of Appeal reversed to permit resentencing. (I) AMJ

Fitzer, Richard L. — People v. Ridley, D074196 — Penal Code Section 654/Senate Bill 1393 — Elaine Kiefer, Judge — Opinion by Benke, J., with Dato, J., Guerrero, J. The trial court erred in not staying appellant’s criminal threats and false imprisonment sentences, as those crimes arose from an indivisible course of conduct which included appellant’s burglary crime, for which he was separately punished. In addition, the Attorney General conceded and Court of Appeal agreed that Senate Bill 1393 applies retroactively to appellant. Matter remanded for stay of sentences and for court to exercise its discretion with regard to the five-year serious felony enhancement. (I) SDS

Stanton, Marta I. — People v. Quarles, D074466 — Senate Bill 620 — Irma Poole Asberry, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Huffman, J. Case remanded for sole purpose of allowing trial court to re-sentence appellant and in doing so, exercise its discretion under Penal Code section 12022.53, subdivision (h) by deciding whether to strike or dismiss appellant’s firearm enhancement. (I) LAR

Nalls, Christopher — People v. Manila, D074569 — Discharging Retained Counsel — Mary E. Fuller, Judge — Opinion by McConnell, P.J., with Nares, J., Haller, J. After the verdict but before sentencing, appellant requested appointment of new counsel claiming his retained counsel had been ineffective. The trial court denied the request, reasoning appellant was raising issues only cognizable on appeal. Court of Appeal reversed because a defendant may discharge retained counsel at any time, without any showing of incompetence, so long as the discharge would not result in prejudice or an unreasonable disruption of the orderly process of justice. Here, because nothing in the record suggested appointment of new counsel would unreasonably disrupt the proceedings, the trial court erred in failing to discharge retained counsel and appoint new counsel. The error is presumptively prejudicial and requires automatic reversal. (I) CBM

Scott, Patricia — People v. Jones, E067613 — Senate Bill 1393/Fees — Alfonso Fernandez, Judge — Opinion by Miller, J., with Ramirez, P.J., Rafael, J. Matter remanded for trial court to exercise its newly granted Senate Bill 1393 discretion to strike the five-year prior serious felony enhancement. Errors in the amounts of two fees were also corrected. (I) NFA

Wass, Valerie — People v. Martinez, E068597 — Senate Bill 1393 — Ronald M. Christianson, Judge — Opinion by Fields, J., with McKinster, J., Slough, J. Case remanded for sentencing court to exercise its newly granted discretion to strike five-year prior serious felony enhancement pursuant to Senate Bill 1393. (I) NFA

Sagel, Ami Sheth — People v. Durden, E069298 — Mandatory Supervision Conditions — Charles J. Koosed, Judge — Opinion by McKinster, J., with Ramirez, P.J., Raphael, J. Court of Appeal agreed with the reasoning in People v. Relkin (2016) 6 Cal.App.5th 1188, and found the condition requiring appellant to report any law enforcement contacts to the probation officer is not sufficiently clear. The case is remanded to the trial court for modification to clearly inform appellant of what contacts must be reported. (A) PMI

Hinkle, Stephen M. — People v. Basulto, E069551 — Penal Code Section 654/Abstract of Judgment — Larrie R. Bainard, Judge — Opinion by Fields, J., with Ramirez, P.J., Slough, J. Attorney General conceded and Court of Appeal agreed that the sentence for criminal threats and attached personal use knife enhancement must be stayed under Penal Code section 654 as the offense was part of the attempted murder for which appellant was separately punished. The case is remanded to stay the sentences and also to correct the abstract of judgment to show the booking fee was ordered suspended. (I) PMI

Crawford, James M. — People v. D.R., E069901 — Probation Conditions — Winston S. Keh, Judge — Opinion by Miller, J., with Ramirez, P.J., Raphael, J. As a condition of his probation, minor was prohibited from accessing social media networking sites and maintaining accounts for any such social media sites. The Court of Appeal agreed with minor that the term was unconstitutional as written. The Court modified the condition to prohibit minor from accessing any social networking site or maintaining an account without the express permission of his probation officer. (See Packingham v. North Carolina (2017) 137 S.Ct. 1730.) (I) SDS

