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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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 2012
Beckham, Sylvia — People v. Venegas, E054927 — Firearm Enhancement — R. Glenn Yabuno, Judge — Opinion by Hollenhorst, J., with McKinster, J., Richli, J. The trial court erred in imposing the firearm enhancement under Penal Code section 12022, subdivision (d) (2 year term), instead of section 12022, subdivision (a) (1 year term), because the former applied only to narcotic offenses of which appellant was not convicted. (I) AMJ

Bronson, Phillip — People v. Nguyen, G046229 — Unproved Priors — William D. Claster, Judge — Opinion by Bedsworth, J., with O'Leary, P.J., Rylaarsdam, J. The parties agreed the trial court was without authority to impose and stay three prison priors that had been neither proved nor admitted. The government argued remand for trial on the priors was required; appellant argued that double jeopardy prevented trial on the priors. The Court of Appeal found that under Penal Code section 1158, prior conviction allegations must be tried and found true or not true and the failure to make an explicit finding operates as a "not true" finding and "there is no mulligan." Accordingly, minute order must be amended to reflect "not true" findings. (I) APJ

Turkat-Schirn, Megan —In re A.A., et al., E055794 — Disposition — Lawrence P. Best, Temporary Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., Miller, J. Court of Appeal reversed the disposition as to the father of one child and remanded to conduct a new dispositional hearing to consider and make findings as to father's request for placement of the child in his home. (I) CAG

White, Catherine — People v. Mackey, E054342 — Prison Priors — Bryan Foster, Judge — Opinion by King, J., with Ramirez, J., Miller, J. Court of Appeal agreed that sentence of 69 years, plus 90-to-life in prison must be reduced by five years because the trial court erroneously imposed three prison priors per count (nine years total) instead of four prison priors for the entire case. (I) AMJ

Boyce, Robert — People v. Nivarez, G045230 — New Trial Motion — Dan McNerney, Judge — Opinion by Ikola, J., with Rylaarsdam, J., Bedsworth, J. Defendant was convicted of first degree murder. In denying a defense new trial motion under Penal Code section 1181, subdivision (6), the court stated, "And so I do not find that the jury's verdict was without support by substantial evidence..." The Court of Appeal reversed and remanded for a new hearing on the trial motion because the trial court applied an incorrect standard. The correct inquiry is whether the trial court itself is convinced the charge was proved beyond a reasonable doubt. (I) NFA

Crawford, James — People v. Gonzalez, E054886 — Probation Conditions – Becky Dugan, Judge — Opinion by Richli, J., with McKinster, J., Codrington, J. Court of Appeal ordered probation conditions be modified to add knowledge element. (I) JLP

Bitar, Andrea — In re Gilbert R., G045929, 2012 WL 5977385 — Insufficient Evidence — David A. Hoffer, Judge — Opinion by Aronson, Acting P. J., with Ikola, J., Thompson, J. Although knife carried by minor could be opened by a flick of the wrist, it also had a detent mechanism which provided resistance and held the blade in a fixed and closed position. Because this detent mechanism was operational, the knife fell within the express statutory exception to a switchblade knife in former Penal Code section 653k, and now in current Penal Code section 17235. The trial court's true finding that minor possessed a switchblade knife ordered reversed. (A) CBM

Massey, Susan — People v. Wainscott, E053674 — Jury Trial Waiver — John M. Davis, Judge — Opinion by Hollenhorst, J., with Ramirez,P. J., Miller, J., separately concurring. The People neglected to allege a strike offense against defendant and sought to amend the information after discharge of the jury. The trial court allowed the amendment, over objection, finding that appellant's waiver of jury trial as to an out-on-bail enhancement was sufficient to cover the strike allegation. The Court of Appeal concluded that because the strike allegation did not exist at the time of the waiver, the waiver could not be deemed to include it. (People v. Luick (1972) 24 Cal.App.3d 555.) The majority also concluded that People v. Tindall (2000) 24 Cal.4th 767 was controlling law and precluded re-trial (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450). The majority agreed with respondent that the reasoning in Tindall is flawed and the Supreme Court should reconsider its decision. The separate concurrence disagreed with the conclusion that the Supreme Court had incorrectly decided the issue in Tindall. (I) HCC

Braden, Julie — In re Karina P., D062257 — ICWA Notice— Laura Birkmeyer, Judge — Opinion by Irion, J., with Nares, J., McIntyre, J. Case remanded so juvenile court can order agency to provide ICWA notice to any pertinent Papago Tribes. (I) ACS

Greifinger, David— People v. Costilla, E055940 — Fees/Fines/Credits — Eric M. Nakata, Judge — Opinion by King, J., with Ramirez, J., Miller, J. The lower court was ordered to correct its minute order and order of commitment to reflect the proper fees, fines and credits awarded by the court. The parole revocation fine of $240 was ordered stricken since defendant was serving her sentence in county jail pursuant to Penal Code section 1170, subdivision (h)(1), and therefore, upon release, would not be placed on parole. (A) BCT

Cannon. Gregory — People v. Satterwhite, D057485 — Cruel and Unusual Punishment of Juvenile — Frank A. Brown, Judge — Opinion by Nares, J., with Aaron, J., Irion, J. Following a grant of defendant's petition for rehearing, Court of Appeal ordered remand for resentencing in light of Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455] which held that the imposition of a mandatory sentence of life without the possibility of parole on a juvenile offender convicted of a homicide offense violates the prohibition of cruel and unusual punishment set forth in the 8th Amendment of the United States Constitution. (I) HCC Note: Kudo for co-defendant Thomas was already done in August, 2012.

Martin, Arthur — People v. Rabb, D059073 — Misstatement of Reasonable Doubt Standard by Prosecution — John S. Einhorn, Judge — Opinion by Huffman, J., with O'Rourke, J., concurring and McIntyre, J., dissenting. Sentence of two consecutive LWOPs, plus 65 years-to-life reversed based on prosecution's statement: "And for the defendant to be not guilty in this case, you have to believe every word that came out of his mouth on the stand. You have to believe every word that came out of his mouth, and you can't do that. [Defense objection overruled.]...," as being a misstatement of the reasonable doubt standard. The error was found not to be harmless beyond a reasonable doubt based on the facts of the case and was not cured by the other instructions in the case, including the correct proper instruction on reasonable doubt. Dissent would have found error to be harmless beyond a reasonable doubt. (I) PED

Rogers, Tracy — People v. Delacerda, G045659 — Discharge of Retained Counsel — Edward Rogan, Judge — Opinion by Thompson, J., with Aronson, J., Ikola J. Trial court exercised incorrect analysis in determining whether appellant should have been allowed to discharge his retained counsel due to a real conflict having arisen when appellant filed a motion for new trial and sentencing brief at the sentencing hearing. Matter remanded to allow the discharge of retained counsel and appointment of the public defender. Once new counsel is appointed, the case shall proceed from the point appellant originally sought to discharge his attorney. (I) PED

Barry, Leslie — In re D.R., D061888 — Modification Petition — David B. Oberholtzer, Judge — Opinion by Benke, J., with McConnell, J., Irion, J. The court abused its discretion when it relied upon the sibling relationship and possibly the court's own personal experiences to deny the Welfare and Institutions Code section 388 petition by the father requesting reunification. (I) CAG

Haggerty, Edward — People v. Ramirez, G045950 — Insufficient Evidence Prior Qualifies as Serious Felony — Kazuharu Makino, Judge — Opinion by Bedsworth, J., with O'Leary, P.J., Fybel, J. The trial court found true an allegation that appellant suffered a prior serious felony based upon a conviction for vehicular manslaughter. The Attorney General conceded and the Court of Appeal agreed that the finding was not supported by sufficient evidence because there was no evidence appellant personally inflicted great bodily injury on a person other than an accomplice as required under Penal Code section 1192.8, subdivision (a). The Court of Appeal reversed the true finding and remanded the matter for a retrial if the People so elect. (I) LKH

Schaefer, Laura — People v. Adams, D059954 — Parole Fine — Joan P. Weber, Judge — Opinion by McDonald, J., with McConnell, P.J., Huffman, J. The Court of Appeal struck the parole revocation fine because appellant was sentenced to life without the possibility of parole. (I) LKH

