home

recent victories

The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.

2020 | 2019 | 2018 | 2017 | 2016 | 2015 | 2014 | 2013 | 2012 | 2011

 

Cases are posted on the Recent Victories page only after the remittitur issues or the Supreme Court rules on a petition for review.

September 2020

Boyce, Robert — People v. Barton, D072639, (2020) 52 Cal.App.5th 415 — Improper Discharge of Juror — Harry M. Elias, Judge — Opinion by Huffman, J., with Benke, J., Irion, J. The trial court abused its discretion by discharging a juror on the basis that she was refusing to deliberate. Appellant contended and the court agreed that the testimony of other jurors demonstrated only that the juror disagreed with the other jurors, who found her to be unfriendly and unable to offer persuasive explanations for her opinion, not that she was unable or unwilling to deliberate. Under the heightened standard of review that applies to a trial court’s decision to discharge a holdout juror for refusing to deliberate, the Court of Appeal concluded the trial court’s decision to discharge the juror was not manifestly supported by evidence. Further, the trial court failed to heed the Supreme Court’s warning that “permitting the attorneys for the parties to question deliberating jurors is fraught with peril and generally should not be permitted.” (People v. Cleveland (2001) 25 Cal.4th 466, 485.) Rather than leading its own inquiry, the trial court largely abdicated the questioning to the attorneys. (I) HCC The Supreme Court granted review (S264127) and transferred the matter back to the Court of Appeal with directions to consider appellant's claim that the evidence was insufficient to sustain his convictions. (Burks v. United States (1978) 437 U.S. 1, 16-18; People v. Morgan (2007) 42 Cal.4th 593, 613; People v. Hayes (1990) 52 Cal.3d 577, 631.)

Bewicke, Aurora — People v. Clevenger, D075614 — Senate Bill 136/Protective Order — Brad A. Weintrab, Judge — Opinion by Aaron, J., with Benke, J., Irion, J. Appellant’s one-year prior prison term enhancement is required to be stricken under Senate Bill 136. In addition, post-conviction protective order under Penal Code section 136.2 must be stricken because appellant was not convicted of an offense enumerated in that statute. (A) HCC

O’Connor, Sheila — People v. Winkler, D076122 — Sentencing — Jeffrey F. Fraser, Judge — Opinion by Huffman, J., with Benke, J., Irion, J. Although the government filed an amended information that added a serious felony prior enhancement allegation, it never arraigned appellant on this new filing and appellant never admitted the serious felony prior. Therefore, the court’s imposition of a five-year term for the allegation was unauthorized. The case is remanded to allow the People to arraign appellant on the amended information and adjudicate the enhancement. (I) CBM

Shudde, Athena — People v. Jenkins, D076664 — Senate Bill 1393 — Laura H. Parsky, Judge — Opinion by Dato, J., with Benke, J., O’Rourke, J. Court of Appeal agreed that defense counsel provided ineffective assistance by failing to ask the trial court to strike appellant’s serious felony prior enhancement after passage of Senate Bill 1393. Although counsel requested the dismissal of strike priors, counsel neglected to include a request for dismissal of the five-year prior and even though the court denied the request to dismiss strikes that did not indicate an unwillingness to strike the five-year enhancement which arises out of an entirely distinct sentencing scheme and policy backdrop. (I) LAR

Shudde, Athena — People v. Bahrambeygui, D077105 — Senate Bill 136 — Marco D. Nuñez, Judge — Opinion by Benke, J., with McConnell, P.J., Haller, J. Two prior prison term enhancements must be stricken per Senate Bill136. (I) HCC

Mortazavi, Dawn S. — People v. Hernandez, E067112 — Senate Bill 1393 — Irma Poole Asberry, Judge — Opinion by Nares, J. with Ramirez, P.J., McKinster, J. Attorney General conceded and Court of Appeal agreed that new law applies retroactively to appellant and matter must be remanded to trial court for exercise of discretion to impose or strike the five-year serious felony prior enhancement. (A) APJ

Lathrop, Stephen/Vorobyov, Gene — People v. Vidrio/Lopez, E069872 — Penal Code Section 654, Senate Bill 620, Senate Bill 136, Senate Bill 1393, Sentencing — Bridgid M. McCann, Judge — Opinion by Ramirez, P.J., with Miller, J., Fields, J. As to both appellants, the sentence for shooting at an occupied vehicle must be stayed pursuant to Penal Code section 654 because convictions are based on the same conduct as the murder and attempted murder convictions for which appellants have been separately punished. The firearm enhancements must be stricken because use of a firearm is an element of the offense. The prison prior term enhancements must be stricken under Senate Bill No. 136 and the matter is remanded to give the trial court an opportunity to exercise its discretion under Senate Bill No. 1393 to strike or impose the serious felony prior enhancements. As to appellant Lopez, the trial court can consider striking the firearm enhancements under Senate Bill No. 620. As to appellant Vidrio, one serious felony enhancement must be stricken. The trial court erred in imposing two five year terms because the two priors were not brought and tried separately as the statute requires. (I) LKH

Brisbois, Patricia L. — People v. Davis, E070301 — Senate Bill 136 — Ronald M. Christianson, Judge — Opinion by Fields, J., with Ramirez, P.J., McKinster, J. Court of Appeal agreed that appellant’s three prison prior enhancements must be stricken under Senate Bill 136, reducing appellant’s sentence to 28 years, eight months. Remand is unnecessary because the trial court had already imposed the maximum sentence otherwise available. (I) APJ

Siroka, Matthew/Lathrop, Stephen — People v. Albert/David, E071365, (2020) 50 Cal.App.5th 743 — Sentencing/Fines/Fees/Abstract of Judgment — Jon D. Ferguson, Judge — Opinion by Raphael, J., with McKinster, J., Miller, J. The Court of Appeal struck the 10-year gang enhancements attached to the murder convictions for both appellants. As to appellant Davis, the 10-year enhancement is stricken because Davis was not the shooter and was separately sentenced to 25-years-to life for the firearm enhancement under section 12022.53, subdivisions (d) and (e)(1). As to appellant Albert, who was the shooter, the 15-year minimum parole eligibility applies under section 186.22, subdivision (b)(5), rather than the additional 10-year enhancement. Further, the matter is remanded for an ability to pay hearing under People v. Dueñas (2019) 30 Cal.App.5th 1157. Finally, the Court of Appeal ordered correction of certain clerical errors in the abstract of judgment. (I) LKH

Stafford, Victoria — People v. Brewster, E071685 — Credits — Cara D. Hutson, Judge — Opinion by Codrington, J., with Slough, J., Raphael, J. Court of Appeal ordered correction of pre-sentence custody credits, awarding one additional day of credit for time served. (I) NFA

Hinkle, Stephen M. — People v. Sanchez, E071772 — Due Process/Plea Advisal — L. Jackson Lucky, IV, Judge — Opinion by Miller, J., with McKinster, J.; Raphael, J., dissenting. Prior to trial and after the trial court advised appellant that he was facing a minimum sentence of 30-years-to-life, appellant rejected a seven-year plea offer from the prosecution. After trial, appellant received a sentence of 30-years-to-life. On appeal, the parties agreed that appellant was actually facing a sentence of 50-years-to-life and the Court of Appeal agreed with appellant that he was misadvised about the potential sentence and that this error constituted a due process violation. Further, the Court of Appeal found that the error was prejudicial given the difference between 30 and 50 years, appellant’s age, and circumstances surrounding plea discussions. With regard to remedy, the court found that the case must be remanded in order for the district attorney to either submit the plea offer of seven years to the trial court for approval or, if the district attorney chooses not to offer the seven years, to proceed to a new trial or restart plea negotiations. Dissenting Justice Raphael would have resolved this case differently, remanding for the court to hold an evidentiary hearing as to prejudice and ordering that the court apply a more limited remedy if appellant prevailed. Alternatively, the Justice also believed it would be proper to reject appellant’s claim on direct appeal in favor of resolving the issue via petition for writ of habeas corpus. (I) LAR

Brajevich, Sally — People v. Jackson, E072766 — Senate Bill 620/Fine/Fees/Habeas Re-Sentencing — Gregory S. Tavill, Judge — Opinion by Codrington, J., with Miller, J., Fields, J. After the superior court granted appellant’s petition for writ of habeas corpus, which challenged the validity of a previously admitted strike prior, it ordered appellant to be re-sentenced “as if his prior conviction . . . was not a strike.” At the re-sentencing hearing, appellant moved to strike his firearm enhancements under Senate Bill 620 and asked the court to strike fines and fees under People v. Dueñas (2019) 30 Cal.App.5th 1157. The trial court denied both requests believing it lacked jurisdiction based on the language of the habeas order. The Court of Appeal reversed and remanded, distinguishing the re-sentencing hearing from a remand in a direct appeal where the lower court's remand hearing is limited by the terms of the remand order. Instead, the Court of Appeal concluded that the granting of the habeas by the superior court restored appellant to his original position as if he had never been sentenced. Matter remanded for trial court to consider appellant’s sentencing requests. (I) LKH

Ting, Allison — People v. Hill, E072935 — Senate Bill 1437 — John D. Molloy, Judge — Opinion by Menetrez, J., with Slough, J., Fields, J. Court of Appeal found that Senate Bill 1437 is constitutional, reversed the trial court’s denial of appellant’s petition, and remanded for further proceedings. (I) JMK

Love, Chistopher — People v. Tapia, E073537 — Senate Bill 136 — James T. Latting, Judge — Opinion by Ramirez, P.J., with McKinster, J., Menetrez, J. One-year prior prison term enhancement must be stricken per Senate Bill 136. Matter remanded for re-sentencing. (I) HCC

Brody, Steven — In re C.T., E074027 — Restitution — Winston S. Keh, Judge — Opinion by Slough, J., with Miller, J., Raphael, J. The restitution order is reduced by $1,818.31 where trial court erroneously ordered the same amount as payable to both the Victim Compensation Board and directly to the victim for the same services. (I) LKH

Vorobyov, Gene — People v. Benjamin, G057554 — Senate Bill 1437 — Steven D. Bromberg, Judge — Opinion by Goethals, J., with Fybel, J., Ikola, J. Court of Appeal found that Senate Bill 1437 is constitutional as it does not infringe on the initiative process. (I) HCC

Smith, Kevin — People v. Do, G058068 — Senate Bill 1437 — Elizabeth Macias, Judge — Opinion by Goethals, J., with Ikola, J., Thompson, J. Trial court erroneously denied appellant’s petition under Penal Code section 1170.95 based on a finding that the new law is unconstitutional. Because the new law is constitutional, matter remanded for proceeding on the merits. (I) LAR

Dain, Anthony — People v. Pacheco, G058362 — Senate Bill 1437 — Michael A. Leverson, Judge — Opinion by Moore, J., with Bedsworth, J., Ikola, J. Court of Appeal found that Senate Bill 1437 is constitutional and the trial court erred in denying appellant’s petition on that ground. Matter for a hearing on the merits. (I) AMJ

August 2020

Dwyer, John — People v. Palmer, D074240 — Credits — Joan P. Weber, Judge — Opinion by Huffman, J., with O’Rourke, J., Irion, J. Pre-sentence custody credits corrected to award an additional 10 days where calculation had been mistakenly based on the wrong arrest date. (I) NFA

Miler, Gerald/Cannon, Gregory/Gordon, Laura — People v. Thomas/Satterwhite/ Myers, D074600 — Proposition 57 — Joan Weber, Judge — Opinion by Benke, J., with Huffman, J., Guerrero J. After having been convicted of two murders and three attempted murders, appellants received sentences of 196-life (for Satterwhite, who was 15 at the time of the offenses) and life-without-the-possibility-of-parole (for Thomas and Myers, who were 17) based on the law in effect at the time of the offenses (2004). Protracted appeals and petitions over many years were pursued by appellants based, in part, on changes in sentencing law. During this long post-judgment history, Proposition 57 was enacted. In this appeal, based on Prop. 57, the Court of Appeal reversed the judgment as to Satterwhite, and remanded his case to the juvenile court, directing the juvenile court to treat his convictions and true findings as juvenile adjudications and impose an appropriate disposition within its discretion. With respect to Thomas and Myers, the court conditionally reversed the judgment and remanded the matter to the juvenile court with directions to conduct juvenile transfer hearings. If the juvenile court finds one or the other to be a fit and proper subject for juvenile justice, then it shall treat their convictions as juvenile adjudications and impose an appropriate disposition. If the juvenile court determines that either is not a fit and proper subject to be dealt with under the juvenile court law, then that defendant shall be transferred back to criminal court. In this event, the criminal court is to reinstate the previously imposed sentences. If Myers presents evidence that he is being denied programming and credits available to others with parole eligibility, as he claimed on appeal, the court should reconsider his sentence. (I) HCC

Aros, Christine — People v. Molina, D075192 — Penal Code Section 654/Fines/Fees — Daniel S. Belsky, Judge — Opinion by Huffman, J., with O’Rourke, J., Guerrero, J. The Court of Appeal agreed that appellant’s sentence for auto-theft must be stayed where he is already being punished for the theft of firearms which were inside the vehicle. In light of the application of Penal Code section 654, the trial court should also reconsider the amount of restitution fine imposed. On remand, appellant may raise any issue with regard to ability to pay fines/fees. (I) (HCC)

Haggerty, Edward — People v. Garcia, D076212 — Penal Code Section 1170.95 — Kyle Brodie, Judge — Opinion by Aaron, J., with McConnell, P.J., Dato, J. Court of Appeal agreed with appellant that trial court erred in granting the People’s motion to strike his Penal Code section 1170.95 petition based on a finding that the new law is unconstitutional. Because the new law is not unconstitutional, the matter is remanded for trial court to consider the petition on its merits. (I) APJ

Villanueva, Pauline — People v. Tafoya, D076402 — Senate Bill 136 — Joseph P. Brannigan, Judge — Opinion by Benke, J., with O’Rourke, J., Guerrero, J. The prison prior enhancement imposed under section 667.5 is stricken under Senate Bill 136. No remand is necessary as appellant was sentenced to maximum sentence available. (A) JMK

O'Connor, Sheila — People v. Pizana, D076489 — Penal Code Section 1170.95 — Shahla S. Sabet, Judge — Opinion by Irion, J., with Aaron, J. concurring; O'Rourke, J. dissenting. The Court of Appeal reversed the trial court's order denying appellant's Penal Code section 1170.95 petition based on a finding that the new law is unconstitutional. The majority concluded the statute is constitutional. (I) LKH

