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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.

2017 | 2016 | 2015 | 2014 | 2013 | 2012 | 2011

 

Cases are posted on the Recent Victories page only after the remittitur issues.

July 2017

Jones, Cynthia — People v. Romero, D067052 — Sentencing/Restitution — Peter C. Deddeh, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Nares, J. In this appeal from proceedings on remand, Attorney General conceded and Court of Appeal agreed that the trial court erred in reinstating and resentencing on a count that had been dismissed at the People’s request. Furthermore, because restitution to one victim was duplicative of restitution owed to another, remand is required to recalculate restitution non-duplicative restitution owed to that victim. (I) HCC

De La Sota, Richard — People v. Ancho, D067997 — Prior Conviction — Edward P. Allard, III, Judge — Opinion by Huffman, J., with O’Rourke, J., Aaron, J. Appellant argued his admission of a prior conviction must be set aside because the trial court failed to advise him of the rights he was giving up and the consequences of admission. The Court of Appeal agreed and found the failure to provide appellant with any advice or admonition was prejudicial. The admission of the prior conviction was vacated and the case was remanded for further proceedings to determine the truth of the alleged prior. (I) HSI

Ferguson, Susan — People v. Dreyer, D068427 — Penal Code Section 1170.18 (Prop. 47) — Peter C. Deddeh, Judge — Opinion by Benke, J., with Nares, J., Aaron, J. Appellant was charged with possession of methamphetamine. The offense occurred prior to the enactment of Proposition 47, but the trial occurred after the enactment. Appellant argued Proposition 47 applied to him and that he could raise the issue on appeal without the need to petition under Penal Code section 1170.18. The Court of Appeal agreed, vacated the felony sentence for possession of methamphetamine and remanded the matter to the superior court. (A) HCC

McKim, Joanna — People v. Garcia, D069589 — Sentencing — Richard S. Whitney, Judge — Opinion by Nares, J., with Huffman, J., Aaron, J. Appellant was sentenced to 12 consecutive life sentences for 12 counts of lewd acts with a child under 14 years old. At the time of sentencing, the trial court stated that consecutive sentences were prescribed by law in cases involving separate victims or the same victim on separate occasions. However, the charge of lewd acts with a child under 14 is not an offense that statutorily requires mandatory consecutive sentences, so the trial court should have exercised discretion in determining whether the sentences should be concurrent or consecutive. Respondent conceded. Appellant’s sentence was vacated and the case was remanded for resentencing. (I) MCR

Coleman, Jared — People v. Sharif, D070269 — Fines and Specific Performance — Harry M. Elias, Judge — Opinion by McConnell, P.J., with Haller, J., Aaron, J. Where plea bargain called for probation and six months in custody, the court’s addition of a $820 penal fine was a significant deviation from the agreement. The appropriate remedy in this case, where the fine is discretionary and the court’s imposition of it seemed perfunctory, is to strike the fine rather than allow appellant an opportunity to withdraw the plea. (I) HCC

Norris, Ronda — People v. Girgis, D070461 — Clerical Error — Patrick H. Donahue, Judge — Opinion by Huffman, J., with Nares, J., Haller, J. In response to appellant’s claim that trial court should not have ordered a parole revocation fine in this case where appellant was sentenced to life without the possibility of parole, the Attorney General argued that no such fine was orally imposed. The Attorney General conceded and the Court of Appeal agreed that the sentencing minute order and abstract of judgment included such a fine which must be stricken to comport with the oral pronouncement. (I) APJ

O’Connor, Sheila — People v. Block, D070483 — Expungement — Theodore M. Weathers, Judge — Opinion by Benke, J., with McConnell, P.J., Haller, J. Appellant is entitled to expungement of his convictions under Penal Code section 1203.4 where probation was terminated early, he had no violations, and he was in good standing with his probation officers. The trial court’s order denying expungement is reversed and the trial court is directed to permit defendant to withdraw his plea and dismiss the charges against him. (I) PMI

Greenberg, Mark/Levy, Richard — People v. Walker/Fradiue, D071097 — Penal Code Section 654/Insufficient Evidence — John M. Tomberlin, Judge — Opinion by Benke, J., with McConnell, P.J., Haller, J. Appellants contended that the trial court erred in not staying under Penal Code section 654 their sentences for robbery and active gang participation. The Court of Appeal agreed: with respect to robbery, it was the basis for the felony murder conviction for which appellants were already being punished; with respect to the gang participation, the underlying felonies were the murder and robbery, so the punishment for murder was sufficient. As to Fradiue, the Court of Appeal found there was insufficient evidence to support the gang-murder special circumstance. (I) LAR

Gambale, Jennifer — People v. Gonzalez (2017) 2 Cal.5th 1138, E059859 — Criminal Threats — William S. Lebov, Judge — Opinion by Corrigan, J., with Cantil-Sakauye, C.J., Werdegar, J., Chin, J., Liu, J., Cuellar, J., Kruger, J., concurring in part. Reversing the Court of Appeal, the Supreme Court held Penal Code section 422 is inapplicable to non-verbal physical gestures because the statute proscribes “statement[s] made verbally, in writing, or by means of an electronic communication device . . ..” Accordingly, the statute did not apply to the hand gang signs, hand signs mimicking a gun, or the hand signs mimicking throat slashing, allegedly displayed by appellant and his companions. (I) NFA

King, Nancy — People v. Thompson, E062971 — Firearm Enhancements — Irma Poole Asbury, Judge — Opinion by Miller, J., with Hollenhorst, J., McKinster, J. Two consecutive 1-year principal-armed-with-a-firearm enhancements (Pen. Code, § 12022, subd. (a)) were stricken. Appellant was convicted of robbery, along with a personal firearm use (Pen. Code § 12022.53, subd. (b)) finding and a Penal Code section 12022, subdivision (a), arming finding; he received enhancements for both firearm findings. In a separate count, he was convicted of assault with a firearm on a different victim, along with a section 12022, subdivision (a) finding, for which he received an additional year. The principal-armed findings were apparently based on the fact that appellant’s accomplice was armed with a gun which was separate from the gun appellant used in the incident. Despite the separate guns, the Court of Appeal found the arming enhancement on the robbery was improper because under People . Gonzalez (2008) 43 Cal.4th 1118, only one firearm enhancement is permitted for a single count. The court found the arming enhancement on the assault with a firearm count was barred by the provision in section 12022 exempting crimes in which arming is an element of the offense. (I) NFA

Kreit, Alex — People v. Jose, E063253 — Violation of Plea Agreement — Becky Dugan, Judge — Opinion by Codrington, J., with Miller, J., Slough, J. Appellant pleaded guilty to identity fraud in one case and receiving stolen property, plus a prison prior, in another. It was agreed that his sentence for identity fraud would be 16 months (1/3 the midterm doubled because of a strike) consecutive to the sentence of 44 months (low-term doubled plus one-year enhancement) for receiving stolen property, for a total of 60 months. When the receiving stolen property conviction was reduced to a misdemeanor under Penal Code section 1170.18, the trial court refashioned the sentence and imposed 48 months (double the midterm) for the identity fraud conviction. The Court of Appeal held that while the court did have jurisdiction to resentence appellant on the identity fraud conviction, the sentence imposed exceeded the terms of the plea agreement. Case remanded for resentencing. (A) HSI

Peabody, Jennifer — People v. Pimentel, E063608 — Serious Felony Enhancement — J. David Mazurek, Judge — Opinion by Fields, J., with Ramirez, P.J., Miller, J. The information alleged three priors: a criminal threat as a serious felony; the same offense as a prison prior; and a second degree burglary as a prison prior. The trial court imposed two five-year serious felony enhancements, but no term for the prison priors. The Court of Appeal rejected respondent’s argument that the second degree burglary qualified as a serious felony and reversed one of the serious felony enhancements. Matter remanded for re-consideration of the prison priors. (I) HCC

Nelson, Laurel — People v. Carrillo, E063717 — Probation Conditions — Eric M. Nakata, Judge — Opinion by Ramirez, P.J., with Codrington, J., Slough, J. Attorney General conceded and Court of Appeal agreed that several conditions of probation required modification to avoid constitutional violations. The condition requiring notice to probation officer of any move 24 hours beforehand is modified to include a knowledge requirement and allow for post-move notice within 24 hours; various modifications were made to the condition requiring easy access to residence by probation officers; and the requirement to attend Alcoholics Anonymous was modified to allow for a suitable secular alternative. (I) APJ

Cioffi, Eric/Irza, Helen — People v. Smith, E064110 — Insufficient Evidence — Mark A. Mandio, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J., dissenting. Appellant argued and the Court of Appeal agreed that there was insufficient evidence he and the victim were cohabiting to support the conviction for domestic violence. The court reduced appellant’s domestic violence conviction to the lesser included offense of simple battery. The dissent disagreed with the majority that the evidence was insufficient. (A/S) HSI

Norris, Ronda — People v. Holmes, E064735 — Penal Code Section 654 — Eric M. Nakata, Judge — Opinion by Slough, J., with McKinster, J., Miller, J. Appellant argued that his assault conviction should be reversed because there was insufficient evidence the victim was in his care or custody at the time of the injury, and that if the assault conviction was affirmed, Penal Code section 654 required the court to stay the sentence on the murder count. The Court of Appeal agreed in part, upholding the assault conviction and staying the sentence on the murder count under Penal Code section 654. The result is a total sentence reduced from 40 years to life to 25 years to life. (I) HSI

Packer, Trent — People v. Bartlett, E064860 — Penal Code Section 1170.18 (Prop. 47)/Vehicle Code Section 10851 — Raymond Haight, Judge — Opinion by Slough, J., with Miller, J., with Hollenhorst, J., concurring in part and dissenting in part. Although the court affirmed the trial court’s denial of Proposition 47 relief for reduction of a Penal Code section 496d conviction, the majority reversed and remanded a denial of relief as to Vehicle Code section 10851 convictions. The police reports in evidence were unclear whether the convictions were based on theft or driving. On remand, the trial court shall hold an evidentiary hearing to determine the basis of the conviction and, if theft, the value of the vehicles. (A) HCC

Edwards, John — People v. Kossak, G052229 — Transportation — Thomas A. Glazier, Judge — Opinion by Moore, J., with O’Leary, P.J., Bedsworth, J. Appellant argued that reversal was required, because appellant was convicted of transporting drugs under Health and Safety Code section 11360 without a finding that it was done for the purpose of sale, as now required under the newly amended version of the statute. The Court of Appeal agreed reversal was required and the case was remanded for retrial on the section 11360 charge. (I) HSI

Holzer, William — People v. Garcia, G052567 — Instructional Error — Steven D. Bromberg, Judge — Opinion by Moore, J., with O’Leary, P.J., Bedsworth, J. Appellant and two friends fought a man, Ortiz, in the back of a convenience store. After Ortiz hit appellant with a large belt buckle, appellant stabbed Ortiz several times. The jury rejected appellant’s claim of self-defense and convicted appellant of attempt murder. Based on appellant’s testimony that he was scared and feared for his life after Ortiz hit appellant with the belt buckle, the trial court erred when it failed to instruct with imperfect self-defense. Because there is a reasonable chance the jury would have convicted appellant of attempt voluntary manslaughter under an imperfect self-defense theory, the conviction was reversed. (I) CBM

Smith, Kevin — People v. Lorenzo, G052781 — Insufficient Evidence Person Present Allegation — Cheri T. Pham, Judge — Opinion by Thompson, J., with Bedsworth, J., Moore, J. Court of Appeal agreed with appellant’s argument that insufficient evidence supported the violent felony allegation: that a person was present in the residence when appellant burglarized an attached garage. In this case, the resident was found in her home by the time police arrived in response to a call from a neighbor but this was insufficient to prove resident was in the home at the time of the offense. (I) APJ

Dodd, John — People v. Brandon, G053045 — Dual Conviction — Michael J. Cassidy, Judge — Opinion by Fybel, J., with Aronson, J., Ikola, J. Attorney General conceded and Court of Appeal agreed that appellant’s conviction for receiving stolen property must be reversed because it was based upon the same property which was the object of the robbery charge and a defendant cannot be convicted of both stealing and receiving the same property. (I) APJ

Crawford, James — In re J.M., G053157 — Correction of Clerical Errors — Lewis W. Clapp, Judge — Opinion by Thompson, J., with Fybel, J., Ikola, J. Attorney General conceded and Court of Appeal agreed that case must be remanded for juvenile court to orally pronounce minor’s maximum term of confinement, the mandatory restitution fine amount, and the intended hours of curfew. (I) APJ

Prince, Diana/Pfeiffer, Richard — In re E.J. et al., G054076 — Relative Placement — Dennis J. Keough J., Judge — Opinion by Fybel, J., with Moore, J., Thompson, J. Court of Appeal reversed the disposition orders of the juvenile court with respect to two of the minors in the case because they had a different father from the others and Orange County Social Services Agency failed to assess the paternal grandparents for placement. The Agency had the obligation to determine whether the grandparents were a viable placement option for the children and the grandparents had no obligation to come forward and affirmatively request placement. Case remanded with directions to the juvenile court to determine whether the grandparents were a placement option. If the grandparents were not a placement option, the juvenile court’s order is to be reinstated. (I) MAC

June 2017

Holzer, Willliam — People v. Williams, D067924 — Prison Priors — Blaine K. Bowman, Judge — Opinion by Prager, J., with McConnell, P.J., Nares, J. Attorney General conceded and the Court of Appeal agreed that the trial court was required to strike appellant’s prison priors rather than staying them. Appellant’s sentence was modified to strike the four prison prior enhancements under Penal Code section 667.5, subdivision (b). (I) HSI