Siroka, Matthew — In re Avalos, E069973 — Franklin Hearing — Dean Benjamini, Charles E. Stafford, Jr., Judges — Opinion by Ramirez, P.J., with Slough, J., Fields. J. Court of Appeal agreed that, pursuant to People v. Franklin (2016) 63 Cal.4th 261, petitioner is entitled to an evidentiary hearing to create a record of mitigating factors of youthfulness that existed at the time of his offense in preparation for his eventual youthful offender parole hearing. In addition, petitioner contended, respondent conceded, and the Court of Appeal agreed the trial court did not have authority to require petitioner to submit to HIV and AIDS testing while in prison, so the abstract of judgment must be corrected to delete that requirement. (I) HCC

Boyce, Robert — People v. Ciggs, E070212 — Firearm Use Enhancements — David A. Gunn, Judge — Opinion by McKinster, J., with Ramirez, P.J., Rafael, J. On appeal from a re-sentencing, the Court of Appeal reversed the sentence on several counts because: 1) the re-sentencing judge had deferred to the discretionary choices made by the original sentencing judge, rather than exercising independent discretion; and 2) the re-sentencing judge had improperly imposed a full 10-year Penal Code section 12022.5 firearm use enhancement on a subordinate consecutive offense, when it should have imposed one-third the full enhancement. (I) NFA

Crawford, James M. — People v. Ochoa, E070319 — Senate Bill 1393 — James S. Hawkins, Judge — McKinster, J., with Ramirez, P.J., Slough, J. After the Court of Appeal denied appellant’s petition for rehearing based on the new law, the Supreme Court granted the petition for review and transferred the matter back to the Court of Appeal with directions to vacate the decision and reconsider the cause in light of Senate Bill 1393. The Court of Appeal then issued this opinion, remanding the matter to the trial court to exercise its discretion to strike the Penal Code section 667, subdivision (a) enhancement. (I) LAR

Haggerty, Edward — People v. Padilla, E070954 — Credits/Intended Sentence Term — David Gunn, Judge — Opinion by Ramirez, P.J., with Miller, J., Cunnison, J. On appeal from a re-sentencing, Court of Agreed that the judgment must be modified to reflect the intended six-year concurrent prison terms rather than the eight years ordered by the trial court and to reflect the updated credits for actual time served that the trial court failed to calculate. (I) AMJ

Klippi, Elizabeth — In re M.B., E071200 — Indian Child Welfare Act (ICWA) — Christopher B. Marshall, Judge — Opinion by McKinster, J., with Ramirez, P.J., Raphael, J. Opinion ordered a conditional reversal for failure to comply with the ICWA notice requirements. Mother argued, and the Court of Appeal agreed, that where the agency reports do not indicate what was done to interview extended family members about possible Indian heritage the agency cannot argue substantial compliance with the investigative requirements of the ICWA on appeal. (I) LLF

Polsky, David/Weinberg, Allen — People v. Hernandez/Pala, G054544 — Unauthorized Sentence/Senate Bill 620 — John Conley, Judge — Opinion by Aronson, J., with Bedsworth, J., Goethals, J. Court of Appeal reversed and remanded on three grounds. First, trial court erred in sentencing appellants to “seven-years-to-life” when the statutory term is life with the possibility of parole. Additionally, the abstract of judgment incorrectly mixes total determinate and indeterminate sentences. Finally, Senate Bill 620 applies to all nonfinal judgments so the case is remanded for re-sentencing to allow the trial court to exercise its discretion under Penal Code section 12022.53, subdivisions (c) and (e)(1) and correct the sentence and abstract of judgment. (I) LKH

Wrubel, Suzanne — People v. Mojarra, G055206 — Fines and Fees — John Conley, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Aronson, J. Because appellant was sentenced to life without parole, the trial court erred in imposing a parole revocation fine under Penal Code section 1202.45. The Attorney General conceded the issue. Appellant’s parole revocation fine is stricken. (I) MCR

Burz, Dacia — People v. Neuhart, G055217 — Senate Bill 1393 — Derek Guy Johnson, Judge — Opinion by Moore, J., with O’Leary, P.J., Goethals, J. The Court of Appeal remanded for the trial court to exercise its discretion to impose or strike the five-year serious felony prior enhancement under the new law. (I) HCC

