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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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

July 2018

Mazur, Janice R. — People v. Chavez, D070938 — Miranda Violation — Richard S. Whitney, Judge — Opinion by Dato, J., with Haller, J., Aaron, J. The Court of Appeal agreed that the investigatory questioning of appellant in a hospital conference room became accusatory to the point of becoming a custodial interrogation before appellant confessed to harming his infant daughter. Because he was not provided warnings under Miranda v. Arizona (1966) 384 U.S. 436 as required, appellant’s confession should have been suppressed. Because it could not be said that the guilty verdict was not attributable to this error the court reversed the judgment recognizing that, while the evidence against appellant was strong, it came from the testimony of interested parties and appellant’s confession was especially damaging in its level of detail. (I) APJ

Ulibarri, Patricia — People v. Dikes, D070972 — Custody Credits/Abstract of Judgment — Robert J. Kearney, Judge — Opinion by O’Rourke, J., with Huffman, J., Nares, J. Attorney General conceded and Court of Appeal agreed that based on the nature of his convictions, appellant is eligible for 15 percent conduct credit pursuant to Penal Code section 2933.1, subdivision (a) and the trial court erred in denying his request for pre-sentence conduct credit. The court also found that the abstract of judgment incorrectly stated that appellant received consecutive 15-to-life terms for counts 3-22, where count 17 was dismissed and the life sentences for counts 10 and 16 were imposed concurrently. The judgment is modified to reflect the imposition of the correct sentence and award appellant 120 days of additional credit. (I) LKH

Schwartzberg, Richard — People v. Nguyen, D071630 — Penal Code Section 1170.18 (Prop. 47)/Vehicle Code Section 10851 — Peter L. Gallagher, Judge — Opinion by Haller, J., with McConnell, P.J., Nares, J. On remand from the Supreme Court in light of the decision in People v. Page (2017) 3 Cal.5th 1175, the Court of Appeal decided that a remand to the trial court is needed for possible retrial because the jury had been instructed on both a viable (joyriding-based) and a non-viable (theft-based) theory of felony conviction, and it could not be determined that the verdict relied on the viable theory. In this decision, the Court of Appeal followed People v. Gutierrez (2018) 20 Cal.App.5th 847, 855 (accord In re J.R. (April 26, 2018, H043051) __ Cal.App.5th ___ ) which determined the error to be instructional and rejected In re D.N. (2018) 19 Cal.App.5th 898, 903, which determined that retrial was barred by double jeopardy because the prosecution had notice about the possible effect of the new law and failed to prove the elements required for a felony conviction. (I) CBM

Kotler, Bruce L. — People v. Umiye, D071839 — Invalid Admissions of Prior Conviction Allegations — Jeffrey F. Fraser, Judge — Opinion by Guerrero, J., with McConnell, P.J., Nares, J. Court of Appeal agreed that trial court did not adequately advise appellant of his trial rights with respect to the prior conviction allegations and there was insufficient evidence in the record to find that appellant’s admissions were voluntary and intelligent. Matter is remanded for new adjudication of the allegations and resentencing. (A) APJ

Webb, Reed — People v. Maldonado, D072441 — Penal Code Section 1170.18 (Prop. 47) — David A. Gunn, Judge — Opinion by O’Rourke, J., with Aaron, J., Guerrero, J. The trial court’s refusal to grant appellant’s petition to reduce one of his receiving stolen property convictions to a misdemeanor was reversed and the case was remanded for the trial court to grant the petition because the court had improperly aggregated the value of checks from multiple counts. (I) DKR

Dudley, Patrick — People v. Bolden, D072479 — Probation Conditions — Polly H. Shamoon, Judge — Opinion by Benke, J., with McConnell, P.J., O’Rourke, J. The trial court abused its discretion when it imposed gang conditions on appellant because the record showed appellant had not been an active gang member for more than 10 years. The trial court also abused its discretion in imposing an electronic search condition as a matter of routine. Where appellant has not been an active gang member for over 10 years, an electronic search condition is not reasonably related to preventing future criminality as required by People v. Lent (1975) 15 Cal.3d 481. Both probation conditions are stricken. (A) HSI

Kessler, Daniel — People v. Adame, D072517 — Restitution — Blaine K. Bowman, Judge — Opinion by Huffman, J., with McConnell, P.J., Benke, J. Appellant was ordered to pay $2,000 for relocation costs of the victims’ family members because appellant’s son and other family members harassed the victims’ family members, causing them to move away. The Court of Appeal found that there was no direct causation between appellant’s criminal conduct and the family’s decision to move because no evidence was presented to implicate appellant in the harassment. The restitution order is modified to reduce the amount by $2,000. (I) LKH

Beaudreau, David — People v. Lovelace, D072550 — Ineffective Assistance of Counsel — Louis R. Hanoian, Judge — Opinion by Irion, J., with Benke, J., Dato, J. Convictions for commercial burglary and cashing a forged check reversed for on-the-record ineffective assistance of counsel. After unsuccessfully moving to exclude multiple commercial burglary priors as impeachment evidence, defense counsel brought up the priors herself to limit the damage. But she then referred to the underlying conduct and got client to agree one was for shoplifting when it actually involved cashing a bad check. Prosecutor jumped on the false statement and used it to undermine client’s credibility, which was the only issue at trial. (Client testified he cashed the forged check under duress while his girlfriend was held at gunpoint.) Court of Appeal found there could be no reasonable tactical reason for defense counsel to open the door to the underlying facts of the prior conviction. Questions from the jury indicated they were focused on client’s credibility, making defense counsel’s error prejudicial. (A) ABM

Wallingford, Jerome P./Polsky, David L. — People v. Arredondo/Ramirez, D072632, (2018) 21 Cal.App.5th 493 — Prosecutorial Misconduct/Senate Bill 620 — David A. Gunn, Judge — Opinion by Benke, J., with Haller, J., Aaron, J. and with Benke, J. separately concurring. Court of Appeal found that 11 references characterizing appellants as “cockroaches” constituted the major theme of the prosecutor’s argument and was effectively a guilt by association argument which denied appellants their right to due process. The error was harmless as to appellants’ underlying convictions, but not as to the true findings on the gang and gang/gun enhancements which are reversed. In addition, as to appellant Arredondo, the matter is remanded for the court to exercise its discretion with respect to the gun enhancement under Senate Bill 620. (I) PMI

Jones, Jason L. — People v. Frazer, D072661 — Senate Bill 620 — Jeffrey F. Fraser, Judge — Opinion by McConnell, P.J., with Benke, J., Aaron, J. During the appeal, Senate Bill 620 went into effect. Court agreed with both parties that the case needed to be remanded to allow the trial court an opportunity to exercise its newly acquired discretion to decide whether or not to dismiss the personal firearm use enhancement. (I) LAR

Kent, Jill — People v. Haggerty, D072662 — Prior Convictions — Blaine K. Bowman, Judge — Opinion by Huffman, J., with McConnell, P.J., Haller, J. In light of People v. Gallardo (2017) 4 Cal.5th 120, appellant contended, the People conceded, and the Court of Appeal agreed that the trial court impermissibly engaged in judicial factfinding to determine that an out-of-state prior qualified as a serious felony in California. In order to use an out-of-state prior to increase a sentence in California, the People must prove, beyond a reasonable doubt, that the prior crime has all of the elements of a serious felony. Here, the trial court reviewed the record and determined the Illinois offense was committed with specific intent to steal—a robbery element not required in Illinois but required in California. The court remanded to provide the People the opportunity to prove the Illinois prior conviction qualifies as a serious felony in California. (I) HSI

Ball, Lindsey — People v. Williams, D072783 — Restitution — Lisa Schall, Judge — Opinion by Benke, J., with O’Rourke, J., Dato, J. After being convicted of making a false statement in support of an insurance claim, appellant was ordered to pay $1024.17 in victim restitution to Farmers Insurance. This figure was based on a cost model used by Farmers to calculate the “average cost per file” for investigating a false claim. The Court of Appeal found that the calculation of Farmers’ restitution award lacked a “factual nexus” to the actual costs incurred as a result of appellant’s claim. The victim restitution to Farmers is vacated and the case is remanded to allow Farmers to prove up its entitlement to restitution. (I) MCR

Sampson, Michael — People v. Velazquez, D072918 — Probation Condition/Electronics Search Waiver — Polly H. Shamoon, Judge — Opinion by Huffman, J., with Aaron, J., Haller, J. Appellant plead guilty to one count of possession of metal knuckles. Over objection, the court imposed a general Fourth Amendment waiver, including an electronic search term. Because nothing in the record supported the additional intrusion into appellant’s privacy rights, the Court of Appeal directed the trial court to strike the electronics portion of the Fourth Amendment Waiver. While it can be argued that maximum surveillance of probationers would ensure better compliance, Lent does not permit wholesale intrusion into protected, otherwise lawful behavior without justification and appropriate tailoring of the restrictions to properly balance the need for supervision and the intrusion on lawful activities. (A) CBM

Irza, Helen S. — People v. Driver, E059681 — Prior Convictions — Kyle S. Brodie, Judge — Opinion by Codrington, J., with McKinster, J., Miller, J. Appellant contended the trial court erred when it used facts outside the record of conviction to find that appellant had suffered a prior strike. The Supreme Court ordered the Court of Appeal’s prior decision in this case to be reconsidered in light of People v. Gallardo (2017) 4 Cal.5th 120. Applying the standards articulated in Gallardo, the Court of Appeal agreed with appellant’s position. The trial court incorrectly considered facts not admitted by defendant when entering his guilty plea—facts admitted at a later proceeding in a different case—to find the prior strike true. In accordance with Gallardo, the Court of Appeal remanded so the trial court could review the record of conviction and, based on the facts found or admitted in the prior proceeding only, make a new determination on the prior strike. (S) HSI

Miller, Gerald — People v. Young, E063632 — Penal Code section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J. Following the California Supreme Court’s decision in People v. Page (2017) 3 Cal.5th 1175, the Court of Appeal affirmed the trial court’s order denying appellant’s petition for resentencing under Prop. 47 without prejudice. The Court of Appeal affirmed without prejudice, instead of reversing, because “[a] defendant seeking resentencing under section 1170.18 bears the burden of establishing his or her eligibility.” The trial court is considering a subsequent, properly filed petition providing evidence of defendant’s eligibility for relief under Proposition 47, i.e, that the vehicle was stolen and worth $950 or less. (I) HSI

Fabian, Carl — People v. Albor, E064672 — Insufficient Evidence/Sentencing/Senate Bill 620 — Michael B. Donner and Mac R. Fisher, Judges — Opinion by Miller, J., with Ramirez, P.J., Slough, J. Court of Appeal agreed there was insufficient evidence supporting appellant’s conviction for dissuading a witness from testifying because appellant’s statement encouraging the witness to come to court and “tell the truth” was not an attempt to dissuade the witness from testifying. Also, the sentence for appellant’s great bodily injury enhancement under Penal Code section 12022.7 must be stayed pursuant to Penal Code section 12022.53, subdivision (f), because appellant had already been sentenced for use of a firearm causing great bodily injury under Penal Code section 12022.53 on the same charge. Finally, the case should be remanded in order to allow the trial court to exercise discretion in deciding whether to strike the Penal Code section 12022.53 enhancement pursuant to Senate Bill 620. If the trial court does strike the firearm enhancement, the three-year sentence for the great bodily injury enhancement need not be stayed. (I) LKH

Morse, David McNeil — People v. Wilcoxson, E065850 — Penal Code Section 1157 — Ingrid Adamson Uhler, Judge — Opinion by McKinster, J., with Ramirez, P.J., Fields, J. The jury returned a verdict stating the appellant/cross-respondent was found guilty of murder without specifying the degree. Before sentencing, the trial court granted appellant/cross-respondent’s motion under Penal Code section 1157 to deem the offense second degree murder. The Court of Appeal rejected respondent/cross-appellant’s argument that the trial court could go “beyond the four corners of the verdict form to determine the jury’s intent,” holding that under People v. San Nicolas (2004) 36 Cal.4th 614, Penal Code section 1157 requires either an express finding of guilt of first degree murder or a finding of specific facts that render the offense first degree murder to be contained in the verdict form itself. (I) HSI

Comar, D. Inder — People v. Fawcett, E066103 — Restitution — Miriam Ivy Morton, Judge — Opinion by Codrington, J., with Miller, J., Fields, J. Court of Appeal agreed that the calculation of restitution was based on a factual error in the police report. The court found the police report to be unclear and remanded to allow the trial court to determine the exact period of liability for restitution and make necessary corrections to the amount of restitution based on clarifications by the parties. (A) HSI

Vorobyov, Gene D. — People v. Sixta, E066082 — Jurisdiction — Donal B. Donnelly, Judge — Opinion by Slough, J., with Ramirez, P.J., Miller, J. Attorney General conceded and the Court of Appeal agreed that California lacked territorial jurisdiction to convict appellant on one of the counts of child molestation because it occurred in a federal enclave over which the federal government exercises exclusive jurisdiction. (I) PMI

Wass, Valerie — People v. Brown, E067497 — Speedy Trial — Ronald M. Christianson, Judge — Opinion by Codrington, J., with Slough, J., Fields, J. In People’s appeal, the Court of Appeal affirmed dismissal of case for speedy trial violation. Trial court had granted the defense a continuance beyond 60 days pursuant to Penal Code section 1382. On the new trial date defense announced ready for trial, but the prosecution requested a continuance to obtain a new criminalist because the original criminalist was on vacation. The court dismissed the case. The Court of Appeal held the trial court erred in dismissing the case immediately on the new trial date because section 1382, subdivision (a)(2)(B) provided the prosecution a 10-day grace period for which no showing of good cause was required. However, the Court of Appeal found the error harmless because based on the record it was not reasonably probable the prosecution would have been able to secure a new criminalist and be ready for trial within the 10-day grace period. Based on this finding of harmless error the court affirmed the judgment of dismissal. (I) NFA

Gambale, Erica — People v. Garcia, E067607 — Personal Use of Dangerous Weapon — Helios (Joe) Hernandez, Judge — Opinion by McKinster, J., with Ramirez, P.J., Slough, J. Appellant contended the court erroneously believed it lacked discretion to strike the personal use of a weapon enhancement under section 1385, subdivision (c). The Court of Appeal held the record was unclear as to whether the court knew it had discretion to strike the personal use enhancement. The judgment was reversed and remanded for resentencing by the court in full awareness of its discretion to strike the enhancement. (I) HSI

Wilkerson, Forest — In re S.O., E067787 — Suppression Motion - Unlawful Traffic Stop — Winston S. Keith, Judge — Opinion by Fields, J., with Ramirez, P. J., McKinster, J. Reversed with directions to grant the motion to suppress and to permit the juvenile to withdraw his admission to unlawful possession of a firearm. Traffic stop for failure to signal a right turn was unlawful because no evidence was presented to establish that the turn may have affected other cars. The Court of Appeal rejected the People’s alternative argument that the stop was lawful because a 911 call provided reasonable suspicion that the juvenile was involved in criminal activity. All evidence was ordered suppressed. (A) AMJ

Tran, Thien — In re A.H., E069006 — Electronic Search Condition — Sean Lafferty, Judge — Opinion by McKinster, J., with Ramirez, P.J., Fields, J. Electronic search condition imposed on juvenile probationer was unconstitutionally overbroad in authorizing unlimited general searches of all electronic devices. Thus, reviewing court modified the condition with the following language: “[t]he searches are limited to communications or information reasonably likely to reveal whether defendant is engaging in gang-related activity or weapons possession, or otherwise not complying with her probation conditions.” (I) SDS

Jones, Sharon/Ihara, Patricia — People v. Vela, G052282, (2018) 11 Cal.App.5th 68 — Proposition 57 Juvenile Transfer Hearing/Senate Bill 620/Franklin Hearing — John Conley, Judge — Opinion by Moore, J., with Bedsworth, J., Thompson, J. The implied intent of Proposition 57 was to retroactively extend its emphasis on juvenile rehabilitation to every minor to whom it could constitutionally apply. Because appellant's case was not yet final on appeal when Prop. 57 became law, he is entitled to a juvenile transfer hearing. If, on remand, the juvenile court finds transfer to the criminal court was proper, that court is directed to conduct a Franklin hearing and a resentencing hearing with the discretion to dismiss the firearm allegation under SB 620. (I) PMI