Kington, Benjamin — People v. Godina, D068299 — Probation Conditions — Garry G. Haehnle, Judge — Opinion by O’Rourke, J., with Benke, J., McDonald, J. Appellant argued and the Court of Appeal agreed that the probation condition requiring her to participate and comply with any assessment program if directed by her probation officer was an overbroad delegation of power. The condition was modified to add language specifying that assessment programs be related to the dangers and harms of drug smuggling and drug trafficking. (A) HSI

Romero, Lynda — People v. Cesena, D069114 — Correction of Abstract of Judgment — William D. Lehman, Judge — Opinion by Aaron, J., with Huffman, J., Haller, J. Appellant argued the trial court awarded 996 days of actual custody credit but that the abstract of judgment erroneously stated he had 987 days. The People conceded and the Court of Appeal agreed that the abstract of judgment should be amended. The court directed the trial court to amend the abstract with days of actual credit pronounced at sentencing. (I) SDS

Crooks, Gary — People v. Samuelson, D069270 — Custody Credit — Dwayne K. Moring, Judge — Opinion by Nares, J., with O’Rourke, J., Irion, J. The People conceded and the Court of Appeal agreed that appellant was entitled to a total of 723 days of resentence custody credit. Judgment modified to reflect one additional day of conduct credit. (I) SDS

Wenzell, Lewis A. — People v. Behnke, D069613 — Sentencing — Patricia K. Cookson, Judge — Opinion by Aaron, J., with McConnell, P.J., O’Rourke, J. Attorney General conceded and Court of Appeal agreed that drug prior enhancements must be stricken rather than stayed, and, where trial court clearly intended not to enhance the sentence, Court of Appeal determined remand was not necessary and ordered the enhancements stricken. (I) APJ

Donaldson, Britton — In re Edwin R., D069985 — Probation Conditions — Aaron H. Katz, Judge — Opinion by Aaron, J., with Nares, J., Haller, J. The probation condition requiring minor to provide passwords to any and all internet sites he accesses is unconstitutionally overbroad. The Court of Appeal ordered the probation condition modified to say “minor to provide all passwords or pass phrases to any of the above-identified devices, and to any internet sites or accounts that he uses or accesses electronically to send or receive communications...that are considered social media platforms...and/or that are used for the collection or dissemination of videography and photography.” (A) LAR

Booher, Robert — People v. Cowan, D070550 — Penal Code Section 654 — Lantz Lewis, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Benke, J. Appellant committed a robbery by scaring a taxicab driver, who fled his vehicle in an isolated area. Before taking off with personal possessions of the cabdriver, appellant attempted to hot wire and drive the cab, damaging the ignition. The ignition damage was the basis for a vandalism conviction and an eight-month sentence consecutive to the sentence for robbery. The Court of Appeal concluded that the only reasonable inference to be drawn from the evidence, the temporal proximity of the damaging of the ignition, and the taking of the property, is that defendant damaged the ignition solely to accomplish the robbery of the car and its contents. Therefore, the court ordered the consecutive eight-month sentence stayed pursuant to Penal Code section 654. (I) HCC

Ball, Lindsey — People v. Durazo, D070901 — Lesser Included Offense Instructions — William D. Lehman, Judge — Opinion by Nares, J., with McConnell, P.J., Benke, J. Appellant was convicted of making a criminal threat. The Court of Appeal held the trial court erred in failing to instruct on the lesser included offense of attempted criminal threat where the intoxicated defendant threatened to kill his wife while other family members stood between the two, and where the wife testified she was not afraid because she knew appellant was not capable of such an act. Remanded for the prosecution to either accept reduction to attempted criminal threat or seek retrial. (I) NFA

Stevenson, Theresa — People v. Robertson, D070924 — Penal Code Section 1170.18 (Prop. 47) — David J. Danielsen, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. Following People v. Gonzales (2017) 2 Cal.5th 858, the Court of Appeal reversed a Proposition 47 denial where appellant entered a commercial establishment during business hours and, using a stolen credit card (theft by false pretenses), purchased $10 worth of soda and cigarettes. (I) HCC

Stevenson, Theresa — People v. Echeverria, D071010 — Penal Code Section 1170.18 (Prop. 47) — David J. Danielsen, Judge — Opinion by Huffman, J., with Benke, J., Haller. Following People v. Gonzales (2017) 2 Cal.5th 858, the Court of Appeal found appellant’s theft by false pretenses crime qualified for Proposition 47 reclassification as a shoplifting. Case remanded so trial court can grant the requested relief. (I) CBM

Gold, Neale — In re Adalberto G., et al., D071620 — Reasonable Services — Blaine K. Bowman, Judge — Opinion by O’Rourke, J., with Nares, J., Dato, J. The Court of Appeal reversed the juvenile court’s findings that the father was provided reasonable services. The father, who was deported and lives in Mexico, argued that the Agency did not offer or provide reasonable services to him. He wanted custody of his children if they were removed from their mother’s care. The Agency acknowledged it did not provide “gold plated services” to the father, but asserted the services were reasonable under the circumstance of the father living in Mexico. The court ruled that the Agency did not provide reasonable services for the father stating, just as there is no “Go to jail, lose your child” rule, there is no “Go to Mexico, lose your child” rule. There are parenting education programs in Mexico through DIF, and there are available visitation services also available. (I) LMF

White, Catherine — People v. Brown (2017) 11 Cal.App.5th 332, E059735 — Insufficient Evidence/Penal Code Section 654 — Rodney A. Cortez, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. Court of Appeal held that when the prosecution elects a specific factual theory of guilt, to obviate the need for a unanimity instruction, the reviewing court is bound by that election. Because, in this case, there was insufficient evidence to support appellant’s convictions for rape in concert and rape by force based on the prosecution’s elected theory, the convictions must be dismissed. A unanimity instruction would have been required in this case because appellant was charged with rape in concert and rape by force based on his involvement in the rape of a woman first with a group of men in one location and then in a separate apartment by himself. Because the jury might have found appellant guilty of both charges based on his conduct in either location, a unanimity instruction would have been required had the prosecution not made an election. The prosecution elected to rely upon the single rape in a separate apartment. Court of Appeal found there was insufficient evidence of force or fear used in the apartment to support a conviction of rape in concert or rape by force. Thus the convictions must be reversed and retrial is barred. With respect to remaining convictions for rape of an intoxicated woman and rape of an unconcious woman, after remand from the Supreme Court following People v. White (2017) 2 Cal.5th 349, the court concluded that while appellant can be convicted under multiple subdivisions of Penal Code section 261, multiple punishment is barred under Penal Code section 654. The court ordered the sentence reduced from 29 years to eight years. (I) HCC

Duxbury, Brett — People v. Scarff, E062827 — Sentencing— Ronald L. Johnson, Judge — Opinion by Codrington, J., with Hollenhorst, J., Slough, J. The Court of Appeal ordered that the abstract of judgment be corrected to show a 16-month consecutive one-strike sentence for attempted first degree robbery, instead of the unauthorized 32 months imposed by the trial court. (I) HSI

Crawford, James — People v. Smith (2016) 1 Cal.App.5th 266, E062858 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Slough, J., with Hollenhorst, J., Miller, J. Appellant sought to have two felony second degree commercial burglary convictions designated as misdemeanor shopliftings under Penal Code section 1170.18. The trial court denied appellant’s resentencing petition for both counts. It reasoned that in count 1 the victim check-exchange business was not a commercial establishment. For count 2, it found appellant had not met his burden in showing the theft was valued at less than $950. The Court of Appeal reversed. It held the check exchange business constituted a commercial establishment under the new Penal Code section 459.5. As for count 2, it found that the record on appeal did not support the assertion that appellant failed to meet his burden of proof as to the value of property. The order was reversed and remanded for further proceedings. (I) HSI

Hill, Melissa — People v. Riley, E063035 — Penal Code Section 1170.18 (Prop. 47)/ Prison Prior — Irma Poose Asberry, Judge — Opinion by Hollenhorst, J., with McKinster, J., Miller, J. Following People v. Abdallah (2016) 246 Cal.App.4th 736, the Court of Appeal found the trial court erred in imposing a Penal Code section 667.5, subdivision (a) prior prison term enhancement for appellant’s narcotics possession conviction which had previously been reduced to a misdemeanor under section 1170.18. (I) NFA

Jones, Cynthia — People v. Salgado, E063247 — Penal Code Section 654 — Ronald M. Christianson, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Where appellant was convicted of kidnaping with intent to commit rape and also the intended rape, the sentence for conviction of the rape charge must be stayed per Penal Code section 654. (I) HCC

Erickson, Kristin — People v. Washington, Jr., E063814 — Gang and Firearm Enhancements — Eric M. Nakata, Judge — Opinion by Slough, J., with Miller, J., Codrington, J. Under People v. Jones (2009) 47 Cal.4th 566 and People v. Brookfield (2009) 47 Cal.4th 583, where the gang statute’s alternate penalty of life imprisonment applies, the gang enhancement is unauthorized. The firearm enhancement is also unauthorized where the defendant did not personally use the firearm. (I) PMI

Somers, Robert — People v. Lua (2017) 10 Cal.App.5th 1004, E064038 — Sentencing — Jeffrey L. Gunther, Judge — Opinion by Hollenhorst, J., with Miller, J., Slough, J. Trial court misunderstood its sentencing discretion and believed the sentence it imposed for appellant’s transportation offense, which included three Health & Safety Code section 11370.2 enhancements, was the lowest sentence possible. Case was remanded to allow the trial court to strike one or all enhancements under Penal Code section 1385. (I) CBM

Vorobyov, Gene — People v. Vrabel, E064080 — Sentencing — John M. Davis, Judge — Opinion by Miller, J., with Hollenhorst, J., Slough, J. The prison prior enhancement that was found true must be imposed or stricken, not stayed. In addition, the presentence conduct credit was miscalculated by one day. (I) PMI

Martin, Arthur — People v. Cano, E064639 — Sentencing — Patrick F. Magers, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Slough, J. Appellant argued that the imposition of a 10-year gang enhancement was unauthorized because the circumstance that gave rise to his life without parole term was the same allegation of gang activity. The Court of Appeal agreed under People v. Lopez (2005) 34 Cal.4th 1002, 1010. (I) HSI

Fitzer, Richard — People v. Dantos, E064645 — Penal Code Section 1170.18 (Prop. 47) — Becky L. Dugan, Judge — Opinion by Hollenhorst, J., with Codrington, J., Ramirez, P.J., concurring and dissenting. This is a People’s appeal from the granting of appellant’s Proposition 47 petition. Appellant was convicted of one count of second degree burglary, (Pen. Code § 459.) The burglary took place at a bank where appellant attempted to process a check for $500. The Court of Appeal affirmed the trial court’s order reducing the conviction to a misdemeanor and found that a bank is a commercial establishment under Penal Code section 459.5. The dissent took issue with the People’s purported concession during the appellate proceedings that trial court’s ruling should be affirmed so the People could petition for review on an expedited basis. According to the dissent, the People should have abandoned the appeal under the circumstances. (I) HSI

Ferguson, Susan — People v. Brown, E064679 — Insufficient Evidence Failure to Register — Lorenzo R. Balderrama, Judge — Opinion by Fields, J., with Ramirez, P.J., Miller, J. Court of Appeal reversed appellant's conviction of failing to register because there was insufficient evidence appellant had been adjudicated of the alleged registrable offense, namely assault to commit rape. To determine the nature and circumstances of the conduct underlying the prior adjudication, the court held, under People v. Guerrero (1988) 44 Cal.3d 343 and People v. Martinez (2000) 22 Cal.4th 106, that the trier of fact may look beyond the judgment to the entire record of the conviction, but no further. In this case, the record showed no more than an adjudication for violation of Penal Code section 220. Since that statute may be violated not only by assault to commit rape, but also by assault to commit mayhem, which is not a registrable offense, the evidence was insufficient to prove appellant was required to register. (I) LKH

Smith, Kyle — People v. Jackson, E064707 — Penal Code Section 1170.18 (Prop. 47) — Edward Webster, Judge — Opinion by Fields, J., with Ramirez, P.J., Miller, J. Trial court improperly placed appellant on one year of Postrelease Community Supervision (PRCS) after reducing appellant’s sentence to a misdemeanor under Proposition 47. Case remanded to allow trial court to consider whether to impose one year of parole or to release appellant from parole. (I) CBM

Jones, Jason — People v. Driver, E064750 — Health & Safety Code Section 11351.5 — Kyle S. Brodie, Judge — Opinion by Hollenhorst, J., with McKinster, J., Miller, J. Appellant contended that he was entitled to retroactive application of the amended version of Health and Safety Code section 11351.5, which would reduce his lower term sentence for possession of cocaine for sale from three years to two years. Attorney General conceded and Court of Appeal agreed. The court ordered the judgment to be modified to reflect a two year sentence for possession of cocaine for sale, and the trial court was directed to issue an amended abstract of judgement. (I) HSI

Conner, Randall — People v. Heyman, E064803 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Ramirez, P.J., with Miller, J., Slough, J. Petitioner sought reduction of his conviction for receiving stolen property where there was a question about the value of the stolen property. The victim had offered a valuation in excess of $2,000. A defense investigator had calculated, and defense counsel had submitted, a valuation of far less then $2,000 but above $950. However, this calculation also included items seized but not included in defendant’s plea. The petition was denied. Court of Appeal found that it was error to consider property not included in the admitted charge and that the trial court also erred in failing to consistently use fair market value as a means of valuation. The matter is remanded for further hearing. (I) HCC

Larson, Eric — People v. Gentile, E064822 — Natural and Probable Consequences — Graham A. Cribbs, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J. The Court of Appeal reversed appellant’s premeditated murder conviction where the trial court incorrectly instructed jurors defendant could be convicted of that offense under the “natural and probable consequence” theory of aider and abettor liability. This was in violation of the holding in People v. Chiu (2014) 59 Cal.4th 155. The evidence appellant may have had an accomplice, together with a not true finding on a personal weapon use allegation, made it likely jurors convicted based on natural and probable consequence aiding theory, requiring reversal and remand for a new trial. (I) NFA

