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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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

February 2021

Dain, Anthony — People v. Smith, No. D074546 — Senate Bill 1393 — Joan P. Weber, Judge — Opinion by Irion, J., with McConnell, P.J., Huffman, J. Remanded for trial court to exercise discretion as to whether to strike five-year serious felony prior enhancement under Senate Bill 1393. (I) HCC

Bewicke, Aurora — People v. Rebollar, D076572 — Probation Conditions/Assembly Bill 1950 — Polly H. Shamoon, Judge — Opinion by McConnell, P. J., with Benke, J., Irion, J. The Court of Appeal remanded to superior court to consider reduction of probation period to two years under Assembly Bill 1950. With respect to challenged probation conditions, appellant may challenge electronic search condition and stay-away order on remand. The alcohol/substance abuse conditions are ordered stricken unless the People can show a closer connection between the conditions and a legitimate government interest, i.e., that such conditions are reasonably directed at curbing appellant’s future criminality. (A) HCC

Staley, John — People v. Ruiz, D076580, (2020) 59 Cal.App.5th 372 — Post-Release Community Supervision — Kathleen M. Lewis, Judge — Opinion by McConnell, P.J., with O’Rourke, J., Dato, J. Due to CDCR error, appellant was placed on parole rather than post-release community supervision (PRCS) upon release from prison. While Penal Code section 3000.08, subd. (l), provides that a parolee may challenge the conditions of parole within the first 60 days of supervision and appellant was so advised, appellant was not provided with notice that he could challenge his placement on parole, nor did he understand the mistake in placement until his attorney noticed the error when parole revocation proceedings were initiated. The Court of Appeal held that it would be a due process violation to bar appellant from challenging his placement after the 60 days elapsed and the trial court erred in denying his motion to dismiss on grounds of untimeliness. The order was reversed and the trial court directed to grant the motion to dismiss and transfer appellant from parole to PRCS. (I) JMK

Garcia, Matthew — People v. Tapia, D076793 — Modification of Protective Order — Juan Ulloa, Judge — Opinion by Benke, J., with Haller, J., Guerrero, J. After the government exercised a peremptory challenge and removed the trial court which had been overseeing appellant’s probation term for about a year, the new trial court had only about 30 minutes to familiarize itself with the case before it denied appellant’s request to modify the protective order and allow appellant to return to living with his family. Because the trial court failed to take the necessary time to familiarize itself with the case and because it failed to interview appellant’s sisters as had been contemplated by the recused court, the trial court abused its discretion when it denied appellant’s motion. In addition, the court abused its discretion by failing to consider all the factors in subdivision (b)(6) of section 1203.3 in denying the motion. (A) CBM

Beugen, Heather — People v. Thomas, D077117 — Penal Code Section 1170.95 — Harry M. Elias, Judge — Opinion by Huffman, J., with McConnell, P.J., Aaron, J. Court of Appeal reversed trial court’s summary denial of appellant’s petition for re-sentencing pursuant to Penal Code section 1170.95. The Attorney General conceded and the Court of Appeal agreed that appellant had sufficiently established a prima facie case for relief; therefore, appellant should have been appointed counsel and given an opportunity to brief the issues. The matter is remanded to the trial court for further proceedings. (I) HSI

Romero, Lynda A. — People v. White, E073080 — Penal Code Section 1170.95 — Kyle S. Brodie, Judge — Opinion by Codrington, J., with Miller, J., Menetrez, J. Trial court’s order dismissing appellant’s Penal Code section 1170.95 petition as unconstitutional is reversed. (I) LAR

Pirko, Johanna — People v. Valenzuela, E073607 — Sentencing/Senate Bill 136 — Katrina West, Judge — Opinion by Miller, J., with Ramirez, P.J., Fields, J. Judgment is modified to strike deadly weapon enhancement because use of a deadly weapon is an element of the underlying offense of assault with a deadly weapon. In addition, prison priors ordered stricken per Senate Bill 136. (I) JMK

Gambale, Erica — People v. Wilson, E073753 — Senate Bill 136 — Samuel Diaz, Jr., Judge — Opinion by McKinster, J., with Slough, J., Menetrez, J. In a previous appeal, the matter was remanded for the trial court to exercise its discretion with respect to appellant’s serious felony prior enhancement under Senate Bill 1393. Although the trial court declined to re-sentence appellant, the effect of the remand was to extend finality so that the judgment was not final when Senate Bill 136 became effective. Accordingly appellant’s four prison prior enhancements must be stricken under the new law. (I) HCC