Angres, Robert — People v. Pineda, G052804 — Penal Code Section 1170.18 (Prop. 47)/Vehicle Code Section 10851 — W. Michael Hayes, Judge — Opinion by Bedsworth, J., with Moore, J., Aronson, J. Court of Appeal conditionally reversed conviction for felony vehicle taking or driving (Veh. Code, § 10851, subd. (a)) pursuant to People v. Page (2017) 3 Cal.5th 1175. Neither the instructions nor the jury verdict established whether appellant was convicted of taking the vehicle (theft) versus post-theft driving. Nor did the trial evidence conclusively establish this fact. Reversed and reduced to a misdemeanor, which the prosecution may either accept or else retry appellant for the felony of post-theft driving in violation of section 10851, subdivision (a). (I) NFA

Strong, Jeanine G. — People v. Bishay, G053337 — Penal Code Section 654 — Kimberly Menninger, Judge — Opinion by O’Leary, P.J., with Moore, J., Ikola, J. Court of Appeal agreed that appellant’s concurrent sentence for forgery must be stayed under Penal Code section 654 because he is also being punished for recording a forged deed based upon the same forged document. (I) APJ

Sullwold, Julie — People v. Mackie, G053400 — Penal Code Section 654 — Cheri T. Pham, Judge — Opinion by Thompson, J., with Moore, J., Fybel, J. Consecutive term for burglary ordered stayed under Penal Code section 654 where the burglary was committed to facilitate the robbery of those inside the store and where defendant was separately sentenced for the robbery. (A) NFA

Brisbois, Patricia L. — People v. Flores, G053925 — Senate Bill 620 — Gary S. Paer, Judge — Opinion by Bedsworth, J., with Aronson, J., Fybel, J. Attorney General conceded and Court of Appeal agreed that Senate Bill 620, which would allow the trial court to strike or dismiss appellant’s firearm enhancement, applies retroactively to appellant because his case is not yet final on appeal. The Court of Appeal rejected respondent’s claim that remand would be futile. The case is remanded to permit the trial court to decide whether to strike the enhancement and to correct the errors in the abstract of judgment. (I) PMI

Coleman, Jared G. — People v. Medina, G054147 — Insufficient Evidence/Penal Code Section 654 — John Conley, Judge — Opinion by Fybel, J., with O’Leary, P.J., Bedsworth, J. Court of Appeal agreed with Attorney General that insufficient evidence supported one count of lewd act with a minor based upon the specific act alleged in the amended information. In addition, as argued by appellant and conceded by the Attorney General, the sentence on another count of lewd act must be stayed pursuant to Penal Code section 654 because the underlying conduct was preparatory to the conduct underlying a separately punished count of lewd act. (I) APJ

Farber, William D. — People v. Hinerman, G054467 — Sentencing/Abstract of Judgment — Kazuharu Makino, Judge — Opinion by Bedsworth, J., with Aronson, J., Goethals, J. Abstract of judgment ordered amended to reflect the trial court’s sentencing decisions to stay sentences as to two counts, rather than run them concurrent. Further, the sentence for one of those counts should be reflected as the midterm of two years, rather than the midterm of three years. (I) PMI

Kent, Jill — People v. Abbott, G054509 — Senate Bill 180 — John R. Zitny, Judge — Opinion by Thompson, J., with Aronson, J., Fybel, J. Appellant’s sentence enhancements imposed under Health and Safety Code section 11370.2, subdivision (c) ordered stricken. The Court of Appeal cited Senate Bill 180, which abolished such enhancements except under limited circumstances. The Court noted Senate Bill 180 applies retroactively to defendants whose judgments were not yet final on the statute’s operative date—January 1, 2018. (I) HSI

Peabody, Jennifer — People v. Mendoza, G054692 — Franklin/Senate Bill 620 — Richard M. King, Judge — Opinion by Thompson, J., with Fybel, J., Goethals, J. Appellant’s convictions included multiple firearm enhancements and his case was not final on appeal when Senate Bill 620 was enacted on January 1, 2018. The judgment is reversed and the matter is remanded to allow the trial court to consider striking the firearm enhancements. Further, appellant will be allowed to make a record for a future youth offender parole hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261. (I) LKH

Peabody, Jennifer — People v. Graham, G055219 — Senate Bill 620 — Jonathan S. Fish, Judge — Opinion by Aronson, J., with Ikola, J., Goethals, J. Attorney General conceded and Court of Appeal agreed that Senate Bill 620, which would allow the trial court to strike or dismiss appellant’s firearm enhancement, applies retroactively to appellant because his case is not yet final on appeal. The Court of Appeal rejected respondent’s claim that remand would be futile. The case is remanded to permit the trial court to decide whether to strike the enhancement. (I) PMI

June 2018

King, Nancy J./Kessler, Daniel J. — People v. Contreras/Rodriguez, D063428, (2018) 4 Cal.5th 349 — Sentencing – Peter C. Deddeh, Judge — Opinion by Liu, J., with Chin, J., Cuellar, J., Krueger, J., concurring, Cantil-Sakayue, C.J., Corrigan, J., Kriegler, J., dissenting. The California Supreme Court granted review to determine whether the sentences imposed on the two juvenile non-homicide offenders violated the Eighth Amendment as interpreted in People v. Caballero (2012) 55 Cal.4th 262, 268 and Graham v. Florida (2010) 560 U.S. 48 (Graham). The Court held that these sentences were unconstitutional under the reasoning of Graham. The sentencing court was directed to consider, in light of the opinion, any mitigating circumstances of appellants’ crimes and lives, and the impact of any new legislation and regulations on appropriate sentencing. The sentencing court was further directed to impose a time by which defendants may seek parole, consistent with the opinion. (I) LAR

Burz, Dacia — People v. Gonzalez, D069533, (2018) 22 Cal.App.5th 663 — Senate Bill 620/Minute Order/Abstract of Judgment — Lance Jensen, Judge — Opinion by Nares, J., with Dato, J., Benke, J., concurring in part and dissenting in part. 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. The trial court is directed to issue a new minute order and an amended abstract of judgment after such resentencing to reflect the correct consecutive two-year term imposed for count 2 and whether it strikes or dismisses, or imposes, the section 12022.53, subdivision (h) enhancement. (I) MCR

O’Connor, Sheila — People v. Ford, D070689 — Drug Prior Enhancement — Sharon B. Majors-Lewis, Judge — Opinion by Huffman, J., with Nares, J., Aaron, J. Attorney General conceded and Court of Appeal agreed that drug prior enhancement could be imposed only once per prior because it is a status enhancement. Therefore, trial court erred in imposing the enhancement on two separate counts. Court of Appeal ordered that one enhancement be stricken. (I) APJ

Dain, Anthony J. — People v. Weekly, D071294 — Senate Bill 620/Restitution — Louis R. Hanoian, Judge — Opinion by Irion, J., with O’Rourke, J., Dato, J. Court of Appeal agreed that where appeal was pending at time of effective date of legislation, new law applies retroactively to appellant. Matter remanded for re-sentencing to allow trial court to consider whether to exercise discretion to strike firearm enhancement under newly amended Penal Code section 12022.53, subdivision (h). In addition, court directed to amend abstract of judgment to reflect joint and several liability for victim restitution with co-defendant. (I) SDS

Robertson, Thomas E. — People v. Lewis, D071434 — Senate Bill 620 — John M. Thompson , Judge — Opinion by Huffman, J., with Nares, J., Dato, J. New law applies retroactively to appellant whose case was pending on appeal on effective date. The case is remanded to allow the superior court to consider whether appellant’s firearm enhancement should be stricken under amended Penal Code section 12022.53, subdivision (h). (I) PMI

Cannon, Gregory — People v. Guerrero, D071531 — Senate Bill 620 — William D. Lehman, Judge — Opinion by Huffman, J., with O’Rourke, J., Dato, J. Where appellant was sentenced before effective date of amendment to Penal Code section 12022.5, subdivision (c), allowing discretionary dismissal of the gun use enhancement, remand was required to permit sentencing court to exercise this discretion. (I) NFA

Hinkle, Stephen — People v. Philpot, D071726 — Senate Bill 620 — Dwayne K. Moring, Judge — Opinion by Aaron, J., with Huffman, J., Nares, J. Attorney general conceded and Court of Appeal agreed that the case must be remanded under newly enacted Senate Bill 620, to allow the superior court to exercise its discretion with respect to the four gun-use enhancements imposed under Penal Code sections 12022.53, subdivision (c) and 12022.5. (I) CBM

Rudasill, Denise — People v. Moore, D071912 — Enhancement — Peter L. Gallagher, Judge — Opinion by Haller, J., with Huffman, J., O’Rourke, J. Respondent conceded and Court of Appeal agreed the trial court erred in imposing a full-strength term for a weapon-use enhancement attached to a consecutive sentence for making a criminal threat; since the sentence on that count was subordinate, so too must be the specific enhancement. (I) HCC

Fields, Shawn — People v. Olascoaga, D072062 — Probation Conditions — Timothy Walsh, Judge — Opinion by Nares, J., with O’Rourke, J., Aaron, J. Appellant, a student who worked two jobs and had no criminal record, pleaded guilty to flashing an unloaded gun at a driver who cut him off and was placed on probation. On appeal, the court struck three probation conditions challenged as unreasonable under People v. Lent (1975) 15 Cal.3d 481: a curfew, requiring probation officer approval of residence and employment, and continuous alcohol monitoring. (A) ABM

Olsen, Nancy — People v. Molina, D072153 — Senate Bill 620 — Esteban Hernandez, Judge — Opinion by Benke, J., with McConnell, P.J., Irion, J. Matter remanded for resentencing to allow trial court to consider whether firearm enhancement Penal Code section 12022.5, subdivision (c), should be stricken under newly amended by Senate Bill 620. (I) ABM

Hinkle, Stephen M. — People v. Guadagni, D072503 — Senate Bill 620 — Patricia Cookson, Judge — Opinion by O’Rourke, J., with Nares, J., Dato, J. Matter remanded for the limited purpose of allowing the superior court to exercise its discretion to consider whether to strike or dismiss one or more of the Penal Code section 12022.5, subdivision (a) and section 12022.53, subdivision (b) enhancements under SB 620. (I) LAR

Devito, Cara — People v. Siordia, D072635 — Proposition 57 — Stephen J. Gallon, Judge — Opinion by Huffman, J., with Haller, J., Aaron, J. Appellant was tried and convicted of murder as an adult and was sentenced to 25 years to life, even though he was a juvenile at the time of the crime. On appeal, he successfully argued that the new Proposition 57 procedure for transferring juvenile cases to criminal court should apply to him retroactively because of the holding in People v. Superior Court (Lara) (2018) 4 Cal.5th 299. Under Lara, Proposition 57 is entitled to an inference of retroactivity under In re Estrada (1965) 63 Cal.3d 740. The People conceded. The judgment is reversed and the case is remanded to the juvenile court with directions to conduct a transfer hearing in order to determine whether the juvenile court would have transferred appellant to criminal court jurisdiction. (I) LKH

Lemon, Clare — In re L.H., D072809 — Release of Juvenile Records — Gary M. Bubis, Judge — Opinion by Aaron, J., with Nares, J., O’Rourke, J. The juvenile court ordered, sua sponte, the release of agency reports to de facto parents, though they had made no request for the reports nor filed a section 827 petition. Citing its prior decision in In re B.F. (2010) 190 Cal.App.4th 811, the Court of Appeal reversed finding it was error to release the reports without satisfying any of the requirements set forth in section 827 which governs the release of confidential juvenile records. The court also found the issue was not moot, and that the juvenile court’s error was not harmless. (I) LMF

Lathrop, Stephen/Stafford, Victoria — People v. Magallanes/Arcos, D072864 — Penal Code Section 654/Franklin Hearing/Proposition 57/Senate Bill 620/Abstract of Judgment — Jeffrey J. Prevost & Edward D. Webster, Judges — Opinion by O’Rourke, J., with McConnell, P.J., Dato, J. Both appellants successfully argued that their sentences for active participation in a criminal street gang should have been stayed under Penal Code section 654 because the convictions were based on the same criminal act as the murder conviction for which they were separately punished. The court also found that Proposition 57 applies retroactively under People v. Superior Court (Lara) (2018) 4 Cal.5th 299, entitling both appellants to a conditional reversal and remand to the juvenile court in order to determine whether their cases should be transferred to juvenile court. Moreover, because both appellants were 17 at the time of the crime, they are eligible to make a record of information relevant to their future youth offender parole hearings under People v. Franklin (2016) 63 Cal.4th 261. Finally, the court found that remand is appropriate so that the trial court can exercise its discretion in determining whether to strike appellants’ firearm enhancements in accordance with Senate Bill 620. The court also corrected several errors on appellants’ abstracts of judgment and awarded appellant Magallanes 1487 days of pre-sentence custody credits. (I) LKH

Lankford, Valerie — In re Isaiah J., D072959 — Welfare and Institutions Code Section 388 Petition for Reunification Services — Michael J. Popkins, Judge — Opinion by O’Rourke, J., with Haller, J., Aaron, J., Court of Appeal reversed the denial of father’s section 388 petition asking for reunification services because court failed to consider child’s best interests. (I) ACS

McPartland, Michael — People v. Rivera, D073282 — Instructional Error Elements of the Offense and Lesser Included Offense — Jean Pfeiffer Leonard, Judge — Opinion by Irion, J., with Huffman, J., Haller, J. Appellant was convicted of sex offenses, including exhibiting harmful matter to a minor under Penal Code section 288.2, subdivision (a). The offenses occurred between 2011-2013; therefore the trial court erred when it instructed on the elements of the offense as described in the 2014 amended statute. The appellate court concluded that the intent of “seducing a minor” as set forth in the prior version of the statute is substantively different from the intent as the jury was instructed here and the instructional error was prejudicial. Also, based on he evidence presented at trial, the jury could have found appellant did not act with the required intent because he may not have intended to entice the minor to engage in a sexual act with him, therefore the trial court should have instructed on the lesser included offense of misdemeanor exhibiting harmful matter. (I) HCC

Quinlan, Sheila — People v. Gomez, E062867 — Penal Code Section 1170.18 (Prop. 47) — Michael A. Smith, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. Following a remand from the Supreme Court after the decision in People v. Page (2017) 3 Cal.4th 1175, Court of Appeal reversed the trial court’s order denying appellant’s Proposition 47 petition to reduce his Vehicle Code section 10851 offense. Although appellant had not met his burden to show the nature of the crime to be a theft-based taking nor did he prove the value of the vehicle, appellant is entitled to an opportunity to file a petition meeting the statutory requirements. Matter remanded with directions to allow defendant to file an amended petition within a reasonable time. (I) CBM/LLA

DiGuiseppe, Raymond Mark — People v. Olmos, E066220 — Jury Instructions — Jerome E. Brock, Judge — Opinion by Fields, J., with Ramirez, P.J., McKinster, J. Appellant was convicted of numerous sexual offenses involving three minors. Of 13 convictions, 6 counts, resulting in 6 consecutive terms of life without parole, are reversed where the trial court failed to instruct on the lesser included offense of non-forcible sexual penetration and it was reasonably probable the jury would have convicted appellant of the lesser offense. The abstract of judgment must also be corrected to reflect the time frames of three counts. (I) PMI

Conner, Randall — People v. Williams, E067231 — Penal Code Section 654/Presentence Conduct Credits — W. Charles Morgan, Judge — Opinion by Fields, J., with McKinster, J., Miller, J. Because the record showed appellant intended to injure her former boyfriend by hitting him with the car (the assault), and merely wanted to let him know she was going to injure him by threatening to run over him with her car (the criminal threat), the trial court erred when it failed to stay the sentence for the terrorist threat charge. In addition, the trial court erred when it failed to award appellant two days of actual and two days of conduct pre-sentence custody credits. (I) CBM

Moller, Richard — People v. Graham, E067948 — Penal Code Section 1170.18 (Prop. 47) — Michael A. Smith, Judge — Opinion by Miller, J., with Codrington, J., Fields, J. Appellant’s Prop. 47 petition was denied because she had pleaded guilty to a violation of Penal Code section 476a, which is not eligible for relief, and the total amount of loss exceeded $950. The Court of Appeal found that the reference in the plea-taking to Penal Code section 476a was a clerical error when the charging document and other documentation showed a charge and conviction under Penal Code section 476. Therefore, the offense was eligible for reduction. In addition, because none of the individual checks exceeded $950, appellant met the amount requirement for reduction as held by People v. Salmorin (2016) 1 Cal.App.5th 738. The order denying appellant’s Proposition 47 petition is reversed. (I) LKH