Vorobyov, Gene — People v. Hughes, E069445, (2020) 50 Cal.App.5th 257 — Discovery Violation — J. David Mazurek, Judge — Opinion by Slough, J., with Ramirez, P.J., Menetrez, J. Court of Appeal reversed three counts of second degree murder, finding the trial court abused its discretion in denying the defense motion for a mistrial based upon the prosecutor's discovery violation. Appellant was driving when the victim's car made a left turn in front of him. The cars collided, killing the victim and her two passengers. Appellant's blood alcohol level was .12. The police investigation concluded victim's unsafe left turn was the primary cause of the accident; appellant's speed and drinking may have played a role, but he was not driving at an unsafe speed and responded appropriately in attempting to avoid the accident. At trial, the prosecutor called an expert (a member of the team who drafted the initial report). This expert offered new testimony not previously disclosed to the defense in violation of the discovery statutes – that the accident wouldn't have happened if appellant had been driving the speed limit and had not been drinking. The defense timely objected, but the court permitted the prosecutor to proceed. The following the day, the trial court denied the motion for a mistrial. Instead, the trial court instructed the jury that the prosecutor had not disclosed the new evidence in a timely fashion. Concluding reversal was appropriate, the Court of Appeal stated: “We think this is a rare case in which the trial court abused its discretion by declining to declare a mistrial. Whether the prosecutor acted intentionally or not, the effect was the same: The prosecution surprised defense counsel with new technical evidence on the most critical factual question relating to Hughes's guilt on three murder charges.” (I) LKH

Vento, Christine — People v. Beltran, E070728 — Senate Bill 136 — J. David Mazurek, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Court of Appeal ordered appellant's five one-year prior prison term enhancements stricken pursuant to Senate Bill 136. (I) NFA

Harris, Donna L. — People v. Garcia, E071386 — Instructional Error/Senate Bill 1391/Fines/Fees/Firearm Restriction — John D. Molloy, Judge — Opinion by Fields, J., with Codrington, J., Raphael, J. Court of Appeal agreed that the trial court prejudicially erred in instructing the jury on the initial aggressor and mutual combat exceptions to self-defense where insufficient evidence supported the instructions in this case and there was a reasonable probability that the jury misapplied the instructions in rejecting appellant’s claim of self-defense. In addition, Senate Bill 1391 applies retroactively to this case and appellant could not have been tried as an adult under the new law. Therefore, the matter must be remanded to juvenile court for further adjudication proceedings and/or a new disposition hearing, which should include consideration of appellant’s ability to pay challenged fines and fees. Finally, certain orders must be stricken as unauthorized: the order that appellant pay the costs of pre-sentence incarceration and the order prohibiting possession of a deadly weapon or related paraphernalia. (I) APJ

Annicchiarico, David L. — People v. Pryor, E071407 — Sentencing — William Jefferson Powell IV, Judge — Opinion by Raphael, J., with Codrington, J., Slough, J. Where the jury found appellant not guilty by reason of insanity, Court of Appeal agreed with the parties that the trial court erred in committing appellant to 40 years to life rather than simply for life. Judgment modified. (I) APJ

Lathrop, Stephen — People v. Johnson, E071605 — Senate Bills 136 and 1393/Credits — Ronald G. Taylor, Judge — Opinion by Codrington, J., with Slough, J., Menendez, J. Matter remanded for re-sentencing to strike prior prison term enhancements under Senate Bill 136 and for court to exercise its discretion under Senate Bill 1393 whether to dismiss prior serious felony enhancements. In addition, court must award 600 additional days of pre-sentence conduct credit which had been withheld due to the trial court’s mistaken belief that Penal Code section 2933.1 applied. (I) NFA

Beugen, Heather — People v. Sullivan, E071740 — Electronic Search Term — Michael Camber, Judge — Opinion by Fields, J., with Ramirez, P.J., Raphael, J. In light of In re Ricardo P. (2019) 7 Cal.5th 1113, all agreed the evidence is insufficient to support the broad electronics search condition the court imposed. Electronic search term is stricken. (I) AMJ

Angres, Robert — People v. Darden, E072050 — Probation Conditions — Cara D. Hutson, Judge — Opinion by Codrington, J., with Slough, J., Menetrez, J. The Court of Appeal agreed that a probation condition prohibiting appellant from possessing “materials to make explosive devices” is unconstitutionally vague because appellant has no way of knowing what items the condition refers to. The condition is modified to require that the materials be possessed with the intent to make explosive devices. Also, the probation condition requiring appellant to obtain his probation officer’s permission before leaving California must be stricken from the minute order because the trial court explicitly struck this condition when orally pronouncing judgment. (I) HCC

Schorr, Steven — People v. Johns, E072412, (2020) 50 Cal.App.5th 46 — Penal Code Section 1170.95 — Ingrid Adamson Uhler, Judge — Opinion by Slough, J., with Fields, J., Menetrez, J. The Court of Appeal held that Penal Code section 1170.95 is not unconstitutional. The court reversed and remanded so that appellant’s petition could be considered on its merits. (I) HCC

Schechter, Aaron J. — People v. Morales, E072628 — Senate Bill 136/Fines/Fees — Samuel Diaz, Jr., Judge — Opinion by Miller, J., with McKinster, J., Raphael, J. Two prison prior enhancements stricken in light of Senate Bill 136. Also, during pendency of the appeal, the trial court granted relief in response to counsel’s informal motion to correct fines and fees pursuant to Penal Code section 1237.2 and based on ability to pay. In its responsive brief, respondent argued the trial court lacked jurisdiction to modify the fines and fees while the appeal was pending. The Court of Appeal declined to address the matter because relief on the informal motion was a post-judgment order, not encompassed in appellant’s notice of appeal, and the People had not filed a notice of appeal or cross-appeal. (I) LAR

Schuck, John — People v. Hernandez, E072702 — Penal Code Section 1170.95 — Antoine F. Raphael, Judge — Opinion by McKinster, J., with Fields, J., Menetrez, J. Court of Appeal reversed trial court’s order dismissing appellant’s Penal Code section 1170.95 petition as unconstitutional. (I) LAR

Conner, Randall — People v. Phillips, E072715 — Sentencing — Bernard Schwartz, Judge — Opinion by Slough, J., with Codrington, J., Menetrez, J. Trial court erred in staying, rather than striking, the personal use of a deadly weapon enhancement. (I) LAR

Melcher, William — People v. Wheatley, E073088— Penal Code Section 1170.95 — Bryan Foster, Judge — Opinion by Miller, J., with McKinster, J., Menetrez, J. The Court of Appeal reversed the order denying appellant's petition pursuant to Penal Code section 1170.95. The trial court erred in concluding the statute was unconstitutional. (I) LKH

DiGuiseppe, Raymond — People v. Aramburo, E073366 — Penal Code Section 1170.95 — Jon D. Ferguson, Judge — Opinion by Codrington, J. with Slough, J., Raphael, J. Agreeing with all published decisions, the Court of Appeal concluded that Penal Code section 1170.95 is constitutional. (I) HCC

Adraktas, Stephanie — People v. Romero, E073502 — Proposition 47 — Becky Dugan, Judge — Opinion by Ramirez, P.J., with McKinster, J., Raphael, J. The order denying appellant's Prop. 47 petition is reversed with instructions that the conviction for receiving stolen property be recalled and re-sentenced as a misdemeanor, and the attached street gang enhancement be stricken. The trial court erred in denying the petition because of the admitted gang enhancement. (I) LKH

Schwartzberg, Richard — People v. Fava, E073691— Penal Code Section 1170.95 — Antoine F. Raphael, Judge — Opinion by McKinster, J., with Miller, J., Menetrez, J. The Court of Appeal found Penal Code section 1170.95 to be constitutional and reversed the trial court’s denial of appellant’s petition based on a finding that the statute is unconstitutional. The matter is remanded for a hearing on whether appellant is eligible for relief. (I) LKH

Rooney, Daniel — In re C.J. et al., E073694 — Reunification Services — Steven Mapes, Judge — Opinion by Codrington, J., with Raphael, J., Fields, J. Mother appealed from the juvenile court’s jurisdiction and disposition hearing, at which she was denied reunification services. The Court of Appeal affirmed jurisdiction, but overturned the juvenile court’s denial of Mother’s reunification services. The Court held that Mother did not consent to sexual abuse of the child even if she should have known about it. The Court held that Mother needed to have actually known about the sexual abuse to impliedly consent to it. In this case, Mother was oblivious to the abuse of her daughter by an older brother; thus it was error to deny her services. (I) MAC

Kassman, Martin — People v. Jerro, G057097 — Senate Bills 136 and 1393 — Robert Alan Knox, Judge — Opinion by O’Leary, J., with Moore, J., Thompson, J. Court of Appeal struck prison prior enhancements pursuant to Senate Bill 136 and remanded for sentencing court to consider its discretion to dismiss five-year serious felony prior enhancements pursuant to Senate Bill 1393. (I) NFA

Owen, Thomas — People v. Bautista, G057189 — Sentencing — Michael J. Cassidy, Judge — Opinion by Ikola, J., with Thompson, J., Goethals, J. Trial court erred in imposing 15-year gang enhancements on counts where life sentences were imposed. Instead, the statute requires enhancement by increasing the parole eligibility minimum to 15 years, rather than seven. Trial court ordered to amend the abstract of judgment. (I) PMI

Norman, Jan — People v. Davila, G057419 — Speedy Trial — Michael A. Leversen Judge — Opinion by Thompson, J., with Ikola, J., Goethals, J. On appeal by the People, following dismissal of case due to speedy trial violation, dismissal is affirmed. The People argued defendant failed to show she suffered prejudice by the delay in the case, and if there was prejudice, the trial court failed to balance it against the justification for the delay. The Court of Appeal disagreed with both arguments finding that there was no justification for the four year delay in executing an arrest warrant and that the defense was deprived of a crucial witness as a result. (I) (HCC)

Hart, Mark Allan — People v. Washington, G057504 — Penal Code Section 1170.95 Steven D. Bromberg, Judge — Opinion by Bedsworth, J., with Ikola, J., Thompson, J. The trial court had ruled that Senate Bill 1437 violates the California Constitution by amending Proposition 7 and Proposition 115 without voter approval. However, since the trial court issued its ruling, SB 1437 has been upheld in a number of published opinions from this and other courts. Finding the reasoning of these decisions persuasive, the Court of Appeal joined them in finding SB 1437 is a constitutional legislative enactment. The trial court’s ruling to the contrary was reversed and the matter was remanded for further proceedings on appellant’s Penal Code section 1170.95 petition. (I) LAR

Robertson, Thomas E. — People v. Coleman, G057644 — Senate Bill 136/Abstract of Judgment — Maria Hernandez, Judge — Opinion by Fybel, J., with Aronson, J., Ikola, J. Court of Appeal agreed that prison prior enhancements that were stricken for sentencing purposes must be stricken for all purposes in light of Senate Bill 136. In addition, the abstract of judgment must be corrected to note that the sentence on certain counts were stayed pursuant to Penal Code section 654. (I) APJ

Power, Richard — People v. Trejo, G057914 — Penal Code section 1170.95 — Jonathan S. Fish, Judge — Opinion by Aronson, J., with Bedsworth, J., Moore, J. Court of Appeal held Senate Bill 1437/Penal Code section 1170.95 is constitutional and reversed the trial court’s contrary ruling. Matter remanded for a determination of appellant’s eligibility for relief on the merits. (I) NFA

Torres, Steven — People v. Em, G057938 — Penal Code Section 1170.95 — Julian W. Bailey, Judge — Opinion by Fybel, J., with Bedsworth, J., Moore, J. Trial court erred in denying appellant’s petition under Penal Code section 1170.95 based on a finding that the new law is unconstitutional. The new law is not unconstitutional. Matter remanded for further proceedings on the petition. (I) APJ

Schecter, Aaron — People v. Trejo, G058025 — Penal Code Section 1170.95 — Jonathan S. Fish, Judge — Opinion by Aronson, J., with Bedsworth, J., Moore, J. Court of Appeal held Senate Bill 1437/Penal Code section 1170.95 is constitutional, reversed the trial court’s contrary ruling, and remanded the case for a determination of appellant’s eligibility on the merits of appellant’s petition. (I) NFA

Torres, Steven — People v. King, G058048 — Penal Code Section 1170.95 — Elizabeth G. Macias, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Moore, J. Consistent with all prior appellate decisions, the Court of Appeal found that Senate Bill 1437 is constitutional and does not impermissibly encroach upon any initiative measure. The matter was remanded for appellant’s Penal Code section 1170.95 petition to be heard on the merits. (I) (HCC)

Siegel, Joshua — People v. Senner, G058055 — Penal Code Section 1170.95 — Elizabeth G. Macias, Judge — Opinion by Moore, J., with Fybel, J., separately concurring, and Goethals, J., separately concurring. Court of Appeal disagreed with trial court that Senate Bill 1437/Penal Code section 1170.95 is unconstitutional. Matter is remanded to the trial court for further proceedings on the merits of appellant’s petition under Penal Code section 1170.95. (I) AMJ

Brines, Cindy — People v. Cortez, G058067 — Penal Code Section 1170.95 — Patrick Donahue, Judge — Opinion by Bedsworth, J., with Moore, J., Ikola, J. Court of Appeal disagreed with the trial court’s ruling that Senate Bill 1437 amended Proposition 7 and Proposition 115 in violation of the California Constitution. Case remanded for the trial court to address the merits of appellant’s Penal Code section 1170.95 petition. (I) AMJ

Fitzer, Richard L. — People v. Jordan, G058077 — Penal Code Section 1170.95 — Lance Jensen, Judge — Opinion by O’Leary, P.J., with Ikola, J., Goethals, J. Trial court erred in denying appellant’s petition under Penal Code section 1170.95 based on a decision that the new law is unconstitutional. Because the new law is constitutional, the matter must be remanded for further proceedings on the merits of appellant’s petition. (I) APJ

Owen, Kristin — People v. Diep, G058169 — Penal Code Section 1170.95 — James Edward Rogan, Judge — Opinion by O’Leary, P.J., with Ikola, J., Goethals, J. Consistent with all prior appellate decisions, the Court of Appeal found that Senate Bill 1437 is constitutional and does not impermissibly encroach upon any initiative measure. The matter was remanded for appellant’s Penal Code section 1170.95 petition to be heard on the merits. (I) (HCC)

Weinberg, Allen — People v. Mendoza, G058173 — Penal Code Section 1170.95 — Julian W. Bailey, Judge — Opinion by Moore, J., with Aronson, J., Thompson, J. Noting every published opinion on this issue has held that SB 1437/Penal Code section 1170.95 did not violate the California Constitution, the court adopted these holdings, concluding the bill neither directly amended any initiative statutes nor indirectly amended any initiative measures. The court reversed and remanded the matter so that appellant’s petition could be considered on its merits. (I) HCC