Pirko, Johanna — In re C.A., E074761 — Electronics Search Condition — Samah Shouka, Judge — Opinion by Miller, J., with Codrington, J., Menetrez, J. Minor admitted an allegation of taking a vehicle and her conditions of probation included an electronics search condition because, according to the juvenile court, references in the probation officer’s report raised a concern about the minor being exploited by adult males with whom she had committed prior offenses. Court of Appeal struck the condition as not being reasonably related to minor’s future criminality where there was no evidence electronics were involved in any of minor’s prior criminal conduct. (I) APJ

Missakian, C. Matthew — In re Poslof, E074992 — Proposition 57 — Gregory S. Tavill, Judge — Opinion by Miller, J., with Raphael, J., Menetrez, J. The Court of Appeal granted petitioner’s petition for writ of habeas corpus agreeing that CDCR’s regulations excluding non-violent sex offender registrants from early parole consideration conflicts with Proposition 57's amendment to the California Constitution. Matter is remanded for CDCR to evaluate petitioner for early parole consideration. (I) LAR

Torres, Steven — People v. Aloe, G056882 — Senate Bill 1393/Sentencing — David A. Hoffer, Judge — Opinion by Goethals, J., with Moore, J., Ikola, J. Matter is remanded for trial court to consider striking appellant’s serious felony prior enhancements under Senate Bill 1393. If the enhancement on the determinate sentence is not stricken, trial court should consider appellant’s argument that the enhancement on the determinate sentence must be made concurrent. (I) AMJ

Brisbois, Patricia — People v. Rodriguez, G057841 — Abstract of Judgment — W. Michael Hayes, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Ikola, J. The Court of Appeal ordered appellant’s sentence for attempted murder corrected to reflect a life term with a minimum parole eligibility of 15 years, rather than the 15 to life term ordered by the trial court. (I) LKH

Polsky, David L. — People v. Doan, G057918 — Penal Code Section 1170.95 — Jonathan S. Fish, Judge — Opinion by Ikola, J., with O’Leary, P.J., Moore, J. Court of Appeal reversed trial court’s denial of appellant’s Penal Code section 1170.95 petition where it was erroneously denied on the ground the new law is unconstitutional. Matter remanded for proceedings on the merits of appellant’s petition. (I) APJ

Matulis, Jean/Owen, Thomas — People v. Phabmixay/Nguyen, G058260 — Gang Evidence — Michael A. Leverson, Judge — Opinion by O’Leary, P.J., with Thompson, J., Goethals, J. Because the prosecution did not satisfy its burden of proving appellant and co-appellant committed offenses for a criminal street gang, gang enhancements on two counts are reversed. (I) JMK

Dain, Anthony J. — People v. Phung, G058301 — Penal Code Section 1170.95 — Jonathan S. Fish, Judge — Opinion by Ikola, J., with O’Leary, P.J., Moore, J. Court of Appeal reversed trial court’s denial of appellant’s petition under Penal Code section 1170.95. Court of Appeal found that the new law is constitutional; thus, the trial court’s denial, based on a finding that the new law is unconstitutional, was erroneous. Matter remanded for further proceedings on the merits of appellant’s petition. (I) APJ

Webb, Reed — People v. Marquez, G058719 — Penal Code Section 1170.95 — Michael A. Smith, Judge — Opinion by Fybel, J., with Aronson, J., Ikola, J. Trial court erroneously denied appellant’s petition under Penal Code section 1170.95 on the basis that the new law is unconstitutional. Because the new law is not unconstitutional, matter is remanded for trial court to consider the merits of appellant’s petition. (I) APJ

January 2021

Shudde, Athena/Buckley, Christian/McKim, Joanna — People v. Dean/Garcia/Valdez, D074371 — Juror Misconduct/Senate Bill 136 — Richard R. Monroy, Judge — Opinion by Huffman, J., with Haller, J., Irion, J. The Court of Appeal conditionally reversed the judgments for all appellants, agreeing that the trial court erred in denying the defense request to disclose juror information where the defense had established a prima facie showing of juror misconduct requiring the trial court to notify the jurors of the defense request. The matter is remanded to the superior court with instructions to notify jurors of the defense request and conduct a hearing in accordance with the Code of Civil Procedure section 237. The judgments may be reinstated if no misconduct is found. If the judgments are reinstated, Dean’s and Garcia’s prison priors must be stricken under Senate Bill No. 136, and the abstract of judgment corrected. (I) LKH