Handy, M. Elizabeth/Willis Newton, Joanne D. — In re A.A. et al., E068193 — Sufficiency of Evidence for Jurisdiction — Steven A. Mapes, Judge — Opinion by Ramirez, P.J., with Codrington, J., Fields, J. The parents had three children. The oldest, a teenager, had out-of-control behavior. The juvenile court took jurisdiction over all three children based on the parents’ inability to control the teenager (“abuse of a sibling” as to the younger two), and also because of Father’s drinking problem. The children were not removed from the home. One issue that arose in this case was whether parental fault was necessary for the juvenile court to declare jurisdiction, since the parents were not necessarily at fault for the older girl’s incorrigible behavior. While this case was pending, the California Supreme Court decided the case of In re R.T. (2017) 3 Cal.5th 622, holding that parental fault was not required for the court to assert jurisdiction. Nevertheless, here, the Court of Appeal upheld jurisdiction based on Father’s drinking problem and overturned the abuse-of-a-sibling jurisdiction over the younger two siblings based on the oldest sibling’s behavior because there was no evidence the younger two siblings had behavior problems or would follow in their sister’s footsteps. (I) MAC

Wass, Valerie — People v. Shyne, E069315 — Senate Bill 620/Abstract of Judgment — Stephan G. Saleson, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J. The Court found that because appellant’s sentence includes a firearm enhancement and his case is not yet final on appeal, the case must be remanded so the trial court can exercise discretion to impose or strike the enhancement pursuant to Senate Bill 620. Also, the abstract of judgment must be corrected to reflect that appellant was convicted of first degree attempted robbery rather than first degree attempted burglary. (I) LKH

Moran, Jamie — In re N.R., E069749 — Indian Child Welfare Act (ICWA) — Erin K. Alexander, Judge — Opinion by McKinster, J., with Ramirez, P.J., Slough, J. Reversal for failure to give proper ICWA notice. (I) ACS

Dodd, John — People v. Thornburg, G053278 — Penal Code Section 654 — Kimberly Menninger, Judge — Opinion by Thompson, J., with Aronson, J., O’Leary, P.J, concurring and dissenting. Respondent conceded and Court of Appeal agreed that second degree burglary term must be stayed when the term for the intended robbery was imposed. (The concurring and dissent opinion is based on other grounds.) (I) HCC

Clark, Marcia R. — People v. Perez, G053299 — Senate Bill No. 620 — Michael J. Cassidy, Judge — Opinion by Fybel, J., with Aronson, J., Ikola, J. Court of Appeal agreed that recent amendment to Penal Code section 12022.53, subdivision (h), via Senate Bill No. 620, applies retroactively to appellant, whose case was not final at the time of enactment. Matter remanded to allow trial court to exercise discretion to strike or dismiss appellant’s firearm enhancement. (I) APJ

Gambale, Jennifer A./Boyer, Ron — People v. Castaneda/Cruz, G053328 — Senate Bill 620/Ineffective Assistance of Counsel — Richard M. King, Judge — Opinion by Fybel, J., with O’Leary, P.J., Ikola, J. During an appeal of re-sentencing after remand, Senate Bill 620 became effective. Court of Appeal agreed that the new law applies retroactively to appellants and remanded for trial court to exercise its discretion under amended section 12022.53, subdivision (h). With respect to appellant Cruz, an order to show cause was issued with regarding claims of ineffective assistance of prior appellate counsel raised in a companion habeas. (I) LAR

Dellaca, Tanya — People v. Miller, G053795 — Sentencing/Fees — Lance Jensen, Judge — Opinion by Fybel, J., with Bedsworth, J., Thompson, J. Court of Appeal agreed trial court should not have added penalty assessments to the criminal laboratory fee and that the abstract of judgement incorrectly reflects a drug program fee—both stricken. (I) LAR

Vasil, Stephen M. — People v. Cho, G054074— Senate Bill 680 — Thomas Goethals, Judge — Opinion by Thompson, J., with Aronson, J., Fybel, J. Case is remanded to allow the trial court to consider striking the firearm enhancement under Senate Bill 620. Because the remand allows the court to reconsider other sentencing choices, so long as the sentence is not increased, appellant’s other sentencing arguments are deemed moot. (I) PMI

Angres, Robert — People v. Ortiz, G054162 — Abstract of Judgment — Sheila F. Hanson, Judge — Opinion by Moore, J., with Bedsworth, J., Aronson, J. Appellant was convicted of one count of conspiracy to sell methamphetamine in addition to other drug-related crimes. Appellant successfully argued that the abstract of judgment incorrectly indicates that conspiracy to sell methamphetamine is a violent felony. The Attorney General conceded. The trial court is ordered to amend the abstract of judgment to reflect that appellant’s conspiracy conviction is not violent. (I) LKH

Bauguess, Susan S. — People v. Duncan, G054629 — Sentencing — W. Michael Hayes, Judge — Opinion by Aronson, J., with Fybel, J., Ikola, J. Trial court erred in imposing a five-year serious felony prior enhancement where appellant’s conviction of assault by means of force likely to cause great bodily injury does not qualify for the enhancement. Reversed and remanded for resentencing. (I) LAR

May 2018

Cella, Michele Anne — In re Christina C., D068258 — Indian Child Welfare Act (ICWA) — Edlene McKenzie, Commissioner — Opinion by Irion, J., with McConnell, P.J., Prager, J. Father argued, and the appellate court agreed, that the trial court failed to fulfill its affirmative and continuing duty to inquire about the applicability of the ICWA and conditionally reversed the judgment with specific instructions for the trial court to comply with ICWA. Father initially completed a form which indicated he had no Indian heritage. Subsequently, during a hearing he told the juvenile court he just received a family tree and believed he had Cherokee heritage. Without waiting for further information from father, the trial court held the ICWA did not apply. (I) LLF

Stevenson, Theresa O. — People v. Cabello, D069958 — Penal Code Section 1170.18 (Prop. 47) — David J. Danielsen, Judge — Opinion by McConnell, P.J., with Nares, J., O’Rourke, J. Following transfer by the California Supreme Court after the decision in People v. Page (2017) 3 Cal.5th 1175, the Court of Appeal reversed its previous ruling, finding that appellant’s conviction for vehicle theft was eligible for reduction under Prop. 47 as the vehicle was valued under $950. (I) LAR

Weinberg, Allen — People v. Fuentez, D071184 — Senate Bill 620 — Mary E. Fuller and Shahla S. Sabet, Judges — Opinion by Dato, J., with O’Rourke, J., Benke, J., concurring. People conceded and Court of Appeal agreed that SB 620 applies retroactively and the case is remanded to permit the trial court to decide whether to strike or dismiss four firearm enhancements for sentencing purposes. (I) LKH

Tran, Thien — People v. Mulipola, D071410 — Pitchess Motion — Jeffrey F. Fraser, Michael T. Smyth, Joseph P. Brannigan, Judges — Opinion by Aaron, J., with Haller, J., Guerrero, J. Court of Appeal agreed the trial court abused its discretion in denying the second of two motions filed pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, seeking discovery of relevant evidence contained in two deputy sheriff’s personnel files related to their dishonesty and/or filing of false police reports. Appellant had presented a specific plausible factual scenario of officer misconduct, sufficient to demonstrate good cause. The judgement was conditionally reversed in part with directions to the trial court to review the requested documents in chambers on remand. If there is discoverable information, the trial court shall order the documents to be disclosed to appellant and provide him with a reasonable opportunity to investigate. A new trial shall be ordered if appellant demonstrates a reasonable probability of a different outcome if the evidence had been disclosed; otherwise the trial court shall reinstate the judgment. (I) HSI

LeRoy, Doris — People v. Riley, D071449 — Insufficient Evidence — Robert F. O’Neill, Judge — Opinion by McConnell, P.J., with Huffman, J., Aaron, J. The Attorney General conceded and Court of Appeal agreed that in this case, where the prosecution argued consensual encounter and defense argued unlawful detention, there was insufficient evidence of a lawful detention or arrest to support conviction of giving false information to a police officer upon lawful detention or arrest. Conviction is reversed and matter is remanded for resentencing. (I) AMJ

Johndro, Ashley — People v. Sierra, D071651 — Material Deviation From Plea Agreement — Garry Haehnle, Judge — Opinion by Haller, J., with Nares, J., O’Rourke, J. Appellant entered his plea in exchange for an 8 year local prison sentence, with a split to be determined at the time of sentencing. At sentencing, the court determined it would not be practicable to order a split sentence because appellant was not a citizen, already had an INS hold, and could not be monitored on mandatory supervision. Thereafter, the court and the attorneys agreed the court would impose a 5 year county prison sentence. Because the court significantly deviated from the bargained-for term of the plea, without first giving appellant the opportunity to withdraw from the plea, it erred. The Court of Appeal conditionally reversed the judgement and remanded the case to the trial court to allow appellant the opportunity to withdraw his plea. (A) CBM

Beaudreau, David — People v. Hoffman, D071718 — Irrelevant Evidence — Patricia K. Cookson, Judge — Opinion by Dato, J., with McConnell, P.J., Irion, J. Appellant was charged with battery on a peace officer and the trial hinged on the credibility of appellant versus the officer, who was responding to a call regarding appellant’s injured puppy. Court of Appeal agreed that admission of irrelevant and prejudicial evidence concerning the extent of injuries suffered by appellant’s six-month old puppy unfairly tipped the scales in favor of the officer. (A) AMJ

Weis, Lizabeth — People v. Carter, D071895 — Senate Bill 620 — Timothy R. Walsh, Judge — Opinion by McConnell, P.J., with Benke, J., Irion, J. Attorney General conceded and Court of Appeal agreed that Senate Bill 620 applies retroactively to appellant and case must be remanded for trial court to exercise discretion to impose or strike the firearm enhancement imposed in this case. (I) LKH

Kington, Benjamin — People v. Tabbutt, D072115 — Protective Order — Timothy R. Walsh, Judge — Opinion by Aaron, J., with Benke, J., Guerrero, J. After appellant violated probation in a case involving robbery of an elderly man, the trial court issued a “no-negative” contact order under Penal Code section 136.2 to protect specified family members who were not the subject of the underlying offense. Respondent conceded and Court of Appeal agreed that none of the circumstances that authorize an order under section 136.2 was present in this case. (I) AMJ

Hagood, Sandra — People v. Arpallan, D072348 — Probation Conditions — John M. Thompson and Daniel B. Goldstein, Judges — Opinion by Huffman, J., with Benke, J., Guerrero, J. Court of Appeal found that condition of probation requiring appellant to submit his computers and recordable media to search was overbroad and invalid, under People v. Lent (1975) 15 Cal.3d 481, due to lack of nexus between the condition and appellant’s burglary offense. The case is remanded with directions to strike the portion of the probation condition requiring appellant to submit “computers, and recordable media” to warrantless search. (A) LKH

De La Sota, Richard — People v. McLean Lacy, D073112 — Penal Code Section 654 — David A. Gunn, Judge — Opinion by Huffman, J., with Haller, J., O’Rourke, J. Where the same acts of abuse were offered to support a child endangerment charge as were used to support a torture charge, the sentence on the former must be stayed pursuant to Penal Code section 654 because the appellant is already being punished for the torture conviction. (I) PMI

Williams, Rex — People v. Farrar, D073120 — Insufficient Evidence Strike Prior/Credits/Fee — B.J. Bjork, Judge — Opinion by Irion, J., with McConnell, P.J., Huffman, J. Attorney General and Court of Appeal agreed the trial court erred in finding that appellant’s prior conviction from Nevada constituted a serious felony conviction under California law. Matter remanded for trial court to determine whether the record of conviction establishes appellant was convicted of a robbery that has the same elements as the crime of robbery in California. Trial court also ordered to recalculate credits because it erred in limiting appellant’s credits under Penal Code section 2933.1 where the crimes of which he was convicted are not listed as violent felonies under Penal Code section 667.5, subdivision (c). Finally, court operations fee of $40 is reduced to $30, the amount authorized at the time appellant was convicted. (I) AMJ

Boyce, Robert E. — People v. Cooper, D073129 — Gang Enhancement — R. Glenn Yabuno, Judge — Opinion by Guerrero, J., with McConnell, P.J., Aaron, J. Attorney General conceded and Court of Appeal agreed that trial court erred in imposing a term of four years for the gang enhancement because this case involved a felony punishable by life imprisonment and the 15-year minimum parole period applies instead. (I) APJ

Rollo, Sharon — In re M.R., E064621, (2017) 7 Cal.App.5th 886 — Insufficient Evidence to Support Jurisdiction Based on Section 300(g) — Steven A. Mapes and Cheryl C. Kersey, Judges — Opinion by Hollenhorst, J., with McKinster, J., Slough, J. Court of Appeal held that father’s incarceration was not enough to exercise jurisdiction based on subdivision (g) and instead the agency must affirmatively confirm that father is physically or mentally incapable of making caretaking arrangements for his children. Since it appeared father was able to make arrangements with relatives, the exercise of jurisdiction was improper and reversed. (I) LLF

Love, Jack A. — In re T.K., E064828 — Indian Child Welfare Act (ICWA) — Lynn M. Poncin, Judge — Opinion by Hollenhorst, J., with Miller, J., Slough, J. The matter was remanded to correct ICWA noticing deficiencies claimed by mother and conceded by the agency. The notices failed to provide information on the maternal grandmother and maternal great aunt despite their involvement in the case. Mother further argued the disposition orders should be reversed because of the notice defects but the appellate court disagreed and otherwise affirmed the dispositional orders. (I) LLF

Gilmartin, Tiffany — In re A.D., E064955 — Indian Child Welfare Act (ICWA) — Timothy F. Freer, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., Slough, J. Father argued that the agency failed to comply with the notice requirements of the ICWA. In particular, the agency failed to notice the Blackfoot tribe and omitted information about the paternal grandparents and great grandparents. The Court of Appeal agreed the error omitting information about the paternal ancestors was not harmless and reversed and remanded to comply with the ICWA. The limited remand ordered proper notice but if the child is not identified as an Indian child the juvenile court’s orders can be reinstated. The reversal was not based on lack of notice to the Blackfoot tribe since the Blackfoot tribe is not federally recognized even though the Blackfeet tribe is. (I) LLF

El Habiby, Emery — In re L.B., E065322 — Indian Child Welfare Act (ICWA) — Lynn M. Poncin and Cheryl C. Kersey, Judges — Opinion by Miller, J., with McKinster, J., Codrington, J. Mother argued error for failing to comply with the notice requirements of the ICWA and Court of Appeal agreed. Father claimed Cherokee affiliation and mother claimed heritage in either Cherokee or Blackfeet tribes. Notice was sent to the Blackfeet and Cherokee tribes but identified only the paternal family as the basis for tribal membership. Further, notices of only 1 of 3 children were sent to both tribes. Based on these omissions the Court of Appeal ordered a limited reversal and remand to comply with the ICWA. (I) LLF

Misra, Shobita — In re L.Z., E065585 — Indian Child Welfare Act (ICWA) — Jacqueline C. Jackson, Judge — Opinion by Ramirez, P.J., with McKinster, J., Slough, J. Mother identified possible Indian heritage with the Cherokee tribes or Innuit Eskimo. The agency sent notice to the Cherokee tribes with only the parents’ information and failed to send any notice to any Innuit or Eskimo tribe and omitted any information about the maternal grandparents. Doing some sleuthing of its own, the Court of Appeal identified 229 federally-recognized Alaskan villages on the Federal Register with contact information for approximately 15 Tribal Leaders. The opinion reversed the ICWA findings and remanded the case for the juvenile court to order the agency to notify the Eskimo/Innuit Tribes and to provide more complete ancestor information. (I) LLF

Kessler, Daniel — People v. Burton, E065689— Penal Code Section 654/Credits — Rodney A. Cortez, Judge — Opinion by Codrington, J., with Ramirez, P.J., Fields, J. After the trial court found that appellant’s criminal threat offense was committed in the same course of conduct and at the same time as his assault with a deadly weapon offense, it erred in imposing a concurrent sentence rather than staying the sentence pursuant to Penal Code section 654. The trial court also erred in failing to award any conduct credits. Respondent conceded and Court of Appeal agreed that section 4019 “one-for-one” credits were required. (I) HCC