Harris, Donna — People v. Wiggins, G058197 — Penal Code Section 1170.95 — Michael A. Leversen, Judge — Opinion by O'Leary, P.J., with Fybel, J., Ikola, J. The Court of Appeal concluded that Senate Bill 1437 is constitutional and reversed the trial court's order denying appellant's Penal Code section 1170.95 petition based on a finding that the statute is unconstitutional. (I) LKH

Halka, Waldemar — People v. Ruedas, G058403 — Penal Code Section 1170.95 — John Edward Rogan, Judge — Opinion by Bedsworth, J., with Ikola, J., Fybel, J., separately concurring. Trial court erred in finding SB 1437 unconstitutional. The new law does not impermissibly amend Proposition 7 or Proposition 115. Matter remanded for the trial court to address the merits of the petition. (I) CBM

July 2020

Bacalski, Cherise — People v. Durland, D074801 — Electronic Search Condition — T. Michael Kirkman, Judge — Opinion by Aaron, J., with O’Rourke, J., Irion, J. The Court of Appeal concluded that the electronics search condition imposed in this case is unreasonable under People v. Lent (1975) 15 Cal.3d 481. Matter remanded to allow the trial court an opportunity to determine whether a more narrowly tailored electronics search condition might be reasonable, given the record in the case. (A) AMJ

Aros, Christine — People v. Flores, D074964 — Senate Bill 136 — Robert F. O'Neill, Judge — Opinion by Dato, J., with Benke J., Guerrero, J. Prior prison term enhancement must be stricken per Senate Bill 136. (I) HCC

Bacalski, Cherise — People v. Diessner, D075279 — Electronic Search Condition — Francis M. Devaney, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. Matter remanded to the superior court with directions to strike the electronics search condition because it is unreasonable under People v. Lent (1975) 15 Cal.3d 481. (I) LKH

Bacalski, Cherise — In re U.C., D075393 — Law Enforcement Contacts Probation Condition — Ana L. España, Judge — Opinion by Aaron, J., with Huffman, J., Guerrero, J. Probation condition requiring minor to report all law enforcement contacts to the probation officer is impermissibly vague. Matter remanded for the trial court to either modify or strike the condition. (A) AMJ

Jones, Rebecca — People v. Esteves, D075717 — Penal Code Section 1170.95 — Arthur Harrison, Judge — Opinion by Irion, J., with McConnell, P.J., O’Rourke, J., dissenting. The Court of Appeal found that the changes to murder liability set forth in Senate Bill 1437 are not unconstitutional. The trial court’s order striking the Penal Code section 1170.95 petition is reversed; case remanded to the trial court to consider the merits of the petition. (I) CBM

Grove, Kimberly — People v. Keel, D075827 — Penal Code Section 1170.95 — Cara D. Hutson, Judge — Opinion by McConnell, P.J., with Aaron, J., Dato, J. The Court of Appeal found the trial court erred in determining that Senate Bill 1437 is an unconstitutional violation of Propositions 7 and 11. Matter reversed and remanded for further proceedings on appellant’s petition under Penal Code section 1170.95. (I) NFA

Jones, Cynthia — People v. Leyva, D076538 — Fines — Randall D. White, Judge — Opinion by Dato, J., with O'Rourke, J., Irion, J. The Court of Appeal struck a $1,500 fine imposed under Penal Code section 1203.1c. The governing statute does not apply to appellant because he was sentenced to state prison. In addition, the matter is remanded to the trial court for an ability to pay hearing on the presentence probation fee of $1,095, imposed under Penal Code section 1203.1b. This statute requires an ability to pay hearing unless waived by the defendant. On remand, the trial court should also determine whether the Government Code section 29550 fine was authorized. (I) LKH

Weis, Lizbeth — People v. Jimenez, D076880 — Sentencing— Kyle S. Brodie, Judge — Opinion by Huffman, J., with McConnell, P.J., O’Rourke, J. The Court of Appeal agreed that the trial court misunderstood the scope of its sentencing discretion when it decided, at appellant’s re-sentencing, that it could not consider appellant’s conduct since the previous sentencing in determining whether it should strike the serious felony enhancement under Senate Bill 1393. Order denying the motion to strike the serious felony prior enhancement is reversed and matter remanded for trial court to exercise its informed discretion. (I) JMK

Shudde, Athena/Peabody, Jennifer — People v. Allen/Keller, E070657 — Penal Code Section 654/Senate Bill 1393 — Godofredo Magno, Judge — Opinion by Fields, J., with Ramirez, P.J., Codrington, J. The Court of Appeal agreed that the matter must be remanded for trial court to exercise its discretion with respect to appellants’ serious felony prior enhancements under Senate Bill 1393. In addition, the sentences for robbery must be stayed because appellants exerted the same force in committing both a car-jacking and the robbery and the statute allows punishment for only the offense carrying the greater sentence, in this case, car-jacking. (I) APJ

Wasley, Kendall — People v. Thomas, E071359 — Determinate Sentencing/Senate Bill 136/Senate Bill 1393 — Debra Harris, Judge — Opinion by Fields, J., with Miller, J., Slough, J. Matter remanded for re-sentencing to: 1) reduce an arming enhancement from one year to four months because it was attached to a subordinate consecutive term and therefore subject to the one-third rule; 2) strike two one-year prior prison term enhancements pursuant to Senate Bill No. 136; and 3) exercise discretion under Senate Bill No. 1393 whether to dismiss the five-year prior serious felony enhancement. (I) NFA

Siegel, Joshua — People v. Venable, E071681— Sentencing/Senate Bill 1393 — Ronald M. Christianson, Steve Malone, and Michael A. Smith, Judges — Opinion by Ramirez, P.J., with Slough, J., Menetrez, J. Appellant's sentence for willful, deliberate, premeditated attempted murder is reversed where jury never made a finding that the attempted murder was willful, deliberate and premeditated. In addition, because appellant was not the shooter in this case, the trial court erred in imposing a 10-year gang enhancement when it was also imposing the 25-year-to-life firearm enhancement under Penal Code section 12022.53, subdivision (e)(1)(A). Finally, the matter is remanded for the trial court to consider striking the prior serious felony prior enhancement under Senate Bill 1393. (I) LKH. The Supreme Court has granted review of different issues (S262423); further action in this matter is deferred pending consideration and disposition of People v. Lemcke (S250108) and People v. Tirado (S257658).

Miller, Gerald — People v. Frantz, E071752 — Senate Bill 136 — Chad W. Firetag, Judge — Opinion by Codrington, J., with Ramirez, P.J., Fields, J. Matter remanded for trial court to strike the one-year prison prior enhancement and re-sentence appellant. (I) AMJ

Hernandez, Robert — People v. Bolton, E072001 — Senate Bill 136 — Eric G. Helgesen, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. Two one-year prison prior enhancements must be stricken under Senate Bill 136. Matter remanded for re-sentencing where the trial court had not imposed the maximum sentence. (A) HCC

Schwartzberg, Richard — People v. Sarver, E072069 — Fines/Fees — Chad W. Firetag, Judge — Opinion by McKinster, J., with Fields, J., Menetrez, J. Appellant was ordered to pay the cost of preparing the probation report and the cost of supervising his probation as a condition of probation. The court affirmed the order to pay such costs, but deleted them as probation conditions. These fines are enforceable by civil collection, not as a condition of probation. (I) LKH

Szydlik, Jason — People v. Screws, E072441 — Enforcement of Plea Agreement/Fines/Fees — Mark E. Johnson, Judge — Opinion by Miller, J., with Ramirez, P.J., McKinster, J. The matter is remanded for the trial court to dismiss eight counts in accordance with the plea agreement. On remand, the court can conduct a hearing on appellant's ability to pay the restitution fine, court operations assessment, and court facilities assessment. (I) LKH

Miller, Marty — People v. Williams, E072561 — Fines/Fees — Godofredo Magno, Judge — Opinion by Ramirez, P.J., with Slough, J., Menetrez, J. Case remanded for trial court to properly specify the fines and fees ordered and the statutory bases for them. At such hearing, defendant can also raise any issue regarding ability to pay. (A) AMJ

Ballantine, Jean — People v. Sims, E072573 — Senate Bill 136/Fines/Fees — Ingrid A Uhler, Judge — Opinion by Raphael, J., with Codrington, J., Slough, J. The Court of Appeal agreed a prison prior enhancement must be stricken based on Senate Bill No. 136. Case is remanded for re-sentencing at which time appellant may raise any issues regarding ability to pay fines and fees. (I) APJ

Saucier, Patricia — In re C.P., E072671, (2020) 47 Cal.App.5th 17 — Denial of Placement Request Reversed — Steven A. Mapes, Judge — Opinion by Raphael, J., with Codrington, J., Slough, J. Grandparents were denied placement of their autistic grandson because the grandfather’s 1991 prior conviction was non-exemptible. The boy, placed in a group home, was having unsupervised visits with Grandparents and wanted to live with them (and had lived with them in the past). Counsel argued the absolute bar on placement found in section 361.4 for a non-exemptible offense was a violation of their due process rights. The statute interfered with the grandparents’ and child’s fundamental liberty interest in maintaining their bonded, familial relationship, without regard to their individual circumstances. The Court of Appeal agreed that if the child and grandparents shared such a relationship, due process required a more individualized assessment of the placement decision. The court noted it appeared the parties may have such a relationship, and remanded the case for an evidentiary hearing. The juvenile court is to determine whether grandparents' relationship with the child is the sort of "bonded, quasi-family relationship" that should be deemed "worthy of protection as a fundamental interest." If the juvenile court finds such a relationship, the agency must reassess grandparents' request for a criminal records exemption on an individualized basis, taking into account the legal standards set forth in the opinion. (I) LMF

Love, Christopher — People v. Sapp, E072769— Penal Code Section 1170.95 — John D. Molloy, Judge — Opinion by McKinster, J., with Fields, J., Menetrez, J. The order denying appellant's Penal Code section 1170.95 petition is reversed and the matter remanded to the trial court. The trial court erred in summarily denying the petition based upon its erroneous finding that appellant was the actual killer. The Attorney General conceded that appellant was not the actual killer, but argued denial was appropriate because of the special circumstance true findings. The Court agreed that the trial court cannot simply defer to the jury's pre-Banks (2015) 61 Cal.4th 788 and Clark (2016) 63 Cal.4th 522 factual findings, but must consider Banks and Clark factors in determining appellant's eligibility for relief under Penal Code section 1170.95. (I) LKH

Sampson, Michael — In re K.G., E072885 — Probation Conditions — Pamela P. King, Judge — Opinion by Fields, J., with Ramirez, P.J., Codrington, J. The Court of Appeal agreed that probation condition requiring that minor obey all “reasonable adults” is unreasonable and unconstitutionally vague. While there is no abuse of discretion in imposing a term requiring a minor to obey certain specified adults, the “reasonable adults” term must be modified to specify precisely which adults minor is required to obey. (A) HSI

Holzer, William G. — In re A.P., E073280 — Probation Conditions — Pamela King, Judge — Opinion by Fields, J., with McKinster, J., Menetrez, J. Probation condition forbidding minor from associating with persons he knows or reasonably should know are under the age of 10 and “who has been approved by the probation officer” is unconstitutionally vague. Where the intent of the parties and court is clear on the record, the Court of Appeal modified the term to say “unless in the presence of a responsible adult who has been approved by the probation officer.” (I) APJ

Williams, Rex — In re A.M., E073293 — Probation Conditions — Sean Lafferty, Judge — Opinion by McKinster, J., with Miller, J., Raphael, J. The Court of Appeal agreed that the probation condition prohibiting minor from knowingly possessing sexually explicit materials required clarification and modified the condition to prohibit possession of pornography with a definition of that term provided in the condition. (I) APJ

Sampson, Michael C. — People v. Bonachea, E073411 — Senate Bill 136 — Becky Dugan, Judge — Opinion by Ramirez, P.J., with Slough, J., Menetrez, J. Appellant’s one-year prison prior enhancement must be stricken per Senate Bill 136. Matter remanded for re-sentencing. (A) APJ

Torres, Tonja — In re D.V., E073583 — Maximum Term of Confinement — Pamela P. King, Judge — Opinion by Miller, J., with McKinster, J., Raphael, J. The juvenile court miscalculated the maximum term of confinement as five years, six months. The Court of Appeal ordered the juvenile court to correct the maximum term, reducing it to five years, two months. (I) LKH

Owen, Thomas — People v. Hogue, E073803 — Senate Bill 1437 — Eric M. Nakata, Judge — Opinion by Fields, J., with McKinster, J., Menetrez, J. The trial court erred in denying appellant's petition for re-sentencing, concluding that he failed to sign and date the declaration under penalty of perjury. The parties agreed that the client failed to sign and date the handwritten declaration, but he did sign and date the attached verification form under penalty of perjury and the pre-filled section 1170.95 petition form. This satisfied the requirement that the petition include a declaration that he/she is eligible for relief. The matter is remanded to the trial court. (I) LKH

Schechter, Aaron — People v. Johnson, E074080 — Penal Code Section 17(b) — Ronald M. Christianson, Judge — Opinion by Codrington, J., with Slough, J., Raphael, J. Remanded with direction for trial court to exercise its informed discretion with respect to the decision of whether to reduce felony convictions to misdemeanors under Penal Code section 17, subdivision (b). The record shows the trial court mistakenly believed it could not reduce the felonies because it was imposing a suspended sentence. Under recent amendment to the statute, however, this is no longer true. (I) JMK

Khoury, Charles— People v. Rojas, G055648 — Penal Code Section 1473.7— Cheri Pham, Judge — Opinion by Aronson, J., with Fybel, J., Goethals, J. Matter remanded to allow appellant to file a new Penal Code section 1473.7 petition in light of new law that such a petition need not depend on ineffective assistance of counsel. (I) PMI

Smith, Barbara — People v. Dennis, G055930, (2020) 47 Cal.App.5th 838 — Instructional Error — Richard M. King, Judge — Opinion by Ikola, J., with Fybel, J., Thompson, J. The Court of Appeal reversed the premeditation findings on three counts of attempted murder, concluding that the trial court erred in failing to instruct the jury that it must find that attempted premeditated murder, and not just attempted murder, was a natural and probable consequence of disturbing the peace. (I) LKH

The Supreme Court has granted review (S258175); further action in this matter is deferred pending consideration and disposition of a related issue in People v. Lopez or pending further order of the court.

