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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.

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December 2011
Lathrop, Stephen – People v. Mallett, G045094 – Pitchess Motion
Judgment conditionally reversed for failure to conduct proper Pitchess motion. Matter remanded so court can re-conduct the hearing and 1) place the custodian of records under oath and 2) either photocopy the records submitted by the custodian or state for the record the documents examined and their contents so the Court of Appeal has a record to review on appeal. (I) PED

Levy, Richard — People v. Najera. G044246 — Sentencing
Life-without-possibility of parole sentence for one of two murders reduced to 15 years to life where the jury's verdict was of second degree, not first degree, for that murder.
(I) HCC

Cella, Michelle — In re C.R., E052428 — Reunification Services/Delinquency
The Attorney General failed to respond and the Court of Appeal agreed with minor's argument that the court erred when it failed to order reunification services for his mother when he was placed under the supervision of the probation officer for placement pursuant to Welfare and Institutions Code section 727. Services were required pursuant to Welfare and Institutions Code section 727.2 because no exception applied. (A) APJ

Kessler, Daniel — People v. Vincent, D059362 — Abstract of Judgment Correction
Court of Appeal reduced restitution fine and parole revocation fine from $2800 each, as they appeared on the abstract of judgment, to $2400 each, as they were orally imposed by the sentencing court. (I) NFA

Haggerty, Edward – People v. Colantonio, E051875 – Penal Code Section 4019 (Two-Tier)
Pre-sentence custody credits ordered increased to comport with application of Penal Code section 4019 in effect at the time appellant was sentenced. (I) PED

Siminou, Benjamin — People v. McDowell, D060310 — Search and Seizure
Court of Appeal reversed trial court denial of motion to suppress evidence. Officer exceeded the scope of a permissible protective search when the initial pat-down did not raise reasonable suspicion defendant was armed and fanny pack was searched without first feeling it and observing it to determine if it contained a weapon. (A) AMJ

Torres, Steven — People v. Cresencio, E050303 — Lesser Included Offense
Court of Appeal reversed convictions of sexual intercourse with a child under 10 because the trial court had failed to instruct on the lesser included offense of attempt, which was supported by the evidence. The disposition modified the convictions to attempt, unless the prosecution opts to retry appellant for the completed offense. (I) NFA

Vogelmann, Monica/Bishop, Rosemary — In re Johnny R., D059981 — Indian Child Welfare Act
Court of Appeal reversed, finding that agency failed to inquire of maternal grandmother as to her Indian heritage. (I/A) ACS

Hill, Melissa — People v. Valdez, G041904 — Insufficient Evidence
In the unpublished portion of the opinion, the Court of Appeal reversed the true finding on the gang enhancement alleged in count eight for the attempted murder. Evidence was deemed insufficient to support the enhancement related to a shooting where the evidence suggested the shooting was random, and subsequent investigation did not reveal a connection to the gang, but rather a personal motive. (I) AMJ [Note: In the published portion, Court of Appeal rejected defendant's contentions that the trial court erroneously admitted pages from his MySpace site that included his gang moniker, a photograph, written notations, etc. based on lack of authentication, hearsay, and that it was more prejudicial than probative under Evidence Code section 352. ]

Duxbury, Brett — People v. Garcia, D057962 — Credits
Trial court erred in refusing to award any conduct credits where defendant was sentenced to 180 years to life because it was under the mistaken belief that he was not entitled to them. (I) AMJ

Fields, Lori A. — In re H.H., E052625 — Partial Reversal Jurisdiction Finding
Reversal of jurisdiction finding based on mental illness, but no reversal on grounds mother willfully failed to provide children with adequate shelter and failed to adequately supervise them . (I) CAG

Blake, Christopher — In re S.K., D060084 — Error in Appointing GAL
In this dependency case, the court appointed a guardian ad litem ("GAL") for the mother at the detention hearing after mother's attorney informed the court she could not communicate with the mother and was unable to complete paperwork. The court appointed a GAL without making any inquiry of the mother or holding an informal hearing to determine the need for the GAL. The appellate court concluded it was error to rely on the conclusory representation of counsel alone to appoint the GAL, as this did not inform the court whether mother had the capacity to understand the proceedings or assist counsel. The court concluded the error was not harmless beyond a reasonable doubt and ordered the juvenile court to conduct an informal hearing to determine whether the requirements for appointment of a GAL can be satisfied. (I) LMF

Crawford, James, – People v. Caro, G044586 – Penal Code Section 654
Commercial burglary conviction ordered stayed pursuant to Penal Code section 654 where the appellant was also convicted for a robbery which occurred during the same course of events. (I) PED

Shudde, Athena — People v. Meza, G044422 — Abstract of Judgment Correction
Court of Appeal ordered correction of abstract of judgment to reflect a sentence of life with the possibility of parole rather than life without the possibility of parole. (I) APJ

Coffin, Lynne — People v. Ruffin, E052174 — Insufficient Evidence/Erroneous Submission to Jury/Petty Theft w/Prior
Court of Appeal agreed with appellant's argument that there was insufficient corroboration to support conviction of theft by false pretenses where testimony of victim was corroborated by nothing more than irregular documents. The Attorney General conceded and the Court of Appeal also agreed that even if there had been sufficient evidence of theft, the offense did not qualify as a felony under Penal Code section 666 because there was evidence of only one qualifying prior conviction. Finally, the Court of Appeal agreed with appellant's argument that the trial court erred in placing the matter of appellant's prior conviction before the jury after a stipulation should have been sufficient to keep the issue from the jury. Because that error was prejudicial not only as to the theft conviction but also to the fraud conviction, reversal is required as to both. (M-I) APJ

Martin, Arthur/Schorr, Steve — People v. Norton/Moss, D056500 — Abstract of Judgment Correction
Remanded for correction of abstract of judgment. The People conceded that the abstract must be corrected as to both defendants to list the special circumstance appended to count 5 as a finding under Penal Code section 190.2, subdivision (a)(3), rather than subdivision (a)(21), and to designate count 11 as a nonviolent felony. As to defendant Moss, the abstract must also be corrected to designate count 10 as a nonviolent felony. (I) AMJ

Bostwick, James R., Jr. – People v. Cole, E052649 – Credits
Attorney General conceded and Court of Appeal fixed credits based upon correct number of actual days in custody. (I) PED

Rehm, Joanna -- P. V. Anderson, D057928 – DNA Evidence Foundation
Court held that the DA failed to establish a complete chain of custody for the DNA material taken from an iced tea can (D's DNA - which was found a the scene of the burglary), and that the trial court erred in finding that a chain of custody had been established. Here, no one testified about swabbing the can to collect the biological material - hence, no direct link between the can and the biological material was ever established. (I) LAR

Norman, Jan — People v. Medina, D058574 — Penal Code Section 4019
Because a prior juvenile true finding does not qualify as a prior serious felony conviction under former Penal Code section 4019 (People v. Pacheco (2011) 194 Cal.App.4th 343, 346), the trial court erred when it failed to award day for day pre-sentence conduct credits. The Court of Appeal modified the judgment to allow 371 days of additional pre-sentence custody credit. (I) CBM

Marshall, Marilee – People v. Torres, E051974 – Penal Code Section 4019/2933 (Two Tier)
The Court of Appeal agreed appellant is entitled to additional credits calculated under the law in effect at the time of sentencing. Thus, the court awarded appellant 210 conduct credits pursuant to section 2933, subdivision (e). The Court of Appeal rejected the two-tiered calculation of credits. (I) LKH

Saucier, Patricia — In re A.P., D059758 — Welfare and Institutions Code Section 388
Mother argued, and the Court of Appeal agreed, the trial court erred in failing to order the agency to prepare a report after mother filed a section 388 petition requesting the court reinstate the dependency and terminate the legal guardianship with the paternal grandparents. Mother's 388 petition showed father, who had untreated substance abuse problems, was babysitting the child unsupervised in violation of the guardianship orders and the grandparents were interfering with mother's visitation. The Court of Appeal reversed and remanded with directions to order the agency to evaluate the safety of the guardianship and to hold an evidentiary hearing on the merits of mother's 388 petition. (I) LLF

Cava, Dennis — People v. Bradley, E051987 — Pre-sentence Credit After Remand
At the re-sentencing hearing following a successful appeal, the trial court erred when it merely awarded the same actual and conduct pre-sentence custody credits which were awarded at the time of the original judgment. Pursuant to People v. Buckhalter (2001) 26 Cal.4th 20, the trial court had the duty at the re-sentencing hearing to calculate the entire actual time appellant has served prior to imposition of the new judgment. (I) CBM

Simpson, Alex – People v. Caitlyn A., D057958 – Post-Trial Amendment
Court of Appeal reversed minor's true finding for accessory after the fact. The juvenile court erred in concluding it was a lesser included offense of robbery as charged in the petition and the juvenile court could not grant the government leave to amend the petition to alleged accessory after the fact after the close of evidence. (A) LKH.

Jones, Cynthia – People v. Osmar S., D057628 – Lesser Included Offense/Factual Basis/Ineffective Assistance of Counsel
Court of Appeal reversed the true finding for grand theft because it is a lesser included offense of robbery. In addition, the appellate court reversed minor's true finding for battery on a custodial officer under section Penal Code section 243.1 finding that trial counsel was ineffective for permitting minor to admit this allegation. Under applicable authority, a probation officer in a juvenile detention facility is not a "custodial officer" for purposes of Penal Code section 243.1; thus, there was no factual basis for minor to admit the allegation. (A) LKH.

Nalls, Christopher – People v. Wyatt, D058938 – Sentencing Errors
The Court of Appeal modified the judgment to strike the 15 years-to-life terms on counts 2 and 4 because the trial court incorrectly imposed a 25 years-to-life enhancement for aggravated kidnapping in addition to 15 years to life for personal use of a deadly weapon for each count pursuant to Penal Code section 667.61, subdivision (a) and (b). Subdivision (f) explicitly states the court shall impose only the greater sentence between the two subdivisions. The court further modified the judgment to reduce the knife use enhancement on the consecutive robbery count from one year to four months and reduced the restitution and parole revocations fines from an unauthorized $80,000 to the $10,000 maximum. (I) BCT

Weinberg, Allen — People v. Rosenfeld, G043916 — Insufficient Evidence
In a case where the government presented no evidence about the circumstances immediately preceding the victim's death, the Court of Appeal agreed with appellant's argument that insufficient evidence supported the jury's verdict that the murder was committed with premeditation and deliberation and reduced the conviction to murder in the second degree. (I) APJ

Ulibarri, Patricia – P v. Gutierrez, D057581 – Insufficient Evidence
Appellant was convicted of first degree murder; the DA presented two theories - that he committed the murder during the commission of a burglary or that he premeditated and deliberated the murder. COA found that the record did not contain substantial evidence to support either theory of first degree murder. "Thus we conclude that this is the rare case in which the record lacks substantial evidence on which we may affirm the jury's verdict and that the judgment must be modified to reflect a conviction of second degree murder." (I) LAR

Glaser, Donald — People v. Strange, D058487 — Dual Convictions
Reversed in part and remanded. Verdicts on count 2 (receiving stolen property) and count 3 (grand theft) reversed because a defendant may not be found guilty of both robbery and the receipt of stolen property or theft in a case in which the offenses all involved the same stolen property. (I) AMJ

Harris, Donna — People v. Gil, E051912 — Fines/Fees
The Attorney General conceded and the Court of Appeal agreed that imposition of DNA penalty assessments would violate the prohibition against ex post facto laws in this case. However, both the Attorney General and the Court of Appeal rejected appellant's argument that the fine imposed included a DNA penalty assessment. Since the record is unclear, the case is remanded to the superior court to clearly delineate fines and fees. (I) APJ

Boyce, Robert – People v. Nelson, D056777 – Lesser Included Offense
The court reversed the lesser included offense of carjacking because appellant was also convicted of the greater offense of kidnapping during a carjacking. The Attorney General conceded the issue . (I) BCT

 

November 2011
Bauguess, Susan — In re Hathaway, E054273 — Penal Code Section 666
Petition for writ of habeas corpus granted. Penal Code section 666 revision applies retroactively to case where petitioner had two prior theft-related convictions at most, not three as required by the revision; hence, the maximum punishment is six months and the felony conviction is reversed. Judgment was not final for retroactivity purposes because imposition of sentence had been suspended when petitioner had been placed on probation in this case. (I) AMJ

Haggerty, Edward – People v. Nguyen, G044510 – Insufficient Evidence
Court of Appeal found insufficient evidence that out-of-state prior qualified as serious felony and remanded to allow prosecution to present additional evidence. On remand superior court also directed to reconsider sentence for stayed count and correct pre-sentence credits. (I) BCT

Yanis, Mark – People v. Cervantes, D057647 -- Penal Code Section 4019 Credits
Appellant argued court erred by refusing to award him full conduct credits under the version of Penal Code section 4019 effective January 25, 2010 because he was sentenced after the effective date of that section. The Court of Appeal agreed and awarded the additional credits. (I) LAR

Ford, Patrick — People v. McCluney, D057015 — Disclosure of Juror Information
Trial court erred by failing to conduct a hearing pursuant to Code of Civil Procedure 237 relating to juror misconduct after trial counsel established a prima facie showing of good cause for release of personal jury identifying information. Convictions reversed and matter remanded to conduct a hearing with notice to jurors and an opportunity for them to oppose the unsealing of information. (I) AMJ

Ballantine, Jean — People v. Tillis, D054343 — Unauthorized Sentence
Appellant was convicted of various offenses including pandering, sexual penetration, and human trafficking. In sentencing, the trial court used the penetration as the principal term and then imposed a full consecutive upper term for the pandering and trafficking (but stayed the latter). However, pandering and trafficking are not offenses listed within Penal Code section 667.6, subdivision (c). The Attorney General argued that the trial court's intent was clear, and the same sentence could be achieved by declaring the pandering count the principal count and tacking on a full consecutive term for the penetration count, since penetration is an offense listed within section 667.6, subdivision (c). The Court of Appeal declined to do so and remanded for re-sentencing. (I) HCC

Blake, Christopher/ Lechman,Cristina — In re Hunter R., D059769 — ICWA
Father and his mother identified possible Indian heritage with the Cherokee and Lakota tribes. Notices were sent to the Cherokee tribes but no Lakota tribes. The order terminating parental rights was conditionally reversed with directions to provide notice to the Lakota tribes. (I) LMF

Cole, Victoria — People v. Durham, D057483 — Opportunity to Withdraw Plea
The Attorney General conceded and the Court of Appeal agreed that appellant must be provided an opportunity to withdraw his plea in one case after a subsequent plea in another case made the specified terms of the previous plea impossible to execute (second plea called for a prison sentence, first plea provided for a 180-lid). Case remanded to provide appellant an opportunity to file a motion to withdraw his plea. If no motion is filed, the judgment will be reinstated. (M-A) APJ

Lee, Konrad — In re C.D., E053604 — Reunification Services
Minor appealed disposition order granting father reunification services. Father's conviction for a serious violent felony 16 years ago could result in a denial of reunification services under section 361.5, subdivision (b)(12). The juvenile court granted services finding it was in the minor's interest to do so. The Court of Appeal reversed, concluding the juvenile court failed to consider the various factors affecting a best interest analysis under section 361.5, subdivision (c). The case was remanded for a new hearing to determine whether granting services was in the child's best interests. (I) LMF

Greifinger, David — In re H.E., E052026 — Reimbursement
The juvenile court's judgment required maintenance to be paid to the county, and the minor argued this order was in error because he had reached adulthood at the time of disposition and so his parents were no longer liable for his support. Respondent did not address the merits of this argument, but rather responded that minor had no standing to challenge this order on behalf of his parents, arguing the parents "were required to appeal" if they wanted to challenge the reimbursement order because this affects the parents' own interests. The Court of Appeal found that the cases cited by respondent stood only for the proposition that a parent has a right to appeal orders that affect the parent's own interests, not that they must file appeal separate from that of the minor. As to the merits, the Court of Appeal found that because the minor had turned 18 after committing the burglary but before the disposition hearing, his parents were no longer obligated to support him and the juvenile court could not order them to reimburse the county for his care after that date. (A) HCC

Shetty, Siri – People v. Mahoney, G044328 – Penal Code Section 654/Theft Degree
The Court of Appeal ordered appellant's sentence for street terrorism stayed pursuant to Penal Code section 654. The court followed Division Two's decision in People v. Sanchez (2009) 179 Cal.App.4th 1297, concluding appellant cannot be punished for both street terrorism and the underlying felony, commercial burglary. The court also reduced appellant's conviction for grand theft to petty theft because the parties stipulated the beer and food taken was worth $442. The Attorney General conceded it must be reduced. (I) LKH.

Obrand, Michael — People v. Shaw, E051413 — Penal Code Section 654
Government conceded and Court of Appeal agreed that where appellant pleaded guilty to possession of methamphetamine and transportation of the same drugs, and where plea stipulated a three year term for the transportation count and punishment for the possession count would be stayed, the trial court erred when it failed to stay punishment for the possession count. (A) CBM

Rich, Renee — People v. Goshen, E050402 — Ability to Pay Fees
Insufficient evidence supports the trial court's finding appellant had the ability to pay appointed counsel and booking fees. Because appellant declined to be interviewed by the probation officer, there is no information in the record about any assets or income appellant has. Furthermore, because appellant is serving a lengthy sentence, the record does not support an implied finding that he would have the ability to pay in the future. Ultimately, because a source of funds to pay these fees is not even conceivable, in the interests of judicial economy, the case was not remanded for a hearing on appellant's ability to pay. The fees were reversed. (I) CBM

Knight, Richard – People v. Baca, D058206 – Penal Code Section 1538.5/Fees/Minute Order Correction
Court of Appeal reversed the trial court's order denying the suppression motion. The case is remanded to the trial court with instructions to allow appellant to withdraw the guilty plea. In addition, the Court of Appeal ordered the $75 attorney fee order stricken as well as the order imposing drug fees. The court determined appellant did not have a hearing on the attorney fees, and therefore there was insufficient evidence to support the order. The drug court fee was erroneously listed as $150 rather than $50 on the minute order; in light of the ruling on the suppression order, it is stricken. The suppression motion involved a traffic stop. The officer asked for and obtained consent to conduct a pat down search and to remove certain items from the appellant's pockets. One of the items was a marker. The officer noticed the tip of the pen was loose and could be unscrewed. He opened the pen and found methamphetamine inside. The Court of Appeal rejected the Attorney General's sole argument that appellant gave generalized consent. The court further found the search was unjustified by the officer's testimony that he's come across other ordinary household items that have blades and other sharpened points and he inspected the marker because he was concerned there was a blade inside. (A) LKH

Bostwick, James — In re L.R., E052107 — Disposition/Manzy W.
The Attorney General conceded and the Court of Appeal agreed that the matter must be remanded to allow the trial court to exercise its discretion to declare whether the wobbler appellant committed was a felony or a misdemeanor under In re Manzy W. (1997) 14 Cal.4th 1199, 1210. Nothing in the record showed the court ever considered whether the offense was a misdemeanor or a felony or that it was aware of its discretion to sentence the offense as a misdemeanor rather than a felony. (I) CBM

Buckley, Christian — People v. Sanchez, E049776 — Credits Limitation
The Court of Appeal agreed with appellant's argument that his pre-sentence conduct credits were improperly limited pursuant Penal Code section 2933.1 when his current conviction did not qualify as a violent felony. (I) APJ

Howell, Robert/Sheehy, Kevin — People v. Ramirez, E051155 — Credits
The Attorney General conceded and the Court of Appeal agreed that appellants are entitled to pre-sentence custody credit for time they spent in custody in Mexico awaiting extradition. Case remanded for re-calculation of credits. (I) APJ

Ford, Patrick – People v. Sample, D058317 – Multiple Convictions
D contended two of his three possession of child pornography convictions should be reversed because case law only permits one conviction for simultaneous possession of multiple child pornography, even if the images are contained on different computers or hard drives. The People conceded D could not be convicted of all three counts, but argued he could be convicted of one count for possessing the child pornography in the computer and removable hard drive found in his backpack, and one count for possessing the pornography in the computer found in his storage shed because the possession occurred at different locations. Court agreed with the People on this point. (I) LAR

Bobo, Ron – People v. Taylor, D057335 – Insufficient Evidence
Court of Appeal found insufficient evidence of sustained fear to support Penal Code section 422 (criminal threat) conviction. (A) JLP

Macomber, Thomas – People v. Bacca – Ability to Pay Fees
Court of Appeal struck the orders imposing fees of $150 for court-appointed counsel (Pen. Code, § 987.8) and $250 for preparation of the pre-sentence probation report (Pen. Code § 1203.1b). The court found there is insufficient evidence to support a finding that the defendant has the ability to pay either. (A) LKH

Ihara, Patricia — People v. Bullock, D055890 — Aranda-Bruton/Evidence Code Section 356
Second degree murder conviction reversed and case remanded for new trial because exculpatory evidence regarding defendant's mental state was improperly redacted from his post-indictment statement in violation of Aranda-Bruton principles. The trial court had denied appellant's motion to sever the trial from other defendants' trials, and redacted, to protect the co-defendants, appellant's statements incriminating them. Those statements, as redacted, presented appellant in a much more unfavorable light by distorting his role and eliminating exculpatory evidence that raised questions about whether he acted with implied malice, which was the critical issue in the case and a key part of the defense. Trial court also erred under Evidence Code section 356 [rule of completeness] by precluding appellant's mother from testifying that her son said he was under duress and in fear of his life because it had some bearing on and was connected with his admission that he attacked the victim. The statement explained why he participated in the attack and helped to put his admission in context. (I) AMJ