Schwartzberg, Richard — People v. Ellison, E056159 — Abstract of Judgment/Fines — Bradford, Judge — Opinion by Richli, Acting P.J., with King, J., Miller, J. Amended abstract of judgment ordered to reflect proper presentence custody credit order; court security fine (Penal Code section 1465.8) reduced from $40 to $30 per conviction – the amount in effect at the time of appellant's conviction. (I) CBM

Norman, Jan -- People v. Ison, E054356 – Probation Extension -- Bridgid B. McCann, Judge - McKinster, J., with Richli, J., Codrington, J. 56 days after appellant's three-year probation period would have ordinarily expired, the trial court extended probation by another two years. Court found this was error as appellant's probation had not been tolled for the requisite 56 days. (I) LAR

Lubliner, Steven — People v. Stuckey, E053618 — Marsden Motions — Michael B. Donner, Judge — Opinion by McKinster, J., with Hollenhorst, J., Richli, J. Appellant pleaded guilty with no agreement as to sentence and was released until sentencing. He absconded, and was later apprehended and appeared for sentencing. Appellant requested new counsel and expressed the desire to withdraw his guilty plea. The trial court appointed new counsel, who made a motion to withdraw the guilty plea, which was denied. The court then reappointed the original defense attorney to represent appellant at sentencing. The Court of Appeal held the trial court failed to follow the procedure required by People v. Sanchez (2011) 53 Cal.4th 80: When a defendant requests substitute counsel, the trial court must hold a Marsden hearing to allow the defendant to state the grounds for his dissatisfaction with present counsel; and if grounds exist, the court must appoint new defense counsel. The Court of Appeal found this procedure was violated first by the failure to hold a Marsden hearing, and second by the reappointment of initial defense counsel after the denial of the motion to withdraw the plea. As disposition, the Court of Appeal remanded the case to the trial court for a Marsden hearing, and if the Marsden hearing is granted, for the trial court to entertain any motion(s) filed by new counsel, including a new motion to withdraw the plea. If the Marsden motion is denied, or if it is granted and new counsel either files no motions or files motions that are denied, then the trial court must reinstate the original judgment. Corrections to custody credits and fines were also ordered. (I) NFA

DiGuiseppe, Raymond — In re Abraham R., D060753 — Probation Condition — Carlos O. Armour, Judge — Aaron, J., with Benke, J., O'Rourke, J. Probation condition restricting minor from possessing weapons is ordered modified to include a knowledge requirement. (I) AMJ

Matsumoto, Ellen/Owen, Thomas — People v. Chinchilla/Sotelo — G045111 — Frank F. Fasel, Judge — Opinion by O'Leary, J., Aronson, J., Ikola, J. As to both appellants, sentence on street terrorism conviction must be stayed because, under People v. Mesa (2012) 54 Cal.4th 191, appellants cannot be punished both for committing street terrorism and for the felonies used to establish the required felonious conduct. As to appellant Chinchilla, the trial court also erred in imposing 10-year enhancements for vicarious use of a firearm and street terrorism because Chinchilla did not personally use a firearm during the attempted murders or robbery as required by Penal Code section 12022.53, subdivision (e)(2). The court also erred in imposing 10-year enhancements for gang-related felonies rather than the 5-year enhancements under Penal Code section 186.22, subdivision (b)(1), because the assault with a semi-automatic gun offenses are not listed as violent felonies under Penal Code section 667.5, subdivision (c). As to appellant Sotelo, the trial court erred in imposing 10-year enhancements on various counts under Penal Code section 186.22, subdivision (b)(1)(C), because murder is punishable by life in prison and is therefore not subject to a 10-year enhancement. (I) AMJ

Dodd, John — People v. Lira, E054956 — Guilty Plea Advisements — Becky Dugan, Judge — Opinion by Ramirez, P.J., with King, J., Miller, J. Defendant pleaded guilty to robbery and admitted a firearm use allegation under Penal Code section 12022.53, subdivision (b). While taking the plea, the court acknowledged appellant's claim the gun was fake but told appellant this was not legally significant to the firearm use enhancement. The Court of Appeal found the plea was not voluntary and intelligent because the court incorrectly advised appellant a fake gun would be a sufficient basis for the gun use enhancement. In fact, section 12022.53 requires an operable firearm. The court reversed and remanded for appellant to be given the opportunity to withdraw his plea. (I) NFA

Polsky, David — People v. Estrada, D060530 — Penal Code Section 654 — Jeffrey F. Fraser, Judge — Opinion by McConnell, P.J., with Huffman, J., McDonald, J. The Court of Appeal ordered appellant's consecutive sentences for two counts of robbery stayed pursuant to Penal Code section 654 because the robberies and kidnapping for robberies were part of a continuous course of conduct and could be punished only once. Appellant's total sentence reduced by eight years, eight months. (I) LKH

Schuck, John — People v. Tran, G045968 — Unauthorized Protective Order — Steven D. Bromberg, Judge — Opinion by Ikola, J., with Rylaarsdam, Acting P.J., Bedsworth, J. Recognizing this as a recurring issue, the Court of Appeal reversed protective order because it is not authorized by Penal Code section 136.2 when defendant is sent to state prison. (I) APJ

 

November, 2012
Jones, Sharon — People v. Grajeda, D060725 — Right To Be Present — Stephen J. Saleson, Judge — Opinion by McDonald, J., with Huffman J., Aaron, J. Appellant had a constitutional right to be present at his resentencing hearing notwithstanding his counsel's waiver of this right without consulting appellant. Under the circumstances, appellant's absence cannot be deemed harmless error. Case remanded for resentencing. (I) PED

Crawford, James — People v. Ting, G046672 — Abstract of Judgment Correction — Craig E. Robison, Judge — Opinion by Rylaarsdam, P.J., with Bedsworth, J., Moore, J. Court of Appeal ordered correction of recording error in the Abstract of Judgment which shows $240 fines pursuant to Penal Code sections 1202.4 and 1202.45 instead of the $200 ordered by the trial court. (I) APJ

Garfinkle, Elizabeth – People v. Andre B., a minor, D060024 -- Probation Conditions – Melinda J. Lasater, Judge – Opinion by O'Rourke, J. with Nares, Acting P.J., Haller, J. Minor was adjudged a ward of the court based upon various sex-related offenses and placed on probation. Amongst the terms imposed by the court, minor was banned from (1) all computer use "unless supervised by a responsible adult over the age of 21 who is aware that minor is on probation and of his charges"; and (2) using "a computer for any purpose other than school related assignments." In addition, the juvenile court imposed a term requiring that minor be supervised "when using a computer in the common area of his/her residence or in a school setting." The Court of Appeal ordered these terms stricken, finding the terms unconstitutionally over-broad. In addition, the court remanded the matter to the trial court to tailor the probation term banning minor from "having or using a MySpace page, a Facebook page or any other similar page," and from "participating in chat rooms, using instant messaging such as ACQ, MySpace, Facebook, TWITTER, or other similar communication programs." (A) LKH

Capriola, William – People v. Villa, E053055 – Penal Code Section 654/Lesser Included Offenses – John D. Molloy, Judge – Opinion by McKinster, Acting P.J. with Miller, J., Codrington, J. The Court of Appeal ordered appellant's conviction and sentence for possession of methamphetamine (count 3) reversed as it is a lesser included offense of possession of methamphetamine for sale (count 1). In addition, the Court of Appeal ordered appellant's sentence for street terrorism stayed pursuant to Penal Code section 654 where the prosecution relied on his conviction for count 1 to prove furtherance or assistance in felonious criminal conduct, an element of street terrorism. (I) LKH

Cannon, Gregory – People v. Manzano, E053170 – Insufficient Evidence – Edward D. Webster, Judge – Opinion by Richli, J. with McKinster, Acting, P.J., Codrington, J. A jury convicted appellant of three counts of attempted premeditated, deliberate, and willful murder and returned true findings on each count under Penal Code sections 186.22, subdivision (b) and 12022.53, subdivision (e)(1). Because the verdict forms and instructions for the section 12022.53, subdivision (e) enhancement never required the jury to find that a firearm had been discharged, the Attorney General conceded, and the Court agreed the findings under section 12022.53, subdivision (e)(1) must be stricken, and the 20 year determinant sentence on each count reversed. The matter is remanded to the trial court for re-sentencing on the gang allegations. (I) LKH