Smith, Barbara — People v. Rojo, G056762 — Abstracts of Judgment — David A. Hoffer, Judge — Opinion by Goethals, J., with Bedsworth, J., Fybel, J. Where pre-sentence credits appear on the determinate term abstract of judgment and that sentence has been stayed, matter is remanded so that trial court can prepare amended abstracts of judgment, showing the credits apply to the indeterminate term. (I) CBM

Norman, Jan B. — People v. Gonzalez-Reyes, G057223 — Penal Code Section 654 — Richard M. King, Judge — Opinion by Fybel, J., with Bedsworth, J., Moore, J. Where trial court clearly found that Penal Code section 654 applied and that sentences should “merge,” minute order and abstract of judgment must be corrected to reflect that the sentences were stayed pursuant to Penal Code section 654. (I) APJ

Beckham, Sylvia — People v. Escobar, G057236 — Fines/Fees — John Conley, Judge — Opinion by Aronson, J., with O’Leary, P.J., Thompson, J. Trial court assessed fines and fees based on four counts even though appellant had been convicted on only three. Appellant contended, respondent conceded, and court agreed that fines and fees must be modified based on number of counts of conviction. (I) HCC

Beaudreau, David — People v. Peters, G057263 — Motion to Dismiss — Gary M. Pohlson, Judge — Opinion by Ikola, J., with Bedsworth, J., Fybel, J. In response to an amended information, adding a count of possessing heroin for sale, the defense filed a motion to set aside the new count on the ground it was based on evidence not presented at the preliminary hearing. The Court of Appeal agreed that the trial court erred in denying appellant’s motion because there was absolutely no evidence at the preliminary hearing about the amount of heroin found in tinfoil packets, and thus the court could not form any rational inferences about whether the amount was usable. Judgment reversed as to the count and on remand the trial court is instructed to vacate its order denying defendant’s motion to dismiss and enter a new order granting the motion. (I) JMK

Torres, Steven — People v. Perez, G057348 — Pre-sentence Credits — Cheri T. Pham, Judge — Opinion by Thompson, J., with Moore, J., Ikola, J. Attorney General conceded and the Court of Appeal agreed that appellant is entitled to an additional day of pre-sentence credit for actual time served, due to trial court error in calculation. (I) APJ

Bauguess, Susan B. — In re N.S., G057395 — Evidentiary Error — Douglas Hatchimonji, Judge — Opinion by O’Leary, P.J., with Moore, J., Goethals, J. The Court of Appeal found the juvenile court erred in admitting a screen-shot photograph of a threatening Snapchat direct message that was sent to the victim because it was not properly authenticated. Specifically, the Court of Appeal found there was no evidence the minor wrote or sent the message to the victim. True finding reversed. (I) LAR

Hinkle, Stephen — People v. Ha, G057571 — Penal Code section 1170.95 — Steven D. Bromberg, Judge — Opinion by Ikola, J., with O’Leary, P.J., Fybel, J. The Court of Appeal concluded that Penal Code section 1170.95 is constitutional and does not unconstitutionally infringe upon a voter-approved initiatives, either Proposition 7 or Proposition 115. Matter remanded for further proceedings on the petition. (I) HCC

Weis, Lizabeth — People v. Snyder, G057598 — Penal Code Section 1170.95 — John Conley, Judge — Opinion by Fybel, J., with O’Leary, P.J., Ikola, J. The Court of Appeal reversed the trial court’s order denying appellant’s Penal Code section 1170.95 petition based on a finding that the statute is unconstitutional. Because the statute is not unconstitutional, the matter is remanded for the trial court to reach the merits of the petition. (I) LAR

Kross, Jeffrey S. — People v. Gonzalez, G057602 — Insufficient Evidence — Cheri T. Pham, Judge — Opinion by O’Leary, P.J., with Moore, J., Goethals, J. The Court of Appeal agreed with appellant that insufficient evidence supported his conviction of assault with a deadly weapon. In this case, while the victim was holding a door closed between himself and appellant, appellant was able to get a leg and arm through the gap and swung pliers at the victim, injuring the victim’s arm. Court found this was insufficient to prove appellant used the pliers in a way was likely to cause great bodily injury or death. Conviction reduced to the lesser included offense of simple assault and matter remanded for re-sentencing. (I) APJ

Schuck, John — People v. Prado, G058172, (2020) 49 Cal.App.5th 480 — Penal Code Section 1170.95 — Lance Jensen, Judge — Opinion by Moore, J., with Ikola, J., Thompson, J. Agreeing with a number of other courts, the Court of Appeal held that Penal Code section 1170.95 is constitutional and does not unconstitutionally amend an initiative of the electorate. Additionally, the Court of Appeal distinguished between initiative statutes and legislative statutes. (I) HCC

June 2020

Burz, Dacia — People v. Ramirez, D073965 — Sentencing — Katrina West, Judge — Opinion by Haller, J., with Huffman, J., Guerrero, J. Appellant was convicted of both murder and gross vehicular manslaughter based on evidence that he drunkenly drove off the rode and fatally struck a man sitting on a bench. The Court of Appeal reversed a consecutive five-year enhancement for fleeing-the-scene imposed as to the murder count because this enhancement applies to vehicular manslaughter (which was stayed under Penal Code section 654), but not to murder. (I) NFA

Ferguson, Rachel — People v. Chism, D074171 — Insufficient Evidence/Duplicate Fines/Fees — Garry G. Haehnle, Judge — Opinion by O’Rourke, J., with Huffman, J., Aaron, J. Court of Appeal agreed that insufficient evidence supports appellant’s conviction of assault with a deadly weapon because the evidence does not establish appellant, who was wielding a knife, had a present ability to commit a violent injury, that is, attain the means and location to strike immediately, where 80 feet remained between him and the victim at all times. On remand, for re-sentencing, the trial court can clarify what fines and fees are imposed with respect to a probation case that was sentenced at the same time as the case being appealed. In addition, appellant can ask for a hearing regarding his ability to pay fines and fees. (A) AMJ

Ferguson, Rachel — People v. Wal, D075046 — Restitution Fine — Jay Bloom, Judge — Opinion by Huffman, J., with Guerrero, J., Aaron, J., concurring in part. Because there was some ambiguity in the record regarding the restitution fine the court imposed when it revoked probation, the matter is remanded to the superior court to address this ambiguity and issue an amended abstract of judgment. (A) MCR

Staley, John — People v. Brown, D075371 — Penal Code Section 654 — Gary G. Haehnle, Judge — Opinion by Huffman, J., with Dato, J., Guerrero, J. The Court of Appeal found two counts of assault with a deadly weapon (a knife and a sap) were based on offenses committed with the same criminal intent during a single incident, and so the sentence for one count must be stayed under Penal Code section 654. The two assaults occurred during a 35-second fight and appellant had no opportunity to extricate himself between the first and second assault so can be punished only once. (I) NFA

Stralla, Ava — People v. Smith, D075372, (2020) 46 Cal.App.5th 375 — Suppression of Evidence/Senate Bill 136 — Jeffrey L. Gunther, Judge — Opinion by Benke, J., with Haller, J., Dato, J. On remand from the Supreme Court with directions to reconsider the suppression issue in light of People v. Ovieda (2019) 7 Cal.5th 1034, the Court of Appeal determined that the search of a home in this case was not justified under the emergency aid or exigent circumstances exceptions to the warrant requirement where police responded to a call that a car had been running in front of the home for 30 minutes with nobody inside. Further, the good faith exception to the exclusionary rule did not apply because there was no evidence to support a claim of good faith. Convictions on five counts reversed. In addition, prison prior enhancements must be stricken in light of Senate Bill 136. (I) PMI

Siroka, Matthew — People v. Robbins, D075544 — Senate Bill No. 136 — Stephen Gallon, Judge — Opinion by Haller, J., with Huffman, J., Aaron, J. The Court of Appeal struck two prison priors in accord with Senate Bill No. 136 and directed the trial court to prepare an amended abstract of judgment. (I) ABM

Buckley, Christian — People v. Auclair, D075871 — Resentencing — Burke E. Strunsky, Judge — Opinion by Guerrero, J., with Haller, J., Irion, J.

In this appeal from a re-sentencing, the Court of Appeal modified the judgment to impose $0 restitution fine, consistent with what was imposed at the original sentencing hearing, and $0 parole revocation restitution fine, which was the appropriate amount given the restitution fine. The Court of Appeal further modified the judgment to reflect 1,802 days of credits, for the total number of actual days spent in custody. The Court of Appeal also directed the minute order to be corrected by striking the erroneous reference to a guilty plea and admission of the alleged enhancements. The Court of Appeal then directed the abstract of judgment be amended with appropriate details from the remand hearing. (I) HSI

King, Nancy — People v. Riley, D076020 — Senate Bill 1437 — Eric M. Nakata, Judge — Opinion by McConnell, P.J., with Aaron, J., Dato, J. The trial court's order striking the Penal Code section 1170.95 petition based on a finding that Senate Bill No. 1437 is unconstitutional is reversed. The matter is remanded to the trial court. (I) LKH

Jones, Jason/Matsumoto, Helen — People v. Henderson/Marks, D076200, (2020) 46 Cal.App.5th 533 — Senate Bill No. 1393/Sentencing — Michael A. Knish, Judge — Opinion by O'Rourke, J., with Benke, J., Irion, J. Case remanded for re-sentencing so the trial court can exercise its discretion under Senate Bill No. 1393 to strike serious felony prior enhancements. As to Henderson, the trial court is directed to re-sentence on count 2 because the court made improper dual use of Henderson's prior serious felony in imposing a consecutive sentence. (I) NFA

Gambale, Jennifer — People v. Sullivan, D076470 — Penal Code section 1170.95 — Kyle S. Brodie, Judge — Opinion by McConnell, P.J., with Aaron, J., Dato, J. The Court of Appeal rejected the People’s arguments that Penal Code section 1170.95 is unconstitutional and reversed the trial court order dismissing appellant’s petition. Matter is remanded for further proceedings on petition. (I) APJ

LeRoy, Doris — People v. Quintanilla, D076549, (2020) 45 Cal.App.5th 1039 — Evidence Code Section 1390 Hearsay Exception — Charles Koosed, Judge — Opinion by Irion, J., with Huffman, J., O’Rourke, J. Appellant killed his girlfriend with a single gunshot in the bedroom they shared. A jury found him guilty of first degree murder. Before trial, the district attorney sought to admit the victim’s hearsay statements about prior incidents of domestic violence through six witnesses under Evidence Code section 1390. Under section 1390, hearsay can be admitted if the defendant engaged in “wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Over defense objection, the trial court found appellant’s shooting of the victim was in part intended to keep her from testifying and admitted the hearsay under section 1390. The Court of Appeal reversed, agreeing with appellant that there was no evidence appellant shot the victim intending to keep her from testifying. There was no pending case when the shooting occurred, and there was no separate evidence appellant had ever threatened to kill the victim if she went to authorities. The Court of Appeal found two of the six statements would have been admissible as excited utterances, but two of the other statements were the only evidence creating inferences of premeditation and deliberation. The admission of those statements was prejudicial, requiring reversal for a new trial. (I) ABM

Nichols, Diane — People v. Ratcliffe, E063690 — Senate Bill 620/Senate Bill 1393/Fines/Fees — Bernard Schwartz, Judge — Opinion by Ramirez, P.J., with McKinster, J., Fields, J. Matter remanded for re-sentencing because appellant is entitled to the benefits of recently enacted legislation related to firearm enhancements (Senate Bill 620) and serious felony prior enhancements (Senate Bill 1393). In addition, appellant’s statement in the trial court regarding inability to pay amounted to an objection and entitled him to a hearing on the fees and fines assessed against him. Finally, the abstract of judgment must be modified because it incorrectly indicates the court imposed a parole revocation fine where no such fine was or could be imposed given appellant’s sentence of life-without-parole. (I) AMJ

Wrubel, Suzanne/Brisbois, Patricia — People v. Johnson/Hairston, E069732, (2020) 45 Cal.App.5th 123 — Lesser Included Offense — John Tomberlin, Judge — Opinion by Menetrez, J., with Ramirez, P.J., McKinster, J. The Court of Appeal reversed convictions for kidnaping as that offense is a lesser included offense of car-jacking for kidnap and appellants could not be convicted of both crimes based on the same incident. (I) ABM

Wass, Valerie — People v. King, E070384 — Senate Bill 136/Senate Bill 1393/Sentencing — Steven G. Counelis, Judge — Opinion by Codrington, J., with Slough, J., Raphael, J. Under Senate Bill 136, four prison prior enhancements ordered stricken. Further, the case is remanded for the purpose of allowing the trial court to consider whether to dismiss or strike the serious felony enhancement under Senate Bill 1393. In addition, sentencing minute order and abstract of judgment must be corrected to show that counts 1 and 4 should run concurrent. (I) LAR

Power, Richard — People v. Elbouhy, E070498 — Senate Bill 136 — Jorge C. Hernandez, Judge — Opinion by Miller, J., with Codrington, J., Slough, J. Matter remanded for trial court to strike prison prior enhancement per Senate Bill 136. (I) APJ

Jones, Cynthia/Norris, Ronda — People v. Tafoya/Mungarro, E070722 — Clerical Errors/Insufficient Evidence Prison Prior/Senate Bill 136/Senate Bill 1393/Miscalculation of Fees — Harold T. Wilson, Jr., Judge — Opinion by McKinster, J., with Miller, J., Slough, J. As to Tafoya, minute order must be corrected to reflect finding that appellant suffered five prison priors not six as entered by the clerk. True finding on three of those prison priors must be reversed because the evidence showed only two separate prison terms. Ultimately, all prison priors must stricken under Senate Bill 136. As to both appellants, security fee must be corrected to accord with number of convictions. As to Mungarro, the court must exercise its discretion whether to strike prior serious felony enhancement under Senate Bill 1393. (I) AMJ

Mahler, Edward — People v. West, E071228 — Jury Instructions — Jeffrey Prevost, Judge — Opinion by, McKinster, J., with Miller, J., Codrington, J. Appellant’s conviction of assault with a deadly weapon is reversed for instructional error in light of People v. Aledamat (2019) 8 Cal.5th 1 because the standard instruction incorrectly permitted jurors to conclude a small pocket knife was an inherently dangerous or deadly weapon. The error was prejudicial because the prosecutor expressly argued to jurors that the pocket knife was inherently dangerous or deadly, making it impossible to say jurors convicted on the permissible theory that the pocket knife was used in a dangerous or deadly manner. (I) NFA

Crawford, James M. — In re Brown, E071401, (2020) 45 Cal.App.5th 699 — Juvenile Adjudication as a Strike — Gregory S. Tavill, Judge — Opinion by Codrington, J., with Miller, J., Menetrez, J., dissenting. The People appealed from trial court orders granting respondent/petitioner’s petition for writ of habeas corpus, vacating his sentence, and re-sentencing him to 16 years and eight months in prison, which was eight years shorter than his original sentence via a plea. The trial court granted the writ petition because a strike for car-jacking was based on a juvenile adjudication and did not qualify as a strike under Welfare and Institutions Code section 708, subdivision (b) and Penal Code section 667, subdivision (d)(3). The trial court also concluded defense counsel was ineffective for not objecting to the strike at sentencing. On appeal, the People contended the car-jacking adjudication qualified as a strike under 2006 law and trial court erred in applying People v. Gallardo (2017) 4 Cal.5th 120 retroactively. The Court of Appeal majority concluded the trial court did not err in applying Gallardo retroactively here and affirmed the sentence. The dissent would find that Gallardo does not apply retroactively to cases that are already final on appeal, as did the court in In re Milton (2019) 42 Cal.App.5th 977. (I) LAR The Supreme Court has granted review (S261454); further action in this matter is deferred pending consideration and disposition of a related issue or pending further order of the court.