Koryn, Sylvia/Stafford, Victoria/Hart, Mark — People v. Delara, et al., D057180/E049591 — Double Punishment/Probation-Like Condition
Remanded for modification. First, in violation of the express prohibition against double punishment for the same act under Penal Code section 209, subdivision (d), the court sentenced each defendant to a consecutive 7-year-to-life term based on the count 2 conviction for kidnaping to commit rape under Penal Code section 209, subdivision (b)(1), and to a 15-year-to-life term under Penal Code section 667.61, subdivision (b), based on both the count 3 forcible rape conviction and the respective jury's true finding that the victim was raped after kidnaping within the kidnaping circumstance provisions of section 667.61, subdivision (e)(1). Because there was substantial evidence that the defendants kidnaped the victim to rape her, the judgments are ordered modified to stay execution of the count 2, 7-year-to-life sentences, rather than the 15-year-to-life sentence, because they are the shorter sentences. Second, the lifetime ban against owning, possessing, or having control over a weapon or related paraphernalia is ordered stricken because the court had no authority to attach probation-like terms and conditions to the prison sentences. (I) AMJ

 

October 2011
Finch, Dabney — In re Liliana G., D058140 — Hearsay at Probation Revocation Hearing
After a Wende brief was filed, the Court of Appeal requested supplemental briefing and the AG conceded that the juvenile court's admission of hearsay evidence (officer testimony about reports of crime from victim and her roommate) was prejudicial error when no good cause was shown for absence of the witnesses themselves. (A-M) APJ

Buckley, Christian – People v. Hazzard, D058986 – Probation Costs
At sentencing, appellant objected to imposition of cost for preparation of probation report ($1,127) and requested a hearing under Penal code section 1203.1b as to present ability to pay. The lower court ruled the request for an "ability to pay" hearing was premature. The Court of Appeal found the lower court misunderstood appellant's right to a court hearing on the appropriate amount of probation costs to be awarded and his ability to pay those costs. The Court vacated the order for probation costs and remanded for an ability to pay hearing consistent with section 1203.1b. (I) BCT

Herring, Conrad – People v. Garcia, E050790 – Fees
Judgment is modified to reduce both the court security fee and the conviction assessment fee from $180 to $150. The trial court erred in calculating the fee based on defendant being convicted of six counts when he was only convicted of five counts. (A-M) LKH

Jauregui-Law, Anna/Washington, Suzanne — People v. Castillo, D057341 - Credits, Fines and Fees
Based on same reasoning employed in People v. Zarate (2011) 192 Cal.App.4th 939, 944, review granted May 18, 2011, No. S191676, a case from the same division, the Court of Appeal held that amended Penal Code section 4019 contains no provision for a two-tiered division of pre-sentence custody credits. The court determined Castillo was entitled to 274 conduct credits for the 274 days served. The Health and Safety Code section 11350, subdivision (c) fee was ordered stricken because Castillo did not violate that section but rather section 11351. The abstract was ordered to be amended to reflect imposition of a single $30 security fee, not $20 and $30. (A/Staff) AMJ

Schuck, John F. – People v. Huggins, E052520 – Waiver of Conduct Credits
In order to participate in drug court, D signed a waiver of Penal Code section 4019 credits. Next to this condition was the handwritten phrase "for sanctions only." The Court of Appeal held that, due to this handwritten note, the condition was ambiguous and remanded the matter for the limited purpose of determining the parties' intent as to the scope of the waiver, and for the trial court to calculate and award any credits that may be due. (I) LAR

Staley, John — People v. Flores, D057126 — Sex Offender Registration
Court of Appeal ordered discretionary sex offender registration requirement reversed because registration is punitive, the fact it was punishment required a jury finding of the requisite intent for imposition, and appellant was denied his right to this jury finding. (I) JLP

Ulibarri, Patricia — People v. Perez, G044040 — Credits
The Attorney General conceded and the Court of Appeal agreed with appellant's argument that the trial court miscalculated the number of days appellant had spent in pre-sentence custody. The Court of Appeal directed correction of the Abstract of Judgment to reflect correct amount of credit. (I) APJ

Newton, Joanne Willis — In re Makayla P., D059389 — ICWA Inquiry and Notice in Family Court Termination Proceeding
The court and agency in this family code termination proceeding based on abandonment failed to comply with any of the Indian Child Welfare Act (ICWA) requirements for inquiry and notice. Limited reversal of judgment for purpose of allowing ICWA compliance. (I) ACS

Burz, Dacia — People v. Tapia, D056353 — Penal Code Section 4019
Awaiting the Supreme Court's decision, the court adopted the majority view that the amendments to section 4019 that took effect on January 25, 2010, apply retroactively, and thus appellant is entitled to the benefit of the amendments. (I) HCC

Riccardo, R. Randall — People v. Ehret, D056671 — Penal Code Section 4019
The court concluded that the general principle established in In re Estrada (1965) 63 Cal.2d 740 applies to the amendments to section 4019 that took effect on January 25, 2010. Those amendments effected a reduction in the overall time of imprisonment for any defendant who qualifies for conduct credits and thus constituted a reduction in punishment for those offenders who have demonstrated good behavior while in custody. Therefore, the court held the amendments to section 4019 apply retroactively, and thus appellant is entitled to the benefit of the amendments and her presentence local conduct credits must be recalculated. (A) HCC

Hermansen, Kurt – People v. Ogaz, E050055 – Lesser Include Offense Instructional Error
Trial court failed to instruct sua sponte with lesser included offense of attempted sodomy. Court found the error prejudicial under Watson and modified the judgment by reducing conviction on count one (sodomy) to attempted sodomy and remanded to the trial court for resentencing. (I) BCT

Nordin, Kenneth — People v. Tans, E051524 — Penal Code Section 4019
Court of Appeal held Penal Code section 4019, as amended January 25, 2010, applied to the calculation of appellant's presentence conduct credits, including for custody served prior to the amendment. Accordingly, appellant was awarded additional days of conduct credit. (I) NFA

Gold, Peter– In re Gonzalez, G044464 — Instructional Error (Provocation/Voluntary Manslaughter)
Defendant's murder conviction was reversed because the trial court's modified instruction on provocation/voluntary manslaughter effectively told jurors to decide whether a reasonable person would have killed in the same situation. The Court of Appeal held the proper standard is whether a reasonable person would have acted rashly, not whether a reasonable person would have killed. (I) NFA

Rehm, Joanna — People v. Williams, E051696 — Penal Code Section 4019 (Two-Tier)
The version of Penal Code section 4019 in effect at the time of sentencing contained no provision for a two-tiered division of presentence custody credits. Thus, the trial court's discretion as to awarding conduct credits was limited solely to reducing credits for failure to comply with rules or perform assigned labor while in presentence local custody (see § 4019, subds. (b)-(c)) and did not extend to reducing credits solely because defendant had been in custody while a no-longer-operative version of section 4019 had provided a lesser amount of credits. Because the record failed to show that appellant was not entitled to conduct credits, he was entitled to those credits as provided for in the version of section 4019 in effect at the time of sentencing. (I) HCC

Auwarter, Neil — People v. Coleman, E051678 — Penal Code Section 4019
Court of Appeal held Penal Code section 4019, as amended January 25, 2010, applied to the calculation of appellant's presentence credits, including custody served prior to the amendment. Accordingly, appellant was awarded 122 additional conduct days. (Staff) NFA

Serobian, Liana — In re Jeremy B. E052092 — Reunification Services
Juvenile court denied father reunification services (§ 361.5, subd. (b)(10)) in the current case because he did not reunify with his children from another relationship in a dependency case that ended in guardianship in the mid 1990's. That prior case was due to a problem with controlled substances. The current case was due to domestic violence. The appellate court reversed, concluding section 361.5, subdivision (b)(10), required proof there had been no reasonable effort to treat the problem that led to the prior removal. In the present case, there was no evidence in the record to show that father had any current involvement with controlled substances. Absent such evidence, the juvenile court could not conclude father had failed to address the problem. The juvenile court was ordered to provide father reunification services. (I) LMF

Holder, Lisa — In re J.P., E051211 - Dual Convictions
Victim's car was taken approximately one hour before minor was stopped for driving it. Court of Appeal ruled that the unlawful driving offense was part and parcel of the taking of the vehicle, and the conviction under Vehicle Code section 10851 was a conviction for theft of the same property. Juvenile court's application of Penal Code section 654 was deemed an implicit finding that the two crimes arose from a single, indivisible course of conduct or were incidental to a common objective. Because a person cannot be convicted both of receiving a stolen vehicle and taking the same vehicle, the true finding on the receiving stolen vehicle finding was reversed. (A) AMJ

Marshall, Gregory — People v. Rankin, E051780 — Right to be Present/Credits
Reverse and remanded. Defendant was sentenced to 12 years pursuant to a plea bargain. In a subsequent ex parte hearing and without defendant's presence, the trial court vacated the entry of the plea and admissions, entered new pleas and admissions, and ordered 12 years. Court of Appeal determined failure to obtain certificate of probable was not fatal to the appeal and found appellant had a right to be present for the trial court proceedings. On remand the defendant will be allowed to choose between withdrawing his plea and starting all over again or entering pleas and admissions in accordance to the terms of the plea bargain and being sentenced in compliance with them. Court of Appeal also ordered correction of the credits because the trial court had erroneously limited pre-sentence conduct credit pursuant to Penal Code section 2933.1, subdivision (c). (I) AMJ

Dwyer, John — People v. Wimler, D057011 — Fines/Fees
Appellant argued, respondent conceded, and Court of Appeal agreed that the trial court erred in imposing an administrative screening fee under Penal Code section 1463.07, which is authorized upon conviction when the defendant has been released on his or her own recognizance. Here, appellant had not been released, but held subject to bail. Accordingly, the court modified the judgment to strike the administrative screening fee.
Appellant argued, respondent conceded, and Court of Appeal agreed that the trial court erred in imposing a $10,000 probation revocation restitution fine under Penal Code section 1202.44 based on the revocation of his probation for a previous offense, when at sentencing for the previous offense, the trial court had imposed a $200 restitution fine as required by Penal Code section 1202.4, subdivision (b)(1), and, accordingly, the probation revocation restitution fine for the previous offense necessarily was $200. The court modified the judgment to reduce the probation revocation restitution fine from $10,000 to $200. (I) HCC

Saucier, Patricia — In re Isabella P., D059492 — Reunification Services
The social worker told appellant father the court did not order reunification services for him at the September disposition hearing. In March, the social worker acknowledged her error. In April, the court found reasonable services were offered, but no progress was made and extended father's services to the 12-month date. The Court of Appeal found that the entitlement to 6 more months of services was not ripe, but will only become ripe if the juvenile court terminates father's services at the 12 month review hearing. The court ordered the juvenile court to amend the 6-month review hearing minute order to reflect that father's services were not reasonable. (I) CAG

Margolis, Gideon — People v. Quiroz, D057072 — Penal Code Section 4019 (Two-Tier)
Appellant was entitled to 104 days conduct credit, since he was sentenced after January 25, 2010, the effective date of the amendment of Penal Code section 4019. (I) HCC

Kopas, Marleigh — People v. Hart, G043668 — Double Jeopardy/Clerical Errors
Sentence vacated and remanded. The Court of Appeal agreed that imposition of a harsher sentence on resentencing violated the prohibition against double jeopardy. Although the initial sentence had been unauthorized, it did not fall below the mandatory minimum sentence. Therefore, the trial court was required to fix the sentence in such a way that it would not be greater than the sentence originally imposed. Other errors to be corrected on remand concerned abstract of judgment erroneously stating appellant had waived his right to appeal and enhancements stayed under incorrect authority. Attorney General agreed that trial court erred in imposing a criminal conviction assessment fee because appellant was convicted before the statute became effective. (I) AMJ

Nelson, Laurel — People v Ural D., D056615 — SVP Commitment
Indeterminate SVP commitment reversed on equal protection grounds. Remanded to the trial court for reconsideration in light of the final resolution of the proceedings being conducted in P. v McKee. (I) LMF

Seaman, Clayton – People v. Carlson, G043833 – Restitution Fine
Appellant was convicted of second degree murder and gross vehicular manslaughter while intoxicated with a prior conviction. The trial court imposed a $6000 restitution fine computed by multiplying 15-year prison term by $200 and then multiplying that product by two. Appellant argued the portion of fine imposed on count two was erroneous since it was a form of punishment subject to Penal Code section 654, subdivision (a) and the attorney general agreed. The Court of Appeal reduced the restitution fine to $3000. (I) BCT

Mallinger, Kathleen — In re P.A, D058816 — Non-paternity Finding
Father found to be presumed father under Family Code section 7611, subdivision(d) (held child out as his own, provided home and necessities). Later, genetic testing showed another man was the child's biological father. The juvenile court found this man was the presumed father, and entered a judgment of non-paternity for father. The appellate court reversed. The juvenile court erred in finding this other man's biological paternity rebutted the father's presumption of paternity under section 7611. First the court had to weigh the competing paternity interests under section 7612, subdivision (b). (I) LMF

Dwyer, John –- People v. Simon, E050821 –- Jury Misconduct
Second degree murder convictions reversed and case remanded for further proceedings. Court found that a juror's intentional concealment of information which would have caused his attorney to exercise a peremptory challenge was prejudicial misconduct requiring further proceedings on defendant's motion for new trial. The trial court is directed to conduct further proceedings to determine whether the juror was in fact impartial. If not, it shall order a new trial. (I) PED

Ulibarri, Patricia/Haggerty, Edward – People v. Portillo/Ulloa – Penal Code Section 654
Appellants contended they were improperly punished for both street terrorism and the felonious conduct underlying that offense, i.e., the aggravated assault and attempted murder, i.e., the multiple punishment prohibition in Penal Code section 654 mandated that their sentences for street terrorism be stayed. The court found unpersuasive respondent's attempt to parse out separate intents and objectives in this case. Because the street terrorism offense and the underlying felonies were carried out against a single victim during a single criminal episode, and because the crimes were part and parcel of a core objective to promote appellants' gang, section 654 applied here to prohibit punishment on the street terrorism counts. (I) HCC

Polsky, David – People v. Rangel, G043823 – Insufficient Evidence Enhancements
Four out of five enhancements for personal use of a deadly or dangerous weapon overturned as the evidence showed appellant showed the molest victim the knife and scissors on only one of the occasions alleged in the five counts involving that victim. 25 year to life sentences on these counts reduced to 15 year to life. Matter remanded for re-sentencing. (I) PED

Fabian, Carl — People v. Santana, D059013 — Instructional Error (Mayhem)/Fees
Appellant shot the victim causing a through-and-through wound. The key element for mayhem is when one "maliciously disabled or made useless part of someone's body and the disability was more than slight or temporary." Here, though, instead of following the correct application of CALCRIM No. 801 – and the opinion includes an excellent explanation of the use of parentheses and brackets within CALCRIM – the trial court instructed the jury, "'A serious bodily injury means a serious impairment of physical condition. Such an injury may include a gunshot wound.' [Italics original in opinion.]" Appellant argued the trial court's instruction improperly directed the jury's attention to the existence of the gunshot wounds, as opposed to the severity of any of the victim's wounds, which is the actual focus of CALCRIM No. 801, i.e., the instruction tended to direct a verdict in favor the prosecution by suggesting to the jury that it needed to find only that appellant inflicted a gunshot wound in order to find him guilty of mayhem, rather than requiring the jury to focus on whether Santana intended that the victim suffer a disabling injury as a result of the gunshot wounds to his leg. In a published opinion, the majority agreed with the argument and reversed. Further, with respect to the trial court's order requiring appellant to reimburse the county for fees for his appointed counsel, the appellate court ordered the trial court to hold a hearing and make the requisite findings before it may enter a similar order after remand. (I) HCC

Kraft, Rudy — People v. Hawkins, E049729 — SVP Commitment
Indeterminate SVP commitment reversed on equal protection grounds. Remanded to the trial court for reconsideration in light of the final resolution of the proceedings being conducted in P. v McKee. (I) LMF

Levy, Richard –- People v. Castillo, E051070 –- Collateral Estoppel
Defendant's conviction reduced from first degree murder to second degree and the gang special circumstance findings are stricken. The Court of Appeal found that findings of the first jury were entitled to collateral estoppel effect and should have precluded the second jury finding that defendant premeditated or that any gang allegations were true. (I) PED

Weinberg, Allen – People v. Curtis, G043681 – Penal Code Section 654/Credits
Appellant was convicted of multiple counts including five counts of robbery (Pen. Code, § 211), two counts of aggravated assault (245, subd. (a)(1)), kidnapping to commit robbery (§ 209, subd. (b)(1)), sexual battery by restraint (§ 243.4, subd. (a)), and misdemeanor assault (§ 240). The convictions arose out of two separate incidents. The Court of Appeal remanded the case for re-sentencing, finding the trial court erred in failing to stay the sentence on two counts (counts 4 & 7). As to the first incident, the court found that count 4 (aggravated assault) was incident to the robbery. As to the second incident, the court found count 7 (robbery) was incidental to the kidnapping to commit robbery. Since the trial court selected count 7 as the principal term, the matter was remanded to the trial court for re-sentencing. In addition, appellant is to be awarded additional credit as the trial court erred in calculating the number of actual days appellant earned. (I) LKH.

Harris, Donna — People v. Smith, E051298 — Penal Code Section 4019 (Two-Tier)
Trial court erred when it applied two-tier calculation to compute the presentence custody credits – one calculation under the structure of prior Penal Code section 4019 for those credits earned before the code's January 25, 2010 amendment and a second calculation under the structure of the amended Penal Code section 4019 for those credits earned after the January 25, 2010 amendment. The court ordered all presentence custody credits to be calculated under the amended formula. (I) CBM

Sullwold, Julie –- People v. Washington, G044173 –- Ability to Pay Attorneys Fees
Order that defendant pay attorneys fees reversed where there was no evidence introduced he had the ability to pay them. Here court found defendant would possess ability in the future; however the statute limits the court from considering a defendant's financial prospects more than six months out. (I) PED

Ferrentino, Correen –- People v. Grant, E052019 –- Credits
Court of Appeal awarded appellant five additional days of actual credit, where the trial court miscalculated the number of actual days appellant had earned prior to sentencing. In addition, the court found that appellant's "P.C. 4019 credit" waiver entered into as a condition of drug court applied only to those credits earned before appellant entered drug court. Thus, the court concluded appellant is entitled to conduct credit for dates served in custody after he entered the drug court treatment program. Finally, the Court of Appeal concluded appellant is entitled to SB18 credits for all credits earned prior to sentencing. (A-M) LKH

Williams, Rex – People v. Stapleton, E052572 – Correction of Minute Order
Court of Appeal orders the minute order corrected to comply with the trial court's oral pronouncement. Thus, the minute order should delete terms that appellant pay the cost of probation supervision and reimburse the county for attorney fees. (I) LKH.

Crawford, James — People v. Pantoja, E052112 — Sentencing
Judgment reversed as to the sentence because trial court erred in staying rather than striking prison prior enhancements. Also raised but not decided upon as moot due to reversal and resentencing is error in the minute order and abstract which indicate a $5000 restitution fine and a stayed $5000 parole revocation fine when the trial court did not verbally order that and instead ordered and stayed a $1000 fine under Penal Code section 1202.45. (I) AMJ

Power, Richard — People v. Cook, E052129 — Fine/Abstract of Judgment
Because the court never orally ordered appellant to pay the Penal Code section 290.3 fine, which has an ability to pay component, the inclusion of this fine in the sentencing minutes and on the abstract of judgment constituted a clerical error. The court ordered the minutes and abstract of judgment corrected to remove this fine. (I) CBM

Stanton, Marta — People v. Reveles-Villegas, G044348 — Lesser Included Offenses
Appellant was convicted of both assault and battery as offenses necessarily included within the charged offense of assault with a deadly weapon. The Attorney General conceded and the Court of Appeal agree with appellant's argument that he can be convicted of both lesser offenses based upon the evidence of a single act offered to support the charge. Accordingly, the conviction of simple assault was reversed. (I) APJ

Hermansen, Kurt — People v. Rojas, G043944 — Penal Code Section 654/Gang Offense
The Court of Appeal agreed with appellant's argument that his punishment for a street terrorism conviction must be stayed because the offense was based upon the same conduct as the robbery and car-jacking offenses for which he was being separately punished. (I) APJ

 

September 2011
Devore, Mark — People v. De La Garrigue, E051608 – Abstract of Judgment
Abstract of judgment incorrectly reflected that the court imposed consecutive sentencing on count 4. The Court of Appeal ordered that it be corrected to reflect a concurrent term, stayed. (I) AMJ

Kraft, Rudy — P. v Landau, G044359 — SVP Petition for Release
Appellant SVP petitioned for release under W & I code section 6605 and 6608 when his annual DMH evaluation concluded he no longer posed a danger and he could be treated in a less restrictive setting. The director of DMH disagreed with this evaluation and therefore did not authorize appellant to file a petition under section 6605. As a result, the trial court treated the petition as a 6608 petition and denied it as frivolous. The appellate court concluded this was error. The director of DMH should have authorized the petition under 6605, since the annual evaluator concluded appellant met the criteria for a 6605 petition. On remand, the trial court was directed to set the matter for the show cause hearing required by section 6605. (I) LMF

Weaver, Eric — People v. Douglas, D057357 — Insufficient Evidence
Court of Appeal found insufficient evidence of one of seven Penal Code section 266j violations, where the evidence only showed the defendant transported the minor to six locations. It also found insufficient evidence of several gang enhancements under Penal Code section 186.22, subdivision (b), where the only evidence supporting that the attached offenses were for the benefit of the gang was an expert's opinion. (I) JLP & PED

Klaif, Leonard –- People v. Alire, G043826 –- Penal Code Section 4019
Additional pre-sentence conduct credits awarded pursuant to amended Penal Code section 4019. (I) PED.

Coleman, Jared – People v. Afrah, D058930 – Probation Report/Penal Code Section 4019
Case remanded for re-sentencing where no probation report was prepared and one was required pursuant to Penal Code section 1203, subdivision (b)(1). Additional pre-sentence conduct credits also awarded pursuant to amended Penal Code section 4019. (A) PED.