De La Sota, Richard — People v. Miranda, E065470 — Sentencing — Ronald M. Christianson, Judge — Opinion by Codrington, J., with Hollenhorst, J., Slough J. Under People v. Gonzalez (2009) 178 Cal.App.4th 1325 and Penal Code section 1170.1, subdivision (g), imposition of both a three-year great bodily injury enhancement and a 10-year gang enhancement is prohibited when the great bodily injury enhancement is what elevated the underlying crime to a violent felony which, then, in turn made it eligible for the 10-year gang enhancement. Three-year enhancement ordered stricken. (I) LKH

William, Rex — People v. Cox, E065631 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Ramirez, P.J., with Codrington, J., Slough, J. Court of Appeal held appellant’s burglaries committed with intent to commit identity theft and his unauthorized acquisitions of access card information were qualifying offenses under Proposition 47. The case was remanded for appellant to file an amended petition establishing the value in each of the convictions as $950 or less. (I) LAR

Schiavoni, Johanna — People v. Ludwig, E065874 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Codrington, J., with Hollenhorst, J., Slough, J. The trial court properly reduced appellant’s second degree burglary conviction to misdemeanor shoplifting under Proposition 47 where the defendant entered a check cashing store to cash a stolen check for an amount under $950. (A) PMI

Cohen, David — People v. Laguna, E065959 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Miller, J., with Hollenhorst, J., McKinster, J. Second degree burglary based on entry into a grocery to purchase $8.60 of goods with a counterfeit $10 bill qualifies for relief under Proposition 47. Court of Appeal found that under People v. Gonzales (2017) 2 Cal.5th 858, appellant’s offense constituted entry with intent to commit a theft of less than $950 and, thus, qualified for relief. Order denying petition reversed. (A) HCC

Smith, Kevin — People v. Villareal, E066609 — Penal Code Section 1170.18 (Prop. 47) — Michael R. Libutti, Judge — Opinion by Hollenhorst, J., with Codrington, J., Slough, J. The trial court erred by denying appellant’s petition to reduce commercial burglary convictions to shoplifting under Prop. 47 based on aggregate amount of the checks underlying two counts rather than determining the value of property at issue in each count. Because entering a check cashing business to cash a forged check amounts to larceny under Penal Code section 459.5, and the value of each check did not exceed $950, the Court of Appeal remanded with directions to grant the petition. (I) BCT/SDS

Williams, Rex — People v. Anaya, E066660 — Clerical Errors — Michael A. Smith, Judge — Opinion by Fields, J., with Ramirez, P.J., Miller, J. After the partial grant of petition for resentencing under Proposition 47, the amended abstract of judgment failed to reflect the new, reduced, aggregate prison term. The Court of Appeal ordered this corrected. (I) NFA

Caldwell, William/Tripp, Pamela— In re J.S., E067122 —Sibling Bond Exception to Termination of Parental Rights — Christopher B. Marshall, Judge — McKinster J., with Hollenhorst, J., Miller, J. The Court of Appeal held that the trial court erred by prohibiting counsel from questioning Mother about Mother’s bond with the child’s sibling. By disallowing this testimony, the juvenile court forbade Mother from presenting evidence pertinent to the sibling relationship exception to adoption. Without Mother’s testimony on this point, it was impossible to determine whether the court would have found the sibling relationship exception to adoption applied; thus, the error could not be deemed harmless. (I) MAC

Thue, Matthew — In re A.T., E067243 — Indian Child Welfare Act (ICWA) — Lynn M. Poncin, Judge — Opinion by Miller, J., with Ramirez, P.J., Fields, J. Appellant Mother argued that notice under the Indian Child Welfare Act (ICWA) was incomplete. Father told the court he had Cherokee and Blackfeet heritage, but the child welfare agency mistakenly indicated on the notice that is was Mother who had the Indian heritage. The notice also failed to indicate family history for Father. The Court of Appeal issued a conditional reversal and limited remand for the Agency to cure any ICWA notice defects. (I) MAC

Mortazavi, Dawn — People v. Fernando, G051484 — Probation Conditions — Sheila F. Hanson, Judge — Opinion by O’Leary, P.J., with Aronson, J., Fybel, J. Appellant argued that three of his probation condition terms were unconstitutional. The Court of Appeal agreed and ordered multiple modifications. First, the prohibition on appellant associating with anyone known to be disapproved of by his probation officer was overbroad and a violation of the separation of powers doctrine. The court modified the condition to specify that appellant cannot associate with persons he knows to be parolees, convicted felons, illegal drug users, illegal drug sellers, or anyone his probation officer identifies as associating with such people. Second, the condition requiring appellant to cooperate with any treatment program his probation officer deems appropriate is also an improper delegation of judicial power. The court narrowed this condition by specifying appellant had to cooperate with programs for psychological, psychiatric, alcohol, or drug treatment. Last, although the court declined to modify the weapon prohibition condition, the court opined that appellant would be able to establish that the use of a dangerous or deadly weapon in self-defense was not a wilful violation of probation. (A) HSI

Rich, Renee — People v. Thompson, G051654 — Marsden Motion — Daniel Barrett McNerney, Judge, — Opinion by Fybel, J., with O’Leary, P.J., Ikola, J. At the sentencing hearing, appellant submitted a nine page letter and made a statement under oath, giving several reasons why he felt his attorney was ineffective. The judge considered the letter, listened to appellant, and told appellant that appellate counsel would consider the remarks and evaluate the record, including the conditional examination. The court did not conduct a hearing under People v. Marsden (1970) 2 Cal.3d 118, but instead proceeded to sentence appellant. The Court of Appeal found that appellant made an unequivocal request for new counsel and that, thus, the trial court erred in failing to conduct a Marsden hearing. Matter is remanded for hearing. (I) LAR

Marshall, Marilee — People v. Trotter, G051688 — Penal Code Section 1170.18 (Prop. 47) — Thomas A. Glazier, Judge — Opinion by Fybel, J., with O’Leary, P.J., Bedsworth, J. Attorney General conceded and Court of Appeal agreed that trial court erred in determining that theft of a firearm did not qualify for relief under Proposition 47. Furthermore, because the prosecutor below conceded that the value of the stolen firearm was $300, the matter must be remanded only to allow the trial court to determine whether resentencing appellant would pose an unreasonable risk of danger to public safety in accordance with Penal Code section 1170.18, subdivision (b). (I) HSI

Babcock, Russell — People v. Nunn, G051749, G051741, G051742 — Penal Code Section 1170.18 (Prop. 47) – Thomas Glazier, Judge — Opinion by Bedsworth, J., with Moore, J., Thompson, J. Appellant filed three Proposition 47 petitions, one for each superior court case. Three appeals followed and resulted in reversals. The Court of Appeal reversed the denials with respect to appellant’s convictions for second degree commercial burglary. After a petition for rehearing, the court also reversed appellant’s the denials with respect to convictions for unlawful acquisition of credit card information based on People v. Romanowski (2017) 2 Cal.5th 903. (I) LKH

Sheehy, Kevin — People v. Phung, G051876 — Abstract of Judgment — James A. Stotler, Judge — Opinion by Ikola, J., with O’Leary, P.J., Moore, J. Court of Appeal agreed that abstract of judgment must be amended to reflect the offense of conviction as shooting at an occupied motor vehicle rather than shooting at an inhabited dwelling. (I) APJ

Dorian, Melanie — People v. Davis, G052077 — Franklin Hearing — Gary S. Paer, Judge — Opinion by O’Leary, P.J., with Fybel, J., Ikola, J. On remand from the California Supreme Court for reconsideration in light of People v. Franklin (2016) 63 Cal.4th 261, the Court of Appeal remanded to the trial court to allow both parties the opportunity to make an accurate record of appellant’s characteristics and circumstances at the time of the offense. (I) HSI

Gambale, Erica — People v. Alvarado-Penaloza, G052485 — Insufficient Evidence Gang Enhancement — Thomas M. Goethals, Judge — Opinion by Bedsworth, J., with Moore, J., Ikola, J. Court of Appeal agreed that insufficient evidence supported the jury’s true finding on alleged gang enhancement where appellant was found with a firearm a short distance from his home which happened to be located in the territory of his gang. Other than expert testimony that nobody in the territory was allowed to carry a non-gang gun, there was no evidence the gun in this case belonged to the gang, that any gang member knew appellant was carrying it, nor that appellant was pursuing any gang purpose when he left his home. Thus, while it was possible appellant was carrying the gun to benefit his gang, the evidence was not substantial enough to support the true finding and the enhancement is reversed. (Mod-A) APJ

Brisbois, Patricia — People v. Santos, G053038 — Clerical Errors — Cheri T. Pham, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Fybel, J. Abstract of judgment is ordered corrected to remove the designation of serious felony as to conviction for evading a peace officer while driving with willful or wanton disregard for safety, and removal of a one-third consecutive designation as to the sentence on another count. (I) AMJ

May 2017

Levy, Richard — People v. Gonzales (2017) 2 Cal.5th 858, D067554 — Penal Code Section 1170.18 (Prop. 47) — L. Brooks Anderholt, Judge — Opinion by Corrigan, J., with Cantil-Sakauye, P.J., Wedegar, J., Cuellar, J., Kruger, J., with Chin, J., Liu, J., dissenting. The Supreme Court found that the new “shoplifting” statute under Prop. 47, which is defined as an entry with intent to commit “larceny” of property worth $950 or less, applies equally when there is an entry with intent to commit non-larcenous theft. Therefore, appellant’s act of entering a bank to cash a stolen check for less than $950, traditionally regarded as a theft by false pretenses rather than larceny, now constitutes shoplifting and Prop. 47 relief is warranted. (I) HCC

Wass, Valerie — People v. Rusoe, D068265 — Penal Code Section 654 — Richard S. Whitney, Judge — Opinion by Aaron, J., with Haller, J., O’Rourke, J. Appellant was convicted of battery on a peace officer and resisting an executive officer in the performance of the officer’s duties. The Court of Appeal held the trial court erred in failing to stay the execution of the sentence of the battery on a peace officer pursuant to section 654. (I) LAR

Paradis, Renee — In re Mike H., D069391 — Probation Conditions: Limiting Computer/Internet Use — Aaron H. Katz, Judge — Opinion by O’Rourke, J., with Benke, J., Aaron, J. Various probation conditions limiting appellant’s computer and internet use were vacated or modified as unreasonable under People v. Lent (1975) 15 Cal.3d 481 or as unconstitutionally overbroad incursions on minor’s privacy. The Juvenile Court granted probation, but imposed conditions of probation virtually banishing minor from the internet and use of electronic devices after minor admitted an act of forcible sodomy of his girlfriend. The Court of Appeal: 1) vacated altogether conditions that limited appellant’s use of the internet and electronic devices at school and work while supervised by an adult; 2) modified conditions prohibiting viewing sexually explicit material to limit only viewing “obscene” material as defined by statute; 3) ordered the Juvenile Court to narrow conditions barring use on encryption, noting that many common devices and functions are necessarily encrypted; but 4) upheld conditions requiring appellant to facilitate the probation officer’s monitoring of appellant’s devices and internet use, including a requirement appellant furnish any passwords. (A) NFA

Rudasill, Denise — People v. Hassett, D069839 — Probation Conditions: Residence/Employment — Kathleen M. Lewis, Judge — Opinion by Dato, J., with McConnell, P.J., Benke, J. Appellant challenged condition of probation requiring approval of residence and place of employment. Attorney General conceded and Court of Appeal agreed that the residence condition was unconstitutionally overbroad. Attorney General argued, however, that the state has a reasonable interest in approving appellant’s place of employment to prevent future crimes. The Court of Appeal disagreed: the offense (use of pepper spray) was in no way related to the appellant’s employment and there was nothing to indicate there was a risk she would use pepper spray in connection with any future employment. Further, the employment condition was not narrowly tailored as it did not specify particular types of employment that appellant could or could not accept, but instead inappropriately deferred the decision entirely to the discretion of the probation officer. Condition ordered stricken in its entirety. (I) HCC

Wrubel, Suzanne — People v. Samuels, D070017 — Failure to Grant Mistrial Motion — Amalia L. Meza, Judge — Opinion by Benke, J., with O’Rourke, J., Dato, J. In a burglary trial, the trial court denied the defense mistrial motion based on an officer’s improper testimony that defendant was on parole for burglary. To “cure” the officer’s improper testimony, three days later, the officer testified he investigated the matter further and found his prior statement was based on incorrect information. The Court of Appeal found the trial court abused its discretion for several reasons: first, the officer’s statement that “the information was not correct,” was a falsehood; second, the “cure” was ineffective because of the length of time between the improper statement and the “cure”; and third, the officer’s false statement did not resolve the issue because it allowed the jury to infer that defendant was on parole for a different crime or that he had committed burglary, but was not on parole when he was arrested. All counts of the conviction were reversed. (I) PMI

Ball, Lindsey — People v. Bigos, D070185 — Correction of Probation Order — Theodore M. Weathers, Judge — Opinion by O’Rourke, J., with Nares, J., Aaron, J. Attorney eneral conceded and Court of Appeal agreed there was a discrepancy between the court’s oral pronouncement of probation orders (fines and fees of $1,487) and the court’s written order of probation orders (fines and fees of $4,937). Matter remanded so the superior court can modify its written order to reflect the court’s oral pronouncement. (A) CBM