Pirko, Johanna/Sheehy, Kevin — People v. Kevin Butler/Shaw, E071471 — Senate Bill 1393/Senate Bill 136/Fines/Fees — Debra Harris, Judge — Opinion by Raphael, J., with Codrington, J., Slough, J. Case remanded for sentencing court to strike prison priors and use its discretion to consider striking serious felony enhancements. On remand, appellants can ask for hearings on ability to pay fines and fees. (I) ABM

Clark, Taylor — In re A.N., E072495 — Delinquency Wobbler Determination/Gun Restriction — Winston S. Keh, Judge — Opinion by Fields, J., with Codrington, J., Raphael, J. The juvenile court was required to explicitly declare whether minor’s criminal threat adjudication should be designated a felony or a misdemeanor. Respondent conceded that passing references to the offense as a felony did not satisfy the requirement of explicit declaration. Matter is remanded with instructions for the juvenile court to exercise its duty pursuant to Welfare and Institutions Code section 702. Additionally, if the juvenile court determines the offense is a felony, it must strike the gun restriction barring minor from owning or possessing a firearm until he is 30 years old. (A) LKH

Ferguson, Rachel — In re E.R., E072794 — Victim Restitution — Winston S. Keh, Judge — Opinion by Miller, J., with Ramirez, P.J., McKinster, J. Order awarding $400 in restitution for grandmother’s airfare is stricken because there was insufficient evidence grandmother’s flight for the sake of emotionally supporting the victim qualified as part of victim’s mental health counseling. (I) JMK

Reyner, Micah — In re B.C., E073450 — Probation Conditions — Pamela P. King, Judge — Opinion by Codrington, J., with Fields, J., Raphael, J. Minor’s probation condition requiring her to report all contacts with law enforcement was found to be unconstitutionally vague and modified to require her to report “all contacts initiated by law enforcement about possible law or probation violations.” (A) NFA

Wass, Valerie G./Vento, Christine — People v. Nguyen/Le, G055296 — Insufficient Evidence/Senate Bill No. 620/Franklin Hearing — Richard M. King, Judge — Opinion by Ikola, J., with O’Leary, P.J., Moore, J. dissenting. Appellants were convicted of 2nd degree murder and attempted murder, with gang enhancements, based on a car to car gang shooting. The Court of Appeal agreed that insufficient evidence supported Nguyen’s convictions, which were based on the natural and probable consequences theory. Specifically, the Court of Appeal found there was insufficient evidence that Nguyen, who was a member of neither gang and had friends in both gangs, intended to assist in the crime of disturbing the peace or that his vehicle was even at the scene of the crime. Likewise lacking was evidence Nguyen conspired to commit the target crime. Judgment as to Nguyen reversed in its entirety. The Court of Appeal found there was insufficient evidence to support Le’s gang enhancement because the jury was instructed that in order to find the enhancement true they must find that Le directly aided and abetted the charged crimes. In this case, where Le was prosecuted on a natural and probable causes theory and the target offense was misdemeanor disturbing the peace, there was insufficient evidence he directly aided and abetted the charged crimes. Matter remanded to strike the gang enhancements. Also on remand, the court must exercise its discretion with respect to gun enhancements and provide Le an opportunity to make a record of mitigating evidence tied to his youth, for the sake of a future youthful offender parole hearing, under People v. Franklin (2016) 63 Cal.4th 261. Finally, various errors in the abstract of judgment must be corrected. (I) APJ

King, Nancy — People v. Adams, G056679— Senate Bill 136/Senate Bill 1393/Senate Bill 620/Buckhalter — John D. Molloy, Judge — Opinion by Fybel, J., with Moore, J., Aronson, J. This is appellant’s fourth appeal, from a murder conviction suffered in 2003. The case is once again remanded for a full re-sentencing hearing at which appellant will be present and for which the court should order a new probation report. Since the most recent re-sentencing hearing, several ameliorative statutory changes have been made which may or will benefit appellant: Senate Bills 136, 1393, and 620. Case remanded so trial court can take these new laws into account. At the new sentencing hearing, the court can also consider appellant’s ability to pay fines and fees and it must update appellant’s pre-sentence actual credits to account for all time spent in custody on the case. (I) CBM

Popper, Jamie — People v. Montoya, G056877 — Senate Bill 1393 — Gary S. Paer, Judge — Opinion by Fybel, J., with Moore, J., Goethals, J. The Court of Appeal remanded the matter to the superior court to decide whether to strike the serious felony prior enhancement under Senate Bill 1393. (I) LKH

Levy, Richard — People v. Solis, G057510, (2020) 46 Cal.App.5th 762 — Senate Bill 1437/Penal Code Section 1170.95 — Cheri T. Pham,, Judge — Opinion by Fybel, J., with O’Leary, P.J., Ikola, J. In a published opinion, agreeing with Division One, the Court of Appeal concluded that Senate Bill 1437 is constitutional, i.e., does not unconstitutionally infringe upon a voter-approved initiative, either Proposition 7 or Proposition 115. (I) HCC

Weinberg, Allen G. — People v. Cruz, G057564, (2020) 46 Cal.App.5th 740 — Senate Bill No. 1437/Penal Code section 1170.95 — John Conley, Judge — Opinion by Ikola, J., with O’Leary, P.J., Fybel, J. The Court of Appeal concluded Senate Bill 1437 is constitutional. Reaching this conclusion, the Court of Appeal agreed with the majorities in People v. Superior Court (Gooden) 42 Cal.App.5th 270 and People v. Lamoureux (2019) 42 Cal.App.5th 241, which also concluded Senate Bill 1437 did not amend either “Proposition 7 or Proposition 115 because it neither added to, nor took away from, the initiatives.” (I) LAR

Crawford, James — People v. Garcia, G057596 — Electronics Search Condition — Steven D. Bromberg, Judge — Opinion by Goethals, J., with Aronson, J., Thompson, J. The electronics search condition has no relationship to the robbery for which appellant was convicted and the condition also relates to conduct which is not in itself criminal. Under People v. Lent (1975) 15 Cal.3d 481 and In re Ricardo P. (2019) 7 Cal.5th 1113, the Court of Appeal held the burden it imposes on defendant’s privacy is substantially disproportionate to the countervailing interests of furthering her rehabilitation and protecting society. Condition ordered stricken. (I) HCC

Schwartzberg, Richard — People v. Salinas, G057652 — Penal Code Section 1385 — Kathleen E. Roberts, Judge — Opinion by Thompson, J., with O’Leary, P.J., Aronson, J. The People appealed after court dismissed the case pursuant to Penal Code section 1385, in the interests of justice due to the prosecution’s inability to proceed. At the time and date set for the preliminary hearing, the prosecution was unable to go forward with witnesses because his office had failed to subpoena any witnesses for the scheduled hearing. The Court of Appeal found the dismissal to be a reasonable exercise of discretion. Judgment affirmed. (I) CBM

Williams, Rex — People v. Almanza, G057743 — Penal Code Section 654 — Julian W. Bailey, Judge — Opinion by Fybel, J., with Bedsworth, J., Goethals, J. Based on People v. Jones (2012) 54 Cal.4th 350, where appellant is convicted of felon in possession of a firearm and sentenced for that crime, punishment for crimes relating to that very same firearm: possession of ammunition by a prohibited person and possession of a firearm with identification numbers removed, must be stayed pursuant to Penal Code section 654. (I) CBM

Jones, Cynthia — People v. Loza, G057811 — Proposition 57/Finality of Judgment/ Retroactivity — Gregg L. Prickett, Judge — Opinion by Aronson, J., with Bedsworth, J., Moore, J. Court of Appeal held that the reversal of a judgment on habeas corpus erases the finality of the original judgment for purpose of determining whether a defendant is entitled to the benefit of ameliorative legislation under In re Estrada (1965) 63 Cal.2d 740. Juvenile defendant was convicted as an aider of premeditated murder in 2007. In 2017, defendant petitioned for habeas corpus based on People v. Chiu (2014) 59 Cal.4th 155, resulting in reversal of the judgment and remand for the prosecution to elect whether to retry first degree murder or instead accept a judgment of second degree murder. Pending retrial defendant moved under Proposition 57 for transfer to Juvenile Court. The trial court granted the transfer, and the prosecution appealed. The Court of Appeal held Proposition 57 is applicable under Estrada to any judgment not yet final on the effective date of the measure. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304.) Finality for Estrada purposes is generally when the time for petitioning for certiorari expires following the direct appeal. However, where subsequently the judgment is reversed on habeas corpus, there is no longer any judgment nor finality. Thus, there is no final judgment for Estrada purposes until the defendant is resentenced, and the time direct appeal and certiorari following resentencing expires. (I) NFA

May 2020

Kotler, Bruce — People v. Smith, D073092 — Senate Bill 180 — Carlos O. Amour, Judge — Opinion by Benke, J., with McConnell, P.J., Guerrero, J. Court of Appeal agreed that drug prior enhancement must be stricken under new law, even though the enhancement was part of a stipulated sentence. Respondent argued that a certificate of probable cause was required to challenge the stipulated sentence, but conceded, in response to appellant’s petition for writ of habeas corpus seeking a late certificate of probable cause, that there was a non-frivolous basis for appeal. The Court of Appeal granted the petition for writ of habeas corpus and deemed the certificate to be filed, granted, and operative under its general authority to determine its own jurisdiction. Remanded with direction to correct the sentence by vacating the enhancement. (A) AMJ

Klein, Jill — People v. Bollacker, D074164 — Custody Credits — Lantz Lewis, Judge — Opinion by Aaron, J., with Haller, J. Dato, J., concurring. Attorney General conceded and Court of Appeal agreed appellant was entitled to an additional day of actual pre-sentence custody credits based on the date he was taken into custody and the date of sentencing. (I) CBM

Mazur, Janice — People v. Perez, D074332 — Mental Health Diversion/Senate Bill No. 1393/Senate Bill No. 136 — Joseph P. Brannigan, Judge — Opinion by Guerrero, J., with Huffman, J., Haller, J. Court of Appeal agreed that Penal Code section 1001.36, providing for mental health diversion in certain cases, applies in this case and reversed the judgment with directions for the trial court to determine whether to grant mental health diversion under the new law. If the trial court grants diversion, it shall proceed under that statute. If the trial court does not grant diversion, the trial court shall re-sentence appellant, exercising its discretion with respect to appellant’s serious felony prior enhancement and striking a prison prior enhancement which is no longer valid. (I) HCC

Miller, Gerald — People v. Brown, D074809 — Senate Bill No. 1393 — Roderick Shelton, Judge — Opinion by Dato, J., with Benke, J., O’Rourke, J. Matter remanded for trial court to exercise its discretion to strike or impose appellant’s serious felony prior enhancement. (I) HCC

Behravesh, Justin — People v. Cota, D074935 (2020) 45 Cal.App.5th 786 — Probation Condition — Esteban Hernandez, Judge — Opinion by Aaron, J., with Haller, J., Dato, J., concurring and dissenting. The Court of Appeal found electronics search condition that the trial court imposed unreasonable under In re Ricardo P. (2019) 7 Cal.5th 1113, and remanded for further consideration of a potentially appropriate electronics search condition. (A) MCR

King, Nancy — People v. Miranda, D075011 — Lesser Included Offense — Harold T. Wilson, Judge — Opinion by O’Rourke, J., with Huffman, J., Haller, J. The Court of Appeal determined that appellant’s false imprisonment conviction must be reversed because false imprisonment is a lesser included offense of kidnaping and appellant was convicted of both based on the same conduct. Matter remanded with directions to dismiss the false imprisonment conviction. (I) LKH

Jones, Jason — People v. Trigeros, E070460 — Senate Bill 136/Senate Bill 1393 — Steven G. Counelis, Judge — Opinion by Menetrez, J., with Ramirez, P.J., McKinster, J. Matter remanded for striking of prison prior enhancement and for court to exercise its discretion with respect to serious felony prior enhancement under new law. (I) AMJ

Ferguson, Susan — People v. Brown, E070740 — Senate Bill No. 136 — Steve Malone, Judge — Opinion by Fields, J., with Codrington, J., Raphael, J. The Court of Appeal struck appellant's three one-year prison prior enhancements under Senate Bill 136. (I) LKH

Jones, Jason — People v. Cooper, E070962 — Senate Bill 136/Senate Bill 1393/Fees — Jeffrey Prevost, Judge — Opinion by McKinster, J., with Ramirez, P.J., Menetrez, J. Matter remanded for striking of prison prior enhancements and consideration of striking serious felony enhancements under new laws. Also, trial court ordered to strike pre-sentence probation report fee and incarceration fee. The pre-sentence probation report fee was unauthorized because it was dependent upon appellant’s ability to pay and the trial court had made an express finding defendant lacked the ability to pay this fee. Because appellant was not ordered to serve time in a local detention facility, the incarceration fee was not authorized. (I) CBM

LeRoy, Doris M. -- People v. Watkins II, E070983 -- Insufficient Evidence/Sentencing/Senate Bill 1393/Senate Bill 136 -- Steven G. Counelis, Judge -- Opinion by Miller, J., with McKinster, J., Slough, J. Court of Appeal found Insufficient evidence of child endangerment where only evidence was that minor had been at appellant’s house for some unknown period of time before appellant hit minor’s mother and that they all slept in the same room. Also, the 3-year sentence imposed for prison prior found true pursuant to section 667.5, subdivision (a) stricken because it stemmed from a conviction that was not a serious felony. Further, case remanded to trial court for it to exercise its discretion to strike the 5-year term imposed for the prior serious felony prior. In addition, two prior prison terms pursuant to section 667.5, subdivision (b) are stricken. (I) LAR