Wagner, Alfons — P. v Delrosarior, D057288 — SVP Equal Protection
Appellant raised several constitutional claims regarding his indeterminate SVP commitment. The court concluded the majority of the claims were resolved against appellant in People v McKee. However, the order regarding appellant's equal protection claim was reversed and remanded to the trial court pending the final outcome of the proceedings order in McKee. (A) LMF

Brisbois, Patricia – People v. Harvey, E051110 – Lesser Included Offense
Appellant's conviction for forcible rape reversed as it was a lesser included offense to the conviction of forcible rape of a child. (I) LAR

Staley, John — People v. Escoto, E051638 — Dual Conviction
In response to appellant's argument that the trial court misunderstood the scope of its sentencing discretion when it imposed two third-strike sentences consecutively rather than concurrently, the Attorney General argued that appellant should never have been convicted of both counts to begin with. Appellant and the Court of Appeal agreed that Penal Code section 4573.6 (possession of controlled substance in prison) allows only one conviction even though two substances were possessed. (I) APJ

LeRoy, Doris — People v. Castaneda, D055916 — Abstract of Judgment
Appellant was convicted, inter alia, of first degree torture murder , for which he received life without possibility of parole (LWOP), and Penal Code section 206 (torture), for which he was sentenced to life, which was stayed pursuant to Penal Code section 654. Erroneous reference to the latter as an LWOP sentence was ordered corrected. (I) HCC

Buckley, Stephen – People v. Muniz, E049333 – Probation Conditions
Trial court ordered to amend Sentencing Minutes to insert, as to one probation condition, the word "knowingly" between the words "not" and "possess" and as to another probation condition, the word "knowingly" between the words "Not" and "own."
(I) LAR

Staley, John — People v. Montes, G044451 — Penal Code Section 4019
Defendant is entitled to additional pre-sentence credits pursuant to Penal Code section 4019, as amended in January 2010. The amended statute applies retroactively to the time defendant served in pretrial custody before the amendment became effective. (I) AMJ

Crawford, James — People v. Rodriguez, D059577 — Stipulated Reversal
In a previous appeal, the Court of Appeal ordered the trial court to permit the defendant to withdraw his plea if he filed a motion within 30 days. The defendant filed a motion after 30 days, and the trial court denied it as untimely. On appeal, the parties stipulated to a reversal, and the Court of Appeal reversed pursuant to the stipulation. (I) BCT

Smith, Barbara — People v. Flores, D056617 — Insufficient Evidence
Evidence introduced at trial insufficient to support the "hot prowl" burglary allegation under Penal Code section 667.5, subdivision (c)(21): that another person was present in the residence during the commission of the burglary. To prove the allegation, the People relied on the fact appellant entered the garage of a large multi-residence building at 11:00 p.m. at night and asserted it was likely someone was at home in one of the units. But the court found such evidence too speculative to support the jury's true finding. Case remanded so court could recalculate appellant's pre-sentence custody credits. (I) CBM

Liana Serobian – In re Christopher G., D057187 – Lesser Included Offense
Battery conviction reversed because it was a lesser included offense of battery causing serious injury. (A) LAR

Lubliner, Steven — People v. Stencil, E050844 — Protective Order
The protective order prohibiting defendant from contacting the victim for 10 years is stricken as unauthorized and as not falling within the trial court's inherent authority. (I) AMJ

King, Nancy — People v. Reed, E050586 — Ex Post Facto Sentencing (One-Strike Law)
The Attorney General conceded and the Court of Appeal agreed that in imposing two consecutive 25-life terms the trial court erroneously relied upon the One-Strike Law in effect at the time of sentencing rather than the version in effect at the time the crimes were committed (1999). Remand is necessary for the trial court to impose a single 25-life term (where offenses occurred against a single victim on a single occasion) and re-sentence on the remaining determinate sentencing counts. (I) APJ

Stafford, Victoria – People v. Acosta, G043611 – Sentencing (Three-Strikes Law)
Remand for re-sentencing where trial court may have imposed consecutive sentences on two counts based upon misapprehension of its discretion to run the sentences concurrent where the offenses arose from the same set of operative facts. (I) PED

Lathrop, Stephen — People v. Medina, G043130 — Sentencing (One-Strike Law)
Appellant argued, respondent conceded, and the Court of Appeal agreed that at the time of the offenses, the reference in former Penal Code section 667.61, subdivision (g), to "a single occasion" applied to "close temporal and spatial proximity." The trial court had found that two counts were in such proximity. Therefore, the trial court erred in applying the One Strike Law as to both counts. (I) HCC

Shaler, Susan – People v. Rafael Solorio, E050685 – Sentencing (One-Strike Law)
Appellant was convicted of six sexual offenses committed against a single victim. The trial court imposed consecutive sentences on all six counts finding the offenses were committed on separate occasions because the victim was pleading with appellant throughout the incident to let her go. On appeal, appellant argued all offenses were committed during the same occasion, thus consecutive sentencing was error. The Court of Appeal reversed the consecutive term on count 5, concluding there is not "a rational basis for concluding either that defendant did or did not have a reasonable opportunity to reflect between the crimes which constitute counts 4 and 5." The court noted the offenses in counts 4 and 5 were committed in rapid succession, and while the victim did plead throughout the event, there was no testimony she did so between the time counts 4 and 5 were committed. In the absence of substantial evidence to support a finding the offenses were committed on separate occasions, sections 667.6, subdivision (d) and section 667.61, subdivision (i) do not mandate consecutive sentencing. Thus, the matter is remanded to the trial court to reconsider the sentence imposed on count 5. (I) LKH.

De La Sota, Richard — People v. Salinas, D057174 — Restitution Fine
Trial court improperly ordered appellant to pay $40,000 restitution fine pursuant to Penal Code section 1202.4, subdivision (b) and an equal but stayed fine pursuant to Penal Code section 1202.45. Judgment modified to reduce restitution fines to statutory maximum: $10,000 for each fine. (I) CBM

Buckley, Steve – People v. Barry, D058310 – Lesser Included Offenses
Court of Appeal reversed appellant's two convictions for assault with a firearm (Pen. Code, § 245, subd. (a)(2)). The parties agreed, and the Court of Appeal found that each conviction was a lesser included offense of a corresponding count of assault with a semi-automatic firearm. (I) LKH

Clark, Marcia – People v. Ledesma, Jr., G044846 – Unauthorized Sentence
This is an appeal from a remand order. At the original sentencing, appellant received a total term of 40-years-to-life, comprised of 15-years-to-life on count 1 (Pen. Code, §§ 664/187), plus 25-years-to-life for the personal use of a firearm (§ 12022.53, subd. (d).) The trial court struck the gang allegation as to count 1 (§ 186.22, subd. (b)(1).) After the first appeal, the Court of Appeal remanded the matter for re-sentencing on count 1 as the sentence for attempted premeditated murder (without the gang allegation) is life, not 15-years-to-life. On remand, the trial court again sentenced appellant to 40 years-to-life, comprised of 15-years-to-life for count 1, plus 25-years-to-life for the firearm enhancement (§ 12022.53, subd. (d)). The trial court then struck the gang allegation. The Court of Appeal again remanded the matter for re-sentencing, for the trial court to re-consider its sentencing choices. The opinion notes, "Upon remand, if the court desires to sentence [appellant] to a 40-year prison term, the court can repeat the sentencing choices made at the last sentencing hearing with the exception of striking the gang enhancement." (I) LKH.

Larson, Eric — People v. Sanchez, E050510 — Penal Code Section 654/Insufficient Evidence Strike
1) Penal Code section 654 precluded separate punishment for active gang participation (§ 186.22, subd. (a)(1)) and for the felony offense(s) used to satisfy the underlying felony element of that offense.
2) A prior felony strike based on appellant's Oklahoma conviction of shooting at an occupied dwelling was reversed because the record did not establish appellant personally fired the gun, as required for the crime to constitute of California strike offense under Penal Code section 1192.7, subdivision (c)(8). Remanded for retrial on this allegation.
I (NFA)

Mallinger, Kathleen — In re Patrisha A, D058816 — Paternity Finding
Juvenile court determined that a biological father's paternity trumped the paternity of the father the court previously found to be a presumed father under Family Code section 7611, subdivision (d). The court reversed because the juvenile court failed to properly weigh the competing presumptions of paternity as required by section 7612, subdivision (b). (I) LMF

Booher, Robert — People v. Ervin Vega, G043474 — Instructional Error
Court prejudicially erred in failing to instruct the jury to consider, with respect to simple kidnaping, whether the victim's movement was incidental to the commission of associated crimes, pursuant to People v. Bell (2009) 179 Cal.App.4th 428. (I) CBM

Wenzell, Lewis — People v. Bowie, E052100 — Instructional Error/Insufficient Evidence
Trial court failed to instruct on the elements of the offense charged in counts 2 and 4: procuring or offering a false or forged instrument for recordation (Pen. Code, § 115, subdivision (a)). Evidence was also insufficient to support the knowledge element as to count 4. Hence, retrial is permitted as to count 2 and barred as to count 4. (I) AMJ

Nichols, Diane — People v. Gaono, D055290 — Sentencing (Gang Enhancement)/Abstract of Judgment
Trial court erred in imposing and staying a 10-year gang enhancement pursuant to Penal Code section 186.22, subdivision (b)(1), rather than striking it, because appellant is already being punished for gang involvement per Penal Code section 186.22, subdivision (b)(5), per People v. Lopez (2005) 34 Cal.4th 1002. In addition, abstract of judgment must be corrected to reflect the correct oral pronouncement; hence the fines that were not verbally ordered must be stricken and victim restitution must reflect joint and several liability. (I) AMJ

Wilson, Sachi – People v. McMorran, D058376 – Penal Code Section 654
The Court of Appeal ordered the sentence on both counts of grand theft (counts 3 & 4) stayed pursuant to Penal Code section 654. The court found that as to each victim, the securities fraud and grand theft constituted one indivisible transaction with one criminal objective. Since appellant was already sentenced for two counts of securities fraud (counts 1 & 2), the sentences for grand theft must be stayed. (I) LKH.

 

August 2011
Hinkle, Stephen – P v. Harris, D058584 – Insufficient Evidence Strike and Attorney Fees
Court of Appeal found there was insufficient evidence to support the trial court's finding that appellant's prior conviction for gross vehicular manslaughter qualified as a strike or serious felony prior because there was no evidence the victim was not an accomplice. Case remanded for re-trial of the prior allegations. Court of Appeal also found that the trial court erred in imposing $150 for appointed counsel fees when no evidence appeared to support an implied finding of appellant's ability to pay same. (I) LAR

Ferguson, Susan — In re D.R., E051436 — Inconsistent Convictions/Probation Conditions
Minor was found by the Juvenile Court to have committed both possession of a firearm by a minor and brandishing a deadly weapon other than a firearm. The Court of Appeal found the two offenses were mutually exclusive and, since the Juvenile Court had expressly found the weapon was a firearm, the court vacated the brandishing count. The court also vacated vague and overbroad probation conditions, including conditions requiring the minor to get the probation officer's permission to move and to keep the officer apprised of the minor's "whereabouts, associates and activities." (A) NFA

Farber, William — People v. Buryta, E052095 — Penal Code Section 2933 (Two-Tier)
Trial court erred in calculating credits at two different rates. The Court of Appeal found that the court should have ordered credits entirely under Penal Code section 2933, subdivision (e), because the amendment to that section was operative at the time of appellant's sentencing and that section applied and not section 4019 under the circumstances of this case. The Court of Appeal further found that while section 2900.5 does not refer to section 2933, it also does not preclude the trial court's application of section 2933 pursuant to its duties under section 2900.5. (I) AMJ

Stevenson, Theresa – People v. Schweihs, D059088 – Probation Conditions
Trial court improperly imposed $40 court security fee and $30 criminal conviction assessment fee as conditions of probation.
(I) LAR

Nicholson, Ellise — People v. Johnson, E051742 — Penal Code Section 666
Reversed and remanded. Amended Penal Code section 666, requiring proof of three felony theft prior convictions, applies retroactively to Johnson who was prosecuted with one prior. Matter remanded for retrial under revised statute and, if People choose not retry, the trial court is ordered to re-sentence Johnson to six months county jail. (I) AMJ

Bostwick, James – People v. Willatt, E052805 – Expungement
Appellant appealed the trial court's denial of her motion to set aside (expunge) her plea and dismiss the complaint based upon the fact her probation was terminated early. The Court of Appeal found insufficient evidence to determine whether appellant was on probation in another matter or was charged with a crime in another case and so remanded the matter to trial court to conduct a hearing to determine whether the conditions for granting relief under Penal Code section 1203.4 were satisfied at the time the motion was made. (I) LAR

Marshall, Marilee – People v. Robinson, G043782 – Restitution
Court of Appeal reversed the restitution order and remanded for the court to hold a hearing on the amount of restitution. The pre-sentence probation report stated that the victim's mother was requesting restitution in the amount of $2,405 based on lost wages, gasoline, parking, and food. At the sentencing hearing, the trial court ordered appellant to pay restitution in that amount, over defense counsel's objection that a hearing be set so trial counsel could obtain documentation in support of the request. The Court of Appeal agreed appellant was entitled to a hearing and reversed the order. (I) LKH.

Beckham, Sylvia — People v. Aparicio, G043612 — Gang Enhancement/Penal Code Section 654
Judgment modified. Trial court erred in imposing 10 rather than 5 years for the gang enhancement, because the underlying conviction did not qualify as a violent felony. The trial court also erred in ordering consecutive time for the gang participation count. Because appellant's intent to kill was incidental to his intent to aid his gang the Court of Appeal ordered the sentence stayed pursuant to Penal Code section 654. (I) AMJ

Annicchiarico, David – People v. Fraser, G043520 & G044696 – Enforcement of Plea Agreement/Ineffective Assistance of Counsel
Appellant pleaded guilty to 27 counts, including residential burglary, grand theft, theft of a firearm, unlawful taking of a vehicle, receiving stolen property, and possession of a firearm by a felon. In exchange for the plea, appellant received the negotiated prison term of 19 years and 4 months. In the direct appeal, the Court of Appeal ordered the sentences for six counts stayed pursuant to section 654, finding that the trial court erred in imposing concurrent sentences because the section 654 stay was part of the plea agreement. The Tahl form had indicated "65" next to each of these counts. In the habeas proceeding, the Court of Appeal found trial counsel rendered ineffective assistance of counsel in having appellant plead guilty to two counts of receiving stolen property when he had already pleaded guilty to theft of the same property. Thus, it ordered the convictions for two counts of receiving stolen property reversed. (A) LKH.

King, Nancy — People v. Boykins, E047555 — Abstract of Judgment Correction
Appellant was sentenced to life with the possibility of parole for his premeditated attempted murder conviction, with a minimum parole eligibility date of 14 years—double the usual seven years as provided in Penal Code section 3046, due to his prior strike conviction. The abstract of judgment incorrectly stated, however, that appellant was sentenced to 25 years to life on his premeditated attempted murder conviction in count 1. Appellant argued, respondent conceded, and the court agreed that the abstract of judgment must be corrected to reflect that appellant was sentenced to life with a minimum parole eligibility date of 14 years on count 1, not 25 years to life. The court's oral pronouncement of judgment controls over any discrepancy in the abstract of judgment and when such a discrepancy appears, the abstract of judgment must be corrected to reflect the sentence that was orally imposed. The court remanded the matter to correct the abstract of judgment. (I) HCC

Bostwick, James — People v. Corona, E051035 — Fines and Fees
The reviewing court first rejected the government's argument of forfeiture because appellant asserted various fines and fees were unauthorized, were not supported by sufficient evidence of ability to pay, and were not imposed after appellant had a meaningful opportunity to object, as some were not recommended in the probation officer's report and were not even pronounced by the court. On the merits, the reviewing court modified the order of probation to eliminate any requirement appellant pay the court security fee and conviction assessment fee as conditions of probation. Collateral to a defendant's crimes and punishments, these fees should be imposed by a separate order entered at judgment. Further, because the trial court did not order appellant to pay either the domestic violence fund fee or the cost of probation services, and evidence in the record shows appellant has no ability to pay these fees (and the court found appellant had no ability to pay the attorney fees), they are reversed. (I) CBM

Marshall, Marilee — People v. Gardner, E050973 — Restitution
The Court of Appeal agreed with appellant's argument that restitution under Penal Code section 1202.4, subdivision (r), which provides for victim restitution in cases involving audio/video recording theft, cannot be based upon anticipated losses. However, the Court of Appeal also found that the court's restitution order could be upheld in this case based upon an alternative basis of actual losses. Finally, though, the Court of Appeal found that, even though the statute has since been amended to include trade associations as direct victims of crimes when acting on behalf of lawful owners, the record in this case does not provide sufficient evidence that the trade association was so acting; thus, the Court of Appeal reversed the order of restitution. (I) APJ

Seaman, Clayton — People v. Cifuentes, E050386 — Invalid Admission
Court of Appeal vacated crime-on-bail enhancement (Pen. Code, § 12022.1) where trial court did not take a personal waiver of right to jury trial before taking defendant's admission. (I) NFA

Stralla, Ava — People v. Rodriguez, E050836 — Suppression Motion
Court of Appeal affirmed trial court's granting of appellant's suppression motion. A police officer observed appellant commit an illegal turn. He directed her to pull over, and she pulled into her apartment complex and parked in her designated spot. When the officer discovered appellant had no license, he arrested her, handcuffed her and positioned her at the rear of the car. The officer then retrieved appellant's wallet and purse from the front seat of the car and, searched the wallet and found cocaine. The Court of Appeal held te search was not justifiable as a search incident to arrest because appellant was not within reach of the interior of the car. It was not justifiable as an inventory search because the car was safely parked at appellant's residence, did not need to be towed, and the prosecution did not establish the search was done pursuant to the department's inventory search policy. Nor was the "good faith" exception applicable. (I) NFA

Dain, Anthony — People v. Bryant, D057570 — Instructional Error
Appellant and the decedent, her long time significant other and father of her twins, had been in a mutually abusive relationship. After a Thanksgiving holiday, he again was abusive toward her, and she, in turn, stabbed and killed him. Convicted of second degree murder, appellant asserted instructional error in the trial court's failure to instruct upon involuntary manslaughter. The Court of Appeal rejected that argument. However, the appellate court concluded that the trial court erred in failing to instruct the jury on the Garcia theory of voluntary manslaughter [People v. Garcia (2008) 162 Cal.App.4th 18], because there was substantial evidence that appellant did not subjectively appreciate that her conduct endangered decedent's life. The court reversed the second degree murder conviction and permitted the People to retry appellant on a charge of second degree murder. If the People do not bring appellant to retrial on a charge of second degree murder, the judgment shall be modified to reflect a conviction for voluntary manslaughter, and the trial court shall re-sentence accordingly. (Certified for publication.) (I) HCC

DiGuiseppe, Raymond – People v. C.N., E051668 – Probation Conditions
Two juvenile probation conditions forbidding contact with any male or female under the age of 14 and forbidding possession of sexually explicit materials were modified to add knowledge requirement. (I) PED

Jones, Sharon – People v. Ruvalcaba, D056842 – Hearsay
Court of Appeal reversed two counts of second degree murder based on the erroneous and prejudicial admission of double hearsay evidence under the declaration against interest exception enumerated in Evidence Code section 1230. (I) PED.

Dodd, John – People v. Spencer, E051954 – Insufficient Evidence
Court of Appeal found insufficient evidence that defendant was guilty of conspiracy to communicate with a prisoner without authorization (Pen. Code, §§182/4570). Providing a prisoner with the means to communicate with other individuals by throwing a football containing cell phones into a prison yard held not to constitute a conspiracy to violate this statute. (I) PED

Truax, Chris — P. v Stafford, D056392r — SVP Recommitment/Equal Protection
Based on appellant's equal protection claim, SVP recommitment was reversed and remanded to the trial court with directions to suspend further proceedings until the equal protection issue being litigated in People v. McKee is finally resolved. (I) LMF

Owen, Thomas — People v. Lopez, D057503 — Penal Code Section 4019
Court of Appeal agreed that the favorable revision of Penal Code section 4019 applies retroactively to appellant who was sentenced before the effective date but who had an appeal pending when he made a motion for additional credits. (I) APJ

Bostwick, James — People v. Larry Smith, E051438 — Booking Fee/Credits
The Court of Appeal reversed a booking fee of $409.43 as unauthorized because nothing in the record shows that the amount does not exceed the overhead costs per Government Code sections 29550 and 29550.1. Case remanded for trial court to state applicable statutory basis for the fee and factual basis for order. The Court of Appeal also agreed with appellant's argument that he is entitled to an additional 2 days of pre-sentencing custody credits based upon correct date of arrest. (I) APJ

Hinkle, Stephen — People v. Ciliento, D058868 — Fees
Trial court erred in not setting forth the statutory bases for booking and ICNA fees imposed. Trial court ordered to amend the abstract to include statutory bases for fees. (I) AMJ

Pirko, Johanna — In re J.J., G043562 — Probation Conditions
Court of Appeal agreed that several of minor's probation conditions must be modified to pass constitutional muster. Two conditions are modified to include "knowledge" requirements and third condition limits probation officer's control over type of volunteer work minor may do. (I) APJ

Brownell, Gordon/Gold, Peter – People v. Solorio/Rojas, D056842 – Multiple Murder Circumstance
One of two multiple murder special circumstances findings ordered vacated because the prosecution properly can only allege one such allegation. Error in abstract of judgment also ordered amended. (I) PED.