Hill, Melissa — People v. Fuentes, E065976 — Sex Offender Registration Fine — Charles J. Koosed, Judge — Opinion by Ramirez, P.J., with Codringon, J., Fields, J. Sex offender registration fine under Penal Code section 290.3 ordered stricken where trial court found inability to pay but imposed the fine under the mistaken belief that it was mandatory despite the inability to pay finding. (I) HSI

Duxbury, Brett — People v. Estrada, E066087 — Senate Bill 620 — Irma Poole Asberry, Judge — Opinion by Slough, J., with Ramirez, P.J., McKinster, J. Attorney General conceded and Court of Appeal agreed that Senate Bill 620 is retroactive and remand was necessary for trial court to exercise its discretion to impose or strike firearm enhancement. (I) HCC

Halka, Waldemar — People v. Robbins, E066284 — Sentencing/Senate Bill 620 — Colin J. Bilash, Judge — Opinion by Miller, J., with McKinster, J., Codrington, J. Appellant’s sentence of 7 years to life for attempted murder is reversed and the trial court is ordered to impose a term of life with the possibility of parole. The firearm enhancements in both counts are reversed and remanded for the trial court to exercise its discretion under SB 620. If the enhancements are not dismissed, the trial court is directed to resentence appellant for the firearm enhancements. (I) LKH

Holzer, William G. — People v. Barr, E066294 — On-Bail Enhancement — Rodney A. Cortez, Judge — Opinion by Miller, J., with McKinster, J., Slough, J. Attorney General conceded and Court of Appeal agreed that because appellant was out on bail in only one case when he committed two secondary offenses, the on-bail enhancement could be imposed only once for the primary offense rather than per secondary offense. The number of primary cases is controlling because the enhancement is one that goes to the nature of the offender rather than the nature of the offense. Court ordered one on-bail enhancement stricken. (I) APJ

Angres, Robert — People v. Wilson, E066340 — Probation Conditions — Stephen J. Gallon, Judge — Opinion by Ramirez, P.J., with Codrington, J., Fields, J. Residence approval probation condition vacated as unconstitutionally overbroad. Court of Appeal reviewed issue despite lack of defense objection at sentencing because it was a pure issue of constitutional law based on undisputed facts. (I) NFA

Comar, D. Inder — People v. Jackson, Sr., E066364 & E066677 — Sentencing — Becky Dugan, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. The trial court erred when it imposed the full fixed term for the great bodily injury enhancements, when they should have been reduced to one-third the midterm because they were attached to subordinate determinate terms imposed at one-third the midterm. The appropriate remedy is to remand for resentencing. (A) PMI

Marshall, Marilee — People v. Morales, E066424 — Instructional Error/Penal Code Section 654 — Jeffrey L. Gunther, Judge — Opinion by Fields, J., with Miller, J., Slough, J. Court of Appeal found the trial court committed instructional error by failing to instruct on the personal use of a firearm even though the enhancement was alleged and found true as to two counts of robbery. The error was prejudicial because there were several acts upon which the jury might have based the findings and not all of them necessarily qualified as personally using the firearm during the commission of the offense. In addition, even though appellant was charged with throwing an object capable of doing great bodily harm at a vehicle, the trial court instruction prejudicially failed to specify that the defendant had to throw an object with intent to cause great bodily injury, rather than injury generally. Finally, because appellant robbed the victims of their cell phones to prevent them from reporting a crime, and appellant was being sentenced on the robberies, the sentences for dissuading a witness should have been stayed. (I) DKR

Stafford, Victoria — People v. Gray, E066549 — Insufficient Evidence Gang Participation — David A. Gunn, Judge — Opinion by McKinster, J., with Ramirez, P.J., Slough, J. Where appellant was convicted of being a felon in possession of a firearm with a gang enhancement, the court reversed the gang enhancement because simply being a gang member carrying a gun in gang territory was insufficient to prove intent to use the gun to benefit the gang. The court also reversed a separate count of active participation in a gang because even though appellant was in the company of a fellow gang member, there was insufficient evidence to prove the companion was aware of the gun and therefore participating in the offense. The reversal of these counts also required reversal of a 5-year prior serious felony enhancement. (I) NFA

Owen, Thomas — People v. Labriola, E066868 — Custody Credits — Mac R. Fisher, Judge — Opinion by Codrington, J., with Ramirez, P.J., Fields, J. Appellant successfully contended that the trial court erred by limiting his credits to 15 percent under Penal Code section 2933.1. Appellant was convicted of attempted first degree burglary and the prosecution presented no evidence that the residence was occupied at the time of the burglary. Therefore, appellant’s conviction was not a violent felony as defined by Penal Code section 667.5 and he was entitled to the full conduct credits authorized by section 4019. The People conceded. (I) DKR

Angres, Robert L.S. — People v. Perez, E066876 — Penal Code Section 654/Attorney’s Fees — Charles J. Umeda, Judge — Opinion by Slough, J., with McKinster, J., Miller, J. Attorney General conceded and Court of Appeal agreed that appellant’s sentence for failing to report a change of address must be stayed pursuant to Penal Code section 654 because the failure was motivated by the same objective as appellant’s failure to register for which he is already being punished. In addition, Court of Appeal found appellant did not forfeit his right to challenge the imposition of attorney’s fees because the challenge was to the sufficiency of evidence to support a finding of ability to pay. Matter remanded for a hearing. (I) APJ

Jones, Jason — People v. Salcido, E066980— Senate Bill 620/Custody Credits — W. Charles Morgan, Judge — Opinion by Ramirez, P.J., with Codrington, J., Slough, J. Because the appeal was pending when Senate Bill 620 became effective, the Court of Appeal remanded for trial court to exercise discretion under amended Penal Code section 12022.53, subdivision (h). In addition, trial court was directed to correct the abstract of judgment and minute order to reflect additional day of conduct credit. (I) AMJ

Pfeiffer, Richard — In re V.H., et al., E067250 — Indian Child Welfare Act (ICWA) — Matthew C. Perantoni, Judge — Opinion by Codrington, J., with Ramirez, P.J., Fields, J. Mother argued and the Court of Appeal agreed the agency failed to provide proper notice per the ICWA. Mother claimed Indian heritage through her father. Even though maternal grandfather was involved in the case, appeared at several hearings, and was attempting to gain custody of the children, the ICWA notice contained incorrect and missing information about him. Notice included two birth years for maternal grandfather and no information was provided about great grandparents other than their names. Finding it likely grandfather would know his own birthdate and more than just his parents names, the appellate court reversed with a limited remand to comply with the ICWA. (I) LLF

Rehm, Linda — In re T.M., E067320 — Visitation — Timothy F. Freer, Judge — Opinion by Codrington, J., with Miller, J., Slough, J. Mother argued and the Court of Appeal agreed that the juvenile court’s order did not provide enough specificity about mother’s visitation where it provided for the frequency but not the duration of visits. Failing to provide the duration was an impermissible delegation of discretion to the legal guardians. (I) LLF

Staley, John L. — People v. Raines, E067466 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Slough, J., with McKinster, J., Miller, J. Where the record disclosed no support for a finding that petitioner posed an unreasonable risk of committing a super strike, the trial court abused its discretion by denying the resentencing petition. (I) AMJ

Marshall, Marilee — People v. Roman, E067504 — Deviation From Plea Agreement — Mary E. Fuller, Judge — Opinion by Codrington, J., with Ramirez, P.J., Fields, J. Appellant entered into a stipulated plea in exchange for a promise that he could appeal any issue relating to his right to a speedy trial. Because the plea agreement could not be carried out, the People conceded the error raised by appellant that the trial court erred in its advice as to the appealability of speedy trial rights. The People agreed appellant should be allowed to withdraw his plea. (I) LAR

Jones, Cynthia M. — People v. Harrison, E067662 — Transportation for Sales — Dwight W. Moore, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. In this appeal from a second resentencing after two prior appeals, counsel argued and Attorney General conceded that appellant’s conviction for transportation of a controlled substance must be reversed because the jury was not asked to and did not find that the transportation was for the purpose of sales, as required under the 2013 amendment to Health and Safety Code section 11379. Matter remanded to give prosecution the opportunity to re-try appellant under the amended statute. (I) APJ

Fields, Shawn — People v. Zuniga, E067782 — Probation Conditions — Daniel W. Detienne, Judge — Opinion by Fields, J., with Ramirez, P.J., McKinster, J. Appellant relocated from Riverside County to San Bernardino County and as a result his probation was transferred to San Bernardino County. After the transfer, San Bernardino County Superior Court modified appellant’s probation, adding a condition requiring appellant to submit his electronic devices to search and seizure. Appellant successfully argued that his move to San Bernardino County was not a sufficient change of circumstance to justify a new electronic search term, since the People did not provide a factual basis for the change. The order modifying appellant’s probation terms to include an electronic search condition is reversed. (A) DKR

Lindsley, Kevin — People v. Jones, E067929 — Sentencing Discretion After Probation Revocation — Debra Harris, Judge — Opinion by Codrington, J., with Ramirez, P.J., Fields, J. Where execution of sentence had been suspended and the trial court subsequently revokes probation, trial court has discretion (1) to reinstate probation on the same or modified terms, or (2) to order execution of the suspended sentence. Here, the court’s comments showed that it believed it could only order execution of the previously suspended sentence . The People conceded the trial court misunderstood its sentencing discretion, and the Court of Appeal agreed. Judgement reversed and vacated; matter remanded for resentencing. (A) CBM

Gambale, Erica — In re J.A., E068145 — Juvenile Court Orders — Winston S. Keh, Judge — Opinion by McKinster, J., with Ramirez, P.J., Fields, J. Court of Appeal reversed order for blood testing as unauthorized under Penal Code section 1202.1, where none of minor’s cases involved offenses enumerated under that statute. (I) MCR

Beckham, Sylvia — People v. Taylor, E068375 — Penal Code Section 654 — Samuel Diaz, Jr. Judge — Opinion by McKinster, J., with Ramirez, P.J., Fields, J. Trial court erred in imposing a concurrent term for discharging a firearm at an occupied vehicle. The factual basis for the offense and a separate conviction for attempted murder was the same: a single act of shooting as the victim drove away. Thus, sentence for the firearm conviction was required to be stayed pursuant to Penal Code section 654. (I) AMJ

Harris, Donna — In re B.N., E068401 — Custody Credits — Walter H. Kubelun, Judge — Opinion by Miller, J., with McKinster, J., Slough, J. Minor is entitled to correction of his pre-disposition actual custody credit time in the amount of four additional days. (I) AMJ

Brines, Cindy — People v. Thomas, E068546 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Court of Appeal reversed the trial court's denial of appellant's Prop. 47 petition seeking reduction of his petty theft with a prior conviction. The People argued that appellant's attempted robbery, for which he was given a life sentence pursuant to the Three Strikes law, made him ineligible for Prop. 47 relief under subdivision (i). However, People v. Hernandez (2017) 10 Cal.App.5th 192, clarified that the exception in subdivision (i) does not extend to life sentences imposed solely as a result of the alternative sentencing provision of the Three Strikes law. Attempted robbery is not, in itself, a serious and/or a violent felony punishable by life imprisonment or death; thus, the trial court is instructed to reconsider appellant's petition. (I) LKH

Miller, Gerald J. — People v. Bradehorst, E068652 — Penal Code Section 1170.18 (Prop. 47) — Ronald M. Christianson, Judge — Opinion by Fields, J., with Ramirez, P.J., Codrington, J. The trial court’s denial of appellant’s Prop. 47 petition to reduce his felony conviction under Penal Code section 487b [converting real estate valued at more than $250 into personal property] is reversed where undisputed evidence shows the value of the stolen copper pipe was less than $950. (I) PMI

Mishkin, Cindi — In re Darrell Adams, G049156 — Right to be Present at Resentencing — Michele D. Levine, Judge — Opinion by Fybel, J., with Moore, J., Aronson, J. Defendant has the right to be present at his sentencing and resentencing hearing unless the defendant explicitly waives that right. Here, the trial court erred when it proceeded with defendant’s resentencing hearing in his absence and without his waiver of his right to be present. The error was prejudicial given the two errors apparent from the abstract of judgment – presentence credit error and section 654 error – and the possibility that had appellant been present, counsel would have advocated for a lower sentence. Order to Show Cause discharged after initial filing of petition for writ of habeas corpus on October 4, 2013. (S) CBM

Love, Christopher — People v. Dickson, et al., G051679 — Restitution — Thomas Goethals, Judge — Opinion by Aronson, J., with O’Leary, P.J., Ikola, J. District Attorney appealed a $16 million restitution order in a medical billing scam case with 19 defendant/respondents, arguing the amount should have been $22 million and ordered to be paid jointly and severally. The Court of Appeal rejected the People’s positions as unsupported by the record and failing to establish an abuse of discretion in tailoring restitution obligations to each defendant’s “proportional degree of responsibility.” The People’s appeal was dismissed as to one defendant (Dickson), who had not yet been sentenced. Most co-respondents joined the first brief, filed by Chang. Appellate counsel were: Christopher Love (Chang); Joanna Rehm (Dickson); Rex Williams (Francis); Leonard Klaif (Hampton); Forest Wilkerson (Harnen); Reed Webb (Huynh, N.); Jared Coleman (Huynh, T.); Thea Greenhalgh/Patricia Ihara (Keophimaphone); Coreen Ferrentino (Landon); Barbara Smith (Nanda); Valerie Wass (Ngo); Randall Conner (Nguyen); Richard Fitzer (Pham); Ken Nordin (Rosales); Jeanine Strong (Toscana); Robert Angres (Tran); John Schuck (Truong); Marta Stanton (Vu). (A/I) PMI/ABM

Boyce, Robert — People v. Reyes, G053096 — Insufficient Evidence/Statute of Limitations — Lance Jensen, Judge — Opinion by Aronson, J., with Fybel, J., Ikola, J. Evidence that appellant inflicted a blow using an unidentified hard object which left no significant injuries was found insufficient to prove an assault with a deadly weapon or instrument. Conviction reduced to the lesser included offense of misdemeanor assault and, as a result, the attendant firearm enhancement (based on evidence appellant was holding a gun at the time of the assault) is also reversed because it was predicated on a felony conviction. Finally, the misdemeanor conviction for violation of court order violated the statute of limitations because it was not charged within a year of the alleged offense. The People conceded this issue. The case is remanded for resentencing. (I) MCR

Morse, David McNeil — People v. Tran, G053424, 20 Cal.App.5th 561 — Senate Bill 620/Franklin Hearing — James A. Stotler, Judge — Opinion by Bedsworth, J., with O'Leary, P.J., Aronson, J. Appellant was convicted of murdering and attempting to murder two rival gang members. On appeal, he contended since he was only 16 years old when he committed his crimes, the case must be remanded so he can make a record of information that will be relevant to his youthful offender parole hearing in 25 years. The Court of Appeal affirmed the judgment in its entirety, but remanded for this limited purpose. After the opinion issued, counsel filed a petition for rehearing arguing that SB 620 required remand for court to consider dismissing firearm enhancements based on newly-enacted legislation. Court of Appeal agreed and modified opinion to reflect a more general sentencing remand. (I) LAR

Weinberg, Allen — People v. Manriquez-Fernandez, G053479 — Abstract of Judgment — Gregg L. Prickett, Judge — Opinion by Aronson, J., with Bedsworth, J., Ikola, J. Appellant argued and Attorney General conceded the court’s “no-contact” order, imposed under Penal Code section 136.1, was unauthorized and that the abstract of judgment should be modified to reflect the correct sentencing date. The Court of Appeal refused to accept the Attorney General’s concession regarding the no-contact order and instead found that the trial court intended to impose a 10-year no-contact order under Penal Code section 136.2, subdivision (i)(1). The Court ordered the no-contact order modified to reflect the proper Penal Code section and the abstract of judgment corrected to show the correct sentencing date. (I) HSI

Nelson, Laurel — People v. Acosta, G053480 — Senate Bill 180 — Lance Jensen, Judge — Opinion by Thompson, J., with O’Leary, P.J., Fybel, J. Court of Appeal ordered modification of judgment to strike two Health & Safety Code section 11370.2 enhancements because they are no longer authorized under SB 180 and the appeal was pending when the new law became effective. (I) SDS