Jones, Jason — People v. Salas (2017) 9 Cal.App.5th 736, D070569 — Victim Restitution — Christopher J. Plourd, Judge — Opinion by Haller, J., with Huffman, J., Aaron, J. Published decision reversed $17,000 victim restitution award for the cost of residential alarm and security system where defendant pled guilty to inflicting corporal injury on spouse. Section 1202.4, subdivision (f)(3)(J) authorizes victim restitution for installing or increasing a residential security system “related to a violent felony” as defined in section 667.5. The trial court found appellant’s offense amounted to a “violent felony” because the victim sustained a great bodily injury (a fractured skull). The Court of Appeal disagreed, noting that the section 12022.7 great bodily injury allegation was not admitted as part of the plea, and finding that the admitted section 273.5, subdivision (a) offense is not enumerated as a violent felony. (I) NFA

Dudley, Patrick — People v. Kent, D070971 — Probation Condition — Michael S. Groch, Judge — Opinion by Huffman, J., with McConnell, P.J., O’Rourke, J. The probation condition authorizing warrantless searches of computers or recordable media was stricken as overbroad. Court of Appeal found no nexus to the vandalism conviction or particularized need justifying intrusion into constitutionally protected privacy interests. (A) BCT/SDS

Johnson, Mark — People v. Whitmore, E062089 — Penal Code Section 654 — Michael A. Smith, Judge — Opinion by Miller, J., with Ramirez, P.J., Slough, J. On a first appeal, appellant’s sentence was reversed. At the resentencing, among other terms, the court imposed a term for carjacking, consecutive to murder and kidnapping with intent to commit robbery. In this appeal, appellant argued and the court agreed that the kidnapping was done with the intent of facilitating the carjacking, the carjacking was not separate from the kidnapping, and the crimes were part of a single transaction with a single intent. Court of Appeal agreed and stayed the appellant’s sentence for carjacking pursuant to Penal Code section 654. (I) HCC

Gardner, Cliff — People v. Dubose, E062089 — Miller v. Alabama Factors — Michael A. Smith, Judge — Opinion by Miller, J., with Ramirez, P.J., Slough, J. On a first appeal, appellant’s sentence was reversed based on the Supreme Court decision in Miller v. Alabama (2012) 567 U.S. 460. At the resentencing, the trial judge mis-perceived the proceeding and handled it as if it were a petition under Penal Code section 1170, subdivision (d)(2). Both counsel acquiesced, and the court denied the “petition” and did not resentence. The Court of Appeal concluded that appellant has remained un-sentenced since the original appeal and ordered the matter remanded for the superior court to resentence appellant in compliance with its first opinion to follow the Miller v. Alabama factors. (I) HCC

Knight, Richard L. — In re C.H., E062650 — Bypass Provision — John M. Monterosso, Judge — Opinion by King, J., with McKinster, J., Miller, J. Agency appealed the trial court’s decision to grant the parents reunification services. Agency contended the juvenile court erred as a matter of law in failing to apply the statutory presumption that reunification services should be denied under Welfare and Institutions Code section 361.5, subdivision (b)(13) and that the court erred in its interpretation of the statute. Court of Appeal found that reversal was required as to both the mother and father. However, the case was remanded to the juvenile court to determine whether the father had resisted treatment within the meaning of section 361.5, subdivision (b)(13) and whether the reunification services were appropriate for mother under the factors set forth in In re G.L., (2014) 222 Cal.App.4th 1153, 1164 and In re Lana S., (2012) 207 Cal.App.4th 94, 109. (A) LLF

Gambale, Jennifer — People v. Mejia (2017) 9 Cal.App.5th 1036, E062962, Certified for Partial Publication — Penal Code Section 654 — Debra Harris, Judge — Opinion by McKinster, J., with Hollenhorst, J., Slough, J. In its original opinion, Court of Appeal agreed with appellant that he should not be separately punished for both torture and corporal injury to spouse where there was nothing in the record or argument of the prosecutor to show that the injury to spouse was separate or distinguishable from the acts relied upon to support the torture conviction. After granting appellant’s petition for rehearing, Court of Appeal agreed that appellant also could not be separately punished for spousal rape, because that offense too was part of the conduct underlying the torture conviction. Court of Appeal found that conviction of spousal rape with tying or binding (15 to life) carries a longer potential term than torture (7 to life), so sentence for the latter must be stayed under Penal Code section 654. (I) APJ

Morse, David — People v. Johnson (2016) 6 Cal.App.5th 505, E063172 — Jury Instructions — Michael B. Donner, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., Codrington, J. The jury in appellant’s first trial convicted him of gross vehicular manslaughter while intoxicated and hit and run with injury. The jury did not reach a unanimous verdict on a charge of second degree murder. On retrial, a new jury found appellant guilty of second degree murder. Appellant contended that the trial court erred during his retrial by not informing the jury that appellant had been convicted in the first trial of gross vehicular manslaughter while intoxicated. The Court of Appeal agreed. The court applied the reasoning in People v. Batchelor (2014) 229 Cal.App.4th 1102, and found that the failure to inform the second jury that the first jury convicted appellant for gross vehicular manslaughter created a false impression that, absent a conviction for murder, appellant’s actions leading to the death of the victim would be left unpunished. (I) HSI

Torres, Steven A. — People v. Gomez, E063426 — Restitution Fine — Jeffrey Prevost, Judge — Opinion by Ramirez, P.J., with Miller, J., Slough, J. The unauthorized $1,500 restitution fine imposed under Penal Code section 288, subdivision (e) is stricken. Subdivision (e) is limited to convictions under subdivisions (a) and (b) of that section and does not apply to convictions for violations of sections 269 and 288.7. (I) PMI

Gambale, Jennifer — People v. Manning, E063997 — Dual Convictions — Rodney A. Cortez, Judge — Opinion by Codrington, J., with Ramirez, P.J., McKinster, J. Court of Appeal agreed that appellant’s conviction for continuous sexual abuse of a child must be reversed because he cannot stand convicted of both continuous sexual abuse of a child and oral copulation of a child when the acts took place during the same time period. (I) HSI

Bjerkhoel, Alissa — People v. Zulauf, E064319 — Statute of Limitations/Probation Conditions — Stephen J. Gallon, Judge — Opinion by Ramirez, P.J., with Miller, J., Slough, J. Court of Appeal agreed that appellant’s conviction for filing a false report of vehicle theft was governed by the one-year limitation period and prosecution of the offense was time barred. The court also modified an overbroad probation condition related to counseling to require appellant to participate in any counseling or treatment programs specifically regarding her mental health and substance abuse. (I) HSI

Dodd, John — People v. Natartes, E064788 — Lesser Included Offense — Stephen J. Gallon, Judge — Opinion by Miller, J., with Hollenhorst, J., Slough, J. The Court of Appeal agreed that the trial court erred in failing to instruct on shoplifting as a lesser included offense of the charged misdemeanor burglaries. Instead of reversing for retrial, the court exercised its authority to modify convictions and reduced the misdemeanor burglary convictions to shoplifting convictions. (I) AMJ

Vento, Christine — People v. Mayorga, E064792 — Sentence Enhancement — John M. Monterosso, Judge — Opinion by McKinster, J., with Ramirez, P.J., Codrington, J. Attorney General conceded and Court of Appeal agreed that insufficient evidence supported the trial court’s true findings on four prison prior enhancements. Because appellant had remained free from custody and commission of a new felony for a period exceeding five years after the four prison commitments, the ‘washout’ period under Penal Code section 667.5, subdivision (b) was satisfied and the enhancement requirements were not met. Enhancements ordered stricken. (I) HSI

Kopas, Marleigh — People v. Mosley, E065364 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Ramirez, P. J., with McKinster, J., Miller, J. Court of Appeal affirmed the judgment in this People’s appeal. The trial court granted relief on the Prop. 47 petition, rejecting the prosecution’s argument that petitioner was not entitled to relief because his burglary was executed in furtherance of a conspiracy. Because the People had never alleged a conspiracy occurred the conduct could not be relied upon to deny the petition. On appeal, the Court of Appeal rejected the government’s first argument that petitioner had failed to meet his prima facie burden. The government had failed to contest petitioner’s valuation claim during the Prop. 47 hearing and had requested the trial court review the police report – which contained the value of the stolen property. And, following People v. Huerta (2016) 3 Cal.App.5th 539, the court rejected the government’s claim the burglary was executed in furtherance of a conspiracy as opposed to the plea petitioner had entered – a burglary with the intent to commit a theft. (I) CBM

Brody, Steven A. — People v. Ball, E065628 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Cunnison, J., with Ramirez, P.J., McKinster, J.. Trial court erred when it determined appellant’s forgery conviction under Penal Code section 476 was not eligible for reduction under Proposition 47. Order reversed. (I) LAR

Shaler, Susan K. — People v. Oliver, E065903 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Miller, J., with Hollenhorst, J., Slough, J. In this People’s appeal, Court of Appeal affirmed trial court’s reduction of second degree burglary to a misdemeanor under Proposition 47. The offense was based upon respondent’s entry into a bank with intent to cash a fraudulent check. Court of Appeal found that the People forfeited its right to challenge respondent’s failure to present evidence in support of the Proposition 47 petition. In addition, the court found that there was insufficient evidence to support the People’s claim that the intended offense was identity theft. (I) APJ

Stubb, Paul, Jr. — In re S.V., E066075 — Sealing of School Records — Walter H. Kubelun, Temporary Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. The juvenile court denied the minor’s request to seal his juvenile records held by Riverside Community College. The Court of Appeal reversed and remanded the matter to allow the juvenile court to determine whether sealing the minor’s school records referring to the minor’s juvenile court proceedings will promote the minor’s reentry and rehabilitation. (I) LAR

Nelson, Laurel M. — In re A.S., E066080 — Sealing of Records — Walter H. Kubelun, Judge — Opinion by Ramirez, P.J., with Miller, J., Slough, J. The minor completed an informal supervision program and petitioned to have her record’s sealed pursuant to Welfare and Institutions Code section 786. The juvenile court denied the minor’s motion stating section 786 did not apply to school records. The Attorney General conceded and the Court of Appeal agreed that the juvenile court was unaware of the law governing the exercise of its discretion. The court reversed and remanded the matter to the juvenile court for further proceedings. (I) HSI

Dodd, John — In re C.W., E067004 — Indian Child Welfare Act (ICWA) — Jacqueline C. Jackson, Judge — Opinion by Hollenhorst, J., with McKinster, J., Miller, J. The agency conceded and the Court of Appeal agreed that the agency had failed to investigate father’s claim of Indian heritage by not interviewing paternal relatives and failing to include the known names of paternal relatives in the ICWA notice. Appellate court conditionally reversed the judgment for compliance with the ICWA. (I) LLF

Bjerkhoel, Alissa — In re Guy Miles, G046534 — Penal Code Section 1473, Subdivision (b)(3)(A) and the “New Evidence” Standard Applied to Habeas Claims — Frank F. Fasel, Judge — Opinion by Moore, J., with Aronson, J., Fybel, J. Moore, J., concurring. The Court of Appeal had affirmed petitioner’s robbery conviction on direct appeal in 2003. Almost seven years after the court affirmed the conviction, petitioner discovered “new evidence” – three new confessions of men who claimed they had actually committed the crime. In this habeas action, which resulted in the issuance of two Orders to Show Cause and the holding of two evidentiary hearings, the court ultimately granted petitioner’s writ of habeas corpus and vacated his conviction. The Court of Appeal found the newly amended habeas statute (Pen. Code §1473, subd. (b)(3)(A)) applied to assess petitioner’s “new evidence” claim: new confessions detailing how petitioner did not commit the robbery. Such application directs what procedure to apply to assess existing causes of action. It does not have impermissible retroactive effect. The Court of Appeal found the confessions – set forth both in declarations and at the ordered evidentiary hearings – constituted credible, material, admissible “new evidence” within the meaning of the new statute, that could not have been discovered before trial by reasonable diligence. Based on the information in the confessions, it is more likely than not that they would have changed the outcome of petitioner’s trial. (A) CBM

Ferrentino, Correen — People v. Davis, Jr., G051771 — Penal Code Section 654 — Steven D. Bromberg, Judge — Opinion by Aronson, J., with Bedsworth, J., Moore, J. The trial court violated Penal Code section 654 by imposing a concurrent term for carrying of a concealed firearm in a vehicle as an active gang participant because the offense was based on the same act as the separately sentenced convictions for carrying a concealed, stolen firearm in a vehicle and unlawful possession of a concealed firearm in a vehicle. Likewise, the sentence for carrying a concealed stolen firearm is stayed because the offense was part of the same course of conduct as the burglary conviction for which appellant was separately sentenced. (I) AMJ

Jones, Sharon — People v. Gonzalez, G052005 — Sex Offender Sentencing: Penal Code Section 667.6 — Cheri T. Pham, Judge — Opinion by Ikola, J., with Bedsworth, J., Thompson, J. Court of Appeal reversed full strength consecutive sentences purportedly imposed under Penal Code section 667.6, subdivision (c), for lewd acts on a minor 14 or under because the full strength consecutive provision of that section applies only to offenses listed in section 667.6, subdivision (e), which does not include section 288, subdivision (a). (I) NFA

Dorian, Melanie — People v. Davis, G052077 — Franklin Hearing — Gary S. Paer, Judge — Opinion by O’Leary, P.J., with Fybel, J., Ikola, J. On remand from the California Supreme Court for reconsideration in light of People v. Franklin (2016) 63 Cal.4th 261, the Court of Appeal remanded to the trial court to allow both parties the opportunity to make an accurate record of appellant’s characteristics and circumstances at the time of the offense. (I) HSI

Wrubel, Suzanne — People v. Romero, G052114 — Abstract of Judgment — Lance Jensen, Judge — Opinion by O’Leary, P.J., with Fybel, J., Ikola, J. Abstract of judgment amended to show defendant was not sentenced pursuant to the Three Strikes law. (I) PMI

