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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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

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with respect to appellant’s serious felony prior enhancement and striking a prison prior enhancement which is no longer valid.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.