Peabody, Jennifer — People v. Rubio, E071145 — Ex Post Facto — Daniel W. DeTienna, Judge — Opinion by Codrington, J., with McKinster, J., Slough, J. Appellant’s convictions under Penal Code section 288.7 violate the prohibition against ex post facto laws because the law was passed in 2006 and the offenses were committed in 2003 and 2004. Parties agreed that reduction to lesser included offenses, which were in effect at the time, is appropriate. Court of Appeal ordered the judgment so modified and remanded for re-sentencing. (I) HCC

Kraus, Paul — In re A.P., E071220 — Probation Conditions — Winston S. Keh, Judge — Opinion by Miller, J., with Fields, J., Raphael, J. Minor contended and the court agreed the electronic search condition was not reasonably related to future criminality as required to pass constitutional muster. Condition ordered stricken. (A) HCC

Cohen, Howard — People v. DeVaughn, E071591 — Correction of Abstract — David A. Gunn, Judge — Opinion by Ramirez, P.J., with Miller, J., Slough, J. In this appeal from a re-sentencing, the abstract of judgment contained clerical errors. After no action was taken by trial court in response to a letter seeking correction of the errors, appellant raised the issues on appeal. Court of Appeal agreed that the abstract of judgment must be corrected to strike reference to a count and its attendant sentence and to reflect a sentence of 27 years, 4 months rather than the currently reflected 28 years. (S) HCC

Bewicke, Aurora — People v. Smart, E071699 — Amendment of Abstract— Elisabeth Sichel, Judge — Opinion by Codrington, J., with Fields, J., Raphael, J. Abstract of judgment ordered corrected to reflect trial court’s oral pronouncement. (I) JMK

Torres, Tonja — In re E.T., E072104 — Insufficient Evidence — Mark E. Petersen, Judge — Opinion by Fields, J., with McKinster, J., Menetrez, J. Court of Appeal reversed juvenile court’s true finding on allegation of resisting arrest because the finding is not supported by sufficient evidence. Minor at a festival was approached by an officer because his pants were sagging pretty low, though not so low that any personal parts were showing. When he was asked to pull his pants up, minor refused. Eventually, a physical altercation, initiated by the officer, ensued but minor took no offensive action. The Court of Appeal determined that minor was unlawfully detained because there was no evidence showing criminal activity. Minor’s clothing did not violate any rule, law or ordinance. His refusal to comply in pulling up his pants was not a crime. Minor’s actions did not amount to disturbing the peace. (I) AMJ

Schuck, John — In re Nguyen, E072934 — Re-sentencing Jurisdiction on Remand — L. Jackson Lucky IV, Judge — Opinion by Miller, J., with Ramirez, P.J., Slough, J. After first appeal resulted in partial reversal and Court of Appeal order directing a sentence reduction and a recalculation of credits, the trial court conducted a full re-sentencing and changed a formerly concurrent term to consecutive. Appellant learned of this for the first time after the time to appeal the re-sentencing had passed, so he filed a habeas and counsel was appointed. The Court of Appeal reversed the newly-imposed consecutive term, holding that the trial court's jurisdiction on remand is defined by the remand order, which here limited the court to reducing the original, erroneous, sentence and recalculating credits. (I) NFA

Melcher, William Paul — People v. Superior Court (D.C.), E073283 — Senate Bill 1391 — Raymond L. Haight, III, Judge — Opinion by Miller, J., with Raphael, J., separately concurring, Ramirez, P.J., dissenting. The People sought to bring a charge of murder in adult court against respondent who was 15 years old at the time of the offense. The juvenile court denied the People’s request for a transfer hearing, ruling that Senate Bill 1391 eliminated its discretion to transfer the case to adult court. The People filed a petition for writ of mandate and the Court of Appeal stayed proceedings in the juvenile court pending review. In this opinion the Court of Appeal rejected the People’s argument that Senate Bill 1391 is unconstitutional, denied the petition, and dissolved the stay of proceedings in the juvenile court. (I) APJ.

The Supreme Court has granted review (S261903); further action in this matter is deferred pending consideration and disposition of a related issue in O.G. v. Superior Court, S259011.

Hart, Mark Alan — People v. Moses, III, G055621 (2019) 38 Cal.App.5th 757 — Insufficient Evidence — Julian W. Bailey, Judge — Opinion by Goethals, J., with Fybel, J., concurring, Aronson, J., concurring in part, dissenting in part. Conviction of human trafficking of a minor reversed for insufficient evidence based on the undisputed fact that the intended victim of appellant’s conduct was not actually a minor, but rather an undercover police officer. (I) LAR The Supreme Court has granted review on the court’s own motion (S258143).

Brandt, Nancy — People v. Morales, G055435 — Senate Bill No. 1393 — W. Michael Hayes, Judge — Opinion by Aronson, J., with O’Leary, P.J., Bedsworth, J. Case remanded for trial court to exercise its discretion with respect to the serious felony prior enhancement. (I) APJ

Torres, Steven — In re A.W., G056266, (2019) 39 Cal.App.5th 941 — Insufficient Evidence — Fred W. Slaughter, Judge — Opinion by Ikola, J., with Bedsworth, J., Fybel, J. True findings felony vandalism allegations reversed for insufficient evidence where the People relied upon an average cost of cleaning up instances of graffiti in general to prove the extent of damage per instance in this case. Evidence insufficient because average cost of cleanup in general is untethered to actual damage caused by minor in this case. The court ordered all counts reduced to misdemeanors. (I) HCC

Varnell, Rachel — People v. Brescia, G056492 — Senate Bill 1393/Senate Bill 136 — Michael A. Leversen, Judge — Opinion by Moore, J., with Aronson, J., Goethals, J. The Court of Appeal remanded the matter back to the sentencing court to exercise its discretion with respect to appellant’s serious felony prior enhancement under Senate Bill No. 1393. The court also ordered two prison priors stricken under Senate Bill No. 136. (I) LKH

McPartland, Michael — People v. Ensminger, G056680 — Plea Agreement — David A. Hoffer, Judge — Opinion by Aronson, J., with Bedsworth, J., Thompson, J. Remanded for hearing to determine whether a plea agreement existed whereby a strike prior would not be used in sentencing. (I) JMK

Brajevich, Sally — People v. Ruiz, G056915 — Senate Bill 136 — Kathleen E. Roberts, Judge — Opinion by Goethals, J., with Moore, J., Aronson, J. Case remanded so trial court can strike the one-year prison prior enhancement. (I) LAR

Serobian, Liana — In re J.P., G057833 — Disposition— Katherine E. Lewis, Judge — Opinion by Aronson, J., with Bedsworth, J., Thompson, J., The court removed the children from the custody of Father based on the parents’ domestic violence. Sexual abuse allegations had also been made against Father. The court did not make a true finding on the sexual abuse counts, and instead implied that it believed Mother had coached the children to make the sexual abuse allegations. As a result of the perceived “coaching,” the court removed the children from Mother as well, even though no allegation of “coaching” had been made or sustained against Mother. The court believed that adding a “coaching” allegation now would impact Mother’s due process rights. The Court of Appeal sustained jurisdiction, but overturned the juvenile court’s disposition finding. It found the juvenile court failed to determine whether reasonable efforts had been made to avoid removing the children from Mother. The Court of Appeal remanded the case for a new disposition hearing. (I) MAC

April 2020

Aros, Christine — People v. Delano, D073240 — Drug Enhancement — Dwayne K. Moring, Judge — Opinion by O’Rourke, J., with Irion, J., Guerrero, J. In a case where three enhancements based on weight of drugs were found true, the trial court erred in staying rather than striking two of the weight enhancements. The stay was unauthorized because the applicable statute, Health and Safety Code section 11370.4, subdivision (e), permits the court to strike, not stay the overlapping enhancements. The matter is remanded for the trial court to exercise its discretion. (I) AMJ

Rudasill, Denise — People v. Gallegos, D073511 — Erroneous Admission of Evidence — K. Michael Kirkman, Judge — Opinion by, Huffman, J., with Nares, J., O’Rourke, J. Court of Appeal reversed insurance fraud convictions because the trial court abused its discretion in allowing the prosecution to prove motive by introducing evidence of appellant’s bank transactions and indebtedness. The Court of Appeal found the error was not harmless because the prosecutor expressly argued for jurors to infer intent to defraud from the fact of appellant’s impoverished financial condition. (I) NFA

Ferguson, Rachel — People v. Gaston, D074310 — Mental Health Diversion — Diane B. Altamirano and William D. Quan, Judges — Opinion by Irion, J., with Guerrero, J., Huffman, J. concurring and dissenting. The majority found Senate Bill No. 1810, which enacted the mental health diversion provisions of Penal Code section 1001.36, applied retroactively to appellant’s non-final judgment. Therefore, appellant’s robbery conviction was conditionally reversed for the trial court to conduct a hearing to determine whether appellant qualifies for diversion and probation, or, if he does not, to reinstate the judgment. Justice Huffman dissented, finding section 1001.36 prospective only. (A) NFA

The Supreme Court has granted review (S252220); further action in this matter is deferred pending consideration and disposition of related issues in People v. Frahs (2018) 27 Cal.App.5th 784, 791.

Beaudreau, David — People v. Scott, D074334 — Mental Health Diversion — Laura W. Halgren, Judge — Opinion by Aaron, J., with Haller, J., Guerrero, J. concurring in part (on a separate issue). Conditional remand for trial court to consider appellant’s eligibility for mental health diversion under Penal Code section 1001.36, because law applies retroactively to non-final judgments. (I) SDS

The Supreme Court has granted review (S260564); further action in this matter is deferred pending consideration and disposition of related issues in People v. Frahs (2018) 27 Cal.App.5th 784, 791.

Dain, Anthony — People v. Sanchez, D074562 — Victim Restitution — Carlos O. Armour, Judge — Opinion by Huffman, J., with O’Rourke, J., Guerrero, J. Where defendant was convicted of second degree murder, remanded to correct abstract of judgment, which incorrectly listed victim restitution as $212,350, when it was in fact $2,123.50. (I) NFA

Kotler, Bruce — People v. Nicholson, D074944 — Penal Code Section 654/Senate Bill 136 — Harry M. Elias, Judge — Opinion by Huffman, J., with Irion, J., Guerrero, J. Because appellant committed the crimes of forgery and identity theft based upon his single course of conduct in attempting to cash a forged check containing the personal identifying information of another, the trial court erred when it failed to stay the sentence for the forgery count under Penal Code section 654. Additionally, because appellant’s case was not yet final when Senate Bill No. 136 became effective, and because the prior for which appellant had served a prison term was not a sexually violent offense, the Court of Appeal ordered the one year prison prior enhancement stricken. (A) CBM

Garcia, Matthew — People v. Garcia, D075326 — Violation of Plea Agreement/Fines/Credits — Christopher J. Plourd, Judge — Opinion by Guerrero, J., with Huffman, J., Haller, J. Respondent agreed that under the plea bargain remaining charge of making a criminal threat must be dismissed. In addition, the court miscalculated pre-sentence custody credits by omitting the day of appellant’s probation hearing. Finally, the trial court erred in failing to consider appellant’s ability to pay fines and fees despite appellant’s request that it do so. Matter remanded for trial court to dismiss remaining charg, correct credits, and consider any defense objection to the restitution fine and fees based on ability to pay. (A) AMJ

Bewicke, Aurora — People v. Mourning, D075742 — Senate Bill 136 — Polly H. Shamoon, Judge — Opinion by Benke, J., with McConnell, P.J., Huffman, J. Court of Appeal granted the motion to expedite appeal and agreed that appellant is entitled to the benefit of Senate Bill No. 136. Rather then remand for the court to re-sentence appellant, as requested by respondent, Court of Appeal struck the prison prior and ordered the superior court to amend the abstract of judgment. Counsel secured a stipulation with the Attorney General for immediate issuance of remittitur. (A) AMJ

LeRoy, Doris — People v. Hefner, D075952 — Insufficient Evidence/Restitution — Charles K. Koosed, Judge — Opinion by Huffman, J., with Haller, J., Dato, J. Court of Appeal reversed 36 out of 48 counts of lewd or lascivious conduct upon a minor by force due to insufficient evidence of force or duress. The convictions are reduced to the lesser offenses of lewd act without force and the matter is remanded for re-sentencing. In addition, because a pre-1990 restitution cap may have affected the extent to which restitution could be ordered in this case, matter remanded for court to identify what part of the direct victim restitution is attributable to pre-1990 conduct. (I) HCC

Vorobyov, Gene — People v. Khan, D076199 — Senate Bill 620/Franklin Hearing — Katrina West, Judge — Opinion by Huffman, J., with Aaron, J., Dato, J. Court of Appeal remanded for trial court to exercise its discretion under Senate Bill No. 620 to dismiss firearm discharge enhancements, and for a youthful offender hearing to make a record pursuant to Penal Code section 3051 and People v. Franklin (2016) 63 Cal.4th 261 since appellant was age 23 at the time of the offenses. (I) NFA

Klaif, Leonard — People v. Gilbert, E068495 — Electronic Search Condition — Michael R. Libutti, Judge — Opinion by Miller, J., with Slough, J., Ramirez, P.J. dissenting. On transfer from the California Supreme Court for reconsideration in light of In re Ricardo P. (2019) 7 Cal.5th 1115, the Court of Appeal found the electronic search condition overly broad and ordered the trial court to narrowly tailor the condition to establish a connection between the condition and appellant’s criminal conduct. (I) AMJ

Harris, Donna — People v. Svet, E068713 — Electronics Search Condition — Lisa M. Rogan, Judge — Opinion by Codrington, J., with McKinster, J., Slough, J. Electronics search condition of probation stricken as unreasonable on transfer from California Supreme Court in light of In re Ricardo P. (2019) 7 Cal.5th 113. (I) NFA

Annicchiarico, David — People v. Bonilla, E068880 — Penal Code Section 1437.7 Petition — Christian F. Thierbach, Judge — Opinion by McKinster, J., with Miller, J., Raphael, J. Appellant moved to vacate his 1997 plea based on ineffective assistance of counsel, relying on the pre-Padilla case law in California, People v. Soriano (1987) 194 Cal.App.3d 1470. But there was no evidence trial counsel gave him incorrect advice about the immigration consequences of his plea. In fact, there is no evidence appellant had advised trial counsel he was an immigrant.

