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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.

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

March 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

February 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

January 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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