Ulibarri, Patricia — People v. Alford, D074513 — Sentencing/ Senate Bill 1393 — Christopher J. Plourd, Judge — Opinion by Benke, J., with Haller, J., Guerrero, J. Court of Appeal reversed for re-sentencing due to two sentencing errors, which the People conceded. The trial court erred when it added multiple five-year serious felony prior enhancements based on a single prior conviction. Only one enhancement to the aggregate sentence was authorized. In addition, on remand, the court must exercise its discretion with respect to the question of whether to impose or dismiss the enhancement pursuant to Senate Bill 1393. (I) AMJ

Klein, Jill — People v. Herrera, D075202 — Senate Bill 136 — David G. Brown, Judge — Opinion by Benke, J., with Aaron, J., Guerrero, J. Appellant’s prison prior enhancements ordered stricken under Senate Bill 136. (I) HCC

Hart, Mark A. — People v. Kohut, D075492 — Senate Bill 136 — Samuel Diaz, Jr., Judge — Opinion by O’Rourke, J., with Huffman, J., Irion, J. Court of Appeal agreed that under the version of the One-Strike law in effect at the time of appellant’s offenses, he should have been sentenced to only a single term of 15-years-to-life rather than the three consecutive terms of 15-years-to-life imposed by the court for three qualifying sex offenses committed in the course of a single occasion. In addition, one prison-prior enhancement must be stricken under Senate Bill 136. Matter remanded for re-sentencing. (I) APJ

King, Nancy — People v. Nowden, D075767 — Penal Code Section 1170.95 — Frederick L. Link, Judge — Opinion by Huffman, J., with Haller, J., Dato, J. The Court of Appeal reversed the summary denial of appellant’s Penal Code section 1170.95 petition where the denial was based on a finding that appellant was ineligible for relief due to true findings on special circumstance allegations. Although the true findings indicated that appellant was found to be a major participant who acted with reckless indifference to human life based on the law in effect at the time of the jury findings, those findings pre-dated the clarification of that law in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. Given this reality, the trial court could not have found, based on the prior findings alone, that appellant acted as a major participant with reckless indifference to human life. Matter remanded for trial court to conduct a hearing, after receiving briefing from both parties, to determine whether appellant has established a prima facie showing for relief. (I) CBM People’s petition for review granted (S265614), and case is being held pending disposition of a related issue in People v. Lewis (S260598).

Mazur, Janice — People v. Valladares, D075834 — Senate Bill 136 — Amalia Meza, Judge — Opinion by Benke, J., with McConnell, P.J., O’Rourke, J. Prison prior enhancement must be dismissed per Senate Bill No. 136. Case remanded for re-sentencing. (I) APJ

Crooks, Gary — In re Matthew H., D076399 — Penal Code Section 954 — Aaron Katz, Judge — Opinion by Huffman, J., with Haller, J., Dato, J. Where true findings of assault with a deadly weapon and assault with force likely to produce great bodily injury were based on the single act of shooting a pellet rifle at the victim, one finding must be vacated under Penal Code section 954 because the two allegations are different statements of the same offense. Matter remanded for juvenile court to vacate the latter true finding. (I) LKH

Coolman, Alex/Aros, Christine — In re Edgerrin J./Jamar D., D076461, (2020) 57 Cal.App.5th 752 — Motion to Suppress Evidence — Browder A. Willis, Judge — Opinion by Dato, J., with Haller, J., Guerrero, J., Dato, J. concurring. The Court of Appeal reversed the juvenile court’s denial of minors’ suppression motion. The juvenile court erred in finding that the minors’ encounter with police was consensual where four officers in two patrol cars, one with activated emergency lights, pulled up behind minor's parked car and contacted the driver with one officer positioned at each door to prevent the occupants from leaving. This conduct constituted a detention and the citizen’s tip – that there were Black males in a parked Mercedes who were “acting shady” – did not establish reasonable suspicion to justify the detention. Because there was conflicting evidence as to whether law enforcement was aware of other information that might establish reasonable suspicion for the stop and the trial court made no credibility findings in this regard, the matter is remanded for the juvenile court for a hearing. (I) LKH

Behravesh, Justin — People v. Soto, D076509 — Assembly Bill 1950 — Garry G. Haehnle, Judge — Opinion by McConnell, P.J., with Benke, J., Huffman, J. The Court of Appeal vacated the order granting probation and remanded the matter for the trial court to determine whether appellant’s probation term must be reduced to two years under Assembly Bill 1950 which went to effect on January 1, 2021. (A) LKH