During the pendency of the appeal, the Legislature amended Penal Code section 1473.7 so that ineffective assistance of counsel is no longer necessary to invalidate a plea. Based on People v. Camacho (2019) 32 Cal.App.5th 998 and People v. Mejia (2019) 36 Cal.App.5th 859, a plea can be invalidated if defendant proves he did not have an ability to meaningfully understand, defend against, or knowingly accept the actual or potential immigration consequence of the plea. Because appellant’s appeal was not final when the new law became effective, it has retroactive effect to appellant’s case. Matter remanded to allow appellant to amend motion to prove his own error in not meaningfully understanding or knowingly accepting the actual or potential immigration consequences of his plea. (I) CBM

Cuny, Linda — People v. Collins, E069430 — Probation Conditions — Mark E. Johnson, Judge — Opinion by Codrington, J., with Miller, J., Slough, J. After the California Supreme Court transferred the matter back to the Court of Appeal with directions to reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113, the Court of Appeal determined that an electronic search condition was not actually imposed in this case. Matter remanded for modification of a reporting condition previously found to be over-broad and vague. If an electronic search condition was intended, it must comply with the requirements of Ricardo P. (A) AMJ

Mahler, Edward — People v. Belvins, E070123 — Senate Bill 136 — Ingrid Adamson Uhler, Judge — Opinion by Fields, J., with Ramrirez, P.J., Codrington, J. One-year prison-prior stricken per Senate Bill No. 136. (I) LAR

DiGuiseppe, Raymond — People v. Yanez, E070556, (2020) 44 Cal.App.5th 452 — Senate Bill 1393 — James S. Hawkins, Judge — Opinion by Fields, J., with Codrington, J., Raphael, J. Matter remanded to allow the trial court to consider exercising discretion to strike five-year prior serious felony enhancement pursuant to Senate Bill No. 1393. (I) HCC

The Supreme Court has granted review (S260819); further action in this matter is deferred pending consideration and disposition of separate issues in People v. Tirado (2019) 38 Cal.App.5th 637.

Hamrick, Lillian — People v. Barajas, E070588 — Dual Convictions/Probation Condition — Jeffrey Prevost, Judge — Opinion by Raphael, J., with Miller, J., Fields, J. Appellant was convicted of animal cruelty under Penal Code section 597, subdivisions (a) (intentional act) and (b) (negligent act). The Court of Appeal reversed the subdivision (b) count because a defendant may not be convicted of these two counts based on a single act. And the court struck the residence approval condition of probation as unconstitutionally over broad. (I) NFA

Brisbois, Patricia — People v. Enciso, E070907 — Sentencing — Bernard Schwartz, Judge — Opinion by Miller, J., with McKinster, J., Slough, J. Court of Appeal remanded with directions to consider newly enacted sentencing discretion to strike prior serious felony, prior prison term, and firearm discharge enhancements, and to strike fines and fees absent a finding of ability to pay. (I) NFA

Mazur, Janice — People v. Gardeazabel, E070950 — Enhancement Priors — John M. Davis, Judge — Opinion by Fields, J., with Codrington, J., Raphael, J. Six one-year prior prison term enhancements stricken under Senate Bill No. 136. One prior felony strike reversed because the evidence of the prior, consisting only of the charging document and the probation report, was insufficient to prove appellant was convicted of robbery; remanded for opportunity to retry this strike. (I) NFA

Duxbury, Brett — People v. Valadez, E071464 — Fines — Mac R. Fisher, Judge — Opinion by Miller, J., with McKinster, J., Codrington, J. Parole revocation fine is stricken because appellant’s sentence does not include a period of parole. (I) JMK

Stafford, Victoria — People v. Gray, E071495 — Sentencing — David A. Gunn, Judge — Opinion by McKinster, J., with Ramirez, P.J., Slough, J. On appeal from a re-sentencing on remand from the initial appeal, Court of Appeal found the sentencing court and clerk committed several new errors: reimposition of a gang enhancement that had been reversed for insufficient evidence in the first appeal; several errors in the abstract and sentencing minutes, including omission of the fact a prior serious felony enhancement was dismissed; and failure to calculate all actual custody credits at the time of re-sentencing. (I) NFA

Cannon, Gregory — People v. Fitzgerald, E071541 — Sentencing — John M. Davis, Judge — Opinion by McKinster, J., with Miller, J., Codrington, J. Order requiring appellant to participate in a counseling or education program having a substance abuse component is stricken, and the trial court is directed to make the finding and written recommendation, in accordance with Penal Code section 1203.096. (I) PMI

Conner, Randall — People v. Mendoza, E071835, (2020) 44 Cal.App.5th 1044 — Motion to Suppress Evidence — John M. Davis, Judge — Opinion by Slough, J., with Fields, J., Menetrez, J. Court of Appeal agreed that U.S. Customs and Border Protection agent stopped appellant on the I-15 without reasonable suspicion that she was engaged in criminal activity; thus, cocaine found in her vehicle was required to be suppressed under the Fourth Amendment. In this case, the stop was based only the fact that appellant was driving across the border from Mexico in a vehicle that had been seen crossing the week before and, when the agent pulled alongside her and stared at her, she changed lanes and drove more slowly to get behind him. Court of Appeal concluded that this demonstrated nothing more than nervousness under observation and did not warrant a stop when other circumstances were so innocuous, and, therefore, reversed and remanded. (I) APJ

Boyce, Robert — People v. Duvall, G055286 — Sentencing — Kimberly Menninger, Judge — Opinion by Dunning, J., with Bedsworth, J., Thompson, J. Remanded for the trial court to reconsider the sentence in light of Senate Bill No. 620, allowing the court to strike the firearm enhancement. At that time the court can also consider its discretion under Senate Bill No. 1393 to dismiss the five-year serious felony prior enhancement as well as appellant’s ability to pay the $40 court operations assessment and the $30 court facilities assessment. (I) PMI

Johnson, Mark — People v. Esparza, G055341 — Jury Deliberations — Steven D. Bromberg, Judge — Opinion by Aronson, J., with O’Leary, P.J., Bedsworth, J. dissenting. Faced with a hung jury, the trial court erred when it (1) intruded into jury deliberations by investigating potential juror misconduct without sufficient cause, (2) invaded the deliberative process by asking jurors individually about the content of deliberations and permitting the prosecutor to similarly inquire, and (3) dismissed a holdout juror without sufficient evidence that the juror committed misconduct. The trial court launched the investigation without evidence the jurors were failing to deliberate. The investigation allowed jurors to tell the court details of the deliberative process. And the holdout juror was dismissed for failure to disclose information the juror had never been asked about in voir dire. Appellant’s gang-related offenses are reversed. (I) LKH

Brisbois, Patricia/Seigel, Joshua— People v. Sarabian/Aceves, G055801 — Sentencing — Gregg L. Prickett, Judge — Opinion by O’Leary, P.J., with Aronson, J., Ikola, J. As to appellant Sarabian, matter is remanded to correct error in abstract of judgment and for court to clarify ambiguous sentencing pronouncement. As to appellant Aceves, the matter is remanded for sentencing court to exercise its Senate Bill No. 1393 discretion whether to dismiss prior serious felony enhancements. (I) NFA

Matulis, Jean — People v. Walker, G055929 — Senate Bill 136 — Julian W. Bailey and Cheri T. Pham, Judges — Opinion by Moore, J., with Fybel, J., Ikola, J. Attorney General conceded and Court of Appeal agreed that three one-year prison prior enhancements, imposed in each of appellant’s two cases on appeal, are now invalid under Senate Bill No. 136. Because appellant’s sentence was otherwise maxed out, remand would be futile and the Court of Appeal directed the trial court to strike the enhancements and forward a modified abstract of judgment to the Department of Corrections and Rehabilitation. (I) APJ

Auwarter, Neil/Sandoval, Tyrone — People v. Stanley, G056255 — Senate Bill 136 — Megan Wagner, Judge — Opinion by O’Leary, J., with Thompson, J., Goethals, J. Court of Appeal ordered stricken a one-year prior prison term enhancement in light of Senate Bill No. 136. (S) NFA/(A) NFA

Grove, Kimberly — People v. Canales, G056343 — Senate Bill 620/Parole Revocation Fine — Michael J. Cassidy, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Thompson, J. The Court of Appeal remanded the matter to the trial court to exercise discretion under Senate Bill No. 620 to strike the firearm enhancement. In addition, the court struck the $200 parole revocation fine because appellant was sentenced to life without parole, thus the parole revociation fine does not apply. (I) LKH

Hinkle, Stephen — People v. Granados, G056817 — Sentencing — Michael J. Cassidy, Judge — Opinion by Goethals, J., with Moore, J., Ikola, J. Where the trial court ordered a consecutive gang enhancement, stating it was “mandated by law,” matter remanded for the trial court to exercise discretion to dismiss the enhancement if warranted. (I) LKH

Schwartzberg, Richard — People v. Cota, G056850, (2020) 44 Cal.App.5th 720 — Penal Code Section 954 — Maria D. Hernandez, Judge — Opinion by Ikola, J., with Bedsworth, J., Moore, J. Because assault with deadly weapon and assault by force likely to cause great bodily injury are different statements of the same offense, and because the prosecutor relied on the same act to support both, the former conviction must be vacated under Penal Code section 954. (I) SDS

The Supreme Court has granted review (S252220); further action in this matter is deferred pending consideration and disposition of related issues in People v. Aguayo (S254554).

Torres, Steven A. — People v. Reyes-Cruz, G057313 — No Visitation Order/HIV Testing/Fines — Lance Jensen, Judge — Opinion by Moore, J., with O’Leary, P.J., Bedsworth, J. Court of Appeal agreed that the no-visitation order imposed in this case must expire when minor reaches the age of 18. In addition, insufficient evidence support HIV testing order, so matter remanded for prosecution to present additional evidence if possible. Finally, trial court must properly pronounce the interest rate on the restitution order (where the record is ambiguous) and the statute authority for the fee attached to the restitution order. (I) APJ

March 2020

Bacalski, Cherise — People v. Scroggins, D074051 — Probation Conditions — Laura W. Halgren, Judge and Polly H. Shamoon, Judge — Opinion by Aaron, J., with Haller, J., O’Rourke, J. The Attorney General conceded and the Court of Appeal agreed that the trial court erred when it imposed probation conditions requiring appellant to comply with curfew [appellant is an adult] and not permitting the use of marijuana unless approved by the courts. Court of Appeal ordered these discrete conditions stricken. (A) CBM

Mazur, Janice — People v. Perez, D074332 — Mental Health Diversion//Senate Bill 1393/Senate Bill 136 — Joseph P. Brannigan, Judge — Opinion by Guerrero, J., with Haller, J., Huffman, J., concurring in the result. Court of Appeal concluded the mental health diversion statute (Pen. Code, § 1001.36) applies retroactively in this case and exercised its discretion to address the contention despite any forfeiture. The court reversed the judgment with directions for the trial court to determine whether to grant mental health diversion under section 1001.36. If the trial court grants diversion, it shall proceed under that statute. If the trial court does not grant diversion, the trial court shall re-sentence appellant by striking three prison prior enhancements which are no longer valid under Senate Bill 136, and consider dismissing a serious felony prior enhancement given new discretion to do so under Senate Bill 1393. (I) HCC

Fabian, Carl — People v. Palkovic, D074342 — Mental Health Diversion/Senate Bill 1393 — Michael S. Groch, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Guerrero, J. Judgment is conditionally reversed and remanded to the trial court with directions to conduct mental health diversion hearing under Penal Code section 1001.36 which applies retroactively in this case. If the court determines appellant qualifies, the court shall proceed under that statute. If the court determines that appellant is ineligible for diversion or if appellant fails to successfully complete the required diversion, the court shall reinstate convictions and conduct further sentencing. If sentencing is required, the trial court shall exercise its discretion with respect to whether to strike or reimpose the five-year prior serious felony enhancement per Senate Bill 1393. (I) HSI

Petition for review is granted; further action in this matter, S260397, is deferred pending consideration and disposition of a related issue in People v. Frahs, S252220.

Garcia, Matthew — People v. Taele, D075009 — Electronics Search Condition — Carlos O. Armour, Judge — Opinion by Irion, J., with Benke, J., O’Rourke, J. Electronics search probation condition stricken as unreasonable under In re Ricardo P. (2019) 7 Cal.5th 113 where appellant was convicted of corporal injury of a spouse. (I) NFA

Stralla, Ava — People v. Burrell (aka McKoy), D075581 — Insufficient Evidence — Laura Birkmeyer, Judge — Opinion by Huffman, J., with Irion, J., Guerrero, J. Assault with a deadly weapon conviction reversed for insufficient evidence where appellant threw what the victim testified as appearing to be a rock, but there was no evidence of the size or weight of the rock; the count was reduced to misdemeanor assault. Also, the court struck a prior prison term enhancement under Senate Bill No. 136. (I) NFA

Angres, Robert — In re Marcos E., D075656 — Calculating Maximum Term — Aaron H. Katz, Judge — Opinion by Huffman, J., with Benke, J., Dato, J. Minor contended, and the People agreed, that the court erred in calculating the minor’s maximum sentence when it used two firearm enhancements – 20 years for an enhancement pursuant to Penal Code section 12022.53 and 10 years for an enhancement pursuant to Penal Code section 12022.5 – in calculating the minor’s maximum term as 40 years. The Court of Appeal directs the juvenile court to modify its disposition to reflect the proper maximum term of 30 years because when more than one firearm enhancements is admitted or proved, only one of the terms may be imposed. (I) HSI

Willis Newton, Joanne — In re G.O., D076139 — Welfare and Institutions Code Section 366.21 — Carolyn Caietti, Judge — Opinion by Huffman, J., with Benke, J., Guerrero, J. Although the juvenile court had previously stated that Mother’s progress was “between minimal and adequate” and it believed there “is a substantial probability that the child will be returned to the physical custody of her mother” and that Mother’s progress was “adequate,” it court did not make the requisite finding that Mother made “significant” progress in alleviating the causes of removal, as required under Welfare and Institutions Code section 366.21, subdivision (g)(1)(B). Therefore, the matter is remanded with instructions for the juvenile court to make the finding and enter any further orders necessary. (I) LMF

Staley, John — People v. George, D076506 — Senate Bill 136 — Timothy R. Walsh, Judge — Opinion by Huffman, J., with McConnell, P.J., Dato, J. After this case was remanded for trial court to consider dismissal of appellant’s serious felony enhancements, the trial court declined to dismiss enhancements and appellant again appealed. In this appeal, Attorney General conceded and Court of Appeal agreed that appellant’s prison prior enhancement must be stricken under Senate Bill No. 136 because the judgment is not yet final. Judgment modified to strike the prison prior and reduce determinate part of appellant’s sentence to 13 years. (I) APJ

Weinberg, Allen/LeRoy Doris M./Holzer, William G./Lathrop, Stephen M. — People v. Singh/Duncan/Morris/Tolbert, E067985 — Instructional Error/Sentencing — Steve Malone, Judge — Opinion by Miller, J., with Codrington, J., Slough, J. The Court of Appeal reversed attempted premeditated murder convictions as to Tolbert, Singh, and Duncan because the jury was erroneously instructed on the kill zone theory. During the appeal, the California Supreme Court significantly restricted the kill zone theory of attempted murder in People v. Canizales (2019) 7 Cal.5th 591. Under Canizales, the kill zone theory can only be given if the only reasonable conclusion is that the defendant wanted to kill all parties to ensure the main target’s death. In other words, the defendant intended to create a zone of fatal harm. Because the evidence did not support that as the only reasonable inference in this case, convictions reversed.