Dain, Anthony — People v. Strand, G055291 — Senate Bill 1393 — James Edward Rogan, Judge — Opinion by Aronson, J.,with Fybel, J., Ikola, J. Under Senate Bill 1393, the trial court now has discretion to strike appellant’s serious felony prior enhancement. The Attorney General conceded. The case is remanded so the trial court can consider whether to strike or dismiss appellant’s serious felony enhancements. (I) HSI

Crawford, James — People v. Porte, G055315 — Senate Bill 1393 — Richard M. King, Judge — Opinion by Fybel, J., with O’Leary, P.J., Aronson, J. Under Senate Bill 1393, the trial court now has discretion to strike appellant’s serious felony prior enhancement. The case is remanded so the trial court can consider whether to dismiss appellant’s serious felony strike for sentencing purposes. (I) HSI

Kross, Jeffrey — People v. Parker, G055336 — Senate Bill 1393/Bodily Injury Enhancements — Lance Jensen, Judge — Opinion by Moore, J., with Aronson, J., Goethals, J. Court of Appeal remanded to allow trial court to exercise its discretion to impose or strike appellant’s five-year serious felony prior enhancement. In addition, on remand, the trial court is directed to clarify whether the court’s striking of bodily injury enhancements was for all purposes or sentencing only. (I) LKH

Haggerty, Edward — People v. Gomez, G055352, (2018) 30 Cal.App.5th 493 — Sentencing — Kimberly Menninger, Judge — Opinion by Fybel, J., with Bedsworth, J., Thompson, J. Trial court erred in imposing full, consecutive middle term sentences for two Penal Code section 288, subdivision (a) counts. The trial court had imposed the full consecutive terms under Penal Code section 667.6, subdivision (d). But section 288, subdivision (a) is not listed in this alternative sentencing scheme. (People v. Cardenas (1994) 21 Cal.App.4th 927, 930.) Thus, the trial court imposed an unauthorized sentence. Case remanded for resentencing. (I) CBM

Norman, Jan — People v. Salary, G055407 — Senate Bill 1393 — Robert C. Gannon, Judge — Opinion by Aronson, J, with Fybel, J., Thompson, J. The Governor signed Senate Bill 1393 a few days after the remittitur in this original Wende case was filed. Counsel filed, respondent did not oppose, and the court granted a motion to recall the remittitur. On the merits, again, respondent did not oppose and the Court of Appeal ordered remand. (I) HCC

Rehm, Linda — In re G.R., G056676 — Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) — Antony C. Ufland, Judge — Opinion by Fybel, J., with Bedsworth, J., Goethals, J. Matter reversed and remanded to comply with UCCJEA, finding the trial court failed to determine whether it had subject matter jurisdiction to make custody orders after the initial proper exercise of temporary emergency jurisdiction. Where child had not been in California for the prerequisite six months for home state jurisdiction, juvenile court failed to ascertain whether El Salvador had jurisdiction or whether jurisdiction was proper under Family Code section 3427. (I) LLF

Jones, Rebecca — People v. Servin, G056696, (2019) 31 Cal.App.5th 731 — Compassionate Release — Richard M. King, Judge — Opinion by Fybel, J., with O’Leary, P.J., Moore, J. Appellant serving an indeterminate term for murder became terminally ill, and the Secretary of the CDCR recommended the trial court recall appellant’s sentence for compassionate release under Penal Code section 1170, subdivision (e). The trial court denied release at a hearing in which the court found appellant was not deserving of release, and failed to make any finding as to whether release would be a threat to public safety. On appeal, appellant died. The Court of Appeal abated the appeal due to appellant’s death, but exercised its discretion to file a published opinion holding: 1) The trial court improperly failed to base its exercise of discretion on the enumerated statutory factors, i.e., whether the inmate is terminally ill with a life expectancy of six months or less, and whether release would threaten public safety. Specifically, the trial court failed to make a finding on the statutory factor of public safety, and it improperly relied on whether appellant was deserving of release, which is not an enumerated factor. 2) The court urged that counsel in compassionate release cases ask the appellate court at the earliest time to give the appeal calendar preference so that the appeal may be resolved while the inmate is still alive. (I) NFA