Christiansen, Mark/Jones, Sharon — People v. Miller/Williams — Fines — Christian F. Thierbach, Judge — Opinion by Codrington, J., with McKinster, Acting P.J., King, J. Attorney General conceded and Court of Appeal agreed that $10 fine pursuant to Penal Code section 1202.5, subdivision (a), can be imposed only once per case and not per conviction. Accordingly, $40 in fines reduced to $10. (I) APJ

Klaif, Leonard — People v. Adams, D060799 — Credits — Charles G. Rogers, Judge — Opinion by Benke, J., with Nares, J., McDonald, J., concurring. Attorney General and Court of Appeal agreed that appellant was denied day-for-day credits in violation of the proscription against ex post facto laws. (I) AMJ

Wrubel, Suzanne — People v. Lelless, E054168 — Driver's License Revocation Order — Jules E. Fleuret, Judge — Opinion by Ramirez, J., with Hollenhorst, J., Miller, J. Order revoking defendant's driver's license for two years is stricken because a motor vehicle was not involved in the commission of the offense. (Veh. Code, §13350.) (A) PED

McPartland, Michael – People v. Veliz, Sr., D059524 – Credits – Craig G. Riemer, Judge, Opinion by McConnell, P.J., with Huffman, J., McDonald, J. The Court of Appeal awarded appellant 638 days of custody credits rather than the 617 days the trial court calculated. The trial court is directed to amend the abstract of judgment and forward it to CDCR. (I) LKH

Covin, Randi – People v. Veliz, Jr., D059524 – Instructional Error – Craig G. Riemer, Judge, Opinion by McConnell, P.J., with Huffman, J., McDonald, J. The Court of Appeal reversed appellant's convictions for first degree murder and residential burglary finding the trial court prejudicially erred by misinstructing the jury on aiding and abetting liability. In response to a jury question, the court instructed the jury that in determining appellant's culpability as an aider and abettor, it must consider the co-defendant's mental state, rather than appellant's mental state. (I) LKH

McKim, Joanna – People v. Raymond, D060226 – Insufficient Evidence – Frank A. Brown, Judge – Opinion by Haller, J. with Huffman, Acting P.J., O'Rourke, J. Court of Appeal struck the deadly weapon enhancements attached to counts 1 through 3, and the corresponding four year terms imposed on each count (consecutive as to counts 1 & 2, concurrent as to count 3), reducing appellant's determinate sentence by eight years. The court agreed there was insufficient evidence to support these enhancements. Appellant used an inoperable pellet gun and there was no evidence appellant used, attempted to use, or threatened to use, the inoperable pellet gun as a club. (I) LKH

LeRoy, Doris — People v. Sincox, G045723 — Sentencing/Gang Enhancements — Daniel Barrett McNerney, Judge — Opinion by Ikola, J., with O'Leary, J., Moore, J. Defendant was sentenced to 15 years to life for second degree murder, plus a 10-year gang enhancement under Penal Code section 186.22, subdivision (b)(1)(C), and a 2-year concurrent term for the substantive gang participation offense. The Court of Appeal struck the 10-year gang enhancement as inapplicable to life terms and stayed the term for the substantive gang offense pursuant to Penal Code section 654 since appellant was separately sentenced for the underlying felony he promoted. (I) NFA

Gold, Neale B. — In re Mary B., D062247 — Welfare and Institutions Code Section 388 Petition — Michael Imhoff, Commissioner — Nares, J., with Benke, J., Huffman, J. Summary denial of the Welfare and Institutions Code section 388 petition was reversed as to father's request for expanded visitation as there were contested factual issues requiring a hearing. (I) CAG

Koryn, Sylvia – People v. Kinney, D059454 – Credits – Allan J. Prekel, Judge – Opinion by Irion, J. with Huffman, Acting P.J., McDonald, J. The trial court is directed to amend the abstract of judgment to reflect five days of presentence custody credits, rather than 0 days. (I) LKH

Angres, Robert — People v. Burcham — Great Bodily Injury Enhancement — Richard E. Mills, Judge — Opinion by O'Rourke, J., with Benke, Acting P.J., Nares, J. The Attorney General conceded and the Court of Appeal agreed that the trial court erred in imposing a three-year great bodily injury enhancement under Penal Code section 12022.7, subdivision (g), when great bodily injury is an element of the underlying torture conviction. Enhancement ordered stricken. (I) APJ

Shusted, Mark — In re P.A., E053608 — Probation Conditions — Samuel Diaz, Jr., Judge — Opinion by King, J., with McKinster, J., Richli, J. The court agreed a condition, "Obey and keep parent(s) /guardian(s) and the Probation Officer informed of whereabouts, associates, and activities,"was unconstitutionally vague; the condition was modified to read, "[o]bey his parent(s)/guardian(s) and not associate with anyone or participate in any activities having been informed by the probation officer that such associates or activities are prohibited." The court also agreed that the condition, "Not move without prior consent of the Probation Officer," was unconstitutionally over-broad and deleted same. The court further ordered inclusion of a "known-by-minor requirement" to a prohibited contact condition and a valid prescription exception to a narcotic-use prohibition condition. (A) HCC

Booher, Robert – In re John A., D060917 – Insufficient Evidence - Lawrence Kapiloff and Polly H. Shamoon, Judges - O'Rourke, J., with Huffman, J. , McDonald, J. Court of Appeal found Insufficient evidence minor aided and abetted in the attempted robbery where evidence showed minor appeared only after the attempted robbery occurred. (I) LAR

Beckham, Sylvia — In re N.P., G046539 — Maximum Period of Confinement — Nick A. Dourbates, Judge — Opinion by Fybel, J., with Bedsworth, J., Ikola, J. Juvenile court erred in calculating minor's maximum period of confinement. Judgment reversed and remanded for correction. (I) AMJ

Hong, Esther — In re R.C., E054968 — Probation Conditions — Thomas S. Garza, Judge — Opinion by Ramirez, J., with King, J., Miller, J. Two juvenile conditions of probation modified (modifications in italics) – "Not associate with any personally known user or seller of controlled substances or be in a location known by the probationer to be a place where illegal controlled substances are used or sold." Modified so as not to prohibit minor from associating with people who legally use or possess controlled substances, such as pharmacists, or being in places where commonly prescribed narcotics are sold or administered. Second condition modified to state: "Neither use nor possess any drug paraphernalia as described in Health and Safety Code Section 11014.5 or Health and Safety Code Section 11364.5(d), except for drug paraphernalia that is used or possessed to administer prescribed medication." (A) PED

Haggerty, Edward — People v. Maldonado, E054116, restitution fine — John M. Davis, Judge — Opinion by Codrington, J., with McKinster, J., Richli, J. Trial court erred in imposing a $1000 restitution fine payable to the children's trust fund under Penal Code section 294, because the Penal Code section 288 conviction is not an enumerated offense. (I) AMJ

Novoa, Kathleen Woods — People v. Barragan, G045414 — Penal Code Section 654 — Richard M. King, Judge — Opinion by Fybel, J., with Bedsworth, J., Ikola, J. Attorney General conceded and Court of Appeal agreed People v. Mesa (2012) 54 Cal.4th 191, 201, required street terrorism count (Penal Code section 186.22(a)) be stayed under Penal Code section 654. (I) JLP.