Booher, Robert — People v. Valdivia, D057518 — Probation Conditions
Appellant contended and the Court of Appeal agreed that various conditions of his probation were unconstitutionally vague. The language of the probation condition that he not possess "toys, video games, or similar items," does not provide reasonable specificity as to the prohibited items in any given context. The probation condition that prohibits all possession and use of computers by appellant absent probation officer approval is open-ended; furthermore, the broad prohibition on possession and use of the computer bears no relation to his crime for unlawful intercourse with a minor. Appellant had no history of impermissible computer possession or use and the computer was not an instrumentality of the offense. The condition of probation that forbade him from possessing or using a computer unless approved by his parole officer was unconstitutionally over-broad and therefore was stricken. The probation condition forbidding appellant from using a computer to contact minors did not include a knowledge requirement. However, modifying the probation condition to expressly reflect the knowledge requirement would cure the vagueness concern. Accordingly, the court modified the probation condition to read: "[Appellant] shall not participate in computer chat rooms and shall not knowingly use a computer to contact minors." (I) HCC

DeVito, Cara – People v. Loustaunau, D057370 – Ex Post Facto
Court of Appeal reversed the $1000 parole revocation fine imposed under section 1202.45 because the statute was implemented in 1995 after appellant's offense. (I) LKH

Farber, William — Hobbs v. California Department of Corrections and Rehabilitation, D057521 — Inmate Earnings
Court of Appeal rejected the argument raised in the California Department of Corrections and Rehabilitation's (CDCR) appeal of the trial court's grant of relief to petitioner. Initially, the Court of Appeal noted that CDCR disobeyed the trial court's order to show cause by filing an informal response and then subsequent letter including an unauthenticated and unverified document, instead of a formal return. Thus, it accepted all material facts properly alleged in the petition and reviewed the matter de novo. (Stanton v. Dumke (1966) 64 Cal.2d 199, 201.) Because petitioner is serving an LWOP sentence, under which he will never be released, CDCR's retention of 20% of petitioner's wages earned in the CDCR's joint venture program under California Code of Regulations, title 15, section 3485, subdivision (i) as mandatory savings until petitioner is to be released violated his due process rights against arbitrary state abrogation of his property. In addition, because petitioner would never have access to the amount retained, CDCR's actions constituted a deduction which was not authorized by Penal Code section 2717.8. (I) CBM

White, Catherine – People v. De Los Santos, D057750 - Instructional Error
Court of Appeal reversed appellant's second degree murder conviction due to the trial court's explanation to the jury of the implied malice instruction (CALCRIM 520). In response to the jury's request for guidance with regard to the implied malice element, the trial court instructed the jury it could convict appellant if it found that at the time of his act he knew his act could cause death or great bodily injury. Because the defendant must be aware of the risk of death for malice to be implied, the court erroneously lowered the prosecution's burden to prove appellant committed implied malice murder. (I) LAR

Farmani, Tony — In re William R., D058009 — Insufficient Evidence
The minor was arrested for truancy and a search revealed two Adderall pills for which he had no prescription. The minor denied knowledge of the pills and, when asked for an explanation, told the arresting officer that the pants belonged to his ex-girlfriend who had left the pants at William's house to be washed, a story confirmed by his mother. When the questioned how the pills could be in the same condition after washing, the minor testified, "[t]hat was the only thing I could really think of how I got [them pills] . . ." At trial, a witness testified that he bought a skateboard from the minor and accidentally gave minor the Adderall in the folded money used for the purchase. While the Court of Appeal agreed with respondent that minor's explanations seem suspect, nevertheless, how minor got the pills is not at issue. Rather, the issue here was whether respondent presented substantial circumstantial evidence to prove minor knew of their presence and knew of their nature as a controlled substance. The Court of Appeal concluded that respondent presented no evidence that minor knew the pills were in his pocket. Also, as conceded by respondent, even if there was substantial evidence suggesting minor fabricated an alibi or defense, this fact alone is insufficient to prove guilt. Further, there was no evidence minor knew the pills were methamphetamine or any other controlled substance. Although the presence of the pills in minor's pocket may raise suspicion of his guilt, "[s]uspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact." (People v. Redmond, supra, 71 Cal.2d 745, 755.) Therefore, the court concluded the evidence was insufficient to support the finding minor knew the pills were methamphetamine. (A) HCC

Fitzer, Richard – People v. Green, D057178 – Insufficient Evidence/Enhancement
One year sentencing enhancement imposed under subdivision (a) of Penal Code section 12022.6 is reversed based on the lack of evidence in the record to support the finding that the losses in the two counts of grand theft by embezzlement arose from a "common scheme or plan" for purposes of subdivision (b) of that statute . (Certified for publication.) (I) PED

Conroy, Marisa – People v. D.D., E051675 – Probation Conditions
Four juvenile probation conditions determined to be unconstitutionally vague and overbroad and ordered modified to include a knowledge requirement:
1). "Not have direct or indirect contact with any non-relative known by minor to be on probation or parole unless approved by Probation Officer."
2) "Minor shall obey his parent(s) and not associate or participate in any activities minor knows to be prohibited by his probation officer.
3) "Not knowingly possess sexually explicit materials that your probation officer has informed you are inappropriate."
4) "Submite to search of person or property by an probation officer, law enforcment officer, or school official for any sexually explicit material that the probation officer has informed you are inappropriate." (I) PED

O'Connor, Sheila – People v. N.E., a minor – Lesser Included Offenses/Probation Conditions
The juvenile court returned true findings for robbery (count 1) and grand theft from the person (count 2) involving the same victim. The Court of Appeal reversed the true finding for grand theft as it is a lesser included offense of robbery. Also, the Court of Appeal ordered the juvenile court to send corrected notices to the school district and sheriff's department reflecting the reversal of count 2. The court also ordered the juvenile court to modify the driving condition precluding N.E. from being "in any privately owned vehicle with more than one person under the age of 18 unless accompanied by a parent or legal guardian, or with permission of the Probation Officer" to reflect a knowledge element. Finally, the court struck the probation condition precluding N.E. from appearing "in Court or any courthouse unless [he is] a party in the proceedings." The Court of Appeal found the condition overly broad; upon remand the juvenile court can fashion a narrower condition if it continues to find the condition necessary. (A) LKH

O'Connor, Sheila – In re N.C., E052795 – Probation Condition
Court of Appeal modified probation condition to include a "knowledge" component that appellant not associate with non-relative persons whom she knows to be on probation or parole. (A)BCT

Wells, Mary – People v. Ramirez, G042723 – Sentencing
Court of Appeal reversed in part, finding: (1) the court should have first imposed and then stayed the sentence on the conviction for possession of a firearm by a felon instead of just staying the sentence; and (2) court security fee erroneously imposed. (I) LAR

Power, Richard — People v. Montez, E051927 — Penal Code Section 4019 (Two-Tier)
Appellant committed his crimes before the amendment to section 4019 became effective, but was sentenced after the amendment became effective. Accordingly, the trial court was required to award conduct credits under the amended statute, but awarded appellant pre-sentence credits based on the two different versions of section 4019. This was an error because section 4019 contains no provision for such a two-tiered division of the pre-sentence custody credits, and, additionally, the previous version of section 4019 was no longer valid at the time of sentencing. Hence, the trial court could not apply the previous statute to the sentence. Therefore, appellant was entitled to two additional days of conduct credit. (I) HCC

Klaif, Leonard – People v. Alire, G043826 – Penal Code Section 4019
Judgment modified to add an additional 21 days of pre-sentence custody credit pursuant to Penal Code section 4019. (I) PED

Hill, Melissa — People v. Martinez, G043975 — Credits
The Attorney General conceded and the Court of Appeal agreed that the trial court erred in declining to award any pre-sentence conduct credit when it sentenced appellant to an indeterminate term for sexual abuse of a child. No statute precludes the award of pre-sentence conduct credit in such a case. Accordingly, the trial court was directed to award pre-sentence conduct credit at 15% pursuant to Penal Code section 2933.1. (I) APJ

Larson, Eric – People v. Villaunueva, G043825 – Credits
Court of Appeal found trial court erroneously denied pre-sentence conduct credits. Judgment modified to add 151.65 days of pre-sentence conduct credit pursuant to Penal Code section 2933.1, subdivision (a)(1). (I) PED

Tetreault, Nancy L. - People v. Romero, G042723 - Lesser Included Offense/Sentencing
Court of Appeal reversed in part: (1) appellant's conviction for street terrorism was reversed since it is a necessarily included offense of being a gang member with concealed weapon in vehicle; (2) another count of street terrorism should have been stayed pursuant to Penal Code section 654; (3) the court should have first imposed and they stayed the sentence on the conviction for possession of a firearm by a felon instead of just staying the sentence; and (4) court security fee erroneously imposed. (I) LAR

Roth-Douquet, Kathryn - People v. Marks, D057558 - Restitution
Trial court erred in denying appellant's request for a restitution hearing. (A) LAR

Schuck, John — People v. Casillas, E051839 — Expungement/Penal Code Section 1016.5
Appellant, who was facing immigration consequences from a felony conviction following a guilty plea of some vintage, had sought various remedies. The superior court denied all relief, and appellant appealed on all grounds. The Court of Appeal reversed on two. Appellant argued, respondent conceded, and the court agreed, that given that appellant had completed his probation grant satisfactorily, and a defendant who has fulfilled the conditions of his probation for the entire period is entitled to the relief provided in section 1203.4, subdivision (a), as a matter of law, the trial court erroneously denied appellant's request for expungement. The court reversed and remanded so that appellant may be permitted to withdraw his guilty plea and have his prior felony convictions dismissed. Appellant argued, respondent conceded, and the court also agreed trial court erroneously concluded it did not have jurisdiction to consider and rule on the merits of appellant's motions under Penal Code section 1016.5 in regard to the voluntariness of his guilty plea as to immigration consequences. The court also agreed with the parties that a remand for a new hearing on defendant's motions was appropriate, because the issues raised involve factual determinations that should be made by the trial court in the first instance. The record on appeal did not include all of the evidence that should be considered in deciding the merits of appellant's motions. (I) HCC

Hopkins, Ann — People v. Choudhury, E051134 — Probation Condition
Appellant argued and the court agreed that the trial court erred in imposing the costs associated with the submission of drug testing as a condition of probation. A defendant who is granted probation may be ordered to pay the reasonable costs of probation, but the payment of such collateral costs cannot be made a condition of probation. An order that a probationer pay the collateral costs of probation is enforceable only as a separate money judgment in a civil action. Therefore, the order requiring appellant to pay the costs of substance abuse treatment as a condition of probation was modified to delete the requirement that he pay the costs, but affirmed as an order entered as a part of the judgment. (A) HCC

Tobin, Amy Z. — In re Giselle G., D059435 — Reasonable Services
Court of Appeal reversed a reasonable services finding for a father who was incarcerated for most of the dependency period. The juvenile court ordered visits and a $25 credit card for calls to his daughter 4 times, but the agency still had not gotten him one after a year. In addition, although the father did not visit the child when he was briefly out of prison for less than a month, he said it was because his mother was in a coma and died during that time. Nothing in the record showed the agency attempted to provide visitation or coordinate other services for the father while he was in local custody, either. (I) CAG

Weaver, Eric — People v. Douglas, D057357 — Insufficienct Evidence
Court of Appeal found insufficient evidence of one of seven Penal Code section 266j violations, where the evidence only showed the defendant transported the minor to six locations. It also found insufficient evidence of several gang enhancements under Penal Code section 186.22, subdivision (b), where the only evidence supporting that the attached offenses were for the benefit of the gang was an expert's opinion. (I) JLP/PED

Liana Serobian - In re Christopher G., D057187 - Lesser Included Offense
Battery conviction reversed because it was a lesser included offense of battery causing serious injury. (I) LAR

 

July 2011
Smith, Barbara/Ford, Patrick -– People v. Roman/Marquis, D056159 -– Insufficient Evidence and Credits
Court of Appeal reversed one burglary count because it was based on the same entry into Wal-Mart that formed the basis of another conviction. The court awarded additional pre-sentence conduct credits based on retroactive application of the amendment to Penal Code section 4019. (I) BCT

Owen, Thomas — People v. Bimson, D056620 — Penal Code section 654
Court of Appeal found Penal Code section 654 required the stay of ten counts of lewd acts under section 288, subdivision (c)(1), because they were based on the same conduct as ten counts of conviction under section 288a, subdivision (b)(2). The result was a reduction of appellant's determinate sentence from 14 years, 8 months, to 8 years. (I) NFA

Lathrop, Stephen/Christiansen, Mark — People v. Rangel et al., D056961 — Ministerial Corrections
With respect to appellants Julio Cruz and Martin Murguia, the Court of Appeal ordered the abstract of judgments corrected to reflect the trial court award of presentence custody credits. It also ordered appellants' prior attempt murder convictions and attached great bodily injury enhancements vacated after the victim died and appellant was subsequently convicted of murder. (I) CBM

McPartland, Michael — People v. Rangel, D056961 — Statute of Limitations
Appellant participated in a beating of David Jones on December 4, 1999. In May 2000, appellant and the co-defendants were charged with attempted, premeditated murder, with a great bodily injury enhancement, assault with force likely to commit great bodily injury, and mayhem. In September 2000, the co-defendants pleaded guilty. Appellant proceeded to a jury trial, after which he was convicted of attempted premeditated murder; the great bodily injury enhancement was found true. Jones died from his injuries in late June 2002. Thereafter, in June 2005, a felony complaint charging appellant and the co-defendants with first degree murder and also appellant with commission of a gang participation crime (Pen. Code, § 186.22, subd. (a)) was filed. In 2009, a jury found appellant guilty of these crimes. On appeal, appellant Rangel contended the active gang participation crime was barred by the three-year statute of limitations under Penal Code section 801. The People contended that the statute of limitations period had been tolled by the initial prosecution and that the filing of the new complaint in 2005 occurred within the three year limitation. The Court of Appeal agreed that the active gang participation offense involved prosecution of the "same conduct" for purposes of the tolling provision of Penal Code section 803, subdivision (b), which continued the substance of former section 802.5. However, based on the record provided, the reviewing court could not determine when the case commended pursuant to section 804 (the portion of section 804, subdivision (c) – relied upon by the People in its briefing -- became effective only on January 1, 2009 and thus could not be used to assess the issue). Therefore, it remanded the matter for a hearing to resolve the unanswered factual questions and determine whether the gang-participation offense is time-barred. The court ordered the abstract of judgment amended to reflect the trial court's presentence custody credit award. It also ordered appellant's prior attempt murder conviction and attached great bodily injury enhancement vacated after the victim died and appellant was subsequently convicted of murder. (I) CBM

Rudasill, Denise — People v. Davis, D056823 — Penal Code Section 4019
Given the amendment to Penal Code section 4019, appellant was awarded an additional 10 days of good conduct credits. (I) HCC

Farmani, Tony – People v. Guerrero, D056979 – Lesser Included Offense
Appellant's conviction on count 2 for vehicle theft (Veh. Code, § 10851, subd. (a)) was reversed because it is a lesser included offense of count 1, grand theft auto (Pen. Code, § 487, subd. (d)). (A) LKH.

Somers, Robert – People v. Ramirez, D057515 – Penal Code Section 4019 (Two-Tier)
Court of Appeal concluded SB18 is retroactive and ordered appellant's pre-sentence custody credits recalculated under the new scheme effective January 25, 2010. The client was sentenced after January 25, 2010, but had served some time prior to that date. At sentencing, the trial court had used the two-tier system for calculating credits. (I) JLP & LKH.

Day, Mark — People v. Whiteman, D057323 — Lesser Included Offense
Appellant shoplifted merchandise at Sears, was confronted by security agents, and briefly resisted. He was convicted of both robbery pursuant to People v. Estes (1983) 147 Cal.App.3d 23 and the underlying theft. The latter was reversed as a lesser included offense of the former. (A) HCC

Curnow, Rodger – People v. Ryan, D057179 – Ineffective Assistance of Counsel
Court of Appeal granted the petition for writ of habeas corpus based on ineffective assistance of counsel. The case is remanded to the trial court to appoint new counsel and allow counsel a reasonable time period to fully investigate and present a new trial motion. This is the second appeal. In the first appeal, the case was reversed and remanded for the same purpose. On remand, the trial court appointed a new attorney to investigate and file the motion for a new trial. The new attorney did not obtain a copy of the transcripts, nor did she seek assistance from the trial court in obtaining the transcripts. Instead, counsel filed a new trial motion based upon client letters and discussions with prior trial counsel. Appellate counsel filed the instant petition, and the Court of Appeal granted the petition concluding trial counsel was incompetent under the Cronic standard ["[S]ituations in which petitioner is represented by counsel at trial, but counsel ‘entirely fails to subject the prosecution's case to meaningful adversarial testing.'"] (I) LKH.

Matulis, Jean — People v. Kopycinski, D057061 — Fines and Fees
Appellant argued that various fines and fees were unauthorized, excessive, or miscalculated. Respondent conceded in part. The Court of Appeal concluded the $800 for fine, penalty assessment, and surcharge was authorized but excessive; the $25 administrative screening fee was unauthorized because Penal Code section 1463.07 is inapplicable; the $30 court security fee was unauthorized because it cannot be made a condition of probation; and certain fees were improperly calculated, resulting in a total reduction of $135. (I) HCC

Barana, Victoria — Conner, D058350 — Restitution Fine
Appellant, who was on probation for an earlier offense, pleaded guilty to a subsequent offense and was sentenced to prison. During the sentencing hearing, the court imposed a $700 restitution fine for the earlier offense, even though it had previously imposed a $200 fine when it placed appellant on probation. The Court of Appeal ordered the $200 restitution fine reinstated and the $700 fine stricken, as well as a reduction of the parole revocation restitution fine from $700 to $200. (S) VPB

Fabian, Carl — People v. Delgado, E049815 — Sentencing
The Court of Appeal agreed with appellant's argument that the trial court misunderstood the scope of its sentencing discretion when it apparently believed it was required to impose consecutive sentences under Penal Code section 667.61 even though the law at the time of the offense did not require consecutive sentencing. Case remanded for exercise of informed discretion. (I) APJ

Booher, Robert — People v. Bibb, E049500 — Penal Code Section 654
Appellant and a woman had an "on-again-off-again" tumultuous relationship. During an "off-again" period, she was dating another man, when appellant came over. Appellant assaulted the man twice, and was convicted inter alia of residential burglary, assault with force likely to produce great bodily injury, and assault with a deadly weapon. He received a concurrent term for one assault, and punishment was stayed for the other. Because the prosecution's theory of burglary was that appellant entered the residence to commit an assault, separate punishment for burglary and either assault is prohibited. (I) HCC

Fabian, Carl – People v. Bennett, E048627 – Sentencing
Sentence on count 2 vacated and case remanded for re-sentencing because trial court erred in imposing an indeterminate term on the attempted murder conviction. The information did not allege that the attempted murder was premeditated, the jury was not instructed with the premeditation allegation, and no verdict form with a potential finding of premeditation was submitted to the jury. Attorney General conceded the error. (I) BCT

Crawford, James — People v. Lindquist, D059179 — Fines/Protective Order
The Attorney General conceded and the Court of Appeal agreed that the protective order imposed in this case was not authorized by the cited statute or any other statute and, therefore, must be stricken. Also, in agreement with the Attorney General's concession, the Court of Appeal found that the trial court misunderstood the scope of its discretion in setting the fine amounts pursuant to Penal Code sections 1202.4, subdivision (b), and 1202.45, and remanded the case for the trial court to exercise informed discretion with regard to setting these fines. (I) APJ

Zimmerman, Harry – People v. Preciado, E050394 – No Contact Order
No contact order with victim reversed because appellant had been sentenced to prison, and no statute authorizes the imposition of such an order. (I) LAR

Albert, Mark — People v. Romine, E051135 — Penal Code Section 4019 (Two-Tier)
Here, appellant's criminal act and some of her probation violations occurred before the amendment to Penal section 4019 became effective, but her sentencing did not occur until after the amendment to section 4019 became effective. Therefore, appellant was required to be sentenced under the amended statute. Nonetheless, the trial court calculated appellant's pre-sentence conduct credits based on the different versions of section 4019 in effect at different times during appellant's pre-sentence custody. This was an error because section 4019 contains no provision for such a two-tiered division of the pre-sentence conduct credits. Moreover, the previous version of section 4019 was no longer valid at the time of appellant's sentencing, and the trial court was unauthorized to apply the previous statute to appellant's sentence. Accordingly, appellant was entitled to an additional 71 days of conduct credits. (A) HCC

Christiansen, Mark — People v. Flores, E050778 — Instructional error
Where appellant was charged with forcible lewd conduct on a minor (Pen. Code, §288, subd. (b)) and the trial court found there was sufficient evidence to instruct on the lesser included offense of battery. The Court of Appeal found that the trial court erred by failing to instruct on the additional lesser included offense of non-forcible lewd conduct on a minor. (Pen. Code, §288, subd. (a).) The error was prejudicial because there was no evidence of force and little evidence of duress. (I) CBM

Garfinkle, Elizabeth — People v. Anilu Colula, E051063 — Suppression Motion
Court of Appeal found Border Patrol agent had no reasonable suspicion criminal activity was afoot to justify the traffic stop of appellant's vehicle after it passed through the agricultural inspection station located in Blythe at approximately 5 a.m. on a Sunday. The time of travel and the route were not inherently suspicious, given the 23,500 to 29,000 vehicles which traveled this section of the highway each day. Appellant's failure to look the agent in the eye, as well as her nervousness upon traveling through the station, are not factors of substance in the calculus for determining reasonable suspicion. And, the fact that appellant slowed after the agent began following her does not lead to suspicion of criminal activity; this is a normal response to being followed by law enforcement. The status of appellant's car as a rental similarly did not provide reasonable suspicion, even though some rental cars from the same company had been involved in illegal activity, as the company may rent hundreds, thousands or even tens of thousands of vehicles every year. The fact that a rental vehicle was involved in a prior criminal act does not create a license to stop every rental vehicle from the same company. Finally, the agent's significant inexperience failed to convert the otherwise apparently innocent conduct into a reasonable suspicion of criminal activity. Judgment reversed. (A) CBM

Chavez, James — People v. Monroe, E050481 — Penal Code Section 4019
The trial court erroneously credited appellant with only 15% conduct credit, and respondent conceded Penal Code section 4019 applied. Appellant argued that since sentencing occurred after January 2010, appellant was entitled to one-for-one credits for all actual custody he had served both before and after the amendment of the statute. The Court of Appeal agreed and awarded 1,037 days of additional conduct credits. (A) HCC

Moller, Richard J. –- People v. Barba, E051196 -– Penal Code Section 4019 (Two-Tier)
Judgment modified to award additional pre-sentence custody credits under modified Penal Code section 4019 for time spent prior as well as subsequent to the effective date of the amendment. (I) PED

Christiansen, Mark -– People v. Smith, G041645 – Aranda/Bruton Error
Conviction for murder and second degree robbery reversed due to prejudicial Aranda/Brtuon error.(I) PED