February 2019

Williams, Rex — People v. Arteaga, D072068 — Unauthorized Sentence/Senate Bill 1393/Motion to Recall Remittitur — Frederic L. Link, Judge — Opinion by Benke, J., with Huffman, J., Haller, J. Court of Appeal determined that the matter must be remanded for the trial court to either impose or strike, rather than stay, the 10-year gang enhancement. In addition, a prison prior enhancement must be stricken rather than stayed. And finally, court must exercise its discretion under newly enacted Senate Bill 1393 to impose or strike the five-year serious felony prior. This latter relief was added to the opinion after counsel successfully moved to recall the remittitur. (I) HSI

Ball, Lindsey — People v. Dominguez, D072771 — Gang Enhancement — Frederic L. Link, Judge — Opinion by Huffman, J., with Benke, J., O’Rourke, J. Court of Appeal agreed the trial court erred in staying the gang enhancement when it should have been struck, based on the trial court’s comments at sentencing. In addition, the abstract of judgment should be amended to show that the restitution ordered is joint and several between appellant and his codefendant. Matter remanded for corrections. (I) HSI

Mahler, Edward — People v. Hamilton, D073034, (2018) 30 Cal.App.5th 673 — Insufficient Evidence — Esteban Hernandez, Judge — Opinion by Irion, J., with Haller, J., Dato, J. Attorney General conceded and Court of Appeal agreed that the evidence was insufficient to support convictions for violating California Insurance Code section 1871.4, subdivision (a), which defines the term compensation by referencing California Labor Code section 3207. The convictions were based on appellant, a U.S. postal employee, making a fraudulent claim due to an injury and receiving compensation from the U.S. Department of Labor. The court determined that the compensation benefits appellant received were not compensation under California Labor Code section 3207, because they were not conferred by that code; they were conferred under federal law. (I) AMJ

Rosciam, Cathryn Lintvedt — People v. Johnson, D073254 — Dual Conviction — David G. Brown, Judge — Opinion by Haller, J., with Huffman, J., Nares, J. Attorney General conceded and Court of Appeal agreed that conviction for grand theft must be reversed because theft is an offense necessarily included within robbery and in this case appellant was convicted of both offenses based on the same conduct. (I) APJ

Johndro, Ashley — People v. Cisneros, D073257 — Clerical Error — Lorna A. Alksne, Aaron H. Katz, Judges — Opinion by McConnell, P. J., with Huffman, J., O’Rourke, J. The Court of Appeal directed the clerk of the court to amend the minute order to accurately reflect the trial court’s oral pronouncement authorizing appellant to travel to Mexico once a month for orthodontia appointment. (A) HSI

Ting, Allison — People v. Lopez, D073325 — Sentencing — Bernard J. Schwartz, Judge — Opinion by Haller, J., with Nares, J., Guerrero, J. The trial court imposed one-year knife-use enhancements to three subordinate terms for carjacking. However, it is not clear that the court understood that these terms must reflect one-third of the court’s selected terms for the enhancements. Because the one-year terms could have been the result of three possible calculations: 1) one-third the upper term; 2) the full lower term; or 3) a miscalculation of one-third the middle term, the matter is remanded for the court to select a term from the triad for each enhancement, provide reasons for the selection, and impose it at one-third. (I) NFA

Schechter, Aaron Joseph — In re Valdez, D073570 — Prison Conditions Habeas Corpus — Opinion by Dato, J., with Huffman, J., Haller, J. Petitioner filed a petition for writ of habeas corpus challenging restrictions imposed by the California Department of Corrections and Rehabilitation (CDCR) which limited visitation with his children. The restrictions prohibited all contact with one child and limited visits to non-contact with the other child. These limitations were based on an erroneous finding in appellant’s record that appellant had been arrested for willful child cruelty. Petitioner had previously challenged the restrictions during an original stay in custody, but did not follow through with seeking relief until his second incarceration for life without the possibility of parole. During pendency of the habeas, CDCR decided to allow unrestricted visitation based on appellant’s good behavior.