Cole, Victoria — People v. Horn, E054849 — Strikes Dismissal — John Davis, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Counsel successfully represented respondent in this People's appeal from the dismissal of strike priors. Bypassing the questions of appealability, the Court of Appeal rejected the People's arguments that strikes may be dismissed only at sentencing and that the magistrate abused its discretion in dismissing the strikes in this case. The Court of Appeal found no limitation on the magistrate's authority to dismiss strikes and that the exercise of discretion was not an abuse in this case. (I) APJ

Norris, Ronda — People v. Reed, D058701 — restitution fine — Louis R. Hanoian, Judge — Opinion by O'Rourke, J., with Huffman, J., Haller, J. Parole revocation restitution fine under Penal Code section 1202.45 is ordered stricken because appellant's was sentenced to life without the possibility of parole. (I) AMJ

DiGuiseppe, Raymond. — People v. Gonzalez, D059713, 2012 WL 590742 — Dual Convictions/Penal Code section 654 — Roger W. Krauel, Judge — Opinion by Aaron, J., with McIntyre, J., Benke, J., concurring and dissenting. In a published opinion, the majority concluded that two convictions for unlawful oral copulation under Penal Code section 288a – one for oral copulation of intoxicated person and one for oral copulation of unconscious person – must be consolidated into a single conviction because the reasoning of People v. Craig (1941) 17 Cal.2d 453 prohibits multiple convictions of the same offense based on a single act. Justice Benke provided a long dissenting opinion against this conclusion. The Court unanimously concluded sentence on Penal Code section 243.4 offense should have been stayed under Penal Code section 654 because it was based on the same act as a Penal Code section 220 conviction. (I) JLP

Hart, Mark A. — People v. Justin Lowe, D059007 — Penal Code Section 654 — Harry Staley, Judge — Nares, J., with Huffman, J., Haller, J. Sentence for first degree burglary ordered stayed pursuant to Penal Code section 654 when appellant has been separately punished for intended felonies. (I) LAR

Duxbury, Brett — People v. Hill, D059510 — Firearm Discharge Enhancement — Kyle S. Brodie, Judge — Opinion by O'Rourke, J., with Nares, J., McDonald, J. 20 year enhancement under Penal Code section 12022.53, subdivisions(c) and (e)(1) ordered stricken because jury failed to find appellant's crime was gang-related. (I) PED

 

October, 2012
Pfeiffer, Rich — In re S.R., E054998 — Visitation Order — Matthew C. Perantoni, Temporary Judge — Opinion by Codrington, J., with Ramirez, J., Richli, J. Father argued, and the Court of Appeal agreed, the court's order regarding father's visitation was an improper delegation of authority by failing to specify the minimum or maximum frequency or duration of father's visits with his daughter. Trial court's visitation order was reversed & remanded with instructions to make a new visitation order that specified the frequency & duration of father's visits. (I) LLF

Kehoe, James — People v. Briseno, E055280 — Fees — Gerard S. Brown, Judge — Opinion by Ramirez, P.J., McKinster, J., Miller, J. Order imposing the appointed counsel fee stricken from the judgment because the record lacks sufficient evidence of ability to pay. (Mod-A) PED

Mangan, Kate — People v. Mohammed, D060595 — Probation Condition — William J. McGrath, Judge — Opinion by Huffman, J., with McConnell, J., Irion, J. Court of Appeal agreed probation condition requiring probation approval for employment and residence is unconstitutionally overbroad. (A) JLP.

Pfieffer, Rich — In re Sanchez, G046189 (August 31, 2012) 209 Cal.App.4th 147 — Parole Suitability— Craig E. Robinson, Judge — Aronson, J., with Moore, J., Ikola, J. Court of Appeal found that the record did not support the Board of Parole's conclusions that appellant minimized his role in the offense or in his gang, or that the commitment offense alone made him unsuitable for parole. The published opinion addresses what the Board of Parole Hearings should do when the official version of the crime and the inmate's version of the crime do not match. The opinion encourages inmates to talk to the Board about their crimes, even when their version is not exactly consistent with other versions. The writ petition here was granted and the matter remanded for a new parole hearing. (I) LAR

Crawford, James — People v. Dopler, G045307 — Penal Code Section 654 — William Monroe, Judge — Opinion by Ikola, J., with Bedsworth, Acting P. J., Moore, J. Based on the same utterance, appellant was convicted of attempted terrorist threat and stalking. The court imposed consecutive sentences for these two crimes. Such a sentence violated Penal Code section 654 because "[s]ection 654 prohibits multiple punishment for a single physical act that violates different provisions of law." (People v. Jones (2012) 54 Cal.4th 350, 358 [holding defendant could not be punished under three different criminal statutes for single act of illegally possessing firearm].) To correct the error, the court ordered execution of the four month sentence for the attempted terrorist threat conviction to be stayed. (I) CBM.

Serobian, Liana/McCusker, Gerard — In re A.M., E055273 — Denial of Services at Disposition — Martin H. Swanson, Judge — Opinion by McKinster, J., with Miller, J., Codrington, J. Appeal from termination of parental rights. Appellate court reversed denial of reunification services to both parents at the time of disposition based on lack of evidence. Both parents were developmentally disabled. The case is remanded back so a new dispositional hearing can be held. The issue was not forfeited because the court failed to give adequate writ notice at the time reunification services were denied. (I) ACS

Williams, Rex — People v. Salgado, D061384 — Ministerial Corrections — Eugenia Eyherabide, Judge — Opinion by Huffman, J., with McConnell, P.J., McIntyre, J. Parties agreed that the sentencing minute order should not include a parole revocation fine when appellant was sentenced to jail and the trial court never imposed such a fine. The parties also agreed that the abstract of judgment should not refer to a prison sentence. The Court of Appeal ordered the necessary modifications. (I) APJ

Hinkle, Stephen — In re Villa, D060817 (September 27, 2012) 209 Cal.App.4th 838 — Administrative Segregation — Huffman, Acting P.J., with Nares, J., Haller, J. Petitioner argued his possession of a validated Mexican Mafia associate's chronos (prison documentation) was permitted by the California Code of Regulations and therefore could not serve as a source item to validate him as an associate of the Mexican Mafia. In addition, he argued the confidential memorandum was insufficient to establish the necessary "direct link to a current or former validated member or associate of a gang." The Court of Appeal agreed with both contentions and issued the habeas corpus directing the CDCR to expunge his validation as an associate of the Mexican Mafia prison gang and cease housing petitioner in the ASU based on gang validation. (I) LKH

Shevelson, Courtney— People v. Ramirez, G045434 — Gregg L. Prickett, Judge – Opinion by Fybel, J., with O'Leary, P.J., Rylaarsdam, J. Court of Appeal struck the $10,000 parole revocation fine imposed pursuant to Penal Code section 1202.45 as appellant was sentenced to life without the possibility of parole. (I) LKH

Rich, Renee — People v. Solia, E053035 — Sentencing — Edward d. Webster, Judge — Opinion by King, J., with Ramirez, J., Hollenhorst, J. Case was remanded to the trial court with directions to clarify whether appellant's terms are to run concurrently or consecutively. If imposed consecutively the court must designate a principal term and subordinate terms and impose the subordinate terms in accordance with either Penal Code section 667.6, subdivision (c) or section 1170.1.
(I) BCT

Koryn, Sylva — People v. Bollinger, D059696 — Sentencing — Cheryl C. Kersey, Judge — Opinion by Nares, J., with McDonald, J., O'Rourke, J. Defendant was convicted of four counts of violating Penal Code section 288, subdivision (b)(1), among other offenses. Based on the record, the Court of Appeal was unable to determine whether the trial court understood it had discretion under the One Strike law to impose a concurrent 15-year-to-life sentence for each of these counts, and, if it did, whether it exercised that discretion. The court reversed this portion of the sentence and remanded the matter to the trial court for resentencing solely on the issue of whether, in the exercise of the court's discretion, appellant must serve these four indeterminate terms concurrently or consecutively. (I) HCC

McKenna, Patrick — People v. Rolando, E05416, — Restitution — Ingrid Adamson Uhler, Judge — Opinion by King, J., with Hollenhorst, J., Richli, J. Trial court miscalculated in reaching the total figure of restitution. Court of Appeal modified to reflect the correct amount. (A) AMJ

Kehoe, James — People v. Butler, G046282 — Clerical Error — Daniel J. Didier, Judge — Opinion by Ikola, J., with Rylaarsdam, Acting P.J., Bedsworth, J. After trial court denied appellant's request to correct a clerical error in the sentencing minute order (shows booking fee when none was ordered), counsel filed a Wende brief and requested correction of the clerical error in a footnote. After giving the Attorney General an opportunity to object, the Court of Appeal ordered correction of the minute order. (Mod-A) APJ

Olsen, Nancy — People v. Vasquez, E053452 — Penal Code Section 654 — Michele D. Levine, Judge — Opinion by Hollenhorst, J., with Ramirez, J., Kink, J. Court of Appeal found separate consecutive terms for two counts of criminal threat (Pen. Code, § 422) were prohibited by section 654 since both threats were pursuant to a single criminal intent, i.e., to maintain control over the victim during a robbery. (I) NFA

Coleman, Jared — People v. Georgepolous, D060913, — Credits — Aaron H. Katz, Judge — Opinion by Huffman, J., with Haller, J., O'Rourke, J. Appellant, who was sentenced under the realignment act, is entitled to more credits because he was sentenced after October 1, 2011 and imposing a lesser amount of custody credits based upon the prior credits statute would amount to an increase in penalty in violation of the federal constitution's ex post facto limitation. (A) AMJ.