Bases, Arielle — In re K.T., G052344 — Involuntary Statement — Cheryl L. Leininger, Judge — Opinion by Fybel, J., with O’Leary, P.J., Bedsworth, J. Court of Appeal found minor’s statement to police involuntary considering her age and experience, misleading statements by the officer that the offense was not a big deal, overbearing tactics including handcuffing and placing minor in locked detention room, failure to ask minor if she wanted a parent with her, and deception regarding what the police already knew. Further, admission of the minor’s statement was prejudicial given the only other evidence of theft were tags from stolen items left in the dressing room and the fact that minor’s bag was fuller when she left the room than when she entered. Trial court order was reversed. (AM) APJ

Stanton, Marta — People v. Thompson, G052638 — Probation Condition — Thomas M. Goethals, Judge — Opinion by Moore, J., with Bedsworth, J., Thompson, J. Court of Appeal struck a probation condition that required appellant to obtain prior approval of his residence from his probation or mandatory supervision officer. The probation requirement was found to be unconstitutionally overbroad, because it gave appellant’s probation officer unbridled authority to restrict where appellant could live and thus, with whom he could associate. Therefore, the court remanded the matter to the trial court to modify the residency probation requirement. (I) HSI

Smith, Barbara — People v. Alsafar (2017) 8 Cal.App.5th 880, G052951 — Equal Protection Violation for a Mentally Disordered Offender (MDO) —David A. Hoffer, Judge — Opinion by O’Leary, P. J., with Fybel, J., Ikola, J. Court of Appeal followed the decision in the Dunley case (People v. Dunley (2016) 247 Cal.App.4th 1438), agreeing MDOs are similarly situated to NGIs (not guilty by reason of insanity) and SVPs (sexually violent predator) with respect to the testimonial privilege. Thus it was error to compel the appellant to testify in this MDO proceeding extending his commitment. Nevertheless, the court dismissed the appeal as moot because appellant was subsequently recommitted and a reversal would have no practical effect or provide effective relief. (I) LMF

Gambale, Erica — In re H.T., G053016 — Sealing Records — Cheryl L. Leninger, Judge — Opinion by Thompson, J., with Moore, J., Aronson, J. Attorney General conceded and Court of Appeal agreed that the juvenile court erred in denying the minor’s request to seal his record. The unambiguous language of Welfare and Institutions Code section 786, subdivision (a) requires sealing and there is no exception for an outstanding restraining order. (I) HSI

Mortazavi, Dawn S. — People v. Tolento, G053690 — Penal Code Section 654 — Larrie R. Brainard, Judge — Opinion by Aronson, J., with O’ Leary, P.J., Bedsworth, J. Attorney General conceded and Court of Appeal agreed that concurrent sentences for domestic battery and criminal threats must be stayed because the conduct underlying both offenses was part of an indivisible course of conduct that also included a kidnapping, for which appellant was separately punished. (A) APJ

April 2017

Martin, Arthur — People v. Ricardez, D064561 — Franklin Hearing — Kimberlee A. Lagotta, Judge — Opinion by Benke, J., with Nares, J., O’Rourke, J. On remand from the California Supreme Court for reconsideration in light of People v. Franklin (2016) 63 Cal.4th 261, 268-269, 283-284, the case is remanded to the trial court for the purpose of determining whether defendant had an opportunity to make a record relevant to parole consideration after serving 25 years in prison. (I) AMJ

Schuck, John — People v. Pineda, D067731 — Insufficient Evidence — Stephanie Sontag, Judge — Opinion by Benke, J., with Huffman, J., Aaron, J. Appellant’s conviction for possession of a dirk or dagger is reversed where the only evidence presented at trial was testimony that the knife was in a fixed position. Since there was no evidence the knife had a locking mechanism as required by People v. Castillolopez (2016) 63 Cal.4th 322, the conviction was reversed. (I) LKH

Shetty, Siri — People v. Hill, D069364 — Sentencing — Frederick L. Link, Judge — Opinion by Nares, J., with McConnell, P.J., Irion, J. In calculating the Three Strikes sentence for premeditated attempted murder under Penal Code section 667, subdivision (e)(2)(A)(iii), the trial court erred when it imposed a nine-year determinate term for unpremeditated murder under section 664, instead of the 7-year period of parole eligibility under section 3046, subdivision (a) for premeditated attempted murder. (I) PMI

Shudde, Athena — People v. Dibble, D070002 — Penal Code Section 654 — Stephanie Sontag, Judge — Opinion by Irion, J., with Benke, J., Nares, J. Court of Appeal agreed that concurrent sentences on four counts of possessing flammable liquids (Molotov cocktails) must be stayed because appellant possessed them with the intent to murder inhabitants of a motel and he was already being punished for attempting those murders. In so concluding, the court rejected the reasoning of the trial court that a stay was not required because appellant retook possession of the Molotov cocktails after he abandoned his plan to set fire to the motel. Because the offense requires possession with intent to set fire, and because there was no evidence appellant continued to harbor such intent when he retook possession, the latter possession did not qualify as a basis for the offenses. (I) APJ

Conroy, Marissa — In re K.N., D070957 — Family Code Section 7822 — Edlene C. McKenzie, Commissioner — Opinion by Irion, J., with Benke, J., Huffman, J. The Court of Appeal reversed the trial court’s termination of father’s parental rights under Family Court section 7822. The court found that the numerous letters father wrote to the child constituted more than a “token” effort at communication under the section; thus, no substantial evidence showed father had the requisite intent to abandon. The Court of Appeal relied on the case of In re T.M.R. (1974) 41 Cal.App.3d 694. Father’s failure to take legal action to assert his parental rights was also not sufficient to show an intent to abandon. (I) MAC

Moller, Richard Jay/Vorobyov, Gene D. — People v. Smith, et. al., D071068 — Restitution — Richard T. Fields, Judge — Opinion by Aaron, J., with Huffman, J., Haller, J. Attorney General conceded and Court of Appeal agreed that the direct victim restitution should have been ordered joint and several. Court of Appeal modified the judgment accordingly. (I) APJ

Saucier, Patricia K. — In re Jayden G., et al., D071275 — Indian Child Welfare Act (ICWA) — Kimberlee Lagotta, Judge — Opinion by Huffman, J., with O’Rourke, J., Dato, J. Court of Appeal reversed the case for failure to comply with the ICWA because the trial court and the County Health and Human Services did not comply with the notice provision required by ICWA. The County conceded the error of not properly ensuring ICWA inquiry and notice. The agency was aware of mother and father’s possible Indian heritage. Reversed as to ICWA but otherwise affirmed. (I) LMF

Nalls, Christopher A. — People v. Garcia, E059452 — Sentencing and Franklin Hearing — Ronald L. Johnson, Judge — Opinion by Bedsworth, J., with Ikola, J., Thompson, J. Three-year enhancement for great bodily harm under Penal Code section 12022.7 is unauthorized and must be stayed because the trial court also imposed the 25-years-to-life enhancement under Penal Code section 12022.53, subdivision (d) for intentionally discharging a firearm with great bodily injury. The case is remanded for the limited purpose of determining whether defendant was afforded an adequate opportunity to make a record relevant to his eventual youth offender parole hearing. (I) PMI

Haggerty, Edward J. — People v. Houser, E063996 — Competency Hearing — Gerard S. Brown, Judge — Opinion by McKinster, J., with Ramirez, P.J., Slough, J. After trial counsel declared a doubt as to defendant’s mental competence to stand trial, the trial court appointed a psychologist who identified various mental health issues, but opined that defendant was competent. After a hearing at which both attorneys were able to question the psychologist, the trial court found appellant competent to stand trial. On appeal, counsel challenged the trial court’s finding that appellant was competent. The Court of Appeal re-framed the question as being not whether there was substantial evidence to support the trial court’s finding of competence but whether there was sufficient evidence to trigger a full competency hearing. The Court of Appeal found that because the evidence was sufficient to raise a reasonable doubt as to appellant’s competence to stand trial, a full hearing was required and the hearing that occurred did not qualify as the hearing required under Penal Code section 1368. Judgment reversed. (I) APJ

Weinberg, Allen — People v. Benjamin Cruz, E064237 — Abstract of Judgment — Bernard Schwartz, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J. Appellant asserted and the Attorney General agreed the abstract of judgment incorrectly reflected the crimes occurred in 2009. Court of Appeal directs the superior court clerk to prepare an amended abstract of judgement reflecting the crimes were committed in 2011. (I) CBM

Boyce, Robert — People v. Ciggs, E064606 — Dual Enhancements — Edward D. Webster, Judge — Opinion by McKinster, J., with Ramirez, P.J., Hollenhorst, J. Sentence enhancements reversed and case remanded for resentencing where appellant received both a firearm use enhancement and an elevated street gang enhancement based on the same firearm use, in violation of People v. Rodriguez (2009) 47 Cal.4th 501. (I) NFA

Wass, Valerie. — People v. Randall, E064965 — Minute Order — Ingrid Adamson Uhler, Judge — Opinion by McKinster, J., with Ramirez, P.J., Hollenhorst, J. Superior court is directed to correct the minute order to reflect the jury convicted appellant of the lesser included offense of resisting a peace officer, rather than the charged offense of resisting an executive officer by force or violence. (I) PMI

Harris, Donna L. — People v. Amaya, E065092 — Firearms Ban/Restitution Fine — Irma Poole Asberry, Judge — Opinion by Hollenhorst, J., with Miller, J., Slough, J. Court of Appeal agreed that Penal Code section 29800, subdivision (a)(1), prohibiting any person previously convicted of a felony from possessing a firearm, does not authorize the trial court to also prohibit appellant from possessing any “deadly weapon, ammunition, or related paraphernalia.” The addition of “incendiary device” in the minute order was likewise unauthorized. Accordingly, the matter is remanded for the trial court to strike the additional limitations and issue a new minute order. Further, the restitution fine must be reduced from $300 to $280, which was the amount imposed when probation was granted. (I) APJ

Dellaca, Tanya — People v. Lacey, E065220 — Amended Health and Safety Code Section 11352 — Miriam Ivy Morton, Judge — Opinion by Hollenhorst, J., with Miller, J., Slough, J. Appellant’s conviction for transportation of heroin for personal use was reversed and the matter remanded for further proceedings. After the plea, Health and Safety Code section 11352 was amended to require the controlled substance be transported for sale. Since appellant was on probation at the time of the change in law, the judgment was not final and therefore, he was entitled to the benefit of the amended section. Because the conviction was the result of a plea agreement, the matter is remanded to allow the People to proceed on the original charges. However, appellant cannot receive a greater sentence than the three years that had been imposed after appellant violated probation. (I) LKH

Harguindeguy, Marianne — People v. Adkins, E065487 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Cunnison, J., with Ramirez, P.J., Miller, J. Respondent pleaded guilty to second degree burglary based on entering a bank and attempting to cash a $300 check written on the account of a deceased person. Trial court granted his Proposition 47 petition and the People appealed. Court of Appeal found that the People conceded the value below and that a bank is a commercial establishment. In response to People’s argument that respondent entered the bank to commit identity theft, not a larceny, the Court of Appeal found that because the People had charged forgery and not identity theft, the latter was not at issue during the plea. Proposition 47 assessment is evaluated based on convicted offenses, not those that could have been filed but were not. [Note: Cunnison J. is a retired judge of the Riverside Superior Court, assigned by the Chief Justice.] (I) CBM

Schiavoni, Johanna S. — People v. Chavez, E065492 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Codrington, J., with Ramirez, P.J., McKinster, J. In this People’s appeal, the Court of Appeal affirmed the trial court’s order granting Prop. 47 relief to respondent who was convicted of commercial burglary based upon the entry into a Bank of America with intent to pass a forged check for $345. The Court of Appeal found that the value requirement had been met, that a bank is a commercial establishment, and that the conviction of burglary for entering a commercial establishment with intent to commit theft was reducible even if appellant also intended to commit identity theft. (AM) APJ

Peabody, Jennifer — People v. Simpson, E065496 — Penal Code Section 654 — Dan Detienne, Judge — Opinion by Codrington, J., with Ramirez, P.J., McKinster, J. Court of Appeal agreed that appellant’s two-year sentence for assaulting the victim with a box cutter should have been stayed based on appellant’s separate and greater 12-year sentence for burglarizing a motel room. (I) LAR

Strong, Jeaninie — In re A.S., E066079 — Sealing Records — Walter H. Kubelun, Temporary Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Juvenile court erred in denying minor’s request to seal the school records related to his juvenile court proceedings. Matter reversed and remanded to allow the juvenile court to exercise its discretion and make a factual determination in the first instance regarding whether sealing minor’s school records relating to his juvenile court proceedings will promote minor’s reentry and rehabilitation. (I) LAR

Auwarter, Neil — People v. O’Bannon, E066084 — Revocation of Probation/Custody Credits — L. Jackson Lucky, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. The trial court revoked probation where appellant had already served the maximum 365 days jail custody permitted by Penal Code section 19.2. The trial court expressly considered reinstating probation, but declined to do so after noting it could not impose any further jail time as a condition. Accordingly, the court executed a previously imposed 5-year prison term. The Court of Appeal found the trial court failed to exercise its discretion to take defendant’s custody credits waiver pursuant to People v. Johnson (1978) 82 Cal.App.3d 183, which permits a credits waiver to allow reinstatement of probation with up to an additional 365 days jail custody. The court rejected the People’s claim of forfeiture as inapplicable to a failure to exercise discretion; and it rejected the People’s claim of harmless error, noting that the trial court had expressed misgivings over committing appellant to prison for a probation violation that occurred in part because appellant was homeless. Remanded for resentencing. (S) NFA

Mortazavi, Dawn S. — In re R.M., E066170 — Probation Condition — John M. Davis, Judge — Opinion by Miller, J., with Hollenhorst, J., Slough, J. Court of Appeal ordered modification of juvenile probation condition prohibiting the possession of weapons to allow an exception for self-defense. (A) SDS