Weinberg, Allen — People v. Hansen, G042222 — Sentencing
Tying and binding findings under Penal Code section 667.61, subdivision (e)(5), reversed because trial court's instruction allowed jury to make true finding based on appellant's placing hand over victim's mouth and nose. (I) DKR

Barana, Victoria –- People v. Lenore, E051907 –- Probation Violation
Court of Appeal reversed the trial court's finding that appellant had violated probation because she had failed to complete a mandatory 52-week child abuse program, holding that a probationer cannot be found to have violated a condition of probation that had never been imposed (the court had imposed only a condition that appellant complete "parenting classes"). The court remanded the matter to the superior court with directions to either set forth a valid reason for not imposing the mandatory 52-week child abuse prevention program or, if no such reason exists, to impose it as a term of probation (the court found that failure to impose the condition without a valid reason amounts to an unauthorized sentence that can be corrected at any time). (S) VPB

Matulis, Jean — People v. Heath/O'Brien, G040653 — Penal Code Section 4019
Court of Appeal agreed with appellants' argument that the modified Penal Code Section 4019 applies to them retroactively and remanded the case for re-calculation of appellants' pre-sentence custody credits. (I) APJ

Greenberg, Mark –- People v. Brantley, G042308 –- Sentencing
Court of Appeal found no substantial evidence supports the trial court's finding that one of appellant's three prior Texas assault convictions qualifies as a serious felony prior under Penal Code section 667, subdivision (a)(1). Also, no substantial evidence supports the finding that the appellant's Texas conviction for felony evading a police officer qualified as a one-year prior under Penal Code section 667.5, subdivision (b). (I) PED

Erickson, Kristin – In re C.E., G043883 – Miranda Violation
Court of Appeal reversed the juvenile court's true finding that minor (13 years old) committed a sexual battery on a young girl in his class. During class, boys were teasing the girl about her breast size. Appellant touched her breast over her clothes and everyone laughed. The girl was embarrassed and reported the touching. A police officer questioned appellant in the principal's office and did not advise the minor of his rights under Miranda v. Arizona. Relying on J.D.B. v. North Carolina, the court reversed and remanded the case so the juvenile court could take into account the minor's age in determining whether he was in custody for Miranda purposes. (I) BCT

Owen, Thomas –- People v. Benavidez, G043412 –- Amended Information
Attempted lewd act conviction reversed because appellant's due process right to notice was violated when trial court allowed prosecutor to amend information to name a different victim of the offense after the close of evidence. (I) DKR

Schuck, John — People v. Ensley, G043649 — Instructional Error
Trial court's failure to instruct the jury on the legal meaning of "mutual combat" as used in CALCRIM 3471 amounted to prejudicial error. Appellant was convicted of assault with a deadly weapon causing great bodily injury (he was acquitted of attempted premeditated murder). The facts showed the victim and appellant had engaged in fist fights on the evening of the assault, and that the victim had beaten appellant unconscious. Later, when appellant returned to the victim's apartment to retrieve his wallet, he was attacked by the victim, they fought, and appellant stabbed the victim. The evidence also showed appellant carried the knife with him and used it at work. Court of Appeal reversed the conviction, holding that without a definition of the legal meaning of "mutual combat" as used in CALCRIM 3471 – which limits one's right to use force in self-defense if he engaged in mutual combat or was the initial aggressor – the jury may have found appellant did not have the right to use force merely because he had exchanged blows with the victim. The court found the error prejudicial where the evidence showed appellant may have resorted to the knife to protect himself from an even more serious beating than the one he received from the victim earlier that evening. (I) MCR

Erickson, Kristin –- People v. Garcia, G042653 –- Insufficient Evidence
Court of Appeal reduced first degree murder conviction to second degree because evidence of premeditation and deliberation is insufficient but sufficient evidence of implied malice exists. (I) DKR

Wilson, Sachi — People v. Scott, G043903 — Probation Conditions
Court of Appeal modified four probation conditions. Two conditions prohibiting appellant from associating with gang members or persons possessing weapons were modified to prohibit only knowing association with such persons. Two conditions prohibiting appellant from being in a car "you know or suspect" is stolen or associating with persons "you know or suspect" to possess theft or burglary tools were modified to delete the word "suspect," which was insufficiently specific and failed to put appellant on adequate notice of what conduct is prohibited. (I) NFA

Lampkin, David — People v. Lozada, E049757 — Credits
Trial court erred in not ordering any custody credits in this second degree murder case. Judgment modified to award appellant 2,279 days of pre-sentence custody credits. (I) AMJ

Irza, Helen -- People v. Murphy, E046742 -- The Williamson Rule
California Supreme Court granted review to decide whether defendant's felony conviction under a general statute governing the offering of a false instrument for filing in a public office (Pen. Code, §115, subd. (a)) is precluded by special statutes in the Vehicle Code that make it a misdemeanor to make or file a false report of vehicle theft (Veh. Code, §10501, subd. (a)) or to file a false statement with the Department of Motor Vehicle (Veh. Code, §20). Court concluded the Legislature intended that defendant's conduct be prosecuted as a misdemeanor under Veh. Code section 10501 and not under the more general rule. (A) LAR

Gorman, Seth — In re Joshua M., et al, G044854 — Visitation
The current order for visitation improperly delegated the decision to visit to the children, and the Court of Appeal reversed and remanded for another hearing to formulate a more specific visitation order. (I) CAG

Hennessey, Patrick/Stralla, Ava –- People v. Mixon, G044930, G044932 & G044934 –- Restitution and Penal Code Section 4019
Victim Restitution fine of $110,000 ordered under Penal Code section 1202.4, subdivision (a)(1), reversed where there was no indication the losses assessed were the result of the defendants' criminal conduct. In addition, case remanded as to Michael Mixon with orders to recalculate the pre-sentence conduct credits to which he is entitled under amended Penal Code section 4019. Case remanded as to Jacoby Mixon to allow the trial court to exercise its discretion and determine whether his prior serious felony conviction should be stricken for purposes of amended section 4019 so that he may be allowed additional credits. (I) PED

Barry, Leslie/Fields, Lori — In re A.C., G044338 — Reunification Services
The juvenile court granted reunification services to a mother of a nine year-old girl who had been out of mother's care for many years and in a guardianship with another family. The Court of Appeal reversed, holding that the juvenile court abused its discretion when it ignored the statutory constraints on such services at that point in the child's dependency. (I) ACS

Bauguess, Susan — People v. Ramos, G044139 — Sentencing
Trial court imposed enhancements under Penal Code section 122022.5 for weapon use and Penal Code section 122022.7 for great bodily injury. The Court of Appeal remanded for the trial court to strike the lesser enhancement because Penal Code section 1170.1, subdivision (e), in effect when appellant committed her crime in 1992, required imposition of only the greater enhancement. (I) AMJ

 

June 2011
Nalls, Christopher — People v. Tauch, G042555 — Penal Code Section 654
Recognizing a split of authority on the issue, the Court of Appeal agreed with appellant's argument that, pursuant to Penal Code section 654, he could not be punished separately for both an assault and the commission of that same assault to promote criminal conduct by gang members. Accordingly, the Court of Appeal reversed the judgment and remanded for re-sentencing. (I) APJ

Kraft, Rudy — In re Crowder, G043491 — Parole; Habeas Corpus
20 years ago then 19 year old petitioner was convicted of second degree murder. The petitioner sought relief from the Board of Parole Hearing's determination finding that he was now unsuitable for parole. The superior court granted habeas relief, and on the Board's appeal, the Court of Appeal concluded agreed the Board's parole denial was not supported by even some evidence. No evidence reasonably suggested commitment offense — in which the petitioner, after drinking all night, shot his friend — or petitioner's's teenaged turmoil — dropping out of school and turning to alcohol after losing his father at 15 — created a risk of current dangerousness. Nor did petitioner's decision to appeal his conviction or his insistence he never meant to shoot the victim show he is still dangerous. Given a change in Supreme Court precedence after the granting of the habeas, however, the Court of Appeal modified the judgment. While the superior court had ordered the Board to grant parole "unless new evidence" shows petitioner is unsuitable for parole, the Court of Appeal modified the order to require the Board to conduct a new hearing "in accordance with due process of law." (I) HCC

Shudde, Athena — People v. Cordell, D056302 — Insufficient Evidence
Appellant was charged, amongst other offenses, with Penal Code section 484e, subdivision (a), which provides that "[e]very person who, with intent to defraud, sells, transfers, or conveys, an access card, without the cardholder's consent, is guilty of grand theft." Appellant contended that the evidence was insufficient to support his conviction under this statute because, in using another person's card to purchase goods or services, he did not "convey' an access card. Specifically, he maintained that the term "conveys" as used in the statute refers to the transfer of ownership, possession, custody or control of an access card to another, and not to the temporary transfer of possession of an access card to a merchant for the purpose of purchasing goods or services. The Court of Appeal agreed, noting that the Legislature has clearly proscribed the fraudulent use of an access card in a different, specific statutory provision and for the court to insert "or uses" into the subdivision would impermissibly intrude into the Legislature's domain in such a manner. (I) HCC

Scott, Patricia A. — People v. Santos, E050740 — Unauthorized Sentence
The Attorney General conceded and the Court of Appeal agreed that appellant's 15-life sentence for premeditated attempted murder was unauthorized and that the correct sentence is life with the possibility of parole. (I) APJ

Martin, Arthur — People v. Martinez, G042553 — Credits
Attorney General conceded and Court of Appeal agreed the trial court erred when it failed to award any conduct credits for the time appellant spent in custody prior to sentencing. Appellant is entitled to 170 days as calculated under Penal Code sections 4019 and 2933.1. (I) CBM

Sheehy, Kevin - People v. Rojas, E050676 - Sentencing
Court agreed there was insufficient evidence to support the true finding of the on-bail enhancement and ordered it stricken. The Court of Appeal noted that when trial on the priors and enhancement is to a court, the trial court must also make findings on factual matters. Here the trial court failed to specifically find defendant was on bail at the time he committed the present offenses and the court's silence operates as a finding the special allegation is not true. Morever, there was no evidence presented to the trial court to support the on-bail enhancement. Further, the Court of Appeal found that either the possession of meth count or the transportation of meth count should have been stayed pursuant to Penal Code section 654. The transportation count was ordered stayed. Finally, based on an entire review of the record, the Court of Appeal agreed with Defendant that the trial court intended to impose a total sentence of 25 years to life, rather than 100 years to life as indicated in the minute order. Clerk ordered to correct the minute order and the abstract of judgment. (I) LAR

Yanis, Mark – People v. Rowley, D056978 – Sentencing
The court ordered the one-year consecutive prison term imposed for attempted voluntary manslaughter stayed pursuant to Penal Code section 654 because the evidence showed the attempted voluntary manslaughter and the residential burglary arose from a continuous course of conduct pursuant to a single intent and objective of attacking the victim. (I) BCT

Gold, Neale Bachman — In re J.F., D058522 — Post-permanency Review Hearing
The Court of Appeal reversed the judgment denying the mother a contested post-permanency review hearing under Welfare and Institutions Code section 366.3, finding her due process rights were violated and such violation was not harmless beyond a reasonable doubt. In addition, an offer of proof was not required to obtain the contested hearing. The court granted counsel's request for publication.. (I) CAG

Zimmerman, Harry – People v. McDonough, G042711 – Release of NGI prisoner to outpatient treatment
The Court of Appeal reversed the trial court's denial of outpatient release for appellant because all experts concluded appellant is not a danger and would benefit from outpatient treatment. Thus, appellant had met her burden to show by a preponderance of the evidence that she is no longer mentally ill or dangerous and therefore entitled to release. (I) BCT

Babcock, Russell – People v. Alvarado, E050211 – Abstract of Judgment
The Attorney General conceded and the Court of Appeal agreed the abstract of judgment erroneously reflected $387.97 in booking fees that the trial court did not impose, and under the circumstances, could not have imposed. Trial court directed to correct the error. (I) BCT

Cannon, Gregory - People v. Montoya, E048810 - Fees; Ability to pay attorney fees
Court agreed the trial court's order for appellant to pay attorney fees in the amount of $2,400 to the public defender's offices constituted an abuse of discretion because trial court did not make an explicit finding based upon substantial evidence that defendant had the ability to pay those fees. (I) LAR

Torres, Steven — People v. Pesqueira, E050728 — Fines; Ability to Pay
At appellant's sentencing hearing, the court pronounced sentence and imposed fines pursuant to Penal Code sections 1202.4 and 1202.45, but did not mention section 290.3 and did not impose the fine authorized by that statute. The People did not object to the omission. Nevertheless, the court's minute order for the hearing and the abstract of judgment state that the court imposed a fine pursuant to section 290.3 in the amount of $1,700. Appellant argued, respondent conceded, and the Court of Appeal agreed that since the statute has an ability to pay provision, the inclusion in the fine in the minute order and abstract of judgment constitute error. The People, however, argued for remand. The Court of Appeal disagreed and struck the fine. (I) HCC

Miller, Gerald — People v. Molina, E051930 — Penal Code Section 4019 (Two-Tier)
Court of Appeal agreed that the trial court erred in using a two-tiered approach in ordering credits under Penal Code section 4019 and that appellant was entitled to one-for-one credits because he was sentenced after the effective date of the amendment. (I) AMJ

Costan, Charlotte — People v. Jackson, D057580 — Fees
Court of Appeal agreed that a $60 fee order does not correctly reflect the breakdown of the fees. The trial court is directed to correct the minute order and abstract of judgment with the correct fee amounts and supporting statutes. (I) AMJ

De La Sota, Richard — People v. Byrd, D056974 — Sentencing
Court of Appeal found trial court erroneously concluded it was required to impose consecutive sentences under the Three Strikes Law, when in fact the court had discretion to sentence concurrently because the two offenses occurred on the same occasion. (See Pen. Code, § 667, subd. (c)(6).) Remanded for resentencing. (I) NFA

Jones, Sharon — People v. Rodriguez, D056481 — Penal Code Section 654
Defendant was convicted and sentenced consecutively for being a felon in possession of a firearm, with a gang enhancement (§ 186.22, subd. (b)) and of the substantive offense of participating in a gang, based on the same incident. The Court of Appeal found the separate terms violated the dual punishment provision of section 654 and ordered the latter stayed. (I) NFA

Bauguess, Susan — People v. Ramos, D056028 — Convictions of Non-LIOs Reversed
Appellant was convicted of false imprisonment and battery as lesser offenses included within the charged offenses of kidnap for robbery. The Court of Appeal agreed with appellant's argument that the battery convictions must be reversed because batter is not an offense necessarily included within kidnap for robber which can be accomplished without touching. The Court of Appeal also agreed with appellant's argument that his sentence for one count of false imprisonment must be stayed pursuant to Penal Code section 654 because it was committed with the intent to rob, a crime for which appellant has been separately punished. (I) APJ

Rehm, Joanna — People v. Aguilera, D056828-02 — Miranda
The Court of Appeal agreed with appellant's argument that his own statements were prejudicially admitted against him in violation of his right to advisements under Miranda. In this case, the deputy read the Miranda warnings from a card but instead of saying "anything you say can and will be used against you in a court of law," the deputy said, "anything you use can and will be used against you in a court of law." The Court of Appeal rejected argument that the mistake was a mere technical error and found that it resulted in a substantive mis-advisement. In a long footnote, the Court of Appeal also expressed concern about other aspects of the deputy's advisement. Finally, the Court of Appeal found admission of the statements to be prejudicial because it could not be shown beyond a reasonable doubt that the statements did not contribute to the verdict that appellant intended to aid and abet a robbery where he nothing more than the getaway driver. (I) APJ

DeFilippis, Stephen — In re Tran, G043418 — Parole
Court of Appeal granted habeas corpus challenging Governor's reversal of decision of Board of Parole Hearings to grant parole. Governor found petitioner did not accept responsibility, did not participate adequately in therapy and had elevated risk assessments. Court of Appeal found Governor's decision was not supported by sufficient evidence "because it was based on isolate bits of the record taken out of context." (I) NFA

Torres, Steven — People v. Calderon, E051144 — Sentencing
Remanded for resentencing for trial court to exercise its discretion whether to sentence concurrently or consecutively on eight sexual molestation offenses. Record included evidence of many offenses, both on different occasions and on single occasions. Court of Appeal found jury's verdict on counts 7-13 could have been based on a single occasion. Accordingly, the trial court had discretion to sentence concurrently pursuant to Penal Code section 667, subdivision (c)(6). The trial court's statement it had no discretion but to sentence consecutively established the trial court was unaware of this discretion, requiring a sentencing remand. (I) NFA

Martin, Arthur — People v. Manzo, D055671 — Insufficient Evidence
Published decision reversing conviction for shooting at an occupied vehicle (Pen. Code, § 246) for insufficient evidence where the record established appellant shot the victim while both were inside the vehicle. Court of Appeal held shooting from inside a vehicle is not shooting "at" a vehicle. (I) NFA

Romero, Lynda – People v. Barron, D056730 – Abstract of Judgment
Court of Appeal directed the clerk of the superior court to correct inadvertent clerical errors reflected in both the determinate and indeterminate abstracts of judgment. (I) BCT

Bostwick, James – People v. George, D058621 – Penal Code Section 667.5, subd. (b)
One-year Penal Code section 667.5, subd. (b) enhancement ordered stricken where it was not demonstrated to have been served separately from another similar prior. (I) PED

Power, Richard – People v. J.I.A., G040625 – Cruel & Unusual Punishment
Certified for publication: Minor's sentence found to be cruel & unusual under U.S. Supreme Court decision in Graham v. Florida 210 ___ U.S. ___ [130 S.Ct. 2011) and People v. Mendez (2010) 188 Cal.App.4th 47, and Federal and California proportionality tests. Additionally, the court concluded that Penal Code section 667.6, subdivision (c), did not require the trial court to impose mandatory consecutive sentences on counts 2 and 6. These sentences were ordered to run concurrently instead of consecutively, making minor first eligible for parole when he is approximately 56 years old. (I) JLP/PED

Wrubel, Suzanne — People v. Lopez, E050967 — Insufficient Evidence
Insufficient evidence supports trial court's finding appellant violated the term of probation which prohibited wearing, displaying, or possessing any item associated with gang dress based on the material found in appellant's MySpace page. This is because, due to the lack of testimony of facts establishing a pattern of criminal gang activity, there was insufficient evidence to establish Brown Pride Gang is a criminal street gang. The results would have been different if appellant's underlying conviction included a gang enhancement allegation which had established Brown Pride Gang is a criminal street gang or if appellant had committed the underlying offense in association with other members of Brown Pride Gang. Because only one other probation violation (failure to inform probation officer of registration with the police) supported the trial court's revocation of probation, matter remanded to the trial court to reconsider whether to reinstate appellant on probation. (A) JLP/CBM

Jones, Cindy - People v. Ngyuen, D056542 - Instructional Error Convictions for resisting an executive officer reversed where the jury instructions were found deficient because they prejudicially omitted a reference to the legal principle that an officer is not performing his lawful duty if the officer uses excessive force. (A) MCR

Staley, John — People v. Mastrodimos, D057607 — Restitution
Restitution order in the amount of $165,358 reversed and remanded for new hearing. Court of Appeal agreed that order for restitution to tax accountant, who assisted fraud victim in investigating the fraud and restoring victim's financial condition, was error because the accountant did not qualify as a victim under the statute. (I) AMJ

Breakey, Lise - People v. Hidalgo, D057373 - Insufficient Evidence
Two counts of forgery reversed because they were based on signatures appellant forged on a single instrument. (A-M) LAR

Yanis, Mark – People v. Sherow, Jr., D056988 – Penal Code Section 4019
While waiting for the California Supreme Court's decision, the court adopted the majority view of the intermediate appellate courts that the January 25, 2010 amendment to Penal Code section 4019 applies to defendants who earned conduct credits before the amendment, but whose judgments were not yet final on that date. Thus, the court modified the judgment to award an additional 64 days of conduct credit. (I) BCT

Farber, William – People v. Sherow, Sr., D056988 – Instructional Error
Partial Publication. The Court of Appeal held the trial court committed prejudicial instructional error regarding consent as a defense to burglary and reversed counts 7-10. Here, appellant had been selling stolen, new DVD's to a pawn shop manager over a period of years. Appellant's defense to the burglary charges was that the pawn shop manager consented to his entry and knew of his felonious intent. The trial court instructed the jury that appellant had the burden to prove consent by a preponderance of the evidence. The Court of Appeal found appellant had the burden of proof to establish a reasonable doubt as to the facts underlying the defense and found the instructional error prejudicial based on the facts. (I) BCT

 

May 2011
Schuck, John — People. v. Duran, G043648 — Yurko Error
Trial court failed to advise appellant of his right to a trial to determine the truth of the prior conviction allegations before he admitted the allegations. Reversal of the findings and case remanded for further proceedings. (I) PED

Weinberg, Allen — People V. Salazar, G043031 — Credits
Trial court erred in calculating presentence custody credits by two days. (I) PED

Nalls, Christopher — People v. Diaz, G044802 — Corrections to Abstract
Remand for correction of abstract because clerk incorrectly recorded the assault conviction, a concurrent term on the battery conviction rather than a Penal Code section 654 stay, and a stay of the prison prior rather than a striking. (I) AMJ

Wenzell, Lewis — People v. Medrano, E050960 — Penal Code Section 4019 (Two-Tier)
Modified and affirmed with directions. Appellant was entitled to conduct credits under amended Penal Code section 4019 for the entire period of presentence custody where he was sentenced after the amendment became operative. (I) AMJ

Haggerty, Ed – People v. Kelly, D057153 – Amended Penal Code Section 666 and Restitution Fines
Court of Appeal concluded the amendment to Penal Code section 666 is retroactive such that appellant cannot be sentenced to prison for petty theft with a prior after pleading guilty to petty theft and admitting only two qualifying priors. The court ordered the sentence vacated and remanded for a new sentencing hearing at which the People will be provided an opportunity to prove additional prior theft-related convictions and appellant will be allowed to withdraw her plea. In addition, the trial court erred in increasing appellant's restitution fines at sentencing from the amounts originally imposed when appellant received probation. The Court of Appeal revised the restitution fines accordingly. (I) LKH