Court of Appeal rejected CDCR’s argument that the habeas should be dismissed as moot, because the current allowance of visitation was based on good behavior and could be revoked at any time. In addition, the Court of Appeal rejected CDCR’s argument that petitioner had failed to exhaust administrative remedies when he first challenged the restrictions: because the reinstatement of the same restrictions during his second custodial period was a new decision with different ramifications, CDCR erred when it cut off administrative remedies by cancelling appellant’s administrative appeal as duplicative of his appeal during the earlier custodial period. Finally, as the petition was correct on the merits, restrictions on visitation based on the prior arrest must be invalidated and cancelled. (I) APJ

Gambale, Jennifer — People v. Perez, D074169 — Unauthorized Sentence — Robert Yabuno, Judge — Opinion by Huffman, J., with Haller, J., Guerrero, J. At re-sentencing on remand after prior appeal, trial court erred in sentencing appellant as a second strike offender, where the true finding on one strike prior had been reversed and the second was never found true. Trial court further erred in imposing a 10-year gang enhancement under Penal Code section 186.22, subdivision (b)(1)(c) where the underlying offense was nonviolent. Sentence is vacated and the case is remanded for the trial court to impose sentence without the strike prior and with a 5-year gang enhancement under Penal Code section 186.22, subdivision (b)(1). (I) LKH

Jones, Cynthia — People v. Myers, D074462 — Penal Code Section 1118.1/Insufficient Evidence — Rodney A. Cortez, Judge — Opinion by Huffman, J., with Benke, J., Aaron, J. The trial court erred in denying appellant’s Penal Code section 1118.1 motion to dismiss because substantial evidence did not support his second degree murder conviction. Appellant’s failure to check his weapon before discharging it and his failure to follow firearm safety guidelines do not sufficiently prove that he acted with implied malice. Therefore, conviction for the lesser included offense of involuntary manslaughter is appropriate. The judgment is modified to reflect that appellant was convicted of involuntary manslaughter, his sentence is vacated, and the case is remanded for re-sentencing. (I) HSI

Duxbury, Brett Harding — People v. Hernandez, D074579 — Ingrid A. Uhler, Judge — Opinion by Guerrero, J., with Huffman, J., Dato, J. Convictions of forcible oral copulation, forcible rape, and sodomy by force reversed with directions to conduct a new trial if the People so elect. Trial court erred by instructing jury on the charged sex offenses. While the court correctly instructed that the offenses must be committed by force, violence, duress, it also provided instructions that would allow jury to convict based on based on findings that the offenses were instead committed by threats of retaliation or threats of using public authority to incarcerate, arrest, or deport. Because these two additional circumstances constituted invalid legal theories and the Attorney General could not show that the jury rested its verdicts on valid theories, reversal is required. (I) LAR

Holzer, William — People v. Jones, E063745 — Penal Code Section 1170.18 (Prop. 47) — Michael A. Smith, Judge — Opinion by Slough, J., with Miller, J., Codrington, J. Although appellant’s petition for relief under Prop. 47 sought both the reduction of his burglary conviction and the dismissal of a prison prior that was based on an offense that had been reduced to a misdemeanor, the trial court addressed only the latter issue and denied relief. On appeal, Court of Appeal agreed that the matter must be remanded for the trial court to hold a hearing on the first issue: whether the burglary offense must be reduced to a misdemeanor. Although, dismissal of the prison prior was properly denied where judgment was final when Prop. 47 took effect, if the burglary conviction is reduced, it will no longer be subject to enhancement. (I) MCR

Conner, Randall — In re Wainscott, E070832 — Ineffective Assistance of Counsel/Sentencing Errors — Becky Dugan, John M. Davis, Harry (Skip) A. Staley, Judges — Opinion by Slough, J., with Ramirez, P.J., McKinster, J. Attorney General conceded and Court of Appeal agreed that both trial counsel and former appellant counsel were ineffective for failing to challenge the imposition of two unsupported on-bail enhancements. Petition for writ of habeas corpus granted, enhancements order stricken, and matter remanded for resentencing. (I) HCC

Brisbois, Patricia — People v. Colin, E067247— Restitution/Senate Bill 1393 — Steven Counelis, Judge — Opinion by Miller, J., with Ramirez, P.J., Slough, J. Trial court imposed restitution in excess of reported victim’s loss. Court of Appeal reversed the fine and remanded to trial court to specify the calculation method and explain how the method justifies the amount ordered. Additionally, matter remanded for court to consider dismissal of serious felony prior enhancement per Senate Bill 1393. (I) LKH