El Habiby, Emery — In re M.B., E066704 — Indian Child Welfare Act (ICWA) — Erin K. Alexander, Judge — Opinion by Miller, J., with Codrington, J., Slough, J. Sibling case was reversed for failure to comply with the ICWA because of late-discovered new information about possible Indian heritage in maternal family. Since the agency was aware of mother’s possible Indian heritage in sibling case, it was required to provide proper notice in this case. Reversed as to the ICWA but otherwise affirmed. (A) LLF

King, Nancy — People v. Romero, G050688, — Statute of Limitations/Ex Post Facto — Gary S. Paer, Judge — Opinion by Fybel, J., with O’Leary, J., Moore, J., separately concurring in part and dissenting in part. Court of Appeal reversed one count of violating Penal Code section 288, subdivision (a) because the statute of limitations had expired before the information was filed. On a separate count, the case was remanded for re-sentencing because appellant was sentenced under the “One Strike” law that was not in effect at the time the crime was committed in violation of the prohibition against ex post facto law. The concurring and dissenting justice concurred in the opinion, but dissented as to limitations on the re-sentencing, concluding that the remand for re-sentencing should not be limited only to the single count, but rather the lower court should have the option of restructuring the entire sentence as long as a greater aggregate sentence does not result. (I) BCT

Weinberg, Allen G. — People v. Verduzco, G050954 — Abstract of Judgment — Michael J. Cassidy, Judge — Opinion by Bedsworth, J., with Ikola, J., Thompson, J. The abstract of judgment is modified to delete the references to a prison sentence on two misdemeanor counts and to delete the AIDS testing requirement as to one of those counts. (I) PMI

Keller, Roni — In re D.B., G051319 — Termination of Jurisdiction — Gary Bischoff, Temporary Judge — Opinion by Fybel, J., with O’Leary, P.J., Rylaarsdam, J. In an appeal from a section 364 hearing (exit orders), the mother argued, and the Court of Appeal agreed, the trial court erred in continuing jurisdiction because the agency proved that the conditions which began the dependency case no longer existed. Mother had complied with the case plan and there were no longer concerns that she could not care for the child. Continuing jurisdiction because father objected to a proposed restraining order and to allow father to develop a relationship with the child was in error. (I) LLF

Rudasill, Denise — People v. Villani, G051951 — Penal Code Section 1170.18 (Prop. 47) — Thomas A. Glazier, Judge — Opinion by Ikola, J., with O’Leary, P.J., Fybel, J. Appellant requested re-sentencing under Proposition 47 for a grand theft firearm conviction. The trial court denied the petition on the grounds that Proposition 47 does not apply to convictions for theft of property defined by non-value characteristics, such as vehicles or firearms. This denial was erroneous because the Court of Appeal recently ruled that a petitioner is eligible for Proposition 47 re-sentencing on a grand theft firearm conviction if he can show that the value of each firearm is under $950. The People conceded the issue. Denial of defendant’s petition for re-sentencing as to firearm theft is reversed and matter is remanded to determine value of the firearm. (I) MCR

Hinkle, Stephen — People v. Pelaez, G052293 — Insufficient Evidence — Kimberly Menninger, Judge — Opinion by Moore, J., with Fybel, J., Ikola, J. The evidence at trial demonstrated only that the victims suffered knife wounds, and it was undisputed appellant never wielded the knife used in the assaults. Instead, his participation was limited to punching and kicking the victims. While it is certainly possible that kicking and punching victims could result in great bodily injury, there was no evidence it did so in this case. Court of Appeal reversed the great bodily injury enhancements and remanded the case to the trial court with directions to strike those enhancements and resentence accordingly. (I) HCC

Buckley, Christian — People v. Luna, G052425 — Penal Code Section 1170.18 (Prop. 47)/Prison Prior — Colin J. Bilash, Judge — Opinion by Moore, J., with O’Leary, P.J., Bedsworth, J. Court of Appeal ordered prior prison term enhancement stricken where the underlying felony had been reduced to a misdemeanor pursuant to Prop. 47 prior to the current sentencing. (I) NFA

March 2017

Brownell, Gordon S. — People v. Lewis, D068311 — Sentencing — James S. Hawkins, Judge — Opinion by O’Rourke, J., with Huffman, J., Nares, J. In this appeal from the denial of a petition for re-sentencing under Miller v. Alabama (2012) 567 U.S.__ [132 S.Ct. 2455], the Court of Appeal found that the trial court had failed to correct a clerical error in the abstract of judgment as ordered in its opinion in the first appeal. Abstract ordered corrected to reflect a concurrent sentence on count 2 and additional credits for all time actually served under People v. Buckhalter (2001) 26 Cal.4th 20. (I) LAR

DiGuiseppe, Raymond M. — People v. Owens, D068333 — Gang Enhancements — Peter C. Deddeh, Judge — Opinion by Haller, J., with O’Rourke, J., Aaron, J. Sentencing court imposed and purported to stay gang firearm enhancements under Penal Code section 12022.53, even though the jury had found the section 186.22, subdivision (b) gang allegations not true. Court of Appeal vacated the gang firearm enhancements and ordered the abstract of judgment modified accordingly. (I) NFA

Brisbois, Patricia L. — People v. Zuniga, D068420 — Clerical Error — Christopher J. Plourd, Judge — Opinion by McConnell, P.J., with Nares, J., Aaron, J. Abstract of judgment ordered corrected due to clerical error. While the abstract of judgment correctly reflects the aggregate sentence for two enhancements, it incorrectly shows the sentence for the firearm use enhancement as four months and the sentence for the great bodily injury enhancement as two years, when it should show one year for the firearm use enhancement and one year and four months for the great bodily injury enhancement. (I) AMJ

Harris, Donna L. — People v. Cady, D068582, (2016) 7 Cal.App.5th 134 — Lesser Included Offense — Louis R. Hanoian, Judge — Opinion by Irion, J., with McConnell, P.J., Aaron, J. Appellant was convicted of the crime of driving under the combined influence of alcohol and a drug causing injury and of the crime of driving under the influence of alcohol causing injury. Under the elements test, because the latter crime is a necessarily lesser included offense of the former, defendant cannot be convicted of both. (I) PMI

Ball, Lindsey M. — In re M.F, D068971, (2017) 7 Cal.App.5th 489 — Probation Condition/Custody Credits — Aaron H. Katz, Judge — Opinion by Aaron, J., with Benke, J., Huffman, J. Minor’s probation condition which prohibited knowing possession or use of all electronic devices found unconstitutionally overbroad. Case remanded to the juvenile court to modify the condition in order to identify more precisely the nature of the devices it seeks to prohibit. In addition, because juvenile court failed to order predisposition credits, disposition order must be amended to include credits. (A) MCR

Carroll, Steven J. — People v. Maxwell, D069837 — Fines and Fees — Daniel F. Link, Judge — Opinion by O’Rourke, J., with Benke, J., Aaron, J. Various fines vacated as inapplicable to appellant’s offense of vehicle taking: $615 drug program fee; $205 crime laboratory fee; and $39 local crime prevention fee. (I) NFA

Turkat-Schirn, Megan — In re S.M., D070598 — Indian Child Welfare Act (ICWA) Notice — Michael J. Imhoff, Judge — Opinion by Benke, J., with Nares, J., Haller, J. Mother argued and Court of Appeal agreed the agency failed to provide proper notice under the ICWA because of missing information. Court declined to find the ICWA notice issue was not yet ripe even though the trial court had not made final ICWA findings. Disposition orders, which were not challenged, were affirmed but the case was remanded to trial court to comply with the ICWA. (I) LLF

Lankford, Valerie N. — In re Emma S., D071018 — Indian Child Welfare Act (ICWA) — Gary M. Bubis, Judge — Opinion by Benke, J., with O’Rourke, J., Irion, J. Juvenile court ordered father’s parental rights terminated and found the ICWA did not apply, even though Native American ancestry was triggered and no subsequent notice or inquiry action had been taken. Father appealed arguing juvenile court did not comply with the ICWA inquiry and notice requirements. All parties stipulated to appellant’s argument. Court of Appeal reversed and remanded for compliance with the ICWA. (I) LMF

Shetty, Siri — People v. Neal, E063240 — Probation Costs and Attorney Fees — J. David Mazurek, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. The court reversed the judgment as to the $750 appointed counsel fees order and the $665 probation costs order and remanded for a hearing on appellant’s ability to pay the fees and costs. The court also ordered the abstract of judgment to be amended. (I) BCT

McPartland, Michael B. — People v. Dixon, E063633 — Penal Code Section 654 — Angel M. Bermudez, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Miller, J. Defendant was convicted of, and separately sentenced for, evading police based on a car chase and of felony vandalism based on his crashing into another vehicle during the chase. Court of Appeal stayed term for felony vandalism under Penal Code section 654. (I) NFA

Yockelson, Alan S. — People v. Perez, E063705 — Gang Enhancements — Steven A. Mapes, Judge — Opinion by Miller, J., with Ramirez, P.J., Codrington, J. Court of Appeal reversed two enhancement findings that appellant committed attempted murders for the benefit of his criminal gang where both attacks arose out of personal disputes and there was no evidence the crimes were gang-related. (I) NFA

Matulis, Jean — People v. Unruh, E063818 — Credits — Rodney A. Cortez, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., McKinster, J. Following a resentencing hearing, the trial court erred in failing to recalculate and credit defendant’s actual time in custody, including time served both in prison and in county jail as is required under People v. Buckhalter (2010) 26 Cal.4th 20. (I) AMJ

Dain, Anthony J. — People v. Alkema, Jr., E063908 — Sentencing — John M. Davis, Judge — Opinion by McKinster, J., with Hollenhorst, J., Codrington, J. Appellant was convicted of two counts of being a violent felon in possession of a firearm during a 30-hour mini crime spree. One count is reversed because possession of the same gun during the entire crime spree is a continuing offense. Additionally, where the court misunderstood its sentencing discretion to sentence defendant to a concurrent term and where it erred by staying the sentence on several counts and enhancements without first imposing a sentence, the case is remanded for resentencing. (I) PMI

Peabody, Jennifer — People v. Duenas, E064300 — Improper Amendment of Information — Daniel W. Detienne, Judge — Opinion by McKinster, J., with Hollenhorst, J., Slough, J. Appellant was originally convicted of three counts of lewd and lascivious acts on children under the age of 14 - two counts on Jane Doe 1 (counts 1-2) and one count on Jane Doe 2 (count 3). Count 3 was originally charged on the grounds of a vaginal touching. However, the prosecutor could not argue this count because when Jane Doe 2 testified about the only incident she remembered in detail, she stated that defendant had not touched her vagina at that time. After both sides had rested, the court allowed the prosecutor to amend the information to strike the vaginal touching originally alleged for count 3 and instead instruct the jury to use a different incident (a touching of Doe 2's buttocks) as the basis of that count. Both parties agreed that there was no evidence at the preliminary hearing that defendant had touched Doe 2's buttocks. This amendment was impermissible and prejudicial to defendant because he was misled in his defense. The judgment of conviction as to count 3 is reversed. (I) LKH

Stanton, Marta I. — People v. Phillips, E065573 — Proposition 47 — Becky Dugan, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Appellant petitioned for Proposition 47 relief for conviction of possessing methamphetamine. Although district attorney conceded the petition should be granted, superior court denied relief on grounds that the case had been dismissed under Penal Code section 1210.1 after appellant had successfully completed a substance abuse program. On appeal, respondent conceded error and Court of Appeal agreed, concluding that dismissal under section 1210.1 was similar to dismissal under section 1203.4 which does not prevent reduction under People v. Tidwell (2016) 246 Cal.App.4th 212. (I) HCC

Keiter, Mitchell — In re S.P., E066449 — Indian Child Welfare Act — Timothy F. Freer, Judge — Opinion by Ramirez, P.J., with Miller, J., Slough, J. Reversed for inadequate inquiry and notice under the Indian Child Welfare Act. (I) ACS

Raneri, Lisa A. — In re I.D., E066822 — Indian Child Welfare Act — Cheryl C. Kersey and Christopher B. Marshall, Judges — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Reversed due to inadequate notice under the Indian Child Welfare Act. (I) ACS

Brisbois, Patricia L. — People v. Gonzalez, G047199 — Franklin — James A. Stotler, Judge — Opinion by Aronson, J., with Bedsworth, J., Thompson, J. After a grant and hold and then remand following People v. Franklin (2016) 63 Cal.4th 261, the Court of Appeal concluded that because the sentencing hearing reflects virtually no consideration of his age, appellant is entitled to make a record before the superior court of “mitigating evidence tied to his youth” to ensure his eventual youthful offender parole hearing is meaningful and not simply perfunctory. (I) HCC

Kelly, David L. — People v. Camarena, G049416 — Discretion to Strike Gang Enhancement — Patrick Donahue, Judge — Opinion by O’Leary, P.J., with Aronson, J., Ikola, J. After remand from the Supreme Court with directions to reconsider prior decision in light of People v. Fuentes (2016) 1 Cal.5th 218, the Court of Appeal agreed that the trial court had discretion to dismiss the gang enhancement in this case and did not know it. Case remanded for court to exercise discretion. (I) APJ

Capriola, William J. — People v. Arenas, G050829 — Abstract of Judgment — Steven D. Bromberg, Judge — Opinion by Aronson, J., with O’Leary, P.J., Ikola, J. Abstract of judgment must be corrected to reflect presentence credits. (I) PMI

Rogers, Tracy A. — People v. Torres, G051227 — Dan McNerney and Thomas A. Glazier, Judges — In Camera Review of Victim’s School Records — Opinion by Aronson, J., with Moore, J., Thompson, J. Judgment conditionally reversed and the cause remanded to permit the trial court to conduct an in camera review of the subpoenaed school records of the victim. If inspection reveals relevant information, the trial court must order disclosure, allow defendant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. (I) LAR