Harris, Donna – People v. Bernal, D058122 – Restitution Fines
Court of Appeal ordered the restitution fine of $800 stricken and the $200 restitution fine imposed when probation granted to remain in effect. The court also ordered the stayed parole revocation fine of $800 reduced to $200 and the suspended $200 probation revocation fine imposed. (I) BCT

Harris, Donna — People v. Sanders, D056086 — Court Security Fee
Court of Appeal agreed with appellant's argument that a $20 court security fee could not be imposed upon revocation of probation when it had already been imposed at the time probation was granted. Accordingly, the second court security fee was unauthorized and stricken. (I) JLP

Nalls, Christopher — People v. Lacher, G043204 — Instructional Error
Appellant was convicted of assault with a deadly weapon for stabbing his former housemate during a confrontation. He contended the trial court erred in instructing the jury on the concept of mutual combat. Not only did the trial court fail to explain what mutual combat meant in the context of self-defense, it also erred in instructing that the mutual combat limitation on self-defense is applicable to the first one to use physical force during the confrontation. The Court of Appeal found these errors materially prejudiced appellant's defense and reversed the judgment. (I) JLP

Zimmerman, Harry and Lathrop, Stephen – People v. Foster, et al., D056830 – Instructional Error, Penal Code Section 4019, Correction of the Abstract of Judgment
Court of Appeal reversed convictions for grand theft and conspiracy to commit grand theft because the trial court failed to instruct the jury on the elements of grand theft. The Attorney General conceded the issue.
In addition, the court found both appellants are entitled to retroactive application of the amended 4019 statute (SB18). The matter was remanded for the trial court to re-calculate credits. Finally, the court ordered the abstracts of judgments corrected to reflect these changes, in addition to the correction of a number of other clerical errors. (I) LKH

Finch, Dabney — People v. Wyskiver, D057974 — Lesser Included Offenses
The Attorney General conceded and the Court of Appeal agreed that appellant's three convictions for grand theft (Pen. Code, § 487) must be reversed because they are offenses necessarily included within the offenses of financial elder abuse (Pen. Code, § 368, subd.. (d)), as that crime was defined at the time of the offenses. The Court of Appeal also reduced the restitution fine by $600 in light of the dismissed counts as the trial court had expressed it was imposing $200 per count. (I) APJ

Wrubel, Sharon — People v. Olvarez, D058082-02 — Fine
Trial court erred in imposing a $10,000 parole revocation fine because the court did not order it and it is not authorized where sentence is life imprisonment without the possibility of parole. (I) AMJ

Gardner, Cliff — People v. Bazzo, D058082-01 — Fine
Trial court erred in imposing a $10,000 parole revocation fine because the court did not order it and it is not authorized where sentence is life imprisonment without the possibility of parole. (I) AMJ

Williams, Rex – People v. Plourde, D058738 – Criminal Justice Administration Fee
Criminal Justice Administration fee of $154 imposed pursuant to Government Code section 29950.1 ordered stricken where defendant not arrested by an agency listed under that section. (I) PED

Smith, Barbara – People v. Terry, D056137 -- Penal Code Section 4019
Court of Appeal agreed Penal Code section 4019 amendments that took effect after appellant was sentenced should be applied retroactively to appellant, so case sent back to recalculate credits with the version of section 4019 in effect between January 25, 2010 and September 28, 2010. (I) LAR

Olson, Jacob I. — In re D.M., E052286 — ICWA
The Court of Appeal issued a limited reversal for failure to notify one of the tribes in which mother claimed possible membership. (I) CAG

Boyer, Ron — People v. Cabrera, E050997 — Penal Code Section 4019
The Court of Appeal agreed with appellant's argument that he is entitled to the more favorable award of conduct credit calculated under the modified Penal Code section 4019 because he was sentenced after the effective date of the modification. (I) APJ

DiGuiseppe, Raymond — In re Leonel B., D057678 — Restitution
Victim restitution order is not supported by substantial evidence to connect the minor with the crimes which produced the losses. As such, the court abused its discretion in imposing the probation condition requiring minor to pay $995. (I) AMJ

Cannon, Gregory – People v. Swinger, D055942 – Unauthorized Sentence
At sentencing, the trial court imposed a 900 day term for misdemeanor battery (Pen. Code, § 243.4, subd. (e)(1).) When counsel requested a correction to the pre-sentence custody credits, the trial court amended the abstract of judgment to reflect a 1,200 day term for the misdemeanor battery. The Court of Appeal modified the sentence on this count to a six month term. (I) LKH.

Chavez, Audrey — People v. Matthews, F057995 — Abstract of Judgment
The abstract of judgment was ordered corrected because it incorrectly indicated appellant was sentenced to life without the possibility of parole and it improperly refers to appellant's prior conviction of second degree murder, implying he was sentenced for that in the current proceeding. (I) AMJ

Buckley, Stephen – People v. Clark, E051368 – Penal Code Section 4019 (Two-Tier)
Trial court erred by awarding Penal Code section 4019 conduct credits at different rates for periods before and after the amendment to that section became effective. Judgment modified to award additional credits. (I) BCT

Defilippis, Steve – In re Vicks, D056998 – Ex Post Facto
Court of Appeal vacated the Board of Parole Hearing's prior order deferring petitioner's subsequent parole suitability hearing for five years under Penal Code section 3041.5 as amended pursuant to Marsy's Law. The court concluded the amendment violates petitioner's protection against ex post facto laws and directs the BPH to issue a new order rescheduling the hearing under the version of section 3041.5 in effect in 1983, the year petitioner was convicted. (I) LKH

Klaif, Leonard – People v. Guydon, E051367 – Penal Code Section 4019 (Two-Tier)
Trial court erred by awarding Penal Code section 4019 conduct credits at different rates for periods before and after the amendment to that section became effective. Judgment modified to award additional credits. (I) BCT

Farber, William – People v. Sherow, D056988 – Instructional Error
Trial court erred by instructing that defendant must prove defense of consent to four counts of burglary conviction by a preponderance of the evidence. Correct standard would be that defendant need only raise a reasonable doubt with regard to consent. This portion of the opinion is certified for publication. (I) BCT

Wrubel, Suzanne – People v. Lopez, D056633 – Amended Penal Code Section 666
Pursuant to People v. Vinson (2011) 193 Cal.App.4th 1190, appellant found to be entitled to the benefit of the amended version of Penal Code section 666, subdivision (a), which took effect in September 2010 and has been determined to apply retroactively to cases not yet final as of that date. Appellant's single prior theft-related conviction does not meet the requirements of amended section 666, which requires proof of at least three such prior convictions. Accordingly, the court reversed appellant's conviction for a violation of this section and remanded the matter for resentencing. (A) PED

McKinney, David – People v. Nguyen, G043644 – Insufficient Evidence
Court of Appeal found insufficient evidence minor was 16 at the time of the commission of the robbery required reversal of true finding of strike prior. The one document which showed minor was 17 years old at the time of the offense was from the Department of Corrections and Rehabilitation, and had to be read in conjunction with other documents in the court's file. But the other documents were not part of the "record of conviction" and could not be relied upon to determine whether appellant's prior juvenile adjudication constituted a strike prior. (People v. Lewis (1996) 44 Cal.App.4th 845, 852 [document signed by criminal judge two months after guilty plea and sentencing, which was part of defendant's prison file rather than trial court file, is not part of the record of conviction and cannot be used to establish the elements of the prior strike conviction].) (I) CBM

Wrubel, Sharon — People v. Warren, E049842 — Insufficient Evidence
Defendant was convicted of a form of identity theft, i.e., using the personal identifying information of another for an unlawful purpose (Pen. Code, § 530.5, subd. (a)). The evidence showed appellant was found with various forms of personal information regarding several people, along with notes indicating a potential plan to kidnap one or more of them for ransom. The Court of Appeal reversed, holding appellant's plan had not moved far enough to constitute "unlawful use" of the information. The court employed the same analysis used to determine whether a defendant has moved beyond mere preparation to the attempted commission of a crime. (I) NFA

Larson, Eric — People v. Cordero, E050093 — Penal Code Section 654
In a case where the trial court dismissed one of appellant's two strike priors and then imposed an upper term and consecutive sentences, the Court of Appeal requested supplemental briefing on the question of whether one of the consecutive sentences was required to be stayed pursuant to Penal Code section 654. The facts could go either way on the issue, but the Court of Appeal agreed with appellant's argument that the force used to inflict corporal injury in this case was the same as the force used to falsely imprison the victim; thus, the Court of Appeal ordered that the consecutive 16 months imposed on the false imprisonment count be stayed. (I) APJ

Webb, H. Reed — People v. Robinson, E050895 — Penal Code Section 4019
Now that appellant has already been released from prison, the Court of Appeal agreed with appellant's argument that he was entitled to conduct credit under the more favorable version of Penal Code section 4019 because he was sentenced after the effective date of the statute's modification. (I) APJ

Demson, Jonathan — People v. Smith, D056551 — Disclosure of Juror ID
Judgment conditionally vacated and remanded for further proceedings. Trial court abused its discretion in denying the motion to unseal juror identifying information and by failing to set the matter for a hearing to determine whether to disclose the information pursuant to Code of Civil Procedure 237, subdivision (d). Contrary to the trial court's view that the request was tantamount to a fishing expedition and that there was no evidence that there was any discussion of defendant's failure to testify, the Court of Appeal found that the record contained evidence suggesting that such a discussion occurred and the petition identified precisely what information appellant was seeking. (I) AMJ/JLP

Irza, Helen – P v. Ballard, II, E049937 – Credits
Case remanded for trial court to determine the correct amount of credits to which appellant is entitled. (A-M) LAR

Marshall, Marilee -- P v. Pouder, E050706 -- Sentencing
Court agreed that the great bodily injury enhancement on count 2 must be stayed because the underlying sentencing on that count was stayed pursuant to Penal Code section 654. Since this modification greatly affects the sentence, the Court reversed appellant's sentence and remanded the case to the trial court for resentencing. (I) LAR

Kling, Craig — People v. Rosas, E051102 — Credits
In a motion for correction of custody credits during pendency of appeal, the superior court granted the correction, increasing credits from 380 days to 450 days, plus the concomitant conduct credits. (A) HCC

Lubliner, Steven — People v. Pinales, E050968 — Penal Code Section 4019 (Two-Tier)
The trial court imposed a two-tiered calculation of conduct credit for custody pre/post-January 25, 2010. The Court of Appeal concluded amended section 4019 contains no provision for a two-tiered division of presentence custody credits and was the only version of section 4019 operative at the time of defendant's sentencing. Therefore, appellant was entitled to the credit as afforded by the version of section 4019 in effect at the time of sentencing. Further, the parties agreed and the Court of Appeal concurred that any excess credits should be applied toward the restitution fine. (I) HCC

Pfeiffer, Richard — People v. Bradshaw, G043852 — Parole
People appealed grant of petition challenging the Governor's reversal of the Parole Board's decision to release defendant. Court of Appeal determined that there was no evidence supporting the Governor's conclusion defendant currently posed an unreasonable risk to public safety. (I) AMJ

Aslanian, Aida — In re C.S., et al., G044190 — ICWA
The court's and social worker's failure to make any inquiry of the parents regarding Native American Indian heritage requires reversal of the ICWA finding and a hearing regarding ICWA compliance. (I) LMF

Marshall, Gregory – People v. Hill, D056301 – Restitution
The Attorney General conceded the trial court erred in increasing the restitution fines in two underlying probation cases from $200 imposed when probation was granted to $600 when appellant was sentenced to prison. The trial court also erred when it increased the probation revocation fines rom $200 to $600. (I) BCT

Kessler, Daniel – People v. Perez, D056301 – Sentencing
The Attorney General conceded the trial court erred in imposing both a consecutive five-year enhancement under Penal Code section 667, subdivision (a)(1), for the felony conviction which gave rise to the prior prison term and the one-year enhancement under section 667.5, subdivision (b), for the prior prison term. (I) BCT

Acaldo, Linda - People v. Collier, E051479 - People's Appeal Affirmed
Following a hung jury, defendant filed an invitation to dismiss the information under Penal Code section 1385. The People filed an opposition to the motion. The trial court granted the motion stating it was based on the People's lack of evidence in the case. Court of Appeal affirmed. (I) LAR

Kligman, Marc — People v. Salyers, E051283 — Penal Code Section 4019 (Two-Tier)
Appellant appealed the trial court's use of a two-tiered method for calculating his Penal Code section 4019 good conduct credits. The Court of Appeal agreed with appellant and remanded the matter to the superior court with instructions to recalculate all of appellant's presentence conduct credits pursuant to the version of section 4019 in effect between January 25, and September 28, 2010, and to amend the abstract of judgment to reflect the recalculation. (A) HCC

Moller, Richard Jay — People v. Gonzalez, E050726 — Penal Code Section 4019 (Two-Tier)
Appellant appealed the trial court's use of a two-tiered method for calculating his Penal Code section 4019 good conduct credits. The Court of Appeal agreed with appellant and ordered the judgments modified so that appellant has credit for 287 actual days and 286 days of section 4019 credit in one case and credit for 281 actual days and 280 days of section 4019 credit in another case. (I) HCC

Boire, Richard — People v. Estrada, E050612 — Penal Code Section 4019 (Two Tier)
Award of presentence conduct credits improperly calculated under two-tiered structure. The only applicable calculation method was that in effect at the time the court ordered appellant to prison – amended Penal Code section 4019. Accordingly, all conduct credits must be calculated under the structure set forth in the amendments effective January 25, 2010. (I) CBM

Moller, Richard — People v. Hunt, E050775 — Penal Code Section 654
Where the jury found appellant committed robberies for the benefit of the gang under the enhancement section of Penal Code section 186.22, as well as the substantive crime of gang participation under Penal Code section 186.22, subdivision (a), based on the same conduct, the trial court erred when it failed to stay punishment for the substantive gang participation count under Penal Code section 654. (I) CBM

Wass, Valerie G. — People v. Vicente, G042937 — Lesser Included Offense
The Attorney General conceded and the Court of Appeal agreed that first degree burglary is an offense necessarily included within the crime of assault with intent to commit a sexual offense during the commission of a residential burglary. Because appellant cannot be convicted of both, the first degree burglary conviction was reversed. (I) APJ

Booth, Erin – People v. Washington, E050738 – Penal Code Section 4019 (Two-Tier)
Court of Appeal found the trial court erred in awarding presentence conduct credits pursuant to the "two-tier" method and remanded the case for recalculation of presentence conduct credits pursuant to the version of Penal Code section 4019, in effect between January 25 and September 28, 2010. (I) BCT

Simkin, Allison - People v. Millsap, E051372 - Penal Code Section 4019
Court of Appeal held appellant was sentenced after the amendment to section 4019, and the credits should have been calculated under the amended statute. (I) LAR

Hennessey, Patrick — People v. Edwards, E049845 — Sentencing
Reversed and remanded for resentencing. Appellant was sentenced on two cases for prior drug enhancements under Health and Safety Code section 11370.2, and for prison prior term enhancements under Penal Code section 667.5. The Court of Appeal agreed with appellant's arguments that multiple status enhancements apply only once to the aggregate sentence. Thus, the Penal Code section 667.5, subdivision (b), enhancements could be imposed only once per prior. However, the court also found that multiple section 11370.2 enhancements could be imposed when they are alleged under separate subdivisions and attach to different qualifying underlying offenses. (I) AMJ

Dodd, John — People v. Regan, E051471 — Penal Code Section 4019
The Court of Appeal agreed with appellant's argument that he is entitled to an award of pre-sentence conduct credit under the more favorable version of Penal Code section 4019 because he was sentenced after the date of the modification. (I) APJ

Polsky, David — People v. Aguilar, D055775 — Lesser Included Offenses; Penal Code Section 654
The Court of Appeal agreed with appellant's arguments that his convictions of second degree robbery must be dismissed as offenses necessarily included within the first degree robbery crimes of which he was also convicted. The Court of Appeal also agreed that appellant's sentence for a burglary conviction must be stayed because he has been separately punished for the underlying intended robbery. In addition, the Court of Appeal ordered correction of various clerical error in the abstract of judgment. (I) APJ

Larson, Eric — People v. Ashford, E050643 — Penal Code Section 654
The Court of Appeal agreed with appellant's argument that his concurrent sentence for burglary must be stayed pursuant to Penal Code section 654 because he is already being punished for the intended sexual assault. The Court of Appeal also agreed that appellant is entitled to an additional day of pre-sentence custody credit. (I) APJ

Dodd, John - People v. McDaniel, E051805 - Penal Code Section 4019
Appellant's criminal acts and probation violations were committed before the amendment to Penal Code section 4019 became effective, but his sentencing did not occur until after the amendment to section 4019 became effective. Therefore, appellant was required to be sentenced under the amended statute. (I) LAR

White, Catherine — People v. Maaia, E050105 — Romero
Remanded for resentencing. The trial court misunderstood the scope of its discretion to strike the 2003 prior conviction as to the sexual assault counts that included incidents occurring prior to the time that defendant suffered the prior conviction. The strike did not apply to count 1, which occurred in 1998. It did not apply to counts 2, 3, and 4, which were pleaded as occurring between 1999 and 2006, because the evidence detailed several acts occurring prior to 2003 and several others after 2003, the People did not elect which acts supported the counts resulting in giving a unanimity instruction, and there was no way on the record for the Court of Appeal to conclude the counts all occurred before 2003. (I) AMJ

Williams, Rex — People v. Coronado, E051977 — Penal Code Section 4019 (Two-Tier)
Appellant was sentenced to prison after the first legislative amendment to Penal Code section 4109 became effective: after January 25, 2010. Trial court erred by using a two-tiered calculation method to determine the applicable presentence custody credits. The calculation of credits is based upon the law in effect at the time of sentencing. Thus, all credits must be calculated under the amended version of Penal Code section 4019. (I) CBM

Klaif, Leonard — People v. Bacon, E051093 — Penal Code Section 4019 (Two-Tier)
Appellant was sentenced to prison after the first legislative amendment to Penal Code section 4019 became effective: after January 25, 2010. Trial court erred by using a two-tiered calculation method to determine the applicable presentence custody credits. The calculation of credits is based upon the law in effect at the time of sentencing. Thus, all credits must be calculated under the amended version of Penal Code section 4019. (I) CBM

Gorman, Seth and McGowan, Jesse— In re J.M., G044497 — Visitation
Court of Appeal reversed the visitation part of the disposition order, agreeing that the order appears to delegate to Social Services Agency and the children whether such visitation will actually occur, although the court had determined that visitation with all four children three times a week was warranted and appropriate. The Agency had gone in after the appeal was filed to get a more specific order, but the Court of Appeal found the above flaws in that order as well. (I) CAG

 

April 2011
Webb, H. Reed — People v. Sanchez, G043643 — Penal Code Section 654
Attorney General conceded and Court of Appeal agreed trial court erred when it failed to stay the assault with a dangerous weapon count pursuant to Penal Code section 654 where both this crime and the terrorist threats crime occurred from appellant's single action of holding a knife to his girl friend's throat and uttering threatening words. (I) CBM

Brisbois, Patricias -- People v. Smith, E049071 -- Sentence Modification Trial court erroneously sentenced appellant to a 15 to life term based on a Penal Code section 186.22, subdivision (b) enhancement, plus a determinate term of 20 years on the section 12022.53 firearm enhancement. Court of Appeal corrected the error to reflect a life term, plus determinate 20-year term. In addition, the court found the term for the section 186.22, subdivision (a), conviction should be stayed pursuant to Penal Code section 654. (I) LKH

Ihara, Patricia – People v. Garcia, D056283 – Instructional Error
Trial court prejudicially erred in instructing the jury in accordance with a version of CALCRIM No. 400 which states "[a] person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it." Dissent agreed with error in instruction but concluded there was no prejudice. (I) PED

Vallandigham, Robert – People v. Gordon, G043197 – Penal Code Section 4019
Court of Appeal remanded with directions to recalculate defendant's pre-sentence custody credits under the January 25, 2010 version of Penal Code section 4019. Defendant was given the benefit of the amendment where he was sentenced three days before the effective date of the statute, but his case was not final as of that date. (A) PED

Koryn, Daniel – People v. Thomas, D050286 – Restitution Fine
Restitution fine of $895 payable to El Cajon Police Department, apparently imposed pursuant to Penal Code section 1203.1h, subdivision (b), reversed where there was no indication trial court made any findings regarding defendant's ability to pay same. (I) PED

DeFilippis, Steve – In re Jones, G043490 & G043733 – Parole
This case involves two separate parole board proceedings. In In re Jones, G043490, the Governor reversed a Board of Parole Hearings's August 13, 2008 decision finding Jones suitable for parole. The superior court vacated the Governor's reversal, but remanded the matter to him for reconsideration in light of the Supreme Court's then recent decision in In re Lawrence (2008) 44 Cal.4th 1181. The Governor issued a new ruling, again reversing the Board's decision. Jones filed a petition for writ of habeas corpus in the superior court, challenging the new ruling. The superior court granted the petition, directing the Board's August 2008 decision reinstated. The Governor appealed, and the Court of Appeal affirmed the superior court's order granting the petition. While the prior action was pending, a different Board panel conducted another parole consideration hearing on August 7, 2009. The panel found Jones was not suitable for parole and denied any further review of Jones's case for three years. Jones file a petition for writ of habeas corpus, challenging the August 2009 decision. The superior court granted the petition and remanded the matter to the Board for a new hearing. The Attorney General's office appealed (In re Jones, G043733). The Board's decision was based on three factors: the gravity of Jones's commitment offense, his pre-commitment offense social history, and its finding Jones lacked insight. The Court of Appeal affirmed the superior court's decision to vacate the Board's August 2009 parole unsuitability finding, stating "[t]he record fails to reflect evidence the factors [cited by the Board] support a finding Jones currently presents a danger to society." Further, the court deleted the direction that the Board conduct a new parole suitability hearing. (I) LKH

