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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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

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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