Shetty, Siri — People v. Gonzalez, E052861 — Insufficient Evidence/Penal Code Section 654 — Joe O. Littlejohn, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., King, J. Four counts of conviction under Penal Code section 288.7, unlawful intercourse with a child, are reversed for insufficient evidence that the crimes were committed after the effective date of the statute. Sentence for forcible lewd act count is stayed under Penal Code section 654 because the charge was based on the same facts as the convictions in other counts of conviction. (I) AMJ

Koryn, Sylvia — People v. Adams, G044831 — Double Jeopardy — Richard Hanscom, Judge — Opinion by Fybel, J., with Moore, J., Aronson, J. Following a first successful appeal, appellant was again convicted after a jury trial. The sentence imposed after this retrial was three years, four months greater than the authorized sentence imposed after appellant's first trial. Respondent conceded and the reviewing court agreed that trial court had violated appellant's double jeopardy right under People v. Hanson (2000) 23 Cal.4th 355, 357 by imposing this greater sentence after an initially successful appeal. Case remanded for resentencing. (I) CBM.

Elford, Joseph — People v. Jackson, D058988, 2012 Daily Journal D.A.R.14781, 2012 WL 5866447 — Medical Marijuana Program Act (MMPA) — Howard Shore, Judge — Opinion by Benke, J., with McDonald, J., McIntyre, J. Based on the large number of members of in appellant's collective, the trial court granted the People's motion and prevented appellant from offering any defense under the MMPA. The Court of Appeal reversed. In opposing the motion, the defendant's burden was not very great, i.e.., to produce evidence which would create a reasonable doubt as to whether the defense provided by the MMPA had been established. Contrary to the trial court's ruling, the potential large membership of the collective, very few of whom participated in the actual cultivation process, did not, as a matter of law, prevent defendant from presenting an MMPA defense. (A) HCC

Norman, Jan — In re Bingham, E054824/E056813 — Lesser Included Offense/ Ineffective Assistance of Counsel (IAC) — Timothy F. Freer, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Appellant entered into a plea bargain, pleading guilty to both grand theft and petty theft based upon the same conduct. Trial counsel made no effort to have the petty theft count dismissed as a lesser included offense of the grand theft count. Counsel filed a petition for writ of habeas corpus (or mandate) in the Court of Appeal, seeking either the issuance of a CPC (to allow challenge to validity of the plea on direct appeal if one was necessary) or dismissal of the petty theft conviction on the grounds of IAC. Respondent conceded IAC had occurred and habeas was appropriate. The Court of Appeal agreed and ordered dismissal of the petty theft felony count. (I) HCC

Finch, Dabney — People v. Daniel, E054001 — Insufficient Evidence — Raymond C. Youngquist, Judge — Opinion by McKinster, J., with Miller, J., Codrington, J. Trial court erroneously imposed a one-year "prison prior" enhancement despite the People's decision not to proceed on the allegation and lack of true finding. Court of Appeal ordered the enhancement stricken. (I) AMJ

Jones, Cynthia — People v. Cary, E053979 — Credits — James T. Warren, Judge — Opinion by Ramirez, P. J., with Hollenhorst, J., and Miller, J. Trial court first erred when it failed to award any presentence custody credits – actual or conduct – for appellant's continuous incarceration in various jails and mental hospitals from April 28, 2003 until January 11, 2011. In response to appellate counsel's motion, the trial court awarded the appropriate actual credits but it failed to correctly calculate the presentence conduct credits. While appellant is not entitled to conduct credits for the time he spent receiving treatment in state hospitals (People v. Waterman (1986) 42 Cal.3d 565), he is entitled to receive conduct credits for time spent in the state hospitals after his competence was restored but he was continued to be housed at the facility awaiting return to jail. (People v. Bryant (2009) 174 Cal.App.4th 175.) Court of Appeal directed the superior court to amend its sentencing order to reflect a conduct credit award of 209 days and an actual custody credit award of 2816 days. (A) CBM

De La Sota, Richard — People v. Simpson, E054348 — Penal Code Section 654 — Elisabeth Sichel, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Miller, J. The separate, eight-month sentence for the gang participation conviction should have been stayed pursuant to Penal Code section 654 because the substantive offense, attempted murder, served as the predicate for the gang participation conviction. (I) BCT.

Vallandigham, Robert V. — People v. Lopez, E055472 — Credits — Thomas N. Douglass, Jr., Judge — Opinion by Ramirez, J., with Hollenhorst, J., Miller, J. Court of Appeal and Attorney General agreed that defendant is entitled to additional conduct credits because his county jail sentence under the Realignment Act denied him credits he would have received if he had been sentenced to state prison. The denial amounted to a violation of the prohibition against ex post facto laws. (I) AMJ

Wenzell, Lewis – People v. Negrete, E054591 — Penal Code Section 654 — Michael B. Donner, Judge — Opinion by Hollenhorst, J., with Ramirez, J., Miller, J. On appeal, appellant argued and the Attorney General conceded that the concurrent sentence for petty theft must be stayed pursuant to Penal Code section 654 because appellant was separately punished for a burglary committed with the same intent. The Court of Appeal agreed and ordered the sentence stayed. (I) LKH

Schuck, John — People v. Martinez, E054854 — Dual Credits — Ronald L. Johnson, Judge — Opinion by Ramirez, J., with Hollenhorst J., Miller, J. Because Defendant's time in custody for failing to appear at his original sentencing hearing was related to the conduct underlying defendant's original conviction (see In re Marquez (2003) 30 Cal.4th 14, 20-24) he is entitled to credit for presentence custody attributable to the failure to appear arrest. (I) PED

Male, Jesse — People v. A.D. E055087 — Probation Conditions — William Jefferson Powell IV, Judge — Opinion by Hollenhorst, J., with King, J., Miller, J., concurring. Court of Appeal agreed that various conditions of probation needed modification to avoid being vague and/or overbroad. Modifications ordered to include requirements of knowledge and illegality. (A) PED

McPartland, Michael — People v. Cardenas G045894 — Minimum Parole Eligibility — Gregg L. Prickett, Judge — Opinion by Rylaarsdam, J., with Bedsworth J., Aronson, J. Where the sentence for an attempted murder conviction is subject to a 20-year enhancement under Penal Code section 12022.53, subdivision (c) (discharge of firearm), and defendant did not personally use or discharge the firearm, section 12022.53, subdivision (e)(2) provides the 15-year minimum of Penal Code section 186.22, subdivision (b)(5) shall not apply. (See People v. Salas (2001) 89 Cal.App.4th 1275, 1280-1282.) Thus, each of appellant's life sentences is subject to a 7-year rather than a 15-year minimum. Sentence ordered modified to delete the 15-year minimum parole eligibility requirements and to insert in its place the requirement that appellant's life sentences for each attempted murder conviction is subject to a 7-year minimum. (Pen. Code § 3046, subd. (b).) (I) PED

 

September, 2012
Bauguess, Susan — People v. Godfrey, E053355 — Attorney Fees — Rodney A. Cortez, Judge — Opinion by Ramirez, J., with Hollenhorst, J., King, J. Order that defendant reimburse $150 of the cost of his appointed counsel is reversed due to insufficient evidence of ability to pay these fees. The issue is held not to be waived by defense counsel's failure to object. (I) LAR