Clark, Marcia — People v. McKinnon, G041019 — Search and Seizure
Court of Appeal reversed trial court's denial of motion to suppress evidence. Prior to trial, the court denied the motion to suppress drug and gun evidence arising from a July incident, pursuant to then-prevailing view that, under New York v. Belton (1981) 453 U.S. 454, the police may always search an arrestee's car to look for weapons. However, while the appeal was pending, Arizona v. Gant (2009) 556 U.S. ___ [129 S.Ct. 1710, 1714] was published which held that police can search a vehicle after occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. In light of Gant, the McKinnon case, still on appeal, was remanded for a new suppression hearing. On remand, the trial court granted the suppression motion, and the People did not challenge that ruling. The case returned to the Court of Appeal, which reversed all convictions, including those arising from an unrelated June incident, because, in considering those counts, the jury was exposed to the gun and drug evidence involved in the July incident. Court held that, as a matter of fairness, appellant is entitled to have a jury decide the truth of the charges stemming from the June incident without reference to the highly prejudicial July evidence. (I) AMJ

Ihara, Patricia — People v. Esteves, D056078 — Restitution Fine, Security Fee, and Credits
Court of Appeal modified the judgment to correct the following errors. The trial court erred in ordering the total victim restitution as to each defendant without specifying that the defendants are jointly and severally liable. It erred in ordering a $50 court security fee without specifying that this involves two separate fees, a $20 court security and a $30 court facility assessment fee. It erred in not including in the credits calculation the day of arrest and the day of sentencing. (I) AMJ

Hennessey, Patrick — People v. Arevalo-Iraheta, E050247 — Motion for Acquittal
Although the Court of Appeal affirmed, finding various errors harmless, it also addressed an issue of apparent first impression. Noting that neither had the parties cited nor had its own research revealed any published case establishing a rule that trial courts must rule on and permit argument on Penal Code section 1118.1 motions outside the presence of the jury, the court nevertheless recognized, both from its own experience and from case law, that argument on section 1118.1 has historically been conducted outside the presence of the jury. This is because, as defense counsel here asserted, argument may reveal to the jury defendant's theory of the case before he has been able to introduce evidence that would support that argument. Likewise, unless the court is ruling on a perfunctory section 1118.1 motion, the court should issue any ruling on such a motion, particularly when it gives a statement of reasons for that ruling, outside the presence of the jury. (I) HCC

Wells, Mary — People v. Calderon, D054893 — Jury Misconduct
Court of Appeal reversed appellant's murder conviction, agreeing that trial court should have granted motion for new trial based upon jury misconduct. Juror provided declaration after verdict stating he had made up his mind before deliberations and had told other jurors the only certain facts were that appellant fled and did not testify in his own defense. (I) APJ

Jones, Sharon – People v. Grajeda, D058090 – Insufficiency of Evidence
Gang enhancement reversed as to one count of attempted murder where court found there was no evidence the attempt was done for the benefit of and with the specific intent to benefit the gang. Defendant's sentence ordered vacated and the matter remanded for resentencing. (I) PED

Khoury, Charles — People v. Shockman, D056138 — Restitution Fine
Appellant contended the trial court erred in imposing on him a $600 restitution fine during his probation revocation hearing, since the trial court had previously imposed a $200 restitution fine in the probation proceeding. The Court of Appeal agreed the trial court had no power to impose the second fine and modified the judgment to strike the $600 fine. (I) HCC

Lampkin, David — People v. Robbins, E049527/E049528 — Sentence Modification
Sentence on misdemeanor battery count modified to reflect six-month sentence, not the one year ordered by the trial court, because Penal Code section 243, subdivision (a), only provides for a 6-month term, unlike the other related subdivisions providing for a one-year term. (I) AMJ

Stevenson, Theresa — People v. Davis, D057375 — Penal Code Section 4019
Court of Appeal found amendments to Penal Code section 4019 [calculation of presentence conduct credits] are properly applied retroactively to appellant's case, which was on appeal when the initial statutory amendment became effective. Matter remanded to the trial court to determine credits appellant is due. NOTE: Justice Irion dissented reasoning the credit calculation matter must first be presented to the trial court before being raised in the Court of Appeal, even though the appellate brief raised a second substantive issue. (I) CBM

Hart, Mark Alan — People v. Garcia, E050335 — Multiple Victim Enhancement
Attorney General conceded and Court of Appeal agreed that a multiple victim allegation under the one strike law must be based upon charges in the present case and cannot be based in any part upon evidence of uncharged conduct admitted pursuant to Evidence Code sections 1101 and 1108. In this case offenses against a single victim were charged and the prosecution relied upon uncharged conduct to support the multiple victim enhancement; thus, reversal was required. (I) APJ

Blake, Christopher R. — In re Emily R., D057768 — Jurisdiction/Disposition
Finding that the record did not provide sufficient evidence to support a finding that the past sexual abuse of the child's much older sibling on one occasion placed the child at current substantial risk of sexual abuse within the meaning of Welfare & Institutions Code section 300, subdivision (j), the Court of Appeal reversed both jurisdictional findings and the dispositional order. (I) CAG

Mallinger, Kathleen — In re Rosa C, D058316 — 388 Petition
Juvenile court denied biological father's 388 petition requesting reunification services and visitation. Court of Appeal reversed, concluding the juvenile court failed to exercise its discretion because it did not determine whether providing services was in the minor's best interests. Rather, the court had erroneously assumed the biological father was not entitled to services because he was not a presumed father. The record in fact demonstrated granting services was in the minor's best interest. (I) LMF

Lankford, Valerie — In re A.B., D058784 — Pre-Jurisdiction
An unusual minor's appeal in which the juvenile court did not adjudicate the children dependents but ordered services to the family under the supervision of the social worker pursuant to Welfare and Institutions Code section 360, subdivision (b), and also ordered an ex parte hearing in six months. The appellate court reversed as the juvenile court has no authority under section 360, subdivision (b) to oversee the case. The agency conceded. (I) CAG

Schwartzberg, Richard - People v. Fuentes, E050874 - Penal Code Section 4019 (Two-Tier)
Appellant's criminal act was committed, and she was admitted to probation, before the amendment to section 4019 became effective, but she was sentenced after it became effective. The trial court calculated appellant's credits under a two-tiered system. Court of Appeal found the trial court was unauthorized to apply the previous statute to defendant's sentence and hence ordered an additional 126 days of presentence conduct credit. (I) HCC/LAR

Shaler, Susan — P. v Smith, D056391 — SVP Commitment
Citing the McKee case, Court of Appeal found this indeterminate SVP commitment may violate equal protection guarantees because record does not show whether the state has a compelling interest justifying the disparate treatment of SVPs. Case remanded to trial court with directions to suspend proceedings pending the finality of proceedings in the McKee remand case. (I) LMF

Weinberg, Allen — People v. Villa, D056465 — Holdout Juror
Court of Appeal found trial court prejudicially erred and denied appellant due process by dismissing a lone holdout juror. The trial court's reasons for discharging the juror were not supported by the evidence and did not establish as a demonstrable reality misconduct justifying such dismissal. (I) AMJ

Koryn, Sylvia, — People v. Armenta, D055594 — Great Bodily Injury Enhancement
Court of Appeal and respondent agreed that the trial court erroneously imposed a great bodily injury enhancement in connection with the guilty verdict on the aggravated mayhem charge, because the statute states it shall not apply if infliction of great bodily injury is an element of the offense. (I) AMJ

Hennessey, Patrick — People v. Murdoch, G043313 — Competence to Stand Trial
Published reversal. Defendant was tried for assault on his landlord. In a pretrial competency proceeding, two experts opined appellant was seriously mentally ill. They opined appellant was presently competent, but that he was refusing his medication and could decompensate and become incompetent if he continued to do so. Criminal proceedings resumed, and the court granted appellant's Faretta request to represent himself. During the trial, the court did not suspend proceeding despite what the Court of Appeal found to be manifest signs of incompetency, i.e., appellant's expressed belief in God and angels and attempted to prove the People's witnesses were angels and not human because they had no shoulder blades. The Court of Appeal found the trial court erred in failing to conduct a new competency hearing at that point and reversed the judgment. (I) NFA

Harris, Donna L. — People v. Ramirez, D056085 — Security Fee
The Court of Appeal agreed with appellant's argument that his security fee must be reduced from $40 to $30 because Penal Code section 1465.8 operates upon each conviction; thus, the date of conviction determines which version of the statute applies. (I) APJ

Kraft, Rudy — P. v Martinez, D055776 — SVP Commitment
Citing the McKee case, the appellate court concluded this indeterminate SVP commitment may violate equal protection guarantees because record is inadequate to determine whether the state has a compelling interest justifying the disparate treatment of SVPs, when compared to MDO and NGI committees. The case was remanded to trial court with directions to suspend proceedings pending the finality of proceedings in the McKee remand case. (I) LMF

Nelson, Laurel – People v. Harris, E049745 – Great Bodily Injury Enhancement
Three year consecutive great bodily injury enhancement pursuant to Penal Code section 12022.7 stricken, where the jury never found the enhancement true. (I) MCR

Mallinger, Kathleen — In re Malcolm B.; D058359 — Paternity
The Court of Appeal affirmed the Kelsey S. finding as to respondent father, and remanded the case to superior court to conduct a custody hearing. (I) CAG

Schooley, Wilson Adam – P v. Burnett, D055763 – Penal Code Section 4019
Court of Appeal recognized split in the appellate courts regarding whether the amendments to Penal Code section 4019 that took effect on January 25, 2010 apply retroactively to defendants, like appellant, whose sentences were imposed before the amendments became effective, but whose underlying convictions were not yet final on January 25, 2010. Court of Appeal held here that the modifications to Penal Code section 4019 should apply retroactively because they effectively mitigate punishment (In re Estrada). NOTE: Justice Benke dissented as to this holding. (I) LAR

Schwartzberg, Richard — People v. Thompson, G043404 — Penal Code Section 4019
The Court of Appeal agreed with appellant's argument that the modification to Penal Code section 4019 applies retroactively to appellant who was sentenced before the effective date of the modification. (I) APJ

 

March 2011
Shudde, Athena — People v. Hansen, D055431 — Parole Revocation Fine Stricken
The Court of Appeal ordered that the parole revocation fine must be stricken when appellant was sentenced to life without the possibility of parole. (I) APJ

Babcock, Russell — People v. Luna, D056089 — Lesser Included Offenses
Appellant contended, respondent conceded, and the Court of Appeal agreed that driving under the influence of alcohol and causing bodily injury (count two) and driving with a blood alcohol of .08 percent or more and causing bodily injury (count three) were necessarily lesser included offenses of vehicular manslaughter while intoxicated with ordinary negligence (count one). Therefore, counts two and three were reversed and the enhancements for personal infliction of great bodily injury attached to those counts were stricken. The case was remanded for resentencing on count one and for a recalculation of credits based on Penal Code section 4019. (I) BCT

Novoa, Kathleen — People v. Cleek, D056438 — Custody Credits
Reversed and remanded, in part. Trial court erred in not recalculating custody credits upon remand from first appeal. Court should have calculated all days appellant was in actual custody before his original sentence and between the issuance of the opinion and the resentencing. (I) AMJ

Hinkle, Stephen — People v. Aguilar, D056621— Penal Code Section 4019
Reversed in part and remanded for recalculation of credits, because appellant was entitled to retroactive application of amended Penal Code section 4019. (I) AMJ

Levy, Richard — People v. Soto, D056814 — Custody Credits
Appellant contended, respondent conceded, and the Court of Appeal agreed that appellant was entitled to one additional day of custody credit. (I) AMJ

Smith, Barbara — People v. Lopez, D057232 — Sentence Modification
Trial court imposed a consecutive sentence relating to the revocation of appellant's probation on a prior offense based on an erroneous belief that the sentence could not be made to run concurrent with the sentence from the current offense. Appellant contended, respondent conceded, and the Court of Appeal agreed that the trial court misunderstood its sentencing discretion and modified the judgment to comport with the trial court's stated desire to impose a concurrent sentence. (I) BCT

Gold, Neale — In re Tatiana V., D057624 — Grandparent Visitation
This is the fourth win for counsel in this continuing dependency case involving appellant mother and the maternal grandmother. In this appeal, the appellate court held that the juvenile court could not grant visitation rights to the grandmother under Family Code section 3104 as this section applies only to family court and not juvenile court proceedings. (I) ACS.

Lampkin, David (Cooper), Koryn, Sylvia (Little), Capriola, William (Baldwin) — People v. Cooper, Little, and Baldwin, D058080 – Penal Code Section 654; Correction of Abstract of Judgment/Minute Order; Sentencing; Custody Credits
Appellants Cooper and Little engaged in a gun battle against appellant Baldwin and Baldwin's cohorts that resulted in the death of Baldwin's friend, Mercer. A jury found Little, Cooper, and Baldwin guilty of first degree murder, second degree murder, and voluntary manslaughter, respectively. The jury also found Cooper and Little guilty of unlawfully discharging a firearm at an occupied vehicle as alleged in count 3. The court imposed on both defendants a concurrent five-year term on count 3. The Attorney General asserted that the trial court properly imposed the sentence on count 3 in addition to the sentences on counts 1 and 2, because Cooper and Little pursued different objectives when they fired upon different vehicles. Namely, they fired upon Baldwin's vehicle to satisfy an agreement to fight, but fired upon Mercer's vehicle seeking to escape the fight. The appellate court rejected this assertion as it "'parse[d] the objectives too finely,'" and ordered the term stayed.

Baldwin received a six-year state prison term on count 1 for voluntary manslaughter, plus a firearm enhancement. On count 5, misdemeanor public fighting, the court sentenced Baldwin to a concurrent term of 90 days in county jail, but stayed the sentence under section 654. However, the court minutes and the abstract of judgment did not reflect the stay. The Court of Appeal ordered the minute order and abstract of judgment corrected to reflect that the concurrent 90-day sentence on count 5 be stayed under section 654.

During the commission of count 1, the jury found it true that Cooper had personally discharged a firearm, for which the enhancement is 20 years. However, in pronouncing the sentence on the enhancement, the trial court erroneously stated, "As to the enhancement . . . , the full upper [term] of 20 years to life . . . ." The minutes reflected the erroneous oral pronouncement, but the abstract of judgment reflected the correct, determinate, 20-year, enhancement term. The Court of Appeal ordered the minute order be corrected to properly reflect Cooper's sentence on the enhancement as a determinate term of 20 years.

Cooper and Little contended, the Attorney General conceded, and the court agreed that the trial court erred when it failed to award them credit for the actual time they spent in custody, 524 days and 523 days, respectively. (I) HCC

Stevenson, Theresa — People v. Esquivel, D058085 — Penal Code Section 4019
Pre-January 25, 2010 custody credits ordered awarded retroactively. (I) HCC

Saucier, Patricia — In re C.F., D058382 — Beneficial Contact Exception
In a published opinion, the court found that the benefit exception to termination of parental rights was not supported by substantial evidence. The court further decried the use of In re S.B. (2008) 164 Cal.App.4th 289 in cases which it deemed were factually dissimilar. (I) CAG

Wass, Valerie — People v. Smith, E049197 — Lesser Included Offense; Correction of Abstract of Judgment
Appellant contended, respondent conceded, and the Court of Appeal agreed appellant's conviction for carjacking must be reversed, because it is a lesser included offense of kidnaping during the commission of carjacking, also one of appellant's convictions. (People v. Contreras (1997) 55 Cal.App.4th 760, 765.)

Trial court improperly imposed a "seven years to life" sentence for appellant's kidnaping for carjacking conviction. The prison sentence for this conviction is life. While he must serve seven years of the indeterminate sentence before he is eligible for parole (Pen. Code, § 3046), the court cannot fix the term or duration of the indeterminate sentence (Pen. Code, § 1168, subd. (b)). Appellant's sentence is ordered corrected to life with the possibility of parole plus 10 years (for the personal firearm use enhancement). (I) JLP

Brisbois, Patricia — People v. Johnson, E048987 — Custody Credits
Appellant contended, respondent conceded, and the Court of Appeal agreed that appellant is entitled to additional pre-sentence custody credit for time spent at Patton. (I) APJ

Boyce, Robert — People v. Magallanez, E049422 — Penal Code Section 654
Appellant contended, respondent conceded, and the Court of Appeal agreed that appellant's sentence for resisting an executive officer must be stayed pursuant to Penal Code section 654, because appellant was concurrently sentenced for attempted murder based upon the same conduct. (I) APJ

Boyce, Robert — People v. Lopez, E049617 — Sentence Modification
Affirmed as modified. As to the attempted murder count, the court imposed a base term of seven years to life and it added a 10-year enhancement for the gang allegation. These two orders were unauthorized. Penal Code section 664, subdivision (a), does not provide for a sentencing range or minimum term; rather, it is a straight indeterminate sentence with a maximum term of life. The minimum term of seven years, required before being released on parole pursuant to Penal Code section 3046, only applies if no greater term applies under Penal Code section 3046, subdivision (a)(2), and life inmate's actual confinement periods within the statutory range are decided by the Board of Parole Hearings. In this case, the gang enhancement finding under Penal Code section 186.22, subdivision (b)(25), established a greater minimum term of 15 years. The 10-year gang enhancement under Penal Code section 186.22, subdivision (b)(1)(C), only applies to persons for crimes not punishable by imprisonment for life. Sentence modified to life with possibility of parole, with no minimum term expressed. Instead of a 10-year enhancement for the gang allegation, defendant may not be considered eligible for release on parole until he has served a minimum of 15 years. The 10-year enhancement is stricken. (I) AMJ

Ting, Allison — People v. Everhart, E049738 — Deadly Weapon Enhancement
Court of Appeal ordered the trial court to modify the judgment so as to strike, rather than stay, the deadly weapon personal use enhancement on count 2, assault with a deadly weapon, because deadly weapon use is an element of the offense. (I) LKH

Williams, Rex — People v. Grant, E050108 — Marsden
Appellant contended, respondent conceded, and the Court of Appeal agreed that the trial court erred in summarily denying appellant's explicit request for a Marsden hearing, made at the beginning of the sentence hearing, apparently on the belief that the request was untimely. Judgment reversed and matter remanded for the limited purpose of holding a Marsden hearing. (I) AMJ

Norman, Jan — People v. Davis, E050126 — Penal Code Section 654
Appellant was convicted of possessing an incendiary device with intent to burn a structure (Count Two) and arson of an inhabited structure. Appellant contended, respondent conceded, and the Court of Appeal agreed that sentence on Count Two should be stayed pursuant to Penal Code section 654. (A - Mod) LAR

Tetreault, Nancy — People v. Daniel, E050309 — Correction of Abstract of Judgment/Minute Order
Appellant contended, respondent conceded, and the Court of Appeal agreed that 553 days of presentence credit orally awarded at sentencing were omitted from the abstract and the sentencing minutes. Correction ordered. (I) NFA

Wenzell, Lewis — People v. Johnson, E050357 — Penal Code Section 654
Court of Appeal found appellant's forgery, burglary, and identity theft part of one indivisible course of conduct within the meaning of Penal Code section 654. Appellant's sentence for forgery ordered stayed. (I) LKH

McPartland, Michael — People v. Cullens, E050409 — Prior Prison Term Enhancement
Court of Appeal ordered the one year prior prison term enhancement imposed pursuant to Penal Code section 667.5, subdivision (b) stricken where appellant was also sentenced to a five year sentence for the same conviction under Penal Code section 667, subdivision (a). (I) LKH

Furness, Laura — In re Katherine F., et al., E051123 — Visitation Orders
Mother argued the exit orders regarding visitation were incorrect because the children had to consent to visits. The Court of Appeal agreed and reversed and remanded the case to the juvenile court to determine whether visitation would be detrimental and, if not, to set the frequency and duration of visits. (I) Staff

Halka, Waldemar — People v. Jacobs, G040821 — Penal Code Section 654
Count two, street terrorism, was ordered stayed pursuant to Penal Code section 654 to the murder with special circumstances count. (I) LAR

Nichols, Diane — People v. Sauceda-Contreras, G041831 — Miranda
Murder conviction reversed, where court found defendant's invocation of his right to counsel unequivocal. (I) MCR

Bergen, Ann — People v. Ortiz, G042729 — Penal Code Section 4019
Court of Appeal concluded the January 25, 2010 amendment to Penal Code section 4019 should be applied retroactively to cases pending appeal at the time of the amendment. Appellant's presentence conduct award is increased from 12 to 26 days, based on his 26 days of actual custody. (A) LKH

Koryn, Sylvia — People v. Martinez, G043090 — Penal Code Section 654
Trial court erred in not staying term under Penal Code section 654, because both false imprisonments were incidental to defendant's intent to commit robbery and one of the assaults with a firearm was the act upon which the elder abuse offense is based. (I) AMJ

Stockwell, Sarah — In re Geraldo P., G043133 — Insufficiency of Evidence
Appellant contended, respondent conceded, and the Court of Appeal agreed that based on the trial court's finding that Gerardo was not a member of a gang, and the fact that the prosecution presented no evidence that "Listo," the other individual identified at the scene with Gerardo, was a member of, or had any connection to the Citron Street gang, the evidence in the record is insufficient to support a finding that the trier of fact could have found the elements of the crime beyond a reasonable doubt that Gerardo promoted, furthered or assisted felonious conduct by members of the Citron Street gang to be guilty of subdivision (a) of Penal Code section 186.22. (A) JLP

Turkat-Schirn, Megan — In re Ivette G., G044055 — Relative Placement
Mother argued the court erred in ordering the agency to evaluate relatives after the court terminated parental rights. The Court of Appeal agreed and reversed and remanded for a new hearing. In addition, the opinion found the agency erred in failing to following the relative placement preference when the child needed a new placement close in time to the Welfare and Institutions Code section 366.26 hearing. (A) LLF

 

February 2011
Serobian, Liana — People v. Tovar, D056631 — Insufficiency of Evidence
Appellant, as a sex offender, was charged with failing to register within five working days of his birthday in 2008. His birthday, April 3, fell on a Thursday, which made Thursday, April 10, the fifth working day after April 3. Here, as the People have pointed out, there was evidence that Tovar was living in California until April 9, 2008. However, there is no evidence whatsoever as to Tovar's location or residence as of April 10, 2008, the fifth working day. It was the People's burden to present evidence from which one could determine, beyond a reasonable doubt, that Tovar continued to reside, work or study in California on April 10, 2008, a burden the People did not carry. .(A) HCC

