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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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

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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