Weinberg, Allen — People v. Nguyen, G053806 — Penal Code Section 654 — Sheila F. Hanson, Judge — Opinion by Bedsworth, J., with Fybel, J., Ikola, J. Attorney General conceded and the Court of Appeal agreed that convictions for aggravated sexual assault and sexual intercourse with a child were based on the same act of intercourse; thus, sentence on the latter count must be stayed pursuant to Penal Code section 654. (I) HCC

Webb, Reed — People v. Williams, G053891 — Insufficient Evidence/Senate Bill 620 — David A. Hoffer, Judge — Opinion by Bedsworth, J., with Aronson, J., Ikola, J. Conviction for assault with a firearm on a peace officer is reversed for insufficient evidence where appellant shot his rifle blindly through his bedroom wall into an unoccupied spare room, after closing his bedroom door on a peace officer who ran in the opposite direction. Even though the police officer who was going to break down appellant’s locked bedroom door could have run into the spare room, because he ran in the opposite direction, the shots did not constitute an act that would naturally and probably result in a battery. On these undisputed facts, no substantial evidence supports appellant’s conviction. Additionally, the case is remanded so that the trial court can exercise its discretion to dismiss the firearm enhancements under SB 620 (I) PMI

Fitzer, Richard L. — People v. Yarber, G053943 — Penal Code Section 654 — Cheri T. Pham, Judge — Opinion by Thompson, J., with Moore, J., Fybel, J. Court of Appeal agreed that appellant’s sentence for burglary must be stayed pursuant to Penal Code section 654 because it was ongoing and part of the same course of conduct as the separately punished robbery that occurred after entry of the building. (I) APJ

Love, Christopher — People v. Robinson, G054052— Senate Bill 620 — Steven D. Bromberg, Judge — Opinion by Bedsworth, J., with O'Leary, P.J., Fybel, J. Matter remanded for court to exercise its discretion under Senate Bill 620. Two days additional credits also awarded. (I) HCC

McLaughlin, Robert — In re David G., Jr., G054221 — Placement — Gary L. Moorhead, Judge — Opinion by Bedsworth, J., with Thompson, J., Aronson, J., dissenting. At the 18-month review hearing, the juvenile court placed minor with his mother and rejected placement with father then living in Mexico. Father appealed. The Court of Appeal affirmed the trial court’s orders but provided extensive criticism about the failures of the trial court and modified the judgment accordingly. The conclusion of the opinion is “[r]eally . . . we need to do a better job on these cases.” The modifications include amending the orders to state there is no detriment to return the child to father and that any enhancement services must be tailored to meet father’s needs which are indicated by evidence and facts. The dissent found the juvenile court erred in placing minor with mother given her extensive drug abuse and recent sobriety and the availability of father who had no such deficits and was ready for immediate placement. (I) LLF

Ferguson, Susan — In re Raymond C., G054243 — Juvenile Delinquency— Lewis W. Clapp, Judge — Opinion by Fybel, J., with O’Leary, P.J., Ikola, J. Minor entered a plea agreement which provided that he would be allowed to withdraw his plea and have the case dismissed after one year of supervised probation and completion of required programs and community service. During the pendency of his probationary period, the juvenile court granted permission for minor to live with his mother in Costa Rica. After a year had passed, minor had completed program and service requirements and moved to withdraw his plea. The court denied his motion because he had not been supervised for the full year. Court of Appeal agreed with minor that the juvenile court effectively modified his terms of probation when it granted his request to live in Costa Rica and could not deny motion to withdraw plea based on failure to fulfill previous terms. Case is remanded to juvenile court with directions to grant motion to withdraw guilty plea, dismiss the action, and seal all records pertaining to delinquency petition. (A) LKH

Kessler, Daniel — People v. Pena, G054582 — Senate Bill 620 — David A. Hoffer, Judge — Opinion by O’Leary, P.J., with Fybel, J., Thompson, J. Remand for trial court to consider whether to exercise its discretion to strike firearm enhancement under newly amended Penal Code section 12022.53, which became effective while appeal was pending. (I) MCR

Bjerkhoel, Alissa — People v. Baek, G054812 — Abstract of Judgment — Patrick Donahue, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Aronson, J. Court of Appeal found that where appellant was convicted of kidnap to commit robbery in violation of Penal Code section 209, subdivision (b), it was clerical error for abstract of judgment, reciting the language of the statute, to state appellant was convicted of “kidnapping to commit robbery, rape, oral copulation.” Following People v. Delgado (2008) 43 Cal.3d 1059, the court found the abstract must correctly reflect the specific basis for conviction under a statute providing alternative factual bases for conviction. (I) NFA

Harris, Donna L. — People v. Guzman, G054842 — Dual Conviction/Drug Registration — Gary S. Paer, Judge — Opinion by Moore, J., with O’Leary, J., Bedsworth, J. Appellant was found guilty of two counts of misdemeanor possession of methamphetamine as lesser included offenses of the charged crimes: transportation and possession for sale. Because both counts of possession are based on a single act of possession and a defendant cannot be guilty of two counts of the same offense based on the same act, one count must be dismissed. Further, the drug registration requirement under Health and Safety Code section 11590 is ordered stricken, because it does not apply to misdemeanor convictions for possession of methamphetamine. Attorney General conceded both points. (I) AMJ

Johnson, Mark — People v. Rodriguez, G054982 — Sentencing on Remand/Fines — Mac R. Fisher, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Aronson, J. Court of Appeal found that where the case was remanded for resentencing after the Court of Appeal reduced first degree murder to second degree murder, the sentencing court had inherent jurisdiction to reconsider all discretionary sentencing choices, including whether to reduce the $10,000 restitution fine. Accordingly, on remand the sentencing court was incorrect in concluding its authority was limited to matters expressly addressed in the Court of Appeal’s disposition. Remanded for a second resentencing. (I) NFA

McPartland, Michael B. — People v. Ensminger, G055193 — SB 180 — David A. Hoffer, Judge — Opinion by Bedsworth, J., with Aronson, J., Thompson, J. Drug enhancements must be stricken under SB 180, which became effective while appeal was pending. The case is remanded for a full resentencing hearing. (I) PMI

Braden, Julie/Love, Jack — In re S.G., G055289 — Extension of Reunification Services — Dennis J. Keough, Judge — Opinion by Ikola, J., with Moore, J., Fybel, J. In July 2017, the juvenile court extended reunification services to mother at a hearing held pursuant to Welfare and Institutions Code section 387. The Orange County Social Services Agency (SSA) and the minor appealed the court’s order arguing that mother had already been provided with 18 months of services and did not meet the criteria for more services under Welfare and Institutions Code section 366.22, subdivision (b). Mother filed a respondent’s brief and father joined mother’s brief arguing that he benefitted from the court granting additional services to mother because it left open a substantial probability that his child would be returned to mother. By December 2017, the additional reunification period had passed and mother had satisfied the reunification requirements to earn overnight visits. The Court of Appeal requested supplemental letter briefs to address whether the expiration of the additional reunification period rendered the appeal moot. After reviewing the letters, the Court agreed with mother that the issue was moot and was not persuaded that the question presented was an issue of continuing public importance capable of repetition yet evading review. (I) LMF

April 2018

Robertson, Thomas E./Buckley, Christian C. — People v. Tua, et. al., D069731, (2018) 18 Cal.App.5th 1136 — Sentencing — Richard R. Monroy, Judge — Opinion by Dato, J., with Huffman, J., Haller, J. Addressing an issue of first impression, the Court of Appeal held that when a court sentences a defendant to both a determinate and indeterminate term, but either stays or runs concurrent the aggregate determinate term sentence, any five-year serious felony enhancement that is based on one of the determinate term offenses must also be stayed or run concurrent. Thus, it was error for the court to attach the five-year enhancement consecutively to the indeterminate term when the offense upon which it was based was part of an aggregate determinate term that had been run concurrent. Matter remanded for sentencing in accordance with the opinion.. (I) PMI

Shaler, Susan — People v. Andrews, D070917 — Instructional Error/Felony-Murder — Blaine K. Bowman, Judge — Opinion by Benke, J., with Nares, J., Haller, J. Appellant was convicted of a cold-case murder based on his involvement as an aider-abettor and under the felony-murder rule. Attorney General conceded and Court of Appeal agreed that he trial court erred in instructing on felony-murder under current law rather than the law in effect at the time of the murder (1991). Under the law at the time of the offense, felony-murder could not be premised, as it was in this case, on burglary where the underlying intent is to commit murder or assault with a deadly weapon or force likely to produce great bodily injury because the burglary then “merges” with the homicide. Court of Appeal rejected respondent’s argument that the error was harmless in this case. Specifically, the prosecutor’s primary argument was based on burglary felony-murder; the evidence in the record supported an only an entry to commit an assault (rather than a theft); and the verdict did not differentiate between felony-murder and premeditated /deliberate murder. Judgment reversed. (I) HCC

Booth, Christopher — In re C.M., D071165 — Indian Child Welfare Act (ICWA) — Sharon L. Kalemkiarian, Judge — Opinion by Nares, J., with Benke, J., Aaron, J. Reversal for failure to give adequate ICWA notice. (I) ACS

Tobin, Amy; Booth, Christopher — In re Manjrin B., D071403 — Indian Child Welfare Act (ICWA) — William D. Quan, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Dato, J. Reversal for inadequate ICWA inquiry and notice. (I) ACS

Aros, Christine M. — People v. Millan, D071437, (2018) 20 Cal.App.5th 450 — Senate Bill 180: Drug Enhancement — Howard H. Shore, Judge — Opinion by Aaron, J., with Haller, J., Dato, J. In a petition for rehearing, appellant argued that the two three-year drug enhancements, imposed pursuant to Health and Safety Code section 11370.2, subdivision (c), must be stricken because they are no longer authorized due to the change in law effected by Senate Bill 180. The Attorney General conceded that the law applies retroactively to appellant and that rehearing should be granted. Court of Appeal granted rehearing and remanded the matter to the trial court to strike the enhancements and resentence appellant. (A) APJ

McKinney, David M. — People v. Mendibles, D071448 — Instructional Error -- Christopher W. Yeager, Judge -- Benke, J., with McConnell, P.J., Dato, J. Attorney General conceded and Court of Appeal agreed the trial court erred in instructing the jury with a modified version of CALCRIM No. 521 which told them a defendant could be guilty of first degree murder under either a willful, deliberate, and premeditated theory or under the theory defendant killed the victim while an active participant in a criminal street gang for the benefit of that gang. The latter is a special circumstance, but not a theory of first degree murder. The Court of Appeal rejected respondent’s argument that the error was harmless beyond a reasonable doubt where the prosecutor relied extensively on the erroneous theory and there was nothing in the record to indicate the jury did not rely on it. Judgment reversed. (I) LAR

Tripp, Pamela — In re T.T., D072020 — Indian Child Welfare Act (ICWA) — Gary M. Bubis, Judge — Opinion by Huffman, J., with Benke, J., Irion, J. Reversal for failure to comply with ICWA inquiry requirements. (I) ACS

Ball, Lindsey — People v. Hernandez, D072192 — Penal Code Section 1170.18 (Prop. 47) — David J. Danielsen, Judge — Opinion by Aaron, J., with McConnell, P.J., Haller, J. Reversed and remanded for a new Prop. 47 hearing where the trial court erred in denying appellant’s petition due to its mistaken belief that the petition sought re-designation of a conviction for dissuading a witness rather than of a receiving stolen property conviction. (I) AMJ

Davidson, Suzanne — In re Hanna T., D072218 — Indian Child Welfare Act (ICWA) — Michael Imhoff, Referee — Opinion by McConnell, P.J., with Benke, J., Huffman, J. Reversal for failure to make adequate ICWA inquiry. (I) ACS

Miller, Gerald — People v. Burke, D072296 — Senate Bill 620: Firearm Enhancement — Melinda J. Lasater, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Aaron, J. Attorney General conceded and Court of Appeal agreed that Senate Bill 620, which would allow the trial court to strike or dismiss appellant’s firearm enhancement, applies retroactively to appellant because his case is not yet final on appeal. The Court of Appeal rejected respondent’s claim that remand would be futile. The case is remanded to permit the trial court to decide whether to strike the enhancement. (I) MCR

Prince, Diana — In re D.M., D072435 — Denial of Reunification Services for Man Determined to be Child’s Father in Another State — Michael Martindill, Judge — Opinion by Irion, J., with McConnell, P,J., Aaron, J. Reversal for failure to grant services to a man found to be child’s father in Wisconsin; remanded for trial court to find father is a legal father with the same rights as a presumed father and to assess whether reunfication services should be granted to him. (I) ACS

Weis, Lizabeth — People v. Robinson, D072861 — Senate Bill 620: Firearm Enhancement — John M. Tomberlin, Judge — Opinion by Haller, J., with Benke, J., Aaron, J. Court of Appeal granted appellant’s petition for rehearing and agreed with the Attorney General’s concession that Senate Bill 620 applies retroactively to appellant, whose case was not final when the new law went into effect. The court rejected respondent’s claim that remand would be futile. Matter remanded for court to exercise its discretion. (I) HSI

Owen, Thomas — People v. Martinez, E065042 — Senate Bill 620: Firearm Enhancements — R. Glenn Yabuno, Judge — Opinion by Slough, J. with Miller, J., Codrington, J. Attorney General conceded and Court of Appeal agreed that Senate Bill 620 applies retroactively to appellant because appellant’s sentence includes five firearm enhancements which could be stricken or dismissed under the new law and his case is not yet final on appeal. The case is remanded to permit the trial court to decide whether to strike any of the firearm enhancements. (I) LKH

Cannon, Gregory — People v. Granados, E065727 — Penal Code Section 654/Dual Enhancements/Clerical Errors — Irma Poole Asberry, Judge — Opinion by Ramirez, P.J., with Miller, J., Slough. Term for active participation in a gang stayed under Penal Code section 654 where appellant was separately sentenced for the assault which was the felony underlying the gang offense. Three-year great bodily injury enhancement stricken where the same injury elevated appellant’s gang enhancement to the 10 years provided by section 182, subdivision (b)(1)(C). Clerical errors in the abstract of judgment corrected to conform to oral pronouncement of sentence. Lifetime ban on possessing deadly weapons stricken because only a ban on possessing firearms was statutorily authorized. (I) NFA

Haggerty, Edward — People v. Padilla, E066273 — Penal Code Section 654 — David A. Gunn, Judge — Opinion by Ramirez, P.J., with Miller, J., Cunnison, J. Reversed in part and remanded for re-sentencing so that trial court can properly stay, pursuant to Penal Code section 654, one of two 15-years-to-life sentences for sexual penetration of a child 10 years or younger and aggravated sexual assault on a child by sexual penetration, where both offenses are based on the same act of sexual penetration. (I) AMJ

Sheehy, Kevin — People v. Brooks, E066277 — Penal Code Section 654/Senate Bill 620: Firearm Enhancement — Daniel W. Detienne, Judge — Opinion by Codrington, J., with Ramirez, P.J., Fields, J. The gang enhancement attached to the count of carrying a loaded firearm by an active participant in a criminal street gang should have been stayed pursuant to Penal Code section 654. Case also remanded for trial court to consider striking the gun enhancement pursuant to SB 620. (I) LAR

Jarvis, Michelle — In re A.A., E066902 — Visitation in Exit Order — Timothy F. Freer, Judge — Opinion by Ramirez, P.J., with McKinster, J., Fields, J. Court of Appeal affirmed the exit order but remanded with directions for juvenile court to specify frequency and duration of father’s visits. (I) ACS

Webb, Reed — People v. Thomas, E067053 — Penal Code Section 1170.18 (Prop 47) — John P. Vander Feer, Judge — Opinion by Miller, J., with McKinster, J., Slough, J. The Court of Appeal reversed and directed the trial court to grant appellant’s Prop 47 petition designating appellant’s Penal Code section 10851 conviction a misdemeanor in light of the California Supreme Court’s holding in People v. Page (2017) 3 Cal.5th 1175. No further hearing is required in this case because there was no dispute that the vehicle involved was under $950 in value and appellant also met her burden of showing there was no intent to return the car or use it only temporarily. (I) HSI

Ehlert, Allison L. — People v. Gideon, E067492 — Probation Condition — Helios (Joe) Hernandez, Judge — Opinion by McKinster, J., with Miller, J., Slough, J. Court of Appeal agreed that probation condition requiring probation officer’s approval of residence is overbroad. Condition ordered modified to require only notice of change in place of residence 24 hours prior to change. (A) APJ