Koryn, Daniel — People v. Keeper, D055965 — Penal Code Section 654; Abstract of Judgment
Appellant argued, respondent conceded, and the court agreed that trial court should have stayed the sentence on count 3 for making a criminal threat, because that count and assaulting the same person with a deadly weapon in count 4 were part of an indivisible course of conduct. Also, abstract of judgment did not correctly reflect the sentence the trial court orally imposed, and it was ordered corrected. (I) AMJ

Schooley, Wilson — People v. Ontiveros, D055999 — Personal Presence
Appellant argued, respondent conceded, and the court agreed that the waiver of the right to be present was involuntary, because the trial court incorrectly informed Ontiveros that he would lose good time custody credits for time he is out of prison to attend the hearing. Entry of waiver of right to be present at restitution hearing ordered stricken. (I) AMJ

Khoury, Charles — In re Anthony D., D056133 — Insufficiency of Evidence
Court reversed the lower court's true finding that appellant committed two counts of vandalism. In this juvenile delinquency appeal, the lower court found that appellant was responsible for a unique graffiti symbol written in the newly-renovated men's restroom at an adult school that appellant attended. The Court of Appeal found there were "too many holes" to conclude that appellant was responsible for the graffiti, because the symbol was not unique to appellant. Even though it was on his notebook, it was also on items of clothing and on a car that did not belong to appellant. The fact that appellant was tardy on the date the vandalism was discovered did not support a finding the he was vandalizing the restroom as there were many other plausible reasons for his tardiness. Also, the adult school campus was open to an adjacent high school, leaving the parking and men's restroom accessible to anyone. (I) BCT

Beckham, Sylvia — People v. Omar, D056337 — Sentencing
Remand for re-sentencing on a probation violation case as the court had discretion to impose it either concurrently or consecutively to the primary case and the record did not demonstrate it did in fact do so. (I) PED

Wright, Brian — In re Alexander A., D056674 — Restitution
Published opinion. Court of Appeal rejected respondent's attempt to raise a separate issue not appealed by the People that the trial court had no authority to accept a stipulated lower amount of victim restitution. It found the issue forfeited, because the claim rested on an abuse of discretion, not an unauthorized sentence. The statute requires the court to impose restitution in the amount of economic losses "as determined" and to use "a rational method." The trial court was within its authority to accept a stipulated restitution agreement based on the school's decision to paint over the damaged mural instead of repairing it. (I) AMJ

Buckley, Christian — People v. Gauldin, D056779 — Sentencing
Habeas relief granted under Penal Code section 1170.1, subdivision (f), where two enhancements were erroneously imposed on the robbery conviction for firearm use under section 12022.53, subdivision (b) and box cutter use under section 12022, subdivision (b)(1). Under the explicit terms of the statute, only the greater of the enhancements should have been imposed. (I) PED

Riopelle, Sahyeh; Mallinger, Kathleen — In re Jack C., In re Elizabeth P., D057034, D057499 — Indian Child Welfare Act (ICWA)
Published decision reversing juvenile court's finding that three siblings were not Indian children for purposes of the ICWA at the time the court made its decision. The juvenile court knew when it made its decision that the children would be enrolled in the tribe once their father's birth certificate was submitted to it. Sibling cases were consolidated at the time the opinion was issued. Appellate court also reversed juvenile court's denial of the parents' petition to transfer jurisdiction to the tribe, reasoning that no "good cause" existed to deny the transfer and ordered that on remand jurisdiction be transferred subject to the tribe's right to declination. (I) ACS

Koryn, Daniel — People v. Thomas, D050286 — Probation Condition
Restitution fine of $895 payable to El Cajon Police Department reversed, where there was no indication trial court made any findings regarding defendant's ability to pay same. (I) PED

Williams, Rex — People v. Heath, D057569 — Custody Credits
Because the record was not clear with regard to appellant's claim that he may be entitled to additional days of credit for time actually spent in custody, the Court of Appeal remanded the case for a re-determination of appellant's entitlement to pre-sentence custody credit. (I) APJ

Davidson, Suzanne — In re Andrew L., D057586 — Description
Published decision rejecting father's appeal of orders made at the six-month dependency review hearing regarding his sons, granting a motion by the San Diego County Health and Human Services Agency to dismiss count (a) of the Welfare and Institutions Code section 300 petition and to strike words from count (b) of the petition. The court disagreed with father's argument that partial dismissal of the petition and an oral Welfare and Institutions Code section 388 motion by the Agency to strike portions of count (b)(I) was unauthorized and prejudiced him. (I) CAG

Frizzell, Doris — People v. Jefferson, D058078 — Abstract of Judgment
Abstract ordered corrected to reflect trial court's oral pronouncement that gang enhancement imposed for count 5 would run concurrently with the term for count 4. (I) LAR

Kessler, Daniel — People v. Castellanos, E048609 — Ex Post Facto
In this multiple count, multiple victim sexual molest case, the Court of Appeal remanded the case to the trial court for re-sentencing. The record was unclear as to whether the trial court understood it had the discretion to grant defendant probation. The trial court might have applied the most recent version of Penal Code section 667.61 (which would render appellant ineligible for probation), rather than the version in effect at the time the crimes were committed (which would allow probation under certain circumstances). (I) LKH

Sheehy, Kevin — People v. Moreno, E049093 — Pitchess
The trial court abused its discretion in denying a motion for discovery of victim's personnel file (Pitchess). The victim was a former probation officer living in a halfway house and appellant claimed he killed her in self-defense. The Court of Appeal found that given the low threshold for obtaining in camera review of the files and given the showing of relevance in this case, the motion should have been granted. (I) APJ

Mazur, Janice — People v. Ellison, E049572 — Custody Credits
Appellant argued, respondent conceded, and the court agreed that trial court erred in limiting credits to 15% under Penal Code section 2933.1. The current offenses were not qualifying violent felonies. (I) AMJ

Shevelson, J. Courtney — People v. Session, E049939 — Instructional Error
The trial court prejudicially erred in failing to give CALCRIM No. 703 on the mental state element of the robbery-murder special-circumstance allegation and that the error was not harmless beyond a reasonable doubt. Here, appellant was found guilty of first degree murder, but was not the actual killer. The evidence here was such that the jury reasonably could have found the allegation true without concluding beyond a reasonable doubt that appellant participated in the robbery with either intent to kill or reckless indifference to human life.
(I) LAR

Sheehy, Kevin — People v. Clark, E049959 — Sentencing
Appellant argued, respondent conceded, and the court agreed that appellant's 15-year-to-life sentences on her premeditated attempted murder convictions in counts 1, 2, 3, and 7 were erroneously imposed and must be reduced to life in prison with a seven-year minimum parole eligibility period. Though the 25-year-to-life firearm enhancements were properly imposed pursuant to Penal Code section 12022.53, subdivisions (d) and (e)(1), the 15-year minimum parole eligibility periods, though generally authorized by Penal Code section 186.22, subdivision (b)(5), were erroneously imposed given that the firearm enhancements were also imposed pursuant to Penal Code section 12022.53, subdivision (e)(1), and appellant did not personally discharge a firearm. (I) HCC

O'Connor, Sheila — People v. Shaw, E050331 — Factual Basis; Attorney's Fees
Appellant argued, respondent conceded, and the court agreed there was no factual basis to support appellant's plea of guilty to assaulting a police officer with a weapon other than a firearm. Matter remanded to allow the government the opportunity to establish a factual basis for the plea. If one cannot be established, appellant must be allowed to withdraw his plea. In addition, no substantial evidence supports the court's order appellant has the ability to pay attorney's fees. They are ordered stricken unless, after giving appellant notice and an opportunity to be heard, the court finds appellant has the ability to pay. (A) CBM

Macomber, Thomas — People v. Sepulveda, E050651 — Penal Code Section 4019; Fines
Judgment ordered modified to correct credits and fines. Trial court erred in applying a two-tiered division of presentence custody credits under Penal Code section 4019 and improperly increased the previously imposed Penal Code section 1202.4, subdivision (b), and section 1202.45 fines upon violation of probation and commitment to prison. (I) AMJ

Rickard, Gregory — People v. Reyes, G041773 — Criminal Protective Order
Trial court ordered defendant to have no contact with victim until she reaches the age of majority and thereafter only if she initiates contact first. Court of Appeal held the trial court lacked jurisdiction to make the order and that it "transcended the authorization of section 136.2 and must be reversed." (I) LAR

Beckham, Sylvia – People v. Turner, G042598 – Insufficiency of Evidence
Conviction for unlawfully possessing ammunition pursuant to Penal Code section 12316 reversed, where the requirements of the statute were not met. (I) PED

Sheehy, Kevin — People v. Perez, G042811 — Cruel and Unusual Punishment;
Penal Code Section 654
Youthful defendant's 50-years-to-life sentence violated state's cruel and unusual punishment prohibition, because it is disproportionate in light of the defendant's background, and the concurrent term imposed on the gang charge ordered stayed under Penal Code section 654. (I) AMJ

Buchanan, Vicki — People v. McShane, G042921 — Criminal Protective Order
Appellant argued, respondent conceded, and the court agreed that the criminal protective order issued by the trial court pursuant to Penal Code section 136.2 must be stricken. Section 136.2 limits authorization of restraining orders during the pendency of the criminal action in trial court, including a period of probation. (People v. Stone (2004) 123 Cal.App.4th 153.) Appellant was sentenced to prison and thus the protective order was not authorized under the referenced section. Case remanded to trial court for the limited purpose of conducting a hearing to determine whether any other form of protective order is available and should be issued. (A-M) CBM

Jones, Sharon — People v. Fernandez, G042985 — Insufficiency of Evidence
Reversal of allegation under Penal Code section 1203.066, where record did not support jury's finding of substantial sexual conduct. (I) MCR

Ward, Paul — People v. Mendoza, G043099 — New Trial
The trial court misunderstood the standard of review when it denied appellant's new trial motion. The trial court erroneously applied the deferential "substantial evidence" standard when, instead, it should have independently assessed witness credibility, determined weight of evidence, and drawn inferences. Case remanded for new hearing on new trial motion. (I) APJ

Miller, Gerald — People v. Balbuena, G043285 — Custody Credits
Trial court erred in limiting defendant's credits to 15 percent because defendant's conviction for second degree robbery was not a violent felony listed in Penal Code section 667.5 at the time of the commission of the offense in June 1995. This was changed in 2000 by Proposition 21. (I) LAR

Tripp, Pamela — In re B.T., G044165 — Jurisdiction Order
Juvenile court took jurisdiction over child detained at five months of age after mother was
arrested for having an unlawful sexual relationship with her neighbor's 15-year-old son who fathered child. Appellate court found no substantial evidence that mother was likely to abuse or neglect this child. She had an exemplary track record of rearing her other children who were ages 17, 12, and 9 and no record of abusing any other children. (Note: ordered published after request by panel attorney.) (I) ACS

 

January 2011
Jones, Rebecca — People v. Saibu, D054980 — Instructional Error
Appellant and a cohort (Valentino) had been involved in a series of robberies for which they had been tried and convicted in a separate trial. In this trial, the primary charge was special circumstances robbery felony-murder in which Valentino was the perpetrator and appellant the alleged aider and abettor getaway driver. However, the trial court failed to give CALCRIM No. 703, which would have required the jury to find that appellant acted with reckless indifference to human life. The People conceded error, but argued it was harmless. Contrasting the circumstances of the other robberies and appellant's participation, the appellate court concluded there was a reasonable doubt (Chapman) the omission of the instruction contributed to the verdict, reversed the special circumstances finding, and remanded for retrial. (I) HCC

Nichols, Diane — People v. Valentino, D054980 — Correction of Abstract of Judgment
Appellant and a cohort had been involved in a series of robberies for which they had been tried and convicted in a separate trial. In this trial, appellant was convicted and sentenced for special circumstances robbery felony-murder, and his sentence in for the offenses in the first trial was reconfigured. The Court of Appeal ordered the trial court to modify the abstract of judgment to reflect not only the presentence custody credits that appellant earned in the first case, but also the number of days that he served in the custody of the Director of the Department of Corrections and Rehabilitation. The trial court was also ordered modify the abstract of judgment in the present case to show that the terms associated with counts 6 and 7 are middle terms, not upper terms. (I) HCC

Schaefer, Laura — People v. Carl, D056231 — restitution fine
Trial court erred in imposing two separate restitution fines totaling $16, 600, because the counts giving rise to the determinate and indeterminate sentences were tried together as a single case. The judgment is modified to show $10,000. (I) JLP

Dodd, John - People v. Bodnar, D056811 - Parole length
Trial court erred in ordering that appellant be subject to a five-year period of parole, rather than a three- year period, after he is released from prison.

Kaiser, Donna — In re M.D., D057284 — Dependency/Reasonable Services
Mother appealed the court's findings that her reunification services were reasonable. Worker had mistakenly encouraged mother to stop her methadone treatment abruptly, an action that the appellate court found "had far-reaching consequences." Appellate court also observed that mother "received conflicting and erroneous information about substance abuse services almost from the inception of this case." It reversed the reasonable efforts finding and ordered that mother receive an additional six months of services.

Matthews, Victoria — People v. Arceo, D58024 — Sex Offender Registration
Appellant had pleaded guilty to one count of unlawful sexual intercourse with a minor more than three years younger (Pen. Code, § 261.5) for having had sex with his 17-year old girlfriend when he was about 22 years old. He was placed on probation, a condition of which was that he would not go into places where minors congregate without probation's authorization. The record showed that appellant's first probation officer gave appellant much flexibility to take his two-year-old daughter to certain places where minor's congregate as long as appellant did not interact with minors. In one instance, appellant took his daughter to the Del Mar fair. When appellant disclosed this to his new probation officer, the officer filed a petition for revocation of the probation. Appellant admitted the violation and the judge (a different judge from the plea) imposed a sex offender registration requirement, which was discretionary in this case but not imposed by the plea judge. Appellate counsel prepared arguments utilized by trial counsel, who argued that even if the trial court had authority to impose the sex offender registration requirement upon reinstatement of probation, imposition here amounted to an abuse of discretion in that the court failed to make the requisite findings and failed to set them forth on the record as required. Following argument of the motion, the court struck the requirement. (S) VMM

McPartland, Michael – People v. Liggins, D058079 – Penal Code section 667.5, subd. (b) prior stricken
Penal Code section 667.5, subdivision (b) one year prior enhancement ordered stricken where the record showed a five year section 667, subdivision (a) enhancement had been imposed for the same underlying offense. (I) PED

Lathrop, Steven — People v. Ward, E047717 — Insufficient evidence
Koryn, Daniel — People v. Jacques, E047717 — Insufficient evidence
Reversed in part. As to defendant Ward, who was convicted of three conspiracies, court and respondent agreed that the evidence supported only one conspiracy with one ultimate objective; hence the conspiracies that carry the lesser terms, conspiracy to intimidate a witness and to commit residential robbery, are reversed as well as the attendant enhancements and sentences. As to defendant Jacques, who was convicted of two conspiracies, court and respondent agreed he could only be convicted of one for the same reason; hence, the conspiracy to intimidate a witness is reversed as well as the attendant gang enhancement and sentence. (I) AMJ

Jones, Sharon M. — People v. Delgado, E049128 — Reversal for Insufficient Evidence
The Attorney General conceded and the Court of Appeal agreed with appellant's argument that he cannot be convicted of burglarizing his own home. In this case, the evidence showed that appellant lived at the home he was convicted of burglarizing and had lived there for 15 years. The Court of Appeal reversed the conviction. (I) APJ

Shudde, Athena – People v. Rodriguez, E049270 – Penal Code section 667.5, subd. (b) prior stricken
Penal Code section 667.5, subdivision (b) one year prior enhancement ordered stricken where the record failed to show the defendant had been released from the prison commitment he was serving at the time he was convicted of the current offense. (I) PED

Clark, Marcia — People v. Hardy, E049453— Penal Code section 667(a)
Attorney General conceded and Court of Appeal agreed that Penal Code section 667, subdivision (a), enhancement was erroneously imposed where current assault conviction did not include pleading and proof that the defendant personally used a deadly weapon. (I) JLP

Clark, Marcia — People v. Hardy, E049453 — Unlawful imposition of enhancement
Court and respondent agreed that trial court erred in imposing a 5-year prior serious felony enhancement. Current conviction was not a serious felony in that the assault did not involve personal use of a deadly weapon. Matter remanded with directions to strike the enhancement and to reconsider imposing the 1-year prior prison term enhancement, which was originally struck and arose out of the same conviction. (I) JLP

Kessler, Daniel J. — People v. Mancillas, E049592 — Ex Post Facto Sentencing Error and Statute of Limitations Violation
The Attorney General conceded and the Court of Appeal agreed with appellant's argument that it was a violation of the prohibition against ex post facto laws to punish appellant under the one-strike law for three of three of appellant's convictions under Penal Code section 288, subdivision (a), because it is not clear that the offenses underlying those convictions occurred after the law's effective date. The Attorney General also conceded and the Court of Appeal agreed that convictions on the same counts must be reversed because the offenses occurred outside the statute of limitations. (I) APJ

Kosofsky, Syda — People v. Garcia, E049804 — Modification of Condition
Court and respondent agree that the probation condition that minor not associate with a gang member is vague and overbroad and must be modified to incorporate into it the definitions of a gang contained in section 186.22. (I) AMJ

Bronson, Philip – People v. Ahmed, E049932 – Penal Code section 654
Imposition of both the firearm enhancement (§ 12022.5 (a)) and the great bodily injury enhancement (§ 12022.7 (e)) violates section 654 because both punishments arose from same act or course of conduct, i.e, the shooting of the victim . 3 year sentence on firearms enhancement stayed. (I) MCR

Booher, Robert – People v. Echt, E050639 – Probation Conditions
Court of Appeal remands the case to the trial court to delete probation term requiring appellant to abstain from alcohol, stay away from places where alcohol is served, and submit to alcohol tests at the discretion of the probation officer. In addition, the court modifies the term requiring appellant to attend NA/AA meetings, to delete reference to AA meetings. Court of Appeal finds there is no nexus between the commission of the crime and the alcohol conditions. (I) LKH

Bronson, Phillip – People v. T.I., E050827 – Probation Conditions
Court of Appeal modifies appellant's probation condition prohibiting him from possessing any dangerous or deadly weapons to include an exception "when such possession is justified because the minor is using the weapon in accordance with the law of self-defense." (I) LKH

Dodd, John — People v. Maurice Hill, E050937 — Fines
Government conceded and Court of Appeal agreed that the trial court improperly ordered appellant to pay a $30 fee under Government Code section 70373, subdivision (a), which became effective on January 1, 2009, when appellant committed the offenses in 2007, and had entered his guilty plea on June 24, 2008. Because this date of conviction – the date of his guilty plea – occurred before the effective date of the statute authorizing the fine, it could not be imposed at the time appellant's probation was withdrawn and he was sentenced to prison. (People v. Davis (2010) 185 Cal.App.4th 998; People v. Lopez (2010) 188 Cal.App.4th 474.) (I) CBM

Farber, William – People v. Brock, E050996 – Conduct Credits
The court of appeal modified the judgment to award appellant an additional 79 days of presentence conduct credits. Appellant's criminal act and some of her probation violations occurred before the amendment to Penal Code section 4019 became effective, but her sentencing did not occur until after the effective date of the amendment. The lower court awarded conduct credits based on a two-tier system which was error because appellant was sentenced during the period of time when the amendment was in effect. (I) BCT

Martin, Art — People v. Hernandez, G042193 — insufficient evidence
Conviction of assault with a firearm reversed due to insufficient evidence that the shooting was not in self defense. Related conviction for active gang participation reversed, because there was no evidence of any felony committed by a gang member which defendant aided and abetted. (I) AMJ

Marshall, Marilee — People v. Mueller, G042776 — Ex Post Facto Credits Modification
The Attorney General conceded and the Court of Appeal agreed that the trial court erred in applying Penal Code section 2933.1 to limit appellant's conduct credit when the offenses occurred before the statute was in effect. (I) APJ

Kehoe, James M. — People v. Hood, G042820 — Modified 4019 Retroactivity
The Court of Appeal agreed with appellant's argument that he is entitled to retroactive application of the new more favorable version of Penal Code section 4019 and modified the judgment to include an additional 90 days of pre-sentence conduct credit. (A) APJ

McPartland, Michael — People v. Lee, G042912 — Insufficient Evidence
Reversed. The trial court did not have proper grounds to issue a protective order under its inherent authority. The order was not supported by substantial evidence because there was no evidence of harassment, threats, or physical harm after the charges were filed. (I) AMJ

Halka, Waldemar – People v. Robinson, G043027 – Failure to instruct on mental disorder as it relates to intent and mental state.
Matter reversed and remanded for new trial where the trial court failed to instruct the jury on mental disorder as it relates to mental state. The court found that substantial evidence warranted this instruction where a psychologist rendered an unchallenged opinion that the appellant suffered from a severe psychiatriatic disorder that may have combined with his drug and alcohol use to create hallucinations. The court's failure to instruct was found to be prejudicial where the prosecutor twice informed the jury that it could not consider the evidence of any mental disorder. (I) PED

Milcetic, Maryann — In re Teresa M.., G043769 — Dependency (Visits -Non-custodial Parent)
Partial Reversal. Appellate court agreed that mother's visits with her daughter (who lived with her father) were improperly delegated both to father and her daughter. It ordered the juvenile court to "fashion a more precise visitation order." But the appellate court did not agree that mother was entitled to an evidentiary hearing on the issue of her child's placement. (I) ACS

Cohen, Howard — People v. Martinez, SCN245982 — Credits
Defendant was one of several suspects arrested in August 2007 and prosecuted by means of a complaint. By May 2008, when the case had not gone to preliminary hearing because of time conflicts amongst various defense counsel, the prosecutor elected to go the grand jury ans secured an indictment which was filed in June 2008. After defendant pleaded guilty, the probation officer calculated credits only from June 2008. A motion to the superior court, which the District Attorney conceded, resulted in the granting of the credits due from August 2007-August 2008, plus conduct credits. (S) HCC

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