Wrubel, Sharon G. — People v. Alcala, G052093 — Restitution Fine — Gary S. Paer, Judge — Opinion by Bedsworth, J., with Ikola, J., Thompson, J. Attorney General conceded and Court of Appeal agreed that direct victim restitution to cover funeral and mental health expenses were intended to be imposed jointly and severally. Remand ordered to amend abstract of judgment. (I) APJ

Tobin, Wayne C. — People v. Gonzalez, G052436, (2017) 7 Cal.App.5th 370 — Postrelease Community Supervision (PRCS) Revocation — Kimberly Menninger, Judge — Opinion by Fybel, J., with O’Leary, P.J., Ikola, J. PRCS revocation based on appellant violating the condition that “he report his change of residence” after being released from a Penal Code section 5150(a) hold is reversed where appellant was homeless before and after the involuntary hold and involuntary placement under a section 5150(a) hold does not turn the treatment facility into a “residence.” The Court of Appeal urges the Legislature to amend the PRCS Act to define “residence” and impose reporting requirements for homeless persons. (A) PMI

Hong, Esther K. — In re Gilbert Z., G052516 — Search and Seizure — Lewis W. Clapp, Judge — Opinion by Moore, J., with Fybel, J., Ikola, J. Judgment reversed where Juvenile Court erred in denying minor’s suppression motion. Police responded to an anonymous report that a group of four or five Hispanic males was tagging a wall. An officer encountered appellant and three other Hispanic males walking a half mile from the reported tagging site. The officer detained the group and found contraband on appellant. Court of Appeal held the anonymous report had insufficient indicia of reliability to support the detention. (I) NFA

Lampkin, David P. — People v. Tuiolosega, G052588 — Presentence Custody Credits — Thomas M. Goethals, Judge — Opinion by Thompson, J., with Aronson, J., Fybel, J. Trial court erred when it failed to award any actual presentence custody credtis under Penal Code section 2900.5, subdivision (a). Court of Appeal remanded the case to the trial court so the clerk can modify the abstract of judgment to include 1055 day custody credit award. (I) CBM

Ball, Lindsey M. — People v. Calvin S., G052793 — Probation Conditions — Lewis W. Clapp, Judge — Opinion by Thompson, J. with Bedsworth, J., Ikola, J. A probation condition requiring that appellant “take medications as prescribed by doctors” is overbroad. The juvenile court only focused on managing appellant’s Asperger’s syndrome and ADHD, so a probation condition requiring appellant to take medication should not apply to prescriptions unrelated to those disorders. Moreover, appellant should not be at risk for violation if he ceases taking a prescribed medication based on medical necessity, provided he promptly consults with his physician to modify his prescription regimen. The probation condition is modified to specify which conditions appellant must take medication for and to make allowance for instances where medical necessity prevents him from taking his medication. (A) MCR

February 2017

Pfeiffer, Rich — In re Ray M. (2016) 6 Cal.App.5th 1038, D070157 — Notice for Welfare and Institutions Section 241.1 Hearing/Notice Under The Indian Child Welfare Act (ICWA) — William Derek Quan, Judge and Juan Ulloa, Judges — Opinion by McConnell, P.J., with O’Rourke, J., Irion, J. Case reversed and remanded to juvenile court based on a lack of proper notice for the section 241.1 hearing and failure to properly notice per the ICWA if the child is found to be a dependent. Case involved a determination of whether minor should proceed as a dependent or a ward and involved a transfer between two counties. In November 2012, minor became a dependent based on abuse by his mother in Imperial County. In January 2016, minor was arrested and a petition was filed under section 602 in Kern County. Kern County conducted a hearing under section 241.1, determined minor should be deemed a ward and not a dependent, found allegations in the petition true, and transferred the case to Imperial County for disposition. In an appeal from the disposition, minor argued, County Counsel conceded, and the Court of Appeal agreed the Kern County’s findings were in error because notice was not proper to minor’s dependency attorney or to the Imperial County court as required by section 241.1 and California Rules of Court, rule 5.512. In addition, the Imperial County court had the authority to revisit the Kern County court’s decision based on error because of the court’s inherent powers to change, modify or set aside an order as the judge deems proper. (I) LLF

Fisher, Lelah S. — In re Emily M. et al., D071185 — Indian Child Welfare Act (ICWA) — Michael Imhoff, Judge — Opinion by Huffman, J., with Aaron, J., Irion, J. County counsel stipulated to reversal for lack of proper ICWA notice. The Court of Appeal reversed and remanded with directions to the superior court to complete ICWA notice. (I) MAC

Erickson, Kristin A./Morse, David M. — People v. Contreras et al., E062772 — Gang Enhancements — Mary E. Fuller, Judge — Opinion by Miller, J., with Ramirez, P.J., McKinster, J. Where appellants were sentenced to 25 years to life for first degree murder, the Court of Appeal vacated 10-year gang enhancements imposed under Penal Code section 186.22, subdivision (b)(1)(c), because that subdivision is inapplicable to a defendant sentenced to an indeterminate term; instead, the 15-year minimum parole term prescribed by section 186.22, subdivision (b)(5) applies to such defendants. Following People v. Lopez (2005) 34 Cal.4th 1002. (I) NFA

Brisbois, Patricia L. — People v. McCrumb, E063205 — Clerical Error — James S. Hawkins, Judge — Opinion by Codrington, J., with Hollenhorst, J., McKinster, J. The Court of Appeal ordered the superior court to correct the abstract of judgment to reflect appellant’s guilt was determined by a jury trial, not a bench trial. (I) LKH

Mahler, Edward — People v. Jordan, E063761 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by McKinster, J., with Codrington, J., Slough, J. Court of Appeal reversed the denial of appellant’s Prop. 47 petition, finding that appellant’s crime of burglary qualified as shoplifting even though the intended offense was theft by false pretenses and could be characterized as identity theft. In addition, given the recent Supreme Court case of Harris v. Superior Court (2016) 1 Cal.5th 984, the court rejected the People’s request for leave to withdraw from the plea bargain and to reinstate a dismissed charge of identity theft. The order denying appellant’s petition was reversed and the matter remanded for the trial court to determine whether defendant poses an unreasonable risk to public safety. (I) HCC

Power, Richard — People v. Smith, E064022 — Correction of Abstract of Judgment — John M. Tomerlin, Judge — Opinion by Miller, J., with Ramirez, P. J., Slough, J. Attorney General conceded and the court ordered the abstract of judgment amended to correct several clerical errors. (I) BCT

Derrick, John — People v. Napoli III, E064437 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Miller, J., with Ramirez, P.J., Slough, J. Trial court’s finding that appellant’s second degree burglary conviction was ineligible for a misdemeanor reduction because it involved the use of a stolen credit card is reversed and the matter is remanded for additional evidence related to the value of the stolen property. Penal Code section 459.5 includes theft by false pretenses and it does not matter that appellant might also have intended identity theft. (I) PMI

Wrubel, Sharon G. — People v. De Los Santos, E064715 — Parole Revocation Fine/Abstract of Judgment — Anthony R. Villalobos, Judge — Opinion by Codrington, J., with Ramirez, P.J., Miller, J. Parole revocation fine ordered stricken where appellant sentenced to life without the possibility of parole. Abstract of judgment ordered corrected to reflect 1,304 days of pre-sentence credit for actual days served. (I) APJ

Johnson, Mark D. — People v. McGrail, E064766 — Penal Code Section 654 — Victoria E. Cameron, Judge — Opinion by Codrington, J., with Hollenhorst, J., Miller, J. Court of Appeal agreed that appellant’s eight-month consecutive sentence for driving/taking a vehicle must be stayed under Penal Code section 654 because the robbery, for which appellant was also sentenced, and the car theft were part of an indivisible course of conduct. (I) APJ

Schwartzberg, Richard — People v. Lepe, E065057 — Penal Code Section 654 — Jeffrey L. Gunther, Judge — Opinion by Codrington, J., with Hollenhorst, J., McKinster, J. Attorney General conceded and Court of Appeal agreed that sentence for driving with blood alcohol content of .08 or more must be stayed because offense based on same conduct as appellant’s driving under the influence conviction for which two-year sentence was imposed. (I) APJ

Gilmartin, Tiffany — In re Z.T., et al., E066408 — Indian Child Welfare Act (ICWA) — Timothy F. Freer, Judge — Opinion by Hollenhorst, J., with McKinster, J., Codrington, J. Mother argued and the Court of Appeal agreed the agency and trial court erred in failing to include the child’s great-great grandfather’s name and identifying information in the ICWA notice when the information was known to the agency. The appellate court ordered a limited remand to comply with the ICWA notice provisions. (A) LLF

Farber, William D. — People v. Holmes, E066458 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Ramirez, P.J., with Miller, J., Slough, J. On People’s appeal, court affirmed grant of Prop. 47 relief. A jury had convicted appellant of burglary based on evidence he entered a bank to commit theft by cashing a forged $450 check. The People argued Prop. 47 relief was barred because: 1) appellant’s target crime amounted to identity theft, which is excepted from Prop. 47; and 2) a bank is not a “commercial establishment” within the meaning of section 490.5. The Court of Appeal found the identity theft exclusion did not apply because section 530.5 was neither alleged nor instructed to jurors. And the court found a bank is a “commercial establishment, as it had earlier held in People v. Albarca (2016) 2 Cal.App.5th 475. (I) NFA

Cannon, Gregory L. — People v. Escamilla, G050619 — Double Jeopardy — Craig E. Robison and Sheila F. Hanson, Judges — Opinion by Aronson, J., with Bedsworth, J., Moore, J. Appellant was charged with eleven counts of lewd acts with a child under 14 years old (Pen. Code, § 288, subd. (a)). Counts 10 and 11 alleged separate acts committed during the same date range. They were labeled “ONE TIME” (count 10) and “A DIFFERENT TIME” (count 11). In the first trial, the jury could not reach a verdict on count 10, but acquitted appellant of count 11. Appellant was retried on count 10 and convicted based on the same evidence. The Court of Appeal reversed the conviction, concluding retrial of count 10 violated double jeopardy. Since the jury in the first trial was never instructed that “ONE TIME” referred to the first touching incident, it was impossible to discern which act the jury relied on in acquitting appellant of count 11. The Court of Appeal reversed Count 10 and associated special conditions and remanded the case for re-sentencing. (I) LKH

Martin, Arthur — People v. Nava, G050795 — Firearm Enhancement — James S. Hawkins, Judge — Opinion by Moore, J., with O’Leary, P.J., Fybel, J. Appellant argued, respondent conceded, and Court of Appeal agreed that two-year firearm enhancement imposed under Penal Code section 12022, subdivision (d), applicable to drugs, was inapplicable since no drugs were involved in this case; the enhancement was modified to the applicable one-year under subdivision (a). (I) HCC

Carroll, Steven J. — People v. Armogeda, G051197 — Excess Custody Credits — Vickie L. Hix, Judge — Opinion by Ikola, J., with Rylaarsdam, J., Aronson, J. Court of Appeal held that after appellant’s 2011 felony sentence for possessing heroin was reduced to a misdemeanor under Penal Code section 1170.18 while he was on PCRS, he was not entitled to have custody credits against his 1-year of parole imposed under section 1170.18, subdivision (d); however, he was entitled to have his excess custody credits offset any punitive fines pursuant to section 2900.5. (I) NFA

Booher, Robert — People v. Pinon (2016) 6 Cal.App.5th 956, G051212 — Excess Custody Credits — Vickie Hix, Judge — Opinion by Ikola, J., with Moore, J., Fybel, J. On remand from the Supreme Court, the Court of Appeal reaffirmed the original holdings on the issues not decided by the Supreme Court: (1) appellant was still serving his sentence while on Post-Release Community Supervision; (2) appellant is subject to parole, but the parole term may not exceed the remaining time on defendant’s term of release superivision; and (3) appellant was exempt from registering as a drug offender. After requesting supplemental briefing, the Court of Appeal determined that excess custody credits may be used to reduce punitive fines. Post-judgment order reversed and the matter was remanded to the trial court to recalculate defendant’s maximum parole if necessary. (I) LAR

Ting, Allison H. — People v. Lopez, G051743 — Sufficiency of Evidence to Prove Strike Prior— David A. Hoffer, Judge — Opinion by O’Leary, P.J., with Fybel, J., Ikola, J. Strike prior stricken where only evidence in the record of prior conviction was that appellant pled guilty to the substantive gang participation offense (§186.22, subd. (a)), with no indication whether the offense was committed with another gang member, as required by People v. Rodriguez (2012) 55 Cal.4th 1125, 1132. Remanded for retrial on the prior felony strike. (I) NFA

Bauguess, Susan S. — People v. Stipe, G051965 — Probation Condition — Thomas M. Goethals, Judge — Opinion by Fybel, J., with O’Leary, P.J., Ikola, J. Court minutes must be modified to reflect the trial court’s oral pronouncement granting the probation department the authority to implement the probation condition restricting association and to determine defendant’s living situation. As modified, the probation condition is not a blanket prohibition on any contact whatsoever between defendant and her felon/parolee husband. (I) PMI

Coleman, Jared G. — People v. Juarez, G052044 — Instructional Error — James Edward Rogan, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Fybel, J. Court of Appeal agreed with appellant’s argument that the trial court erred by not instructing the jury that they should consider whether movement of the victim was merely incidental to an associated crime when determining whether the distance moved was substantial. In this case, the child victim was taken to a nearby laundromat while her home was burglarized. Court of Appeal found that the Chapman (Chapman v. State of California (1967) 386 U.S. 18) standard of review applies and the error was prejudicial in this case. (I) APJ