De La Sota, Richard — People v. Cagnolatti, D059751 — Unauthorized Sentence — Harry A. Staley, Judge — Opinion by McDonald, J., with Huffman, J., and Haller, J. Consecutive 75-year-to-life sentence imposed on count of being a sex offender and not registering an address change (Pen. Code, §290.13) ordered reversed as unauthorized because no enhancing allegation pursuant to section 667.71 was appended to this count. Sentence reduced to 410-years-to-life. (I) LAR

Robertson, Thomas — People v. Marcos G.. D061049 — Delinquency Disposition — Browder A. Willis, III, Judge — Opinion by Huffman, J., with Haller, J., Irion, J. Case remanded to trial court for determination of maximum potential term of confinement and specific finding as to whether certain offenses are felonies or misdemeanors. (A) PED

Bostwick, James –- People v. McAvoy, E055234 –- Presentence Custody Credits –- Lynn M. Poncin, Judge – Opinion by Ramirez, P.J., with Hollenhorst, J. and King, J. The judgment is modified to set defendant's custody credits at 13 actual days, plus 12 conduct days pursuant to section 4019, for a total of 25 days. Appellant's crimes occurred after October 1, 2011; thus, he is entitled to two days of conduct credit for every two days served in custody under Penal Code section 4019, subdivision (h). (I) LKH

McPartland, Michael B. –- People v. Beltran, E053541 — Insufficient Evidence/Credits — Ingrid Adamson Uhler, Judge — Ramirez, P.J., with King, J., Codrington, J. D was convicted of first degree murder and torture and challenged sufficiency of evidence to support the gang enhancement. Court found insufficient evidence that the crimes were committed for the benefit of a criminal street gang. Also, trial court erroneously awarded only 960 days of actual presentence custody credit, when appellant served 1,325 days. (I) LAR

Devore, Mark — People v. Ignacio, G045349 — Insufficient Evidence — Richard W. Stanford, Judge — Opinion by Aronson, J., with Bedsworth, J., Moore, J. Conviction for carrying a concealed firearm in a vehicle reversed for insufficient evidence. (I) BCT.

Khoury, Charlie — People v. Esquivel, D060513 — Probation Conditions — Eugenia A. Eyherabide, Judge — Opinion by Huffman, J., with Haller, J., McDonald, J. Probation condition that probation officer must approve appellant's place of residence and employment ordered modified because it improperly impedes his high right to travel, freedom of association and right to employment. Although there is no reason to believe the probation officer would abuse the authority to deny appellant permission to move or change employment, that alone does not permit the court to unnecessarily limit his rights. Condition changed to read that appellant must notify his probation officer within 72 hours of any change of address or employment. Condition ordering that appellant not maintain a checking or charge account or be in possession of checks or credit/access cards in any other person's name financial instruments ordered stricken as unreasonable and lacking any nexus to his crime of possessing methamphetamine and driving under the influence of methamphetamine. (I) BCT.

Schorr, Steven — People v. Ramey, D059412 — Penal Code Section 654 — Joan P. Weber, Judge — McIntyre, Acting P.J., with O'Rourke, J. and Irion, J. Court of Appeal ordered appellant's sentence for the knife use enhancement stayed because the torture special circumstance finding punished him for using the knife; thus, sentences for both would violate Penal Code section 654. The trial court further erred when it imposed the $10,000 parole revocation fine where, as here, appellant's sentence includes a term of life without the possibility of parole. The fine is ordered stricken. Finally, the abstract of judgment is ordered corrected to reflect the $32,288.86 restitution order is joint and several with the co-defendant. (I) LKH

Nelson, Laurel — People v. Rice, E052693 — Unanimity Instruction/Sufficiency of Election — H. Morgan Dougherty, Judge — Opinion by McKinster, J., with Hollenhorst, J., Miller, J. Two counts of making criminal threats reversed for failure to give a unanimity instruction. Court stated that "although it is arguable that a prosecutor's explicit election of acts upon which he or she intends to rely as proof of each charged offense can relieve the trial court of the obligation to instruct on the unanimity requirement, it is clear that if the court does not so instruct, the prosecutor's argument can substitute for an instruction only if the prosecutor not only directly informs the jurors of the election but also informs the jurors of their ‘concomitant duties,' i.e., the duty to reach a unanimous agreement on the acts underlying each offense." Here, although the prosecutor explained that she was electing to rely on certain incidents for the various counts, she did not inform the jury that it could not rely on other evidence or that it had to agree unanimously as to the facts underlying each count. Accordingly, the prosecutor's argument was not sufficient to remedy the absence of a unanimity instruction. (I) BCT.

Scott, Patricia — People v. Rico, D060584 — Ex Post Facto — Kerry Wells, Judge — McDonald, J., with Haller, Acting P.J., McIntyre, J. Court of Appeal reversed appellant's consecutive 15 to life sentences on counts 11 and 12 finding the sentences violated ex post facto principles. The jury convicted appellant of counts 11 and 12 (Pen. Code, § 288, subd. (a)), and found the crimes were committed against more than one victim under section 667.61, subdivisions (c) and (e)(4). Since the crimes in counts 11 and 12 were committed against the same victim, the multiple victim finding had to be based on counts 1 and 2 (Pen. Code, § 288.5, subd. (a)), which were committed against a different victim. However, at the time counts 11 and 12 occurred, section 288.5, subdivision (a) was not an enumerated offense under section 667.61, subdivision (c). Thus, the court concluded the 15 to life sentences violated ex post facto principles. The matter was remanded to the trial court for determinate sentencing. (I) LKH

Marshall, Gregory — Peolpe v. Salazar, G045549 — Gang Enhancement — Carla M. Singer, Judge — Opinion by O'Leary, J., with Rylaarsdam, J., Aronson, J. Court of Appeal found trial court erred in imposing elevated 10-year gang enhancement applicable to "violent " felonies because the fact supposedly elevating the felony residential burglary to a violent felony (i.e., that a person was at home during the offense) was not pled and proved as required by Penal Code sections 667.5, subdivision (c)(20) and 186.22, subdivision (b)(2)(C). The court remanded the case to the sentencing court to determine whether any valid ground existed to impose the elevated gang enhancement. (I) NFA

Farmani, Tony — People v. Martinez, E052821 — Credits — Eric M. Nakata, Judge — Opinion by Ramirez, J., with Miller, J., and Codrington, J. Court of Appeal found appellant was entitled to one-for-one conduct credits under the version of section 4019 in effect when he committed the crime. (Appellant was sentenced on December 23, 2010; the crimes were committed on September 27, 2010.) Thus, the trial court was directed to credit appellant with an additional 44 days of local conduct credit, for a total of 176 days. (A-M) LKH

Andreasen, David — People v. Records, E053628 — Probation Condition — Michael B. Donner, Judge — Opinion by Codrington, J., with Ramirez, P.J., Miller, J. Respondent conceded and Court of Appeal agreed that two probation conditions: not associate with any unrelated female minor without a chaperone and not associate with any unrelated person on probation or parole, needed to have a knowledge requirement added.
(A-M) CBM

Gardner, Cliff — People v. Reed, D059519, — Marsden — Steven A. Mapes, Judge — Opinion by McIntyre, J., with Haller, J., McDonald, J. Judgment reversed and remanded for a Marsden hearing. The trial court failed to hold a Marsden hearing to inquire of defendant into the basis of his ineffective assistance of counsel claim. (I) AMJ.