Boyer, Ron/Jones, Jason — People v. Quiroz/Bonilla, E069820 — Kill Zone Theory/Sufficiency of Evidence — Bernard Schwartz, Judge — Opinion by Miller, J., with Fields, J., Raphael, J. Applying the Supreme Court's decision in People v. Canizales (2019) 7 Cal.5th 591, which significantly restricted application of the kill zone theory, the Court of Appeal reversed two attempted murder convictions, concluding that kill zone instructions were not supported by the evidence in this case and that the instruction was prejudicial. In addition, because the evidence did not support verdicts based on the remaining theory - specific intent to kill the victims, no re-trial is warranted. Finally, the court reversed conspiracy to commit murder convictions finding there was not substantial evidence that appellants intended to kill the victim of those charges. Appellant Bonilla is also entitled to five additional days of credit for time served. The matter is remanded to the trial court for re-sentencing. (I) LKH

Jones, Cynthia — People v. Guerra, E071895 — Senate Bill 1393 — Thomas D. Glasser, Judge — Opinion by Raphael, J., with McKinster, J., Fields, J. Case remanded for trial court to exercise its discretion pursuant to Senate Bill 1393. (I) AMJ

Gambale, Erica — People v. Jennings, E072096 — Sentencing — Chad W. Firetag, Judge — Opinion by Fields, J., with Codrington, J., Slough, J. Sentence on one count reversed as trial court did not understand it had discretion to sentence appellant concurrently under Penal Code section 1170.15, and record does not indicate court would have declined to sentence concurrently. (I) JMK

Angres, Robert — People v. Amaya, E074093 — Pre-sentence Credits — Becky Dugan, Judge — Opinion by Slough, J., with Codrington, J., Menetrez, J. In this appeal from a re-sentencing, the Court of Appeal agreed that the trial court erred in awarding pre-sentence credits based only on the time that was spent in custody prior to the original sentencing. Instead, per People v. Buckhalter (2001) 26 Cal.4th 20, 23, the court was required to add the days for time spent in custody since the time of original sentencing. Trial court directed to prepare an amended abstract of judgement reflecting 1,097 actual days of confinement. (I) CBM

O’Connor, Sheila — People v. Price, G057277 — Senate Bill 136 — Michael J. Cassidy, Judge — Opinion by Thompson, J., with Bedsworth, J., Aronson, J. Two prison prior enhancements ordered stricken under Senate Bill 136. (I) AMJ

Peabody, Jennifer — People v. Bonilla, G057654 — Penal Code Section 654 — Michael A. Leversen, Judge — Opinion by Thompson, J., with Aronson, J., Goethals, J. The trial court erred in failing to stay, pursuant to Penal Code section 654, the two-year concurrent sentence it imposed for actively participating in a criminal street gang where appellant was separately punished for the attempted murder which was the basis for the gang participation offense. (I) LAR The Supreme Court has granted review on (S265911); further action is deferred pending consideration and disposition of a separate issue in People v. Lemcke (S250108).

Smith, Barbara — People v. Phillips, G057750 — Penal Code Section 1170.95 — Brian S. McCarville, Judge — Opinion by Aronson, J., with Fybel, J., Ikola, J. The Court of Appeal reversed trial court’s prima facie-stage denial of appellant’s Penal Code section 1170.95 petition challenging his convictions of murder and attempted murder. Relying on its recollection of the trial and its reading of the opinion in the direct appeal, the trial court found that appellant was the actual perpetrator and that no jury instruction was given permitting conviction on any theory abrogated by Senate Bill 1437. However, appellant argued, and the Attorney General conceded, the trial court was mistaken in both respects. Both the trial evidence and the opinion in the direct appeal left open the possibility appellant was convicted as an aider and lacked intent to kill. Matter remanded for a determination on the merits of appellant’s eligibility for relief under section 1170.95. (I) NFA

Bostwick, James — People v. Rivera, G058213 — Penal Code Section 1170.95 — James Edward Rogan, Judge — Opinion by Thompson, J., with Bedsworth, J., Moore, J. Where the District Attorney never formally responded to appellant’s contentions that the legislative changes created by Senate Bill No. 1437 did not materially amend Proposition 7 and 115, the Court of Appeal found no reason to depart from the previously published decisions finding the law constitutional. Matter remanded with directions for superior court to conduct proceedings on the merits pursuant to Penal Code section 1170.95. (I) CBM

Power, Richard – People v. Burnett, G058563 — Penal Code Section 1170.95 — Cheri T. Pham, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Thompson, J. Case is remanded for further proceedings under Penal Code section 1170.95 where the trial court incorrectly denied the petition on the ground that Senate Bill 1437/Penal Code section 1170.95 were unconstitutionally inconsistent with voter initiatives. (I) NFA

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Recent Victories: 2021
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.

 

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