King, Nancy — People v. Pichel, E067970 — Restitution — Victor R. Stull, Judge — Opinion by Codrington, J., with Ramirez, P.J., Fields, J. Convicted of murder in 2005, appellant was ordered to pay restitution of $7,500 to reimburse the Victim Compensation Board for funeral and burial expenses provided to the victim's family. In January 2017, appellant requested the trial court to modify her abstract of judgment to clarify the restitution liability imposed was joint and several, so that she would be credited for any payments made by her co-defendants toward the total restitution. The trial court summarily denied the request. The People conceded and the Court of Appeal agreed the abstract of judgment should be modified to indicate the $7,500 restitution order is to be imposed jointly and severally with the co-defendants. (I) HCC

O’Connor, Sheila — People v. Winston, E065836 — Improper Evidence of Co-Perpetrator’s Guilty Plea — Irma Poole Asberry, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Appellant was convicted of robbery based on evidence he and a female accomplice accosted an intoxicated and homeless man at knife-point and riffled his pockets before being chased off by a bystander. The victim testified $90 cash was taken from him in the incident; however, when appellant and accomplice were apprehended 40 minutes later they had no cash. Over a defense relevance and 352 objection, the trial court informed the jury it was “judicially notice[d]” that the accomplice had pleaded guilty to robbery. The Court of Appeal found the trial court erred in admitting the guilty plea because any relevance was outweighed by potential prejudice. Further, the court found the error was prejudicial because absent the plea’s admission of a completed robbery, it was reasonably probable the jurors would have doubted the victim’s testimony that cash was taken, in which case jurors would have convicted only of attempted robbery. Case remanded to permit the prosecution to retry the charge of robbery or, if not, then for the judgment to be reduced to attempted robbery. (I) NFA

McGowan, Jesse — In re J.B., E069244 — Indian Child Welfare Act (ICWA) — Christopher Marshall, Judge — Opinion by Miller, J., with McKinster, J., Slough, J. County counsel conceded and Court of Appeal agreed that the Department of Children and Family Services failed in its duty of inquiry under the ICWA when it did not ask Father for information about his aunt whom he claimed could assist with identifying the tribes to which his family belonged. Matter remanded for compliance with the ICWA. Jurisdiction and disposition orders to be reinstated if no tribe intervenes. (I) APJ

Fields, Lori — In re A.E., E069717 — Indian Child Welfare Act (ICWA) — Judith C. Clark, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Reversal with directions following stipulation by parties confirming the agency and juvenile court failed to follow the requirements of the Indian Child Welfare Act (ICWA). Trial court directed to order the agency to provide adequate notices which contains information about the paternal relatives pursuant to the ICWA. (I) LLF

Boyce, Robert — People v. Robinson, G051906 — Insufficiency of Evidence — James Rogan, Judge — Opinion by Ikola, J., with Moore, J., Aronson, J. After a first trial, appellant was convicted of two counts of attempted premeditated murder and two counts of mayhem. That judgment was reversed due to instructional error which infected the attempted murder convictions. On remand, the trial court ruled that the reversal applied only to the attempted murder convictions, so the new trial included only those charges. After conviction on those charges, the court sentenced appellant not only on the convictions from the current trial, but also on the mayhem convictions from the previous trial. Court of Appeal agreed with appellant’s argument that the mayhem convictions must be reversed because the prior reversal in the case amounted to a remand for an entire new trial. “If a judgment against the defendant is reversed, such reversal shall be deemed an order for a new trial, unless the appellate court shall otherwise direct.” (Pen. Code, § 1262.) “The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict or finding cannot be used or referred to, either in evidence or in argument, or be pleaded in bar of any conviction which might have been had under the accusatory pleading.” (§ 1180.) While the previous reversal only analyzed the attempted murder counts, the disposition was not so similarly limited. (I) HCC

Kington, Benjamin — People v. Vasquez, G052479 — Failure To Instruct With Imperfect Self-Defense — Steven D. Bromberg, Judge — Opinion by Moore, J., with O’Leary, P.J., Bedsworth, J. Appellant’s attempted murder conviction arose from a fight outside a liquor store between Garcia and Ortiz. Garcia testified Ortiz attacked him and Garcia fought back because he feared for his life. Appellant helped Garcia and was convicted as an aider and abettor. While this appeal was pending, Garcia’s conviction was reversed for failure to instruct on imperfect self-defense because, based on the evidence, the jury could have believed Garcia feared for his life but that his fear was unreasonable under the circumstances. In this appeal, the Court of Appeal requested supplemental briefing on the question of whether the instructional error as to the direct perpetrator necessarily requires reversal of appellant’s conviction under People v. McCoy (2001) 25 Cal.4th 1111. If appellant had directly aided and abetted the target offense of murder, he would have harbored his own intent to kill and thus the conviction might still stand despite the instructional error as to the direct perpetrator. But here, the court had also instructed on the natural and probable consequences doctrine. Under that doctrine, an aider and abettor cannot be liable for a crime that the perpetrator did not actually commit. Thus, a reversal of the direct perpetrator’s conviction would require reversal of the aider and abettor’s conviction. Because there was no evidence to support the conclusion the jury convicted appellant of attempted murder under the direct theory of aider and abettor liability rather than under the natural and probable consequences doctrine, reversal was required. (I) CBM

Olsen, Nancy — People v. Calixto, G053284 — Proposition 57 Transfer Hearing — Gregg L. Prickett, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Aronson, J. Appellant, a juvenile offender, was convicted in adult court of multiple robberies and street terrorism with gang enhancements. Although he was sentenced before Proposition became effective, appellant argued that he was entitled to a transfer hearing under Proposition 57 to determine whether he should have been tried in juvenile court. The Court of Appeal agreed with the intermediate decision in People v. Vela (2017) 11 Cal.App.5th 68, review granted July 12, 2017, S242298 (Vela), found that applying Proposition 57 retroactively is consistent with the recent “sea of change in penology” regarding juvenile offenders, and remanded the matter to the juvenile court to conduct a transfer hearing pursuant to Proposition 57. (I) HSI

Sheehy, Kevin — People v. Taylor, G053678 — Custody Credits — Gary S. Paer, Judge — Opinion by Bedsworth, J., with Moore, J., Thompson, J. Because appellant was arrested on April 21, 2015 and sentenced on June 3, 2016, he should have received 410 days of actual pre-sentence custody credit instead of 409 days. The judgment is modified to award appellant 420 days of pre-sentence credit. (I) LKH

Prince, Diana — In re M.C., G053880 — Indian Child Welfare Act (ICWA) — Gary Bischoff, Judge — Opinion by Fybel, J., with Aronson, J., Ikola, J. Stipulated reversal for failure to give adequate ICWA notice. (I) ACS

Quinlan, Sheila — People v. Gonzalez, G053937 — Penal Code section 654/Abstract of Judgment — Sheila F. Hanson, Judge — Opinion by Bedsworth, J., with Fybel, J., Thompson, J. Respondent conceded and Court of Appeal agreed sentences for lewd act upon a child must be stayed under Penal Code section 654 because the offenses are based on the same acts as the convictions of intercourse or sodomy with child under 10. In addition, the Court of Appeal ordered the trial court to correct the abstract of judgement to reflect only one (1) $1,000 victim restitution fine, not one such fine per count. (I) CBM

Adraktas, Stephanie — People v. Dixon, G053944 — Lesser Included Offenses — Cheri T. Pham, Judge — Opinion by Thompson, J., with Aronson, J., Fybel, J. Appellant was charged with two counts of robbery based on taking property from a store and threatening two loss prevention officers who pursued him. The jury convicted appellant of robbery as to one prevention officer, but found him guilty of only lesser included offenses (theft and attempted robbery) as to the other officer (whose actions indicated he was not afraid). Conviction for theft reversed because it is based upon the same property as that taken in the robbery of the first officer. (A) LKH

Bases, Arielle — People v. Degante, G054268 — Conduct Credits — Kimberly Menninger, Judge — Opinion by Thompson, J., with Aronson, J., Ikola, J. Respondent conceded and Court of Appeal agreed that trial court erred in limiting conduct credits to 15% for conviction of attempted robbery because, unlike a completed robbery, attempted robbery is not a violent felony. (I) HCC

Keller, Roni — In re Ava L., G054775 — Indian Child Welfare Act (ICWA) — Dennis J. Keough, Judge — Opinion by Aaronson, J., with O’Leary, P.J., Moore, J. Reversal due to inadequacy of ICWA notices. (I) ACS

Gordon, Laura — People v. Uribe, G054826 — Ineffective Assistance Of Counsel: Failure To Request Romero Relief — Robert Alan Knox, Judge — Opinion by Thompson, J., with Moore, J., Fybel, J. Appellant was convicted of robbery and attempted carjacking, plus two prior strikes, and sentenced to 37-years-to-life. Defense counsel’s sentencing brief included a one-sentence request that a strike be stricken, but did not cite People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Nor did defense counsel orally renew this request or seek a ruling at sentencing when the court imposed a Three Strikes sentence with no indication the court had considered its discretion under Romero. The Court of Appeal found defense counsel’s failure was ineffective assistance and remanded the case for the sentencing court to consider using its Romero discretion. (I) NFA

March 2018

Kraft, Rudy — People v. Shamoun, D071361 — Hearsay/Restoration of Sanity — Charles G. Rogers, Judge — Opinion by Aaron, J., with McConnell, P.J., O’Rourke, J. Appellant was found not guilty by reason of insanity and appealed from an order denying his application for restoration of sanity pursuant to Penal Code section 1026.2. Appellant argued, and the Court of Appeal agreed, that the trial court erred in permitting the People to present “case-specific” hearsay at the trial regarding his application. The Court relied on People v. Sanchez (2016) 63 Cal.4th 665, in which the California Supreme Court concluded that when an expert tells the jury about case-specific out-of-court statements, and treats these statements as true to support the expert’s opinion, the statements are hearsay. The matter was remanded for a new trial on Appellant’s application. (I) LMF

Kington, Benjamin — People v. Sandoval, D071560 — Criminal Protective Order — Christopher J. Plourd, Judge — Opinion by Benke, J., with Nares, J., Haller, J. Appellant challenged the criminal protective order (CPO) issued in this domestic violence case involving his spouse. Appellant argued the order should be terminated or modified to allow some contact. The Court of Appeal affirmed the CPO with a minor modification. It concluded that the court properly exercised its broad discretion under Penal Code section 1203.097, subdivision (a)(2) when it issued the CPO preventing appellant from initiating any contact whatsoever with his spouse, pending a showing by appellant that he was making at least some progress in addressing his anger management issues and drug addiction. Appellant had yet to make a showing of progress on this record. The Court further concluded that the CPO should be modified to allow appellant’s spouse to initiate contact, if any, with appellant that is acceptable and welcomed by her. (I) HCC

Gambale, Jennifer — People v. Perez, D073001 — Unanimity Instruction/Insufficient Evidence/Credits — Robert G. Yabuno, Judge — Opinion by Huffman, J., with Haller, J., Guerrero, J. The Court of Appeal reversed appellant’s convictions for making criminal threats and attempted extortion due to the prejudicial failure to give a unanimity instruction. Because the prosecution made no election, instead arguing the jury could convict based on one of several incidents, the court had a duty to instruct sua sponte on the unanimity requirement. The Court also found that there was insufficient evidence to support the true finding on appellant’s prior conviction for battery causing great bodily injury, alleged as a strike prior. Therefore, the true finding is reversed and the matter remanded. Finally, appellant successfully argued that the abstract of judgment must be corrected because it does not include appellant’s 2,270 days of pre-sentence credit. (I) LKH

Johnson, Mark — People v. Wilson, E064116 — Penal Code Section 654/Sentencing — Debra Harris, Judge — Opinion by Miller, J., with Codrington, J., Slough, J. In this case involving kidnap, assault, and torture convictions, appellant argued that his sentences for the assaults, kidnap, and associated great bodily injury enhancements must be stayed because the underlying conduct was either the same as that supporting the torture conviction or at least part of the same course of conduct. Court of Appeal agreed that the case must be remanded for re-sentencing due to inconsistencies in the trial court’s findings. In addition, one prison prior must be stricken because the same conviction supports a serious felony prior enhancement. Further on remand, the trial court must exercise its discretion to impose or strike a firearm enhancement pursuant to newly enacted Senate Bill 620, which the Attorney General conceded must be retroactively applied to appellant. (I) APJ

Lubliner, Steven — People v. Ruiz, E065348 — Unauthorized Sentence/Pre-sentence Conduct Credits — Randall White, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. Appellant received an unauthorized sentence of one year for a weapon-use enhancement which was attached to a subordinate term; instead, one-third the mid-term term or four months was the appropriate term. Additionally, the trial court erroneously limited appellant’s conduct credits to 15% even though appellant had not been convicted of a violent offense. The Court of Appeal directed the superior court clerk to amend the abstract of judgment to reflect corrections. (I) LKH

Williams, Rex — People v. Vargas, E065528 — Pre-sentence Conduct Credit — Victor R. Stull, Judge — Opinion by Codrington, J., with Miller, J., Slough, J. Court of Appeal agreed that the trial court improperly limited conduct credit to 15% in this case because appellant’s conviction of attempted residential burglary with a person present does not qualify as a violent offense and appellant’s other conviction of residential burglary did not include an allegation that a person was present during the offense. Judgment modified to award half-time conduct credits under Penal Code section 4019 rather than 15% conduct credits under section 2933.1. (I) NFA

Macomber, Thomas — People v. Martinez, E066299 — Hearsay In Gang Expert Testimony — Gerard S. Brown, Judge — Opinion by Miller, J., with Slough, J., Fields, J. Gang benefit enhancement finding reversed pursuant to People v. Sanchez (2016) 63 Cal.4th 665 where prosecution’s gang expert relied on case-specific hearsay for his opinion appellant was a Chino Sinners gang member acting for the benefit of the gang. Court of Appeal found the trial court erred in allowing the expert to recount several pieces of case-specific hearsay: a second-hand report appellant had discussed drugs in a jailhouse phone call; a statement by another officer appellant had once been found with drugs in the company of other gang members; and field identification cards stating appellant was a gang member and had gang tattoos. (I) NFA

Nalls, Christopher — People v. Smith, E066716 — Penal Code Section 1170.18 (Prop. 47) — Richard T. Fields, Judge — Opinion by Miller, J., with Ramirez, P.J., Cunnison, J. Court of Appeal reversed and remanded for the trial court to reconsider whether re-sentencing appellant poses an unreasonable risk of danger to public safety. The trial court applied an incorrect legal standard by considering the likelihood appellant would commit an offense that would make him eligible for a life sentence due to his status as a recidivist (i.e. a third-strike sentence) rather than on whether he was likely to commit an offense which would be punishable by life in prison regardless of prior convictions. (I) AMJ

Beugen, Heather — People v. Miranda, E067468 — Parole Revocation — James R. Gericke, Temporary Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Trial court violated appellant’s rights to due process when it found he violated parole conditions without first affording him written notice of the allegations against him and a fair opportunity to be heard. (I) LAR

Bewicke, Aurora — In re R.G. (2017) 18 Cal.App.5th 273, E067486 — Welfare and Institutions Code Section 241.1 Procedures — Corey G. Lee and Steven A. Mapes, Judges — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. Minor was a dependent of the juvenile court at the time the People filed a juvenile wardship petition alleging misdemeanor battery. Minor admitted the allegation only after the juvenile court refused minor’s request to have the matter referred for an assessment and report as required under Welfare and Institutions Code section 241.1 for children who might qualify as both a dependent and ward of the juvenile court. After the admission, the court declared minor a ward of the court and placed her on formal probation in the custody of child and family services (CFS). At a later hearing, after the preparation of a section 241.1 report, the court again declared minor a ward of the court but with CFS having “lead jurisdiction.” Court of Appeal agreed that minor was deprived of due process because section 241.1 requires the preparation of a report and assessment before the juvenile court can make a determination as to which status, dependent or ward, is more appropriate for the minor. In this case, the minor was made to admit an allegation and deprived of the possibility that she might best be treated as a dependent and not a ward. Further, the assessment and report that was prepared after the minor had already been declared a ward, was lacking in many respects and not sufficient to cure the harm. Judgment reversed and matter remanded for proceedings consistent with the requirements of Welfare and Institutions Code section 241.1. (A) APJ