Adraktas, Stephanie M. — People v. Sharp, G052769 — Penal Code Section 654 — John S. Adams, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Fybel, J. The two-year concurrent term imposed on count two, possessing a controlled substance for sale was ordered stayed pursuant to Penal Code section 654 because it stemmed from the same act as count one, sale or transportation of a controlled substance. (A) BCT

January 2017

Katz, Paul J. — People v. Quirino, G050926 — Insufficient Evidence Gang Enhancements/Penal Code Section 1179.18 (Prop. 47)/Lab Analysis Fee — M. Marc Kelly, Judge — Opinion by Ikola, J., with Bedsworth, J., Fybel, J. Gang enhancements stricken where there was nothing in the record to suggest appellant intended to commit the gun and methamphetamine possession crimes for the benefit of his gang. Also, the reduction of a prison prior felony to a misdemeanor after appellant was sentenced, but before re-sentencing on remand, means that the prior conviction no longer supports a prison prior enhancement. Additionally, the lab analysis fee is not warranted where appellant was not convicted of any offense specified in the statute. (I) PMI

Conrad, Leslie — People v. Bell, E063234 — Juvenile Life Without Parole (LWOP) — Patrick F. Magers, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Codrington, J. Appellant committed a first degree murder with special circumstances as a minor and received a LWOP sentence in 2005. In 2014, in response to appellant’s habeas petition, the California Supreme Court ordered the trial court to re-sentence him. (People v. Gutierrez (2014) 58 Cal.4th 1354 [listing five factors that must be considered before imposing life without parole for special circumstances murder when committed by a juvenile].) The trial court once again sentenced appellant to life without parole. The Court of Appeal held the trial court abused its discretion by refusing to consider evidence of post-sentence rehabilitation. (People v. Lozano (2016) 243 Cal.App.4th 1126, 1137-1138.) The court also concluded appellant was not required to make an offer of proof to show prejudice. (I) HCC

Rich, Renee — People v. Demedio, E063425 — Sentencing — Angel M. Bermudez, Judge — Opinion by Ramirez, P.J., with McKinster, J., Slough, J. Attorney General conceded and Court of Appeal agreed that appellant is entitled to a second- strike sentence on his conviction for receipt of stolen property because it is not a serious or violent offense. In addition. the trial court erred by staying, rather than striking appellant’s prior prison term enhancements where the same prior convictions were the basis for serious felony five-year enhancements. (I) PMI

Barry, Leslie A. — In re Z.G., et al. (2016) 5 Cal.App.5th 705, G053232 — Bypass of Reunification Services — Gassia Apkarian, Judge — Opinion by Thompson, J., with O’Leary, P.J., Bedsworth, J. Minor-appellant argued the trial court erred in granting reunification services to the parents when the juvenile court found the allegation per section 300, subd. (f) [death of another child through neglect], true and the court should have applied the bypass provisions in section 361.5, subd. (b)(4) [death of another child through neglect]. Juvenile court held the parents should be given another chance based on their grief following the death of their child, but the appellate court held reunification had no chance of success since the parents had failed to do any reunification services in the year between the detention and jurisdiction/disposition hearings and reunification was not in the children’s best interest. (I) LLF

Klein, Jill M. — People v. Banks, E061755 — Fines/Fees/Abstract of Judgment — W. Charles Morgan, Judge — Opinion by McKinster, J., with Codrington, J., Slough, J. Various fines and fees not orally imposed by the court, but which appear on the abstract of judgment, were ordered stricken. The abstract of judgement was also ordered corrected to reflect the actual sentence imposed by the court. (I) BCT

Rogers, Tracy A. — People v. Swann, D069217 — Penal Code Section 1170.18 (Prop. 47) — Michael T. Smyth, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. The order denying appellant’s Prop. 47 petition is reversed and matter is remanded with directions to grant the petition. Appellant’s second degree burglary conviction is eligible for reduction under Prop. 47, even though he entered a building intending to commit theft by false pretenses, not larceny. Court of Appeal adheres to the view that Penal Code section 459.5 includes thefts by means other than larceny. (I) LKH

Schuck, John F. — In re M.M., E064843 — Multiple Prosecutions — F. Paul Dickerson III, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Miller, J. The juvenile court granted minor’s motion to dismiss a burglary petition under People v. Kellett (1966) 63 Cal.2d 822, because minor had already admitted an allegation of receiving stolen property based upon the same incident and had been on probation for that offense for five months when the subsequent petition was filed. The People appealed the dismissal. Court of Appeal affirmed the dismissal concluding that the People knew, or should have known, the offenses were related. In addition, both offenses were part of a continuous course of conduct and involved substantially overlapping evidence. (I) HCC

Siroka, Matthew A. — People v. Bravo, Jr., G051346 — Dual Convictions/Penal Code Section 1170.18 (Prop. 47) — Cheri T. Pham, Judge — Opinion by Thompson, J., with Bedsworth, J., Ikola, J. Appellant was convicted of two counts of carrying a loaded firearm in a vehicle under two distinct circumstances which elevated the offense to a felony. One conviction was for appellant’s possession of the firearm as a convicted felon, (§ 25850, subd. (c)(1)) and the other was for possession of the firearm when he knew or had reason to know it was stolen (§ 25850, subd. (c)(2)). Court of Appeal reversed one of the counts because it was error to split possession of a single loaded handgun into two separate charges. In addition, during the pendency of the appeal, a prior theft conviction which was the basis of a prior prison term enhancement in this case, was redesignated as a misdemeanor under Prop. 47. Since the prior theft conviction is now a misdemeanor and the current judgment is not final, the one-year prison term imposed for the prior theft conviction was ordered stricken. The court noted the Supreme Court has granted review on whether Prop. 47 retroactively invalidates a prior prison term enhancement. (I) BCT

Booher, Robert — People v. Hernandez, D069788 — Probation Condition — Daniel F. Link, Judge — Opinion by Huffman, J., with McConnell, P.J., Benke, J. Court of Appeal agreed that electronic search condition imposed in this case, and objected to by trial counsel, fails the test of reasonableness under People v. Lent (1975) 15 Cal.3d 481. Trial court directed to strike the condition. (I) LAR

Staley, John L. — In re A.S., E065614 — Sealing Juvenile Records — Robert J. McIntyre, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Miller, J. Trial court abused its discretion in refusing to seal minor's school records as it pertained to a dismissed petition for which sealing was sought under Welfare and Institutions Code 786, subdivision (e)(2) [discretionary sealing of records in the custody of a public agency]. Either the court's misunderstood its discretion if it erroneously believed a school district is not a public agency, or it simply failed to exercise its discretion in determining whether sealing the school records will promote the successful reentry and rehabilitation of minor. Reversed and remanded to allow the juvenile court to make a factual determination in the first instance regarding whether sealing the school records that refer to the juvenile court proceedings will promote minor's reentry and rehabilitation. In so doing, the opinion made note of the minor's improvement in grades and behavior, completion of community service, compliance with conditions of probation, and conduct as a law abiding citizen since August 2013. (I) AMJ

Bauguess, Susan S. — People v. Rivas, G051672 — Penal Code Section 1170.18, (Prop. 47) — Thomas A. Glazier, Judge — Opinion by Moore, J., with Bedsworth, J., Aronson, J. Appellant pled guilty to one count of felony possession of methamphetamine and one count of street terrorism. In 2015, he successfully petitioned the court under Prop. 47 to have his methamphetamine possession count reduced to a misdemeanor. However, the trial court denied his request to dismiss the street terrorism count, stating that a Prop. 47 petition was not an appropriate vehicle for seeking dismissal. The Court of Appeal ruled that the street terrorism count should be dismissed because the predicate felony required for the conviction had been re-classified as a misdemeanor for all purposes. Moreover, the court deemed it would be an unnecessary burden on defendants and the courts to force defendants in this position to pursue collateral relief via separate petition. Matter remanded for dismissal of the street terrorism conviction. (I) MCR

Webb, Reed — People v. Doria, E065879 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. In this People’s appeal, the Court of Appeal affirmed the reduction of respondent’s felony commercial burglary conviction under Prop. 47. Although respondent had a co-defendant with him in this petty theft, the People did not allege a conspiracy and so was precluded from doing so now. (I) LAR

De La Sota, Richard — People v. Rivera, E063917 — Sentencing — Graham A. Cribbs, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Miller, J. One of appellant’s five-year serious felony prior enhancements must be stricken from both his determinate and indeterminate terms because two of the three serious felony prior convictions arose from the same case. A one-year prior prison term enhancement must also be stricken from both the determinate and indeterminate terms because it is based on the same conviction as one of the serious felony prior enhancements. (I) PMI

Hill, Melissa — People v. Barbarin, D068066 — Franklin Hearing — Christian F. Thierbach, Judge — Opinion by Huffman, J., with Nares, J., Haller, J. After a remand from the California Supreme Court, Court of Appeal remanded the case to the superior court for the limited purpose of providing appellant with an adequate opportunity to present mitigating information consistent with the dictates of People v. Franklin (2016) 63 Cal.4th 261 for a future youth-offender parole hearing. (I) PMI

Shaler, Susan K. — People v. Medel, E062247 — Penal Code Section 654 — Michael B. Donner, Judge — Opinion by Miller, J., with Ramirez, P.J., Codrington, J. Concurrent sentence for assault with a deadly weapon ordered stayed pursuant to Penal Code section 654 because the conviction was based upon the same act as the attempted voluntary manslaughter conviction for which appellant was separately punished. (I) APJ

Hermansen, Kurt D. — People v. Galvan, Jr., E063887 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Miller, J. Court of Appeal affirmed the trial court’s order granting Prop. 47 relief on respondent’s burglary conviction for entering EZ Check Cashing with the intent to cash a stolen $351.75 money order. Where the People did not contest respondent’s claim regarding value of the property nor challenge the sufficiency of the petition in the trial court, Court of Appeal found that the court did not abuse its discretion in reaching the merits of respondent’s petition. Because the People never charged an identity theft crime, Court of Appeal rejected the People’s claim on appeal that respondent was ineligible for Proposition 47 relief because he had committed an identity theft crime. Finally, the Court of Appeal found that the check-cashing establishment qualified as “commercial” under Prop. 47. (I) CBM

Covin, Randi — People v. Hudgins, E059858 — Prosecutorial Misconduct — Jeffrey L. Gunther, Judge — Opinion by Codrington, J., with Ramirez, P.J., Hollenhorst, J. The parties were allowed an additional 10-minute closing argument when jury indicated it was hung 6-to-6. During that time, the prosecutor not only appealed to the sympathy of the jury, arguing it should consider the impact of the crime on the victim’s family, the prosecutor urged the jury to return guilty verdicts because of the time invested in this trial and because more time would be wasted in retrying the case if the jury did not reach guilty verdicts. The court not only overruled the defense objections, it told the jury the arguments were not misconduct. Court of Appeal found that the arguments were misconduct and, where the evidence was close, the misconduct was prejudicial. Appellant’s special circumstance murder conviction and premeditated attempted murder conviction are reversed. (I) PMI

Torres, Steven A. — People v. Dominguez, G051747 — Resentencing — Kelly L. Hansen, Judge — Opinion by Moore, J., with Aronson, J., Ikola, J. Appellant was resentenced after the trial court reversed his conviction on nine of 24 counts of lewd act on a child under the age of 14. As part of the resentencing, the court violated double jeopardy protection by increasing the fines imposed under Penal Code sections 1202.4, 1202.45 and 290.3. The abstract of judgment also included an additional fine and a weapons prohibition provision that were not orally pronounced. Finally, appellant’s credits were incorrectly calculated on the abstract of judgment. Attorney General conceded all points. Case remanded to trial court to eliminate additional fines, strike weapon prohibition provision and give appellant additional credits. (I) MCR

King, Nancy J. — People v. Aguon et al., D064367 — Franklin Hearing — Joan P. Weber, Judge — Opinion by Huffman, J., with McConnell, P.J., Aaron, J. Appellant was convicted as a juvenile and sentenced to 50-years-to-life in state prison. However, under Penal Code section 3051, he is eligible for a youth-offender parole hearing after serving 25 years of his sentence. While appellant presented some mitigation evidence at the time of his sentencing, there was not then the same motivation and need to present information explaining the wide array of youth-related mitigating factors that there is in light of the holding in People v. Franklin (2016) 63 Cal.4th 261. Case remanded for appellant to create a record of mitigation evidence to be used at his youth-offender parole hearing. (I) MCR

Holzer, William G. — In re Haley, G053792 — Insufficient Evidence/Gang Offense — Gary S. Paer, Judge — Opinion by Bedsworth, J., with Fybel, J., Ikola, J. In People v. Rodriguez (2012) 55 Cal.4th 1125, the Supreme Court determined a defendant cannot commit the crime of participation in a criminal street gang alone. Respondent conceded, and the Court of Appeal agreed appellant’s 2005 convictions for this offense are not supported by sufficient evidence in light of the new Rodriguez opinion. Defendant’s petition granted; unsupported convictions reversed. (I) CBM

Jones, Cynthia M. — People v. Corpening (2016) 2 Cal.5th 307, D064986, S228258 — Penal Code Section 654 — Francis M. Devaney and Kathleen M. Lewis, Judges — Opinion by Cuéllar, J., with Cantil-Sakauye, C. J., Werdegar, J., Chin, J., Corrigan, J., Liu, J., Kruger, J. Appellant was convicted of both carjacking and robbery based on the same forceful taking of a vehicle. The issue was whether the forceful taking of the vehicle –– the same taking that, according to the prosecution, accomplished the crimes of both robbery and carjacking –– constituted a single physical act subject to the prohibition on multiple punishment under section 654. Since the same action completed the actus reus for each of these two crimes, the court held that section 654 forbade punishment under both provisions. (I) HCC

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