Ganaja, Gail — People v. Fairman, D059732 — Sentencing — Joan P. Weber, Judge — Opinion by Benke, J., with McConnell, P.J., Aaron, J. Court of Appeal ordered the sentence corrected to strike one of the two 1-year enhancements it imposed pursuant to section 667.5, subdivision (b), because appellant served only one prison sentence for his prior felony convictions. (A) LKH

Nichols, Diane — People v. Hutchinson, D059349 — Marsden/Sentencing — Helios J. Hernandez, Judge — Opinion by Haller, J., with Huffman, Acting P.J., Aaron, J. Court of Appeal remanded the matter to the trial court to hold a Marsden hearing to determine if a failure to replace appellant's appointed attorney would substantially impair his right to assistance of counsel. After the jury's verdict, appellant wrote a letter to the trial court alleging his attorney had provided ineffective representation. The trial court appointed a new attorney to determine whether there were grounds for a new trial motion. When the second attorney stated there were no grounds, the trial court re-appointed the first attorney. The Court of Appeal held the trial court erred in failing to conduct the Marsden hearing in the first instance. Court of Appeal also ordered a number of corrections to the minute order and abstract of judgment, including: an order that the record reflect only one multiple victim circumstance (not two), the minute order and abstract of judgment should reflect restitution is owed jointly and severally by appellant and his co-defendants and also reflect the victim restitution should be deposited into the restitution fund. Finally, the parole revocation fine should be stricken when sentence is life without parole. (I) LKH

Sheehy, Kevin — People v. Garcia, E053503 — Marsden/Firearm Enhancement — J. David Mazurek, Judge — Opinion by McKinster, J., with Hollenhort, J., King, J. Trial court erred in failing to order post-trial Marsden hearing, where trial counsel informed the court the defendant wanted an attorney for a motion for new trial. Court erred in imposing Penal Code section 12022.5 enhancement, where possession of firearm was element of underlying Penal Code section 246.3 conviction. Finally, the court corrected a credits calculation mistake and abstract of judgment clerical error. (I) JLP.

Cannon, Gregory — People v. Silva, G044863 — Marsden — Lance Jensen, Judge — Opinion by Ryklaarsdam, J., with Bedsworth, J., Aronson, J. Respondent conceded and Court of Appeal held that the trial court erred when it failed to hold a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 after defendant wrote to the judge before sentencing listing complaints about his appointed attorney and asking for a new attorney to do a new trial motion. Case is remanded for the trial court to hold a Marsden hearing and, if appropriate, appoint new counsel to file any appropriate motions. (I) NFA.

Frizzell, Doris — People v. Martinez, G044885, — Unauthorized Enhancement/Abstract of Judgment — William R. Froeberg, Judge — Opinion by Bedsworth, J., with O'Leary, J., concurring, Aronson, J., separately concurring. Affirmed as modified. The parties agreed that two sentencing errors appear in the record. First, because the trial court imposed an enhancement of 25 years to life on the attempted murder count based on appellant's personal discharge of a firearm causing great bodily injury under Penal Code section 12022.53, subdivision (d), the court erred in imposing an additional three-year enhancement for inflicting great bodily injury under Penal Code section 12022.7, subdivision (a). Second, the abstract of judgment identifies appellant's conviction for street terrorism as constituting a violent offense, but street terrorism is not defined as such an offense. (I) AMJ

Kaiser, Donna Balderston — In re S.M., D060733 (Sept. 5, 2012) 209 Cal.App.4th 21 — Payment of Legal Fees — David B. Oberholtzer, Judge — Opinion by McIntyre, J., with McDonald, Acting P. J., O'Rourke, J. Mother had been ordered to pay legal fees for her and her child at a rate of $20 per month until $3,225 was repaid. Mother argued, and the Court of Appeal agreed, that mother's disability income could not be considered as income for purposes of determining her ability to pay legal fees. The court reversed and remanded with instructions to recalculate mother's ability to pay, even though the child in the dependency case was already reunited with mother. (I) LLF

Riggs, Brent — In re T.V., E054761 — Indian Child Welfare Act (ICWA) — Matthew C. Perantoni, Temporary Judge — Opinion by Ramirez, J., with Hollenhorst, J., King, J. Limited reversal for failure to properly inquire and give adequate notice under ICWA. (I) ACS

Peabody, Jennifer — People v. Nathan, D060053, — Fees — Richard S. Whitney, Judge — Opinion by McConnell, P.J., with McIntyre, J., Aaron, J., concurring. Trial court erred in failing to separately list the amount for the drug lab and program fees, any corresponding penalties and assessments, and the statutory basis for them. (I) AMJ

Whatley, Jerry/Tillman, Beatrice — People v. Berkley, E053903 — Penal Code Section 654 — John P. Vander Feer, Judge — Opinion by Richli, J., with McKinster, Acting P.J., Codrington, J. Court of Appeal agreed with appellant's argument and Attorney General's concession that the concurrent sentence for driving with a blood alcohol content of 0.08 percent or greater must be stayed because appellant is also serving a sentence for driving under the influence of alcohol based upon the same act of driving. (I)/(S) BCT

Boyce, Robert E. — People v. Campos, E052820 — Sentencing — Donna G. Garza, Judge — Codrington, J., with McKinster, J. And Richli, J. Trial court made various sentencing errors, including improperly sentencing appellant under both the determinate sentencing scheme and the One Strike scheme, violating ex post facto principles by sentencing appellant on count 1 under the One Strike statute, rather than the sentencing statute effective when appellant committed the crime, and erroneously assuming consecutive sentencing was mandated as to counts 2 through 4, 6 and 9. Case remanded with instructions to correct the various sentencing errors and to exercise discretion in either imposing concurrent or consecutive sentencing as to counts 2 through 4, 6 and 9. (I) PED

Jones, Cynthia M. — In re Alexis Z., D059968 — Lesser Included Offense/Sentencing — Lawrence Kapiloff, Judge — Benke, J., with Nares, J., McDonald, J. Trial court sustained allegations minor committed felony battery and misdemeanor battery. True finding minor violated Penal Code section 242 by committing battery reversed because simple battery is a lesser included offense of battery with serious bodily injury. (A) LAR

DiGuiseppe, Raymond — People v. Boyko, E054488 — Restraining Order/Attorney Fees – Miriam Ivy Morton, Judge – Opinion by Hollenhorst, J., with Ramirez, P.J., King, J. The trial court's orders imposing a 10-year restraining order and ordering appellant to pay attorney fees are reversed. The trial court must consider the factors listed in section 273.5, subdivision (i), in order to determine the necessity and length of an order restraining appellant from contacting the victim. In addition, the court must make a determination of appellant's ability to pay in accordance with section 987.8 before ordering attorney fees. (I) DKR.

Hennessey, Patrick — People v. Guzman, G045708, — Penal Code Section 654 — Joe T. Perez, Judge — Opinion by Aronson, J., with O'Leary, J., Fybel, J. Trial court erred in ordering consecutive time on the street terrorism count, rather than a Penal Code section 654 stay, pursuant to People v. Meza (2012) 54 Cal.4th 191. (I) AMJ

Johnson, Mark — In re D.A., E054558 — Delinquency Disposition/Credits/Probation Condition — William Jefferson Powell IV, Judge — Opinion by Codrington, J., with McKinster, J., Richli, J. Attorney General conceded and Court of Appeal agreed juvenile court erred in omitting maximum term of confinement and credits award and in ordering a probation condition without a knowledge requirement. (A) JLP.

Sheehy, Kevin — People v. Magana, G046141 — Credits — Richard F. Toohey/ Robert R. Fitzgerald, Judges — Opinion by Ikola, J., with O'Leary, J., Rylaarsdam, J. Judgment modified. Trial court erred in failing to award defendant additional days of presentence custody credit for the time he served between his original sentencing and his resentencing. (I) AMJ.

Coleman, Jared — People v. Rodgers, D061203 – Credits – Richard S. Whitney, Judge – Huffman, J., with McConnell, J. And Aaron, J. Appellant was sentenced under the realignment statute and was ordered to serve his sentence in county jail. The Court of Appeal found that as a result of the county jail sentence, appellant was deprived of the day for day credits he would have received had he been sentenced to prison, which he would have been under the law in effect at the time of his crimes. As the deprivation of credits violates the prohibition against ex post facto laws, appellant is entitled to day for day credits (an additional 146 days of conduct credit). (A) LAR

Jones, Rebecca — P. v Joiner, D056622, — SVP Finding Reversed — Leo Valentine, Judge — Opinion by Nares, J., with Benke, J., Aaron, J. First SVP trial resulted in a deadlock, 8-4 in the client's favor and a mistrial was declared. Client moved to dismiss the petition for insufficient evidence. The trial court concluded it did not have the authority to grant such a motion. The appellate court denied the client's writ petition from that decision, finding appeal was an adequate remedy. Second jury found the client qualified as an SVP. In the appeal from that judgment, the appellate court concluded the trial court in fact had the power to grant the motion to dismiss raised in the first trial, as part of the court's inherent power to act on a question of law and terminate the proceedings in favor of the client. Remanded with directions to the trial court to determine, without weighing the evidence, whether sufficient evidence was presented at the first trial. (I) LMF.