Harguindeguy, Marianne — People v. Villanueva, E068173 — Senate Bill 1393 — Elaine M. Kiefer, Judge — Opinion by Fields, J., with McKinster, J., Slough, J. The matter is remanded to the trial court with directions to resentence appellant pursuant to Senate Bill 1393 after January 1, 2019. (I) PMI

Capriola, William — People v. DeLaCruz, E068378 — Senate Bill 620 — Harold T. Wilson, Jr., Judge — Opinion by Rafael, J., with Ramirez, P.J., Fields, J. Matter is remanded to the trial court with directions to exercise its discretion under Penal Senate Bill 620 as to whether to strike the firearm enhancement. (I) AMJ

Temko, Dennis — In re A.R., E070343 — Reunification Services — Annemarie G. Pace, Judge — Opinion by Ramirez, P. J., with Miller, J., Raphael, J. Father argued, and the Court of Appeal agreed, that it was an abuse of discretion for the juvenile court to deny a biological father reunification services when he immediately became involved in the dependency case, requested a DNA test, requested reunification services, and was going to be released from jail in a few months and before the end of the initial reunification period. Other facts the Court of Appeal considered were that father’s drug abuse was short lived (less than 3 years) and his criminality was directly tied to his drug use. Given these facts, granting a biological father reunification services furthered the policy of reunification with a parent where possible and to deny reunification services was an abuse of discretion. (A) LLF

Ting, Allison — People v. Hollimon, G050259 — Out-of-State Prior — Lance Jensen, Judge — Opinion by Fybel, J., with Bedsworth, J., Ikola, J. Serious felony prior enhancement stricken because the trial court engaged in improper fact finding when it determined the Nevada state robbery conviction qualified as a serious felony prior within the meaning of Penal Code section 1192.7. (I) DKR

Ferguson, Susan L. — People v. Frahs, G054674, (2018) 27 Cal.App.5th 8784 — Penal Code Section 1001.36/Pre-Trial Mental Health Diversion — Glenn R. Salter, Judge — Opinion by Moore, J., with Fybel, J., Thompson, J. Applying the Supreme Court’s reasoning in In re Estrada (1965) 63 Cal.2d 740 and People v. Superior Court (Lara) (2018) 4 Cal.5th 299, the court infers that the Legislature must have intended the potential ameliorating benefits of the new mental health diversion law to extend retroactively to every case to which it could constitutionally apply. Because appellant’s case is not yet final on appeal and the record affirmatively discloses that he meets at least one of the threshold requirements, he is entitled to an eligibility determination regarding diversion under Penal Code section 1001.36, as though the statute existed at the time he was initially charged. The judgment is conditionally reversed. (A) PMI

The Supreme Court has granted review on its own motion (S252220).

Williams, Rex — People v. Verdin, G054703 — Suppression Hearing — W. Michael Hayes, Robert R. Fitzgerald, Judges — Opinion by Aronson, J., with Fybel, J., Ikola, J. Where the government conceded an illegal detention, but there was disagreement as to what evidence must be suppressed as a result, trial court erred in not holding an evidentiary hearing to determine what evidence should be suppressed. Matter remanded for hearing. (I) LAR

Kraus, Paul — People v. Stone, G055107 — Insufficient Evidence of Probation Violation/Improper Notice — Robert R. Fitzgerald, Judge — Opinion by Ikola, J., with Moore, J., Goethals, J. After pleading guilty, appellant served a term of probation in county jail before the jail released him to the custody of Illinois, based on that state’s warrant. Because appellant had been required to report after his release from custody, appellant’s probation officer in California filed a petition to revoke his probation stating that appellant had been released to another state and “there was no way to determine” which state he was released to. Based on this allegation, the trial court summarily revoked probation. Ultimately, when appellant was released from Illinois custody, he was arrested on the California warrant. After a hearing, the trial court formally revoked probation based on appellant’s failure to report after his release in Illinois.

The Court of Appeal reversed finding that the court violated appellant’s due process rights in two respects: first, it had summarily revoked probation without probable cause to believe that appellant had willfully absconded, since it was clear appellant did not report because he had been transferred to another state. And second, the trial court violated appellant’s due process rights when it revoked probation based on a later failure to report that had not been previously alleged and about which appellant had not been given notice. Order revoking probation reversed and sentence vacated. (A) CBM

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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