Coffey, Marissa/Trop, Neil — In re T.G., E069117 — Indian Child Welfare Act (ICWA) — Annamarie G. Pace, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Termination of parental rights reversed where the Indian Child Welfare Act (ICWA) notice was not served on mother and contained inaccurate and missing information. Had mother been properly served with the notice she might have noticed the missing or incorrect information, including that concerning her great-grandmother through whom Blackfoot heritage was claimed. If mother provides new or different information, San Bernardino County Children and Family Services shall re-notice the parents, tribes, Bureau of Indian Affairs, and the Secretary of the Interior, in compliance with ICWA. A limited reversal and remand was ordered. (I) LMF

Shargel, Johanna — In re B.M., E069240 — Indian Child Welfare Act (ICWA) — Erin K. Alexander, Judge — Opinion by Miller, J., with Ramirez, P.J., McKinster, J. Court of Appeal reversed for Indian Child Welfare Act (ICWA) notice error after the juvenile court put down the wrong name of the grandmother on the ICWA notice forms. County counsel conceded the issue. (I) MAC

Derrick, John — People v. Weintraut, G052835 — Lesser Included Offense — John S. Adams, Judge — Opinion by Bedsworth, J., with Moore, J., Thompson, J. Court of Appeal reversed conviction for criminal threat because trial court failed to instruct on the included lesser offense of attempted criminal threat, which was supported by the evidence. Appellant wielded a knife as he threatened an acquaintance who owed him money. The victim testified inconsistently as to whether he was in fear, at one point stating he was not in fear. Court of Appeal found this evidence would have permitted jurors to find attempted criminal threat rather than the completed offense had they been instructed on attempt. (A) NFA

Siroka, Matthew — People v. Salinas, G053350 — Sentencing/Proposition 57 Transfer Hearing — Kimberly Menninger, Judge — Opinion by Moore, J., with O’Leary, P.J., Ikola, J. While this appeal was pending, voters enacted Proposition 57 which eliminated the ability of the government to file charges against minors directly in adult court. Court of Appeal, while recognizing that the question of retroactivity is currently pending in the Supreme Court, found consistently with its own opinion in People v. Vela (2017) 11 Cal.App.5th 68, that the new law must be retroactively applied to appellant, who was a minor at the time of the offenses charged in this case. Case is remanded for a transfer hearing. If juvenile court finds it would not have transferred the case to adult court, the convictions and enhancements will be considered juvenile adjudications and the juvenile court shall conduct a dispositional hearing. If the juvenile court determines it would have granted transfer, the convictions and enhancements will be reinstated, but various sentencing matters will need to be addressed: because the trial court may not have understood that it had discretion to strike the additional punishment for the gang enhancement found true in this case, the matter must be remanded for court to exercise its discretion. Further, appellant must be allowed the opportunity to make a record regarding youth-related characteristics and circumstances at the time of the offense for the sake of a future youth offender parole hearing; and finally, the court must exercise its discretion, under newly enacted Senate Bill 620, regarding the firearm enhancements imposed in this case. (I) APJ

Ferguson, Susan — People v. Jessop, G053519 — Probation Violation/Insufficiency of Evidence — Vickie L. Hix, Temporary Judge — Opinion by Moore, J., with O’Leary, P.J., Fybel, J. Court of Appeal found insufficient evidence supported trial court’s finding that appellant willfully violated probation by intentionally failing to register for a batterer’s program. Appellant testified that he intended to enroll but had not been given a deadline and thought he had until the end of his probationary term. The record included no evidence appellant had been given a deadline; thus, the finding of violation was unsupported. Finding of violation and five-year prison sentence reversed. (A) HCC

Webb, Reed — People v. Rodriguez, G054073 — Probation Condition — Glenda Sanders, Judge — Opinion by O’Leary, P.J., with Bedwsorth, J., Fybel, J. Court clerk of the superior court ordered to correct the minutes to reflect that the court fees under Penal Code section 1465.8 and Government Code section 70373 are separate orders and are not conditions of probation. (I) LAR

Clark, Marcia — People v. Santana, G054592 — Section 12022.53 Enhancement — Cheri T. Pham, Judge — Opinion by Moore, J., with Aronson, J., Thompson, J. While this appeal was pending, the Legislature enacted Senate Bill Number 620, authorizing trial court’s to strike section 12022.53 enhancements for purposes of sentencing. In a supplemental brief, appellant sought to remand to allow the trial court to exercise its discretion directly on the 12022.53 enhancement imposed in this case. The Court of Appeal remanded the matter for the trial court to consider whether to strike the section 12022.53 enhancement in light of appellant’s youth, lack of substantial record, and the new public policy reflected in Senate Bill No. 620. (I) HSI

Parekh, Amy — People v. Burnell, G055198 — Senate Bill 180 — Vickie Hix, Judge — Opinion by Fybel, J., with Aronson, J., Ikola, J. Appellant’s enhancement under Health & Safety Code section 11370.2, subdivision (a), was stricken. The Court of Appeal cited Senate Bill 180, which abolished the enhancement in certain cases and became effective while appellant’s appeal was pending. The Court found it applied retroactively to cases not yet final on appeal and no fact finding was required by the trial court in order to strike the enhancement. (A) SDS

February 2018

Brownell, Gordon — People v. Hopson, D066684 — Confrontation Clause — Jeffrey J. Prevost, Judge — Opinion by Huffman, J., with Haller, J., Aaron, J. First degree murder conviction with a sentence of life without parole is reversed and remanded for a new trial because the evidence supporting the conviction included hearsay testimony. The testimony consisted of a police officer recounting a statement by appellant’s boyfriend, who committed suicide before trial, implicating appellant. Admission of the testimony violated the Confrontation Clause and the remaining evidence was not sufficient to overcome the prejudice from the evidentiary error. Appellate counsel represented appellant in the Court of Appeal, the California Supreme Court (People v. Hopson (2017) 3 Cal.5th 424), and again on remand in the Court of Appeal. (I) DKR

Stevenson, Theresa — People v. Said, D071871 — Prison Prior — Kathleen M. Lewis, Judge — Opinion by Huffman, J., with Nares, J., Haller, J. Appellant admitted two prison priors. At sentencing, the court struck one prison prior and stayed the other. Appellant successfully contended that the second prison prior should have been stricken rather than stayed and the Attorney General conceded. The judgment is modified to strike the true finding on the prison prior. (I) MCR

Young, Kent — People v. Shhaday, D072018 — Probation Conditions — Harry M. Elias, Judge — Opinion by Huffman, J., with McConnell, P.J., O’Rourke, J. Where appellant was convicted of assaulting a neighbor with a flower pot during a noise dispute, appellant’s probation conditions included a term forbidding “negative contact” with appellant’s neighbors. Court of Appeal agreed this term was unconstitutionally vague and remanded for the trial court to revise or delete the condition. (A) NFA

Moran, Jamie — In re H.C. (2017) 17 Cal.App.5th 1261, D072368 — Marriage of a Non-minor Dependent— Michael J. Imhoff, Commissioner — Aaron, J., with Benke J., Irion, J. The juvenile court terminated appellant’s status as a non-minor dependent, because appellant got married. On appeal, appellant argued that marriage was not a permissible basis upon which to end non-minor dependent status. The Agency opposed, citing to an “All-County Letter” that it had issued, which claimed marriage would end a person’s status as a non-minor dependent. The Court of Appeal reversed the juvenile court’s termination. It ruled that non-minor dependent status cannot be terminated based on the dependent’s marriage. In fact, marriage would promote–rather than impede–the Legislative intent in enacting non-minor dependent legislation. (I) MAC

Strong, Jeanine — People v. Bates, E066272 — Penal Code Section 654/Ex Post Facto Restitution Fine — Michele D. Levine, Judge — Opinion by McKinster, J., with Miller, J., Fields Attorney General conceded and Court of Appeal agreed that the attempted arson and assault with a deadly weapon (gasoline) convictions were based upon a course of conduct intended only to harm the victim by burning down the home she was in. Thus, the sentence for attempted arson must be stayed pursuant to Penal Code section 654. In addition, the matter must be remanded for the trial court to clarify the restitution fine where it stated its intent to impose the minimum fine but imposed a fine greater than the minimum that was allowed at the time the offenses were committed. (I) APJ

Schuck, John — People v. Nguyen (2017) 18 Cal.App.5th 260, E066293 — Serious Felony Prior Pleading and Proof Requirement — Michael B. Donner, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Where prior felony was alleged as a strike under Penal Code section 667, subdivision (b) through (e) and as a prior prison term under section 667.5, subdivision (c), but not as a prior serious felony under section 667, subdivision (a), the information failed to allege the latter as required by section 1170, subdivision (e). Accordingly, the sentencing court’s imposition of a 5-year prior serious felony enhancement under section 667, subdivision (a), was unauthorized. No defense objection was necessary to preserve appellate objection to this unauthorized sentence. The 5-year enhancement was reversed. (I) NFA

Nordin, Kenneth — People v. Toms, E066527 — Penal Code Section 1170.18 (Prop. 47) and Prison Prior Enhancement — Kelly L. Hansen , Judge — Opinion by Slough, J., with Miller, J., Fields, J. Before sentencing in the current case, appellant had succeeded in having two of his prior convictions reduced to misdemeanors under Prop. 47. These same priors had been alleged as prison priors in appellant’s current case. Appellant argued and the Attorney General conceded that it was an error for the trial court to impose the prison prior enhancements in this case because the priors had been reduced to misdemeanors before sentencing. The Court of Appeal agreed and remanded the matter to the trial court with directions to strike the prison prior enhancements. (I) HCC

Beckham, Sylvia — People v. Williams, E066776 — Proposition 64 — Michael B. Donner, Judge — Opinion by Ramirez, P.J., with Miller, J., Slough, J. Remanded for re-sentencing under Proposition 64 where initiative became effective while defendant’s appeal of felony importation of marijuana was pending. (I) BCT/SDS

Wrubel, Susan — In re Rivera, E067705 — Petition for Writ of Mandate — Katrina West, Judge — Opinion by Slough, J., with Ramirez, P.J., McKinster, J. Petition for writ of mandate granted, directing the superior court to vacate its order denying petitioner’s petition for writ of habeas corpus, to reissue the order to show cause it had previously issued, and to rule on petitioner’s request for appointment of an investigator. The opinion initially points out the unreasonable delay and suboptimal manner in which the respondent court had handled petitioner’s habeas corpus petition, despite prior warning to respondent court to expeditiously handle the case based on a prior petition for writ of mandate. The Court of Appeal concluded that the trial court abused its discretion in vacating the order to show cause, stating that, rather than using the established rules of habeas corpus procedure to further the seeking of truth, respondent court vacated on a motion brought by the People, which lacked statutory authorization and precedent. The trial court’s claim that the petition lacked documentary evidence and was based on suspicion and speculation, yet refusing to rule on the request for an investigator who could have obtained such evidence, further supported the Court of Appeal’s conclusion that the respondent court abused its discretion. (I) AMJ

Fields, Lori — In re J.M., E068103 — Indian Child Welfare Act (ICWA) — Annemarie G. Pace, Judge — Opinion by Codrington, J., with Ramirez, P.J., McKinster, J. Appellant argued the court below failed to comply with the notice and inquiry provisions of the ICWA. Specifically, the notices did not contain all possible information for both sets of great-grandparents. The Court of Appeal agreed that the ICWA notices were incomplete and found that the Agency made insufficient efforts to acquire the information. The Court of Appeal reversed for the limited purpose of ICWA compliance. (I) MAC

Rudasill, Denise — People v. Lecou, G051781 — Penal Code Section 1170.18 (Prop. 47) — Thomas A. Glazier, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Fybel, J. Upon remand from the Supreme Court in light of People v. Romanowki (2017) 2 Cal.5th 903, Court of Appeal found that appellant’s conviction for selling, transferring, or conveying an access card with intent to defraud and without consent qualifies for relief under Penal Code section 1170.18. Matter remanded for trial court to determine whether value of access card did or did not exceed $950 in value. (I) APJ

Webb, Reed — People v. Vasquez, G052846 — Dual Enhancements — Lance Jensen, Judge — Opinion by Aronson, J., with Fybel, J., Thompson, J. Court of Appeal modified the judgment to strike one-year prison prior conviction where same conviction formed basis of five-year serious felony conviction. (I) BCT/SDS

Nalls, Christopher — People v. Horn, G053113 — Sentencing/Abstract of Judgment — John Conley, Judge — Opinion by Bedsworth, J., with Fybel, J., Ikola, J. Appellant’s conviction for a lewd act must be reversed because the alleged dates overlap with the dates for his continuous sexual abuse conviction. Therefore, it is possible he was convicted twice for committing the same act against the same victim during the same time period. Conviction for both is an unauthorized multiple conviction that is improper as a matter of law and can be raised on appeal in the absence of an objection in the trial court. The abstract of judgment must also be corrected where the trial court sentenced appellant to the low term of six years, but the abstract shows the middle term of eight years. (I) PMI

Olsen, Nancy — People v. Calixto, G053284 — Proposition 57 — Gregg L. Prickett, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Aronson, J. Appellant was convicted in adult court of various crimes including multiple robberies. Appellant argued that he is entitled to a transfer hearing under Proposition 57 to determine if he should have been tried in juvenile court. Although Prop. 57 was not passed until after appellant was sentenced, the Court of Appeal agreed with the decision in People v. Vela (2017) 11 Cal.App.5th 68 review granted July 12, 2017, S242298, that Prop. 57 applies retroactively to cases not yet final on appeal. The judgment was conditionally reversed and remanded to the juvenile court for a transfer hearing pursuant to Proposition 57. If the juvenile court determines it would have transferred appellant to adult court, the judgment shall be reinstated. However, if the court determines it would not have transferred appellant to adult court, appellant’s criminal convictions and enhancements will be deemed to be juvenile adjudications. The court then shall conduct a hearing to decide on an appropriate disposition in the case. (I) HSI

Jones, Jason — People v. Villagran, G053487 — Sentencing — Steven D. Bromberg, Judge — Opinion by Aronson, J., with Moore, J., Ikola, J. Under the One Strike law at the time of appellant’s commission of the Penal Code section 288, subdivision (a) offenses, only one life term was authorized for any offense or offenses committed against one victim during a single occasion. Thus, the trial court erred in imposing the term of 15 years to life on two counts and the sentence as to one count is reversed and remanded for the trial court to impose a determinate term. (I) PMI

Schuck, John — People v. Meskin, G053581 — Supervision Revocation Fine/ Ex Post Facto — Cheri T. Pham, Judge — Opinion by Ikola, J., with Aronson, J., Fybel, J. Court of Appeal agreed that mandatory supervision revocation restitution fine must be stricken because the law authorizing the fine went into effect after appellant’s offense. Thus, imposition of the fine would violate the prohibition against ex post facto punishment. (I) APJ

Petermann, Conrad — People v. Verile, G054901 — Violent Prison Prior Enhancement — Michael A. Leversen, Judge — Opinion by O’Leary, P.J., with Fybel, J., Ikola, J. Appellant contended and the Attorney General conceded that the trial court erred by imposing an additional three years under Penal Code section 667.5, subdivision (a). Section 667.5, subdivision (a), requires imposition of “a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c).” This section only applies “[w]here one of the new offenses is [also] one of the violent felonies specified in subdivision (c) . . . .” Appellant’s prior offense, assault with a deadly weapon, is not a “‘violent felony’” listed in section 667.5, subdivision (c). Nor is appellant’s current conviction for witness intimidation a “‘violent felony,’” at least not without proof that it “would constitute a felony violation of Section 186.22[,]” the criminal street gang statute, and there was no suggestion that his crime was gang related. Also, because th enhancement did not apply, the section 2933.1 limitation on good conduct credits was inapplicable. The Court of Appeal agreed and the judgement was modified to strike the three-year enhancement imposed pursuant to section 667.5, and appellant was awarded 316 total days of credit. (I) HCC

January 2018

Staley, John — People v. Winchell, D069152 — Dual Convictions — Howard H. Shore, Judge — Opinion by Nares, J., with Benke, J., O’Rourke, J. Embezzlement and grand theft by larceny are different statements of the same offense and appellant may not be convicted of both based on the same conduct. (People v. Vidana (2016) 1 Cal.5th 632.) Because the trial court imposed a sentence on the embezzlement conviction but imposed and stayed the sentence on the grand theft conviction, which reflects the court's determination that embezzlement was the main conviction, the Court of Appeal struck the grand theft conviction. (I) PMI