In addition, with respect to all appellants, the sentence is vacated. With respect to Singh, Duncan and Tolbert, the matter must be remanded to the trial court to decide whether to strike the firearm enhancement under Senate Bill No. 620. With respect to Singh and Tobert, the gang enhancements must be stricken. With respect to Morris and Singh, the trial court should exercise its discretion to impose or dismiss serious felony enhancements under Senate Bill 1393 and dismiss prison prior enhancements pursuant to Senate Bill 136. (I) LKH

Grimm, Cynthia — People v. Linares, E068808 — Senate Bill 1393 — Michael B. Donner, Judge — Opinion by Codrington, J., with Miller, J., Slough, J. Remanded for re-sentencing so court can consider whether to dismiss prior serious felony enhancements pursuant to recently enacted Senate Bill No. 1393. (I) NFA

Bauguess, Susan — People v. Jefferson, Sr., E070627 — Senate Bill 136 — Samuel Diaz, Jr., Judge — Opinion by Codrington, J., with McKinster, J., Slough, J. Trial court shall strike the two one-year enhancements imposed for appellant’s prison priors which are now invalid under Senate Bill No. 136. (I) LAR

Scott, Patricia — People v. Saucedo, E070686 — Penal Code Section 654/Senate Bill 1393 — Harold T. Wilson, Judge — Opinion by Codrington, J., with Raphael, J., Menetrez, J. Sentence reduced by thirty-two months after the Court of Appeal agreed that Penal Code section 654 required staying term imposed for a criminal threat that was made simultaneously with an assault with a firearm. Court also remanded for trial court to use its discretion under Senate Bill No. 1393 to consider striking a five-year serious felony prior enhancement. (I) ABM

Jones, Jason — People v. Bautista, E070736 — Sentencing — Arjuna (Vic) Saraydarian, Judge (Ret. Judge) — Opinion by Codrington, J., with Raphael, J., Menetrez, J. The trial court abused its discretion by not continuing appellant’s sentencing hearing to allow appellant to be sentenced by the trial judge. Sentence reversed and matter remanded for re-sentencing. Trial court is directed to take reasonable steps in good faith to ensure sentencing by the same judge who presided over appellant’s trial. (I) LAR

Kent, Jill — People v. Gonzales, E070827 — Senate Bill 1393— John M. Tomberlin, Judge — Opinion by Miller, J., with Slough, J., Fields, J. Remanded for trial court to exercise discretion whether or not to strike five-year serious felony prior enhancement pursuant to Senate Bill 1393. (S) JMK

Derrick, John — People v. Huntsinger, E070886 — Senate Bill 136 — John M. Davis, Judge — Opinion by Codrington, J., with McKinster, J., Slough, J. Respondent and Court of Appeal agree that appellant’s four one-year prison prior enhancements must be stricken under Senate Bill No. 136. Matter remanded for the trial court to re-sentence appellant. (I) AMJ

Brisbois, Patricia — People v. Enciso, E070907 — Sentencing — Bernard Schwartz, Judge — Opinion by Miller, J., with McKinster, J., Slough, J. Matter remanded with directions to consider newly enacted sentencing discretion to strike prior serious felony and firearm enhancements under new sentencing laws. Prison prior enhancement must be stricken as well as fines and fees absent a finding of ability to pay. (I) NFA

Irza, Helen — People v. Dale, E070965 — Mental Health Diversion — Bambi J. Moyer, Judge — Opinion by Codrington, J., with Fields, J., Raphael, J., separately concurring. The Court of Appeal remanded to allow the trial court to conduct a mental health diversion hearing under Penal Code section 1001.36, which applies retroactively in this case. (S) HSI

Cannon, Gregory — People v. Williams, E071016 — Penal Code Section 654/Senate Bill 136 — John D. Molloy, Judge — Opinion by Slough, J., with McKinster, J., Codrington, J. Judgment modified to stay a misdemeanor vandalism count pursuant to Penal Code section 654. In addition, prison prior enhancements must be stricken under Senate Bill 136. (I) LAR

Harris, Donna — People v. Hardy, E071021 — Lesser Included Offense — Larrie R. Brainard, Judge — Opinion by Menetrez, J., with Ramirez, P.J., Miller, J. Petty theft conviction is reversed as a lesser included offense of appellant’s robbery conviction because appellant’s single act of taking one laptop was the factual basis for each offense. This is true even though there were two separate victims: the robbery victim did not own the laptop and the laptop’s owner was the victim of petty theft. (I) DKR

Cannon, Gregory — People v. Fraihat, E071129 — Penal Code Section 1437.7 Motion — Harold T. Wilson, Jr., Judge — Opinion by Ramirez, P.J., with McKinster, J., Menetrez, J. Trial court abused its discretion and violated appellant’s due process rights by failing to rule on the merits of the Penal Code section 1473.7 issue presented in his motion. Case remanded with instructions to consider appointing counsel for appellant if appropriate and to consider the motion on its merits. (I) LAR

Kross, Jeffrey — People v. Dalton, E071321 — Senate Bill 136 — John M. Davis, Judge — Opinion by McKinster, J., with Codrington, J., Slough, J. Case remanded to trial court with directions to re-sentence pursuant Senate Bill No. 136 which invalidates prison prior enhancements and applies retroactively. (I) LAR

Hinkle, Stephen — People v. Falls, E071538 — Dual Conviction/Senate Bill 136 — Charles J. Koosed, Judge — Opinion by Fields, J., with Slough, J., Menetrez, J. Attorney General conceded and Court of Appeal agreed that appellant’s conviction for false imprisonment must be dismissed (and fines/fees reduced accordingly) because the offense was based on the same conduct and is necessarily included within the kidnaping offense of which appellant was also convicted. In addition, appellant’s one-year prison prior enhancement must be stricken per Senate Bill No. 136. (I) APJ

Kross, Jeffrey — People v. Smith, E071671 — Direct Victim Restitution Fine — Steve Malone, Judge — Opinion by Fields, J., with Slough, J., Menetrez, J. Attorney General conceded and Court of Appeal agreed that appellant could not be held liable for burial expenses when her criminal actions, being an accessory after the fact, did not result in the victim’s death. Restitution order reversed. (I) APJ

Covin, Randi — People v. Silva, E071726 — Senate Bill 136 — Mac R. Fisher, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. Prior prison term enhancements must be stricken under Senate Bill No. 136. (I) HSI

Johnson, Mark — People v. Superior Court (G.M.), E072822 — Constitutionality of Senate Bill 1391 — Richard V. Peel, Judge — Opinion by Codrington, J., with Miller, J., Menetrez, J. Senate Bill No. 1391 modified Welfare and Institutions Code section 707 and barred, in most instances, minors under the age of 16 from being tried in criminal (adult) court. Court of Appeal in this case affirmed the trial court’s rejection of People’s argument that Senate Bill No. 1391 unconstitutionally modified Proposition 57. (I) CBM

Petition for review is granted; further action in this matter, S260313, is deferred pending consideration and disposition of a related issue in O.G. v. Superior Court, S259011.

Conner, Randall — People v. Pham, G051849 — Proposition 47 — Thomas A. Glazier, Judge — Opinion by Fybel, J., with O’Leary, P.J., Ikola, J. After passage of Proposition 47, appellant’s drug possession offense was reduced to a misdemeanor. However, the trial court denied appellant’s motion to dismiss a second count of misdemeanor street terrorism, rejecting appellant’s argument that reduction of the drug felony to a misdemeanor meant there was no longer felonious conduct on which to base a substantive gang offense. Having reconsidered the cause in light of People v. Valenzuela (2019) 7 Cal.5th 415, the Court of Appeal reversed the order denying appellant’s motion to dismiss his conviction for street terrorism. The court remanded with directions to grant the motion and dismiss the conviction. (I) HSI

Covin, Randi— People v. Wilkins, G055603 — Insufficient Evidence — Thomas M. Goethals, Judge — Opinion by Moore, J., with Fybel, J., Ikola, J. This case has had a long and tortured history. Appellant’s first degree murder conviction was originally reversed due to instructional error in 2013. (People v. Wilkins (2013) 56 Cal.4th 333.) The conviction had been based on a felony murder theory where a stove fell out of appellant’s truck as he left the scene of a burglary and another motorist was killed.

Before a retrial, appellant learned that certain California Highway Patrol officers had destroyed and altered their initial reports, which contained differing opinions about the causes of the collisions and the prosecution had failed to disclose this exculpatory evidence. Appellant filed a motion to recuse the Orange County District Attorney (OCDA), and a motion alleging outrageous government conduct. The trial court found prosecutorial misconduct on the part of two deputy district attorneys, but did not recuse the entire OCDA’s office. As a sanction, the court excluded felony murder as a theory of liability during the retrial, leaving only implied malice as a theory for second degree murder. Appellant was convicted of this charge.

On appeal, finding no evidence that defendant was speeding, making abrupt lane changes, or otherwise driving dangerously, the Court of Appeal reversed the second degree murder conviction. Since appellant’s actions of loading his truck with large stolen appliances in an unsafe manner and driving on the freeway with the tailgate down established criminal negligence, the court modified the conviction to involuntary manslaughter. (I) HCC

Correen, Ferrentino — In re Jeffrey Duval, G056247, 44 Cal.App.5th 401 — Habeas Corpus — Cheri Pham, Judge — Opinion by Thomspon, J., with O’Leary, P.J., Goethals, J. After the Court of Appeal issued an order to show cause, remanding and returning this case to the trial court for purpose of holding an evidentiary hearing on defendant’s petition for writ of habeas corpus filed, the People never filed a return, or any other response. Instead, at the hearing, after the trial court indicated its tentative ruling would be to grant defendant’s requested relief (re-sentencing based on ineffective assistance of counsel), the People objected. They contended an evidentiary hearing was required; but they failed to request leave to file a return or otherwise continue the proceeding. Over the People’s objection, the court granted the requested relief in the interest of justice and re-sentenced defendant. The People initiated the instant appeal.

The Court of Appeal found the People’s failure to file a return obviated any need for an evidentiary hearing. The People had misconstrued fundamental habeas corpus practice as set forth in People v. Romero (1994) 8 Cal.4th 728, 738-739. The order to show cause essentially directed respondent to file a return. The trial court was not required to request or suggest additional pleadings; it is not the court’s duty to tell a party how to litigate its case. Because the government failed to file a return, “the court accepts the undisputed factual allegations of the petition as true, petitioner has in effect been relieved of the burden of proving the factual allegations set forth in the petition.” (In re Serrano (1995) 10 Cal.4th 447, 456.) Accordingly, there was no need for an evidentiary hearing. The People forfeited any evidentiary (hearsay) objections. Further, the People misunderstood the nature of the remand order. The case had been returned to the superior court for a decision, it was not remanded for a reference hearing. Judgement affirmed. (I) CBM

Beaudreau, David — People v. Millan-Rodriguez, G056310 — Penal Code Section 1437.7 — Kimberly Menninger, Judge — Opinion by Goethals, J., with O’Leary, P.J., Ikola, J. The trial court denied appellant’s motion to vacate pursuant to Penal Code section 1437.7, which allows for a conviction to be vacated on the ground of prejudicial error that damaged the defendant’s ability to meaningfully understand or knowingly accept the immigration consequences of his plea agreement. Court of Appeal reversed the denial and remanded to the trial court with directions to determine whether defendant is indigent, and if so, to appoint counsel to represent him in connection with his motion to vacate his conviction under section 1437.7, and to otherwise comply with statutory requirements in considering the motion on the merits. (I) HSI

Webb, Reed — People v. Ruiz, G056538 — Instructional Error — Cynthia M. Herrera, Judge — Opinion by Goethals, J., with O’Leary, P.J., Moore, J. Appellant was convicted of driving or taking a vehicle in violation of Vehicle Code section 10851, subd. (a), but the instructions did not require the jury to find that the value of the vehicle was in excess of $950 as required for the offense to be a felony under a taking theory per Proposition 47. Because, in this case, it was not clear whether the conviction was based on a driving or a taking theory, the matter must be remanded for the People to either accept a misdemeanor conviction or re-try appellant on a theory of theft over $950 or driving. (I) HSI

Nordin, Kenneth — People v. Vandebrake, G056574 — Enhancements/Custody Credits — Elizabeth G. Macias, Judge — Opinion by Ikola, J., with Aronson, J., Thompson, J. The Court of Appeal ordered stricken an enhancement for use of a deadly weapon where such use is an element of the underlying charge of assault with a deadly weapon and, therefore, imposition of the enhancement if precluded. In addition, 233 days of excess pre-sentence custody credits should be applied to appellant’s parole term. (I) HSI

Jones, Cynthia — People v. Bach, G056750 — Senate Bill 1393/Credits — Gary S. Paer, Judge — Opinion by Thompson, J., with Moore, J., Dunning, J. (Ret. J.) Attorney General conceded and Court of Appeal agreed that matter must be remanded for court to consider dismissal of five-year serious felony prior enhancements in light of Senate Bill No. 1393 which authorizes the court to exercise discretion and which applies retroactively to appellant. In addition, appellant is entitled to three additional days of pre-sentence conduct credit due to a miscalculation by the trial court. (I) APJ

February 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

January 2020

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Back to Top

 

Recent Victories: 2020
Recent Victories: 2019
Recent Victories: 2018
Recent Victories: 2017
Recent Victories: 2016
Recent Victories: 2015
Recent Victories: 2014
Recent Victories: 2013
Recent Victories: 2012
Recent Victories: 2011

For lists from previous years, email staff attorney Anita Jog.

 

*The material found on this Web site is for informational purposes only. It should not be considered to be legal advice and is not guaranteed to be complete or up to date. Use of this Web site is not intended to create, and receipt of it does not constitute, an attorney-client relationship between the user and Appellate Defenders, Inc. (ADI) or any of the firm's attorneys. Readers should not rely upon or act upon this information without seeking professional counsel. See full disclaimer.