Brandes, Elisa — People v. Ferrell, D070492 — Penal Code Section 654 — K. Michael Kirkman, Judge — Opinion by McConnell, P.J., with Huffman, J., O’Rourke, J. Appellant contended and the Attorney General conceded that the trial court should have stayed his concurrent sentences for burglary and annoying or molesting a minor under Penal Code section 654 as those charges all stemmed from the same underlying conduct as the charge of committing a lewd act on a child. The Court of Appeal remanded to the trial court with directions to resentence appellant. (I) MCR

Rudasill, Denise — In re David H., D070837 — Sufficiency of the Evidence — Opinion by Haller, J., with McConnell, P.J., O’Rourke, J. Trial court erred in denying minor’s section 701.1 motion because the prosecution did not present evidence showing minor intended to use the marking tools found in his possession to commit graffiti or vandalism. The true finding on that allegation is reversed. (I) LAR

Stevenson, Theresa/Jones, Cynthia — People v. Mitich/Stevenson, D070882 — Sentencing/Penal Code Section 654/Probation Conditions — Robert F. O’Neill, Judge — Opinion by Huffman, J., with McConnell, P.J., Irion, J. Where appellants were each sentenced consecutively for conspiracy to commit burglary and theft and for burglarizing the bank targeted by the conspiracy, the Court of Appeal found the separate terms violated Penal Code section 654 because there was a single criminal intent. The court also struck as unconstitutionally overbroad probation conditions requiring drug and alcohol testing and treatment, curfew, and probation officer approval of appellant’s employment and residence. (I) NFA

Romero, Lynda — People v. Carranza, D071046 — Lesser Included Offense/Abstract of Judgment — Ronald F. Frazier, Judge — Opinion by Nares, J., with Haller, J., Dato, J. Attorney General conceded and Court of Appeal agreed that convictions for driving under the influence of alcohol causing injury and driving with measurable blood alcohol causing injury must be dismissed. The convictions are lesser offenses necessarily included within the offense of gross vehicular manslaughter while intoxicated, of which appellant was also convicted. In addition, the abstract of judgment must be corrected to reflect that enhancements on counts with stayed sentences must also be stayed. (I) APJ

Rudasill, Denise — People v. El Mir, D071117 — Withdrawal of Guilty Plea — Gary G. Haehnle, Judge — Opinion by Huffman, J., with Aaron, J., Irion, J. While appellant was in custody on another case, he pleaded guilty to possession of alcohol in jail. Under the plea agreement, the parties agreed that appellant’s entire sentence would be served in state prison rather than county jail, but this was an unauthorized sentence. Because the trial court lacked authority to approve the unlawful sentence, the sentence is vacated and the case is remanded to allow appellant to withdraw his guilty plea if he chooses to do so. (I) PMI

Hinkle, Stephen — People v. Kosi, D071219 — Sentencing — David M. Gill, Judge — Opinion by Nares, J., with Haller, J., Dato, J. Case remanded for resentencing where record indicated that the sentencing court mistakenly believed consecutive sentencing was mandated by Penal Code section 1170.15, governing sentencing where the defendant has been convicted both of an initial felony and of dissuading a witness from providing information regarding the initial crime. In fact, section 1170.15 mandates that if consecutive terms are imposed then the terms shall be imposed in full (not 1/3-the-middle term). Both the probation report and the prosecutor incorrectly stated consecutive terms were statutorily mandated, and the record suggested the trial court accepted this conclusion. (I) NFA

Jones, Cynthia — People v. Nguyen, D072023 — Penal Code Section 654 — Garry G. Haehnle, Judge — Opinion by Nares, J., with Benke, J., Irion, J. Appellant argued and the People conceded that the trial court should have stayed his sentence for assault count under Penal Code section 654 because it was based on the same conduct as his conviction for elder abuse. The Court of Appeal agreed and modified the judgment to stay the sentence imposed for simple assault. (I) MCR

Khoury, Charles — People v. Amankrah, E064397 — Penal Code Section 654 — Cara D. Hutson, Judge — Opinion by Codrington, J., with Miller, J., Fields, J. Sentence modified pursuant to Penal Code section 654 to stay a nine-year Penal Code section 667.8 enhancement for kidnaping to commit a substantive offense of forcible rape because appellant is already being punished for that conduct pursuant to former Penal Code section 667.61. (I) LAR

Capriola, William — People v. Williams, E065033 — Lesser Included Offense/Sentencing — Angel M. Bermudez, Judge — Opinion by Ramirez, P.J., with Slough, J., Fields, J. Because simple assault is a lesser included offense of corporal injury on a spouse, appellant’s conviction for simple assault must be reversed. In addition, the trial court imposed an unauthorized sentence by staying three one-year prison prior enhancements. Because the trial court’s comments demonstrate it did not intend to impose the additional terms for these enhancements, the appropriate remedy is to strike the enhancements. (I) PMI

DiGuiseppe, Raymond — People v. Robinson, E065044 — Dual Enhancements — John M. Tomberlin, Judge — Opinion by Ramirez, P.J., with Slough, J., Fields, J. The trial court erred in imposing two enhancements for discharging a firearm causing great bodily injury or death under Penal code section 12022.53, subdivision (d), where appellant was convicted of only a single count of murder. Court of Appeal found that subdivision (f) of the statute flatly prohibited the imposition of two enhancements on a single count. The judgment was modified to stay the second firearm discharge enhancement. (A) MCR

Miller, Gerald — People v. McCloud (2017) 15 Cal.App.5th 948, E065359 — Transportation of Controlled Substance — Samuel Diaz, Jr., Judge — Opinion by Slough, J., with Miller, J., Codrington, J. Attorney General conceded and Court of Appeal agreed the trial court erred in failing to instruct the jury that to be guilty of the offense, under the amended statute, appellant was required to have transported a controlled substance for the purpose of sale. Attorney General argued, however, that the erroneous failure to instruct was not prejudicial. Court of Appeal found prejudice in this case where there were no indicia of sales and the expert was not able to opine, based on a hypothetical, that the amount conclusively established an intent to sell. (I) APJ

Haggerty, Edward — People v. Fores, E065455 — Gang Enhancements — Jon D. Ferguson, Judge — Opinion by Slough, J., with Ramirez, P.J., Fields, J. Appellant contended and the Attorney General conceded that the trial court erred in imposing four-year gang enhancements on sentences for murder, carjacking, and assault instead of the applicable 15-year minimum term for parole eligibility. The Court of Appeal agreed and modified appellant’s sentence to replace each four-year gang enhancement with a 15-year minimum term for parole eligibility. (I) HSI

Kessler, Daniel — People v. Aston, E065566 — Penal Code Section 1170.126 (Prop. 36) — Timothy F. Freer, Judge — Opinion by Miller, J., with Codrington, J., Slough, J., concurring in part and dissenting in part. Appellant, having been convicted of driving/taking a vehicle with three strikes, was sentenced to 25-years-to-life under the Three Strikes Law. He was later denied relief under Prop. 36 because the trial court found he was personally armed during the offense. That finding was based upon the record of conviction, which contained references to a machete found at the scene where the stolen vehicle had crashed with appellant inside. The Court of Appeal agreed with appellant that insufficient evidence supported the trial court’s finding that he was armed. In so concluding, the court acknowledged that a concession by defense counsel during pretrial motions would be part of the record of conviction; however, careful review of defense counsel’s statements in the trial court showed that he never explicitly conceded a machete existed. Likewise, a photograph of the crash site, which was admitted into evidence did not provide sufficient evidence of a machete. And finally, comment of the court and prosecutor did not constitute evidence that the machete existed. Accordingly, the matter must be remanded for a new dangerousness finding. While the court below stated it would not find appellant to be a danger, the Court of Appeal noted both that the circumstances may have changed and that the People never had an opportunity to appeal that finding. Dissenting on this point, Justice Slough would have remanded for a re-sentencing, where the People might be given an opportunity to move for reconsideration of the dangerousness finding. (I) APJ

Moller, Richard — People v. Rios, E066142 — Probation Conditions — Jean P. Leonard, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. Court of Appeal found that the electronic search condition was overbroad and that searches should be limited to communication or information reasonably likely to reveal whether appellant is engaging in sexual offenses or otherwise not complying with his probation conditions. The court also stated that the condition requiring appellant to participate in periodic polygraph tests should be tailored to focus the scope of the polygraph on criminal conduct related to the sex offender management program. The Attorney General conceded with respect to the electronic search condition. Both probation conditions are modified. (I) MCR

Bostwick, James — People v. Scott, E066467 — Penal Code Section 1170 — Michael A. Smith, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J. Approximately 17 years after beginning to serve a life without parole (LWOP) sentence, appellant filed a petition with the superior court to recall his sentence pursuant to Penal Code section 1170, former subdivision (d)(2). But the superior court treated the petition as if it were a petition to recall a sentence under the “Three Strikes” law and denied it. The Court of Appeal reversed with directions for the trial court to properly exercise its discretion under section 1170, subdivision (d)(2), and the relevant criteria stated therein. After many continuances, the superior court denied the motion, finding defendant did not make the required showings of remorse and actions of rehabilitation by a preponderance of the evidence. On January 1, 2017, section 1170, subdivision (d)(2)(E) – which is by its statutory language retroactive – was amended to provide that the superior court “shall recall the sentence and commitment previously ordered and hold a hearing to resentence the defendant in the same manner as if the defendant had not previously been sentenced” if it “finds by a preponderance of the evidence that one or more of the statements specified in clauses (i) to (iv), inclusive, of subparagraph (B) is true.” In other words, the court under the amended language must hold the resentencing hearing if it finds by a preponderance of the evidence any one of the four factors set forth in section 1170, subdivision (d)(2)(b)(i)-(iv) – even if defendant had not established remorse or rehabilitation. The People conceded that remand is required. (I) HCC

Lampkin, David — People v. Garcia, E066919 — Sentencing — Richard T. Fields, Judge — Opinion by Ramirez, P.J., with Miller, J., Slough, J. Appellant was convicted of assault with a deadly weapon on a peace officer, battery on a peace officer, and resisting an officer with force, all based upon the same conduct. In a prior appeal, Court of Appeal agreed with appellant that sentence on two counts must be stayed pursuant to Penal Code section 654, and ordered modification of the abstract of judgment. In this appeal from the denial of a Proposition 36 petition, it was noticed that the correction was never made. Attorney General and Court of Appeal agreed the correction must be made. (I) APJ

Wrubel, Sharon — People v. Swank, E066984 — Sentencing — Eric M. Nakata, Judge — Opinion by Miller, J., with Codrington, J., Slough, J. Trial court erred in imposing a sentence of seven years to life for attempted murder instead of life with the possibility of parole. In addition, the court erred in imposing a parole revocation fine because appellant was sentenced on another count to life without parole. Abstract ordered corrected. (I) LAR

Moller, Richard — People v. Taylor, E067097 — Minute Order/Abstract of Judgment — R. Glenn Yabuno, Judge — Opinion by Miller, J., with Slough, J., Fields, J. Minute order and abstract of judgment ordered corrected to reflect that appellant was convicted of assault with intent to commit sexual penetration by foreign object rather than assault with intent to commit mayhem, rape, sodomy, or oral copulation. (I) APJ

Johnson, Lauren — In re Q.G., E068018 — Indian Child Welfare Act (ICWA) — Annemarie G. Pace, Judge — Opinion by Codrington, J., with McKinster, J., Miller, J. Mother argued and Court of Appeal agreed the agency and trial court erred in finding the ICWA did not apply when the agency failed to notify 2 of 3 named Indian tribes with notice of any kind. Appellate court remanded with a conditional reversal. (I) LLF

Thue, Matthew/Jarvis, Michelle — In re N.F., E068035 — Parental Unfitness Finding — Steven A. Mapes, Judge — Opinion by Fields, J., with Ramirez, P.J., Slough, J. Father argued and the Court of Appeal agreed the trial court erred in terminating father’s parental rights based on poverty-based lack of housing when father had otherwise completed his services. Relying on father’s poverty violated his due process rights and the trial court’s findings were reversed and case remanded. (I) LLF

Thue, Matthew — In re A.K., E068525 — Reasonable Reunification Services — Steven A. Mapes, Judge — Opinion by Slough, J., with Miller, J., Fields, J., Court of Appeal reversed the juvenile court’s determination that the Agency had provided reasonable reunification services to Father. In the case plan, the Agency had recommended a psychological evaluation for Father because of his mental health issues. The Agency also recommended a substance abuse program. The Agency never provided the referral for a psychological evaluation and forgot to provide the substance abuse treatment referral until two weeks before the six-month review hearing. Nonetheless, the juvenile court found reasonable reunification services had been offered. The Court of Appeal found it especially egregious that Father was not given the psychological evaluation, even though it was in the case plan, and even though Father had been appointed a guardian ad litem in the case. The Court found services were unreasonable on the basis of failure to provide a psychological evaluation. It did not reach the question of whether services were unreasonable due to the failure to provide substance abuse treatment. The Agency argued, among other things, that Father was not prejudiced by the court’s reasonable services finding. After all, the juvenile court had provided Father an additional six months of services. The Court of Appeal rejected the Agency’s argument. It found that Father was likely to suffer adverse consequences down the line because of the juvenile court’s reasonable services finding at the six-month review hearing. The Court concluded the harmless error rule should not apply to a reasonable services finding. (I) MAC

Romero, Lynda/Olsen, Nancy — People v. Zuniga/Tello, G052162 — Sanchez Hearsay/Penal Code Section 654 — Cheri T. Pham, Judge — Opinion by Moore, J., with Bedsworth, J., Thompson, J. As to appellant Zuniga, convictions reversed because gang expert’s testimony about appellant’s prior contacts with police consisted of both case-specific and testimonial hearsay; thus, it fails the two-step criteria for expert hearsay put forth in People v. Sanchez (2016) 63 Cal.4th 665. As to appellant Tello, appellant argued and the Attorney General conceded that his sentence for participation in a criminal street gang should have been stayed pursuant to Penal Code section 654 (People v. Mesa (2012) 54 Cal.4th 191). The judgment is modified to stay appellant’s two-year sentence for being an active gang member. (I) LKH

Haggerty, Edward — People v. Grimes, G052926 — Insufficient Evidence/Abstract of Judgment — Frank F. Fasel, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Aronson, J. Insufficient evidence supported the jury’s true finding that appellant personally inflicted great bodily injury under the group beating theory where appellant’s actions demonstrated only that he aided and abetted the person who inflicted the beating. Additionally, the abstract of judgment ordered corrected to reflect that a three-year term on an enhancement was ordered to run concurrent. (I) PMI

Lindsley, Kevin — People v. Faust, G053069 — Probation Conditions — Steven D. Bromberg, Judge — Opinion by Aronson, J., with Bedsworth, J., Thompson, J. In an appeal from the revocation of his parole, appellant contended that a number of terms and conditions of his parole were unconstitutional. The Court of Appeal agreed as to the special condition prohibiting appellant from being on the property of any residence unless the occupants knew of his criminal history and he obtained approval from his parole agent. This condition included motel and hotel rooms. The Court directed the trial court to modify the condition to include contingencies for situations when the parole agent is unavailable. The new condition as modified is to include the following language: “If the parole agent is unavailable to authorize entry, you may enter the residence or motel/hotel if you have left a message for the agent explaining the reason for the visit and no minors are present.” (A) MCR

Jones, Jason — People v. Bello, G053370 — Sentencing — Lance Jensen, Judge — Opinion by Fybel, J., with Ikola, J., Thompson, J. The trial court imposed a 10-year term for a gang enhancement predicated on the infliction of great bodily injury, and a 3-year term for personal infliction of great bodily injury based on the same injury. Because both enhancements qualify as a great bodily injury enhancement under Penal Code section 1170.1, subdivision (g), only the greater enhancement can be imposed. The 3-year term must be stayed. (I) PMI

Melcher, William — People v. Alcozer G053906 — Probation Conditions — Michael J. Cassidy, Judge — Opinion by O’Leary, P.J., with Moore, J., Aronson, J. Court of Appeal modified probation condition prohibiting appellant from associating with various persons. The court left in place the prohibition against associating with felons, parolees, drug users, etc., but eliminated as unconstitutionally overbroad the condition appellant not associate with persons disapproved by the probation officer. (A) NFA

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