Fabian, Carl — People v. Brown, G045242 — Ex Post Facto — James Patrick Marion, Judge — Opinion by Ikola, J., with Moore, J., Aronson, J. Appellant argued and respondent conceded that in sentencing defendant, the trial court erroneously applied statutory law that came into effect after he committed his crimes. As a result of this retroactive application of law, the court found defendant was statutorily ineligible for probation and sentenced appellant to 15 years-to-life for multiple counts of violating Penal Code section 288. As a result of the violation of ex post facto principles, the Court of Appeal remanded the case for resentencing. (I) HCC

Dikes, Patti — In re Cruzito G., D061915 — Indian Child Welfare Act (ICWA) — Christopher W. Yeager, Judge — Opinion by McConnell, J., with Nares, J., Aaron, J. Stipulation for limited reversal for failure to inquire and to give ICWA notice. (I) CAG.

Boyce, Bob — People v. Anguiano, Sr., D058578, — Insufficient Evidence — Gerard S. Brown, Judge — Opinion by Aaron, J., with Haller, J., Irion, J. Court of Appeal reversed appellant's conviction for street terrorism based on insufficient evidence. Although appellant may have been a gang member, his possession of personal use quantities of drugs while alone on his porch was insufficient to constitute promoting, furthering, or assisting felonious conduct by members of the gang within the meaning of Penal Code section 186.22, subdivision (a). (I) BCT.

DiGiuseppe, Raymond — People v. De La Cerda, D059358 — Attorney Fees — Jeffrey B. Jones, Judge — Opinion by Haller, J., with McConnell, P.J., Huffman, J. Attorney fees stricken due to lack of hearing regarding ability to pay and lack of evidence regarding the same. Court of Appeal found that the issue is never forfeited for failing to object and that remand for hearing would be a waste of judicial resources. (I) APJ

Stockwell, Sarah — People v. Hayes, E053673 — Credits — Rodney A. Cortez, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Court of Appeal found that the trial court erred in failing to award pre-sentence conduct credits and also in ordering that credits apply only to the 180-day consecutive misdemeanor sentence. By the Court of Appeal's calculation appellant was entitled to a total of 185 days of credit against his single term of imprisonment. Thus, the extra days of credit beyond the misdemeanor sentence must be applied to the principal felony term. (A) APJ

August 2012
Shudde, Athena — People v. Dokes, D058980 — Abstract of Judgment — Timothy R. Walsh, Judge — Opinion by Irion, J., with Huffman, Acting P. J., O'Rourke, J. Court of Appeal agreed that the abstract of judgment must be corrected to reflect trial court's oral pronouncement striking deadly weapon enhancement. In addition, reference to a stayed sentence as concurrent must be deleted as application of Penal Code section 654 precludes imposition of a concurrent sentence. (I) APJ

Cilli, Gregory — People v. Flores, G045038 — Restitution Fine — W. Michael Hayes, Judge — Opinion by Fybel, J., with Rylaarsdam, J., Aronson, J. The record shows the trial court considered imposing a six-year prison term, but ultimately imposed a five-year term of imprisonment. The record also shows the trial court intended to impose the statutory minimum of $200 for each year of the five-year sentence imposed for the restitution fine. However, because it appears the restitution fine was inadvertently calculated based on the tentative six-year prison term instead of the five-year prison term ultimately selected by the court, the appellate court remanded the matter to have the restitution fine (and parole revocation fine) reduced from $1,200 to $1,000. (I) HCC

Beckham, Sylvia — People v. Obregon, G045220 — Penal Code Section 654 — James Edward Rogan, Judge — Opinion by Bedsworth, J., with O'Leary, P. J., Ikola, J. Court of Appeal agreed that sentence for false imprisonment must be stayed pursuant to Penal Code section 654 when the binding of victims was done to facilitate the robbery offense for which appellant was separately punished. (I) APJ

Webb, Reed – People v. Themins, E053886 – Unauthorized Sentence – Bernard Schwartz, Judge – Opinion by Codrington, J. with Ramirez, J., Richli, J. Court of Appeal remanded the matter to the trial court for re-sentencing on counts 1 & 5 (Pen. Code, § 136.1, subds. (b)(1) [count 1], & (c)(1) [count 5].) Appellant argued, and the Attorney General agreed, that the trial court erred in sentencing appellant to full consecutive terms for the offenses under section 1170.15. This section does not apply to the present case where both counts were related to appellant's acts of misdemeanor battery, not to any felony offenses. (I) LKH

Moller, Richard — People v. Attebury, G044900 — Other Crimes Evidence — James A. Stotler, Judge — Opinion by Rylaarsdam, J., with O'Leary, J., Ikola, J. Judgment reversed. The trial court prejudicially erred in admitting evidence of prior sexual relationships with former students who were over the age of 18 because the conduct was legal and was not relevant to show an intent to commit an illegal act with a minor. (I) AMJ.

Shudde, Athena — People v. Lopez, E053445 — Ex Post Facto/One Strike Law — Robert E. Law, Judge — Opinion by Ramirez, J., with Richli, J., Codrington, J. Counts 5, 6 and 7 are reversed because ex post facto principles prohibit a 15-year to life sentence on each count under the One Strike Law for actions that took place before the law's effective date of November 30, 1994 and the evidence allowed for reasonable doubt that these charges took place after the statute's effective date. (I) AMJ.

Harris, Donna — People v. Manley, D060408 — Administrative Screening Fee — Kimberlee A. Lagotta, Judge — Opinion by Irion, J., with Haller, Acting P. J., O'Rourke, J. Court of Appeal agreed with appellant and Attorney General's concession that administrative screening fee under Penal Code section 1463.07 must be stricken as unauthorized when appellant was never released on his own recognizance and was, instead, released on bail. (I) APJ

Norman, Jan – People v. Armentrout, G044542 – Duplicate Counts – James Marion, Judge – Opinion by Bedsworth, Acting P.J., with Fybel, J. and Thompson, J. Appellant was convicted of four counts of grand theft occurring when he cashed four of his father's pension checks. The Court of Appeal reversed three counts, finding all four checks were part of a single general plan, and thus only one conviction could stand. (I) LKH

O'Loughlin, John — People v. Aguilar, E054988 — Attorney Fees — Harold T. Wilson, Judge — Opinion by Hollenhorst, J., with McKinster J., King, J. Record did not support ability to pay attorney fees and remand for further proceedings, as requested by respondent, would be futile. Order directing defendant to pay attorney fees is stricken. (A) AMJ

Weinberg, Allen — People v. Arredondo, E053020 — One-Strike Law Sentencing — Jon D. Ferguson, Judge — Opinion by McKinster, J., with Richli, J., concurring and Ramirez, P. J., concurring and dissenting. Attorney General conceded and Court of Appeal agreed that under the version of Penal Code section 667.61 in effect at the time of the offenses (2002), only a single "one-strike" sentence could be imposed in this case based upon the "single occasion" test. The court has remanded for the trial court to determine whether to impose concurrent or consecutive sentences. Justice Ramirez disagreed that remand is necessary given the trial court's statements on the record in support of imposing consecutive sentences. (I) APJ

Buckley, Christian — People v. D'Angelo, D058400 — Validity of Plea — Harry M. Elias, Judge — Opinion by Benke, J., with McDonald, J., Aaron, J. Court of Appeal held appellant was entitled to withdraw his guilty plea where it was obtained based on the trial court's representation appellant would be able to appeal various non-appealable issues, including whether there was sufficient evidence to support the prior felony strike he admitted. (I) NFA.

Trop, Neil — In re Cameron L., D061636, unpublished — Jurisdiction/Disposition — Garry G. Haehnle, Judge — Opinion by McIntyre, J., with Haller, Acting P.J., McDonald, J. Father argued and the Court of Appeal agreed that substantial evidence did not support the jurisdictional and dispositional findings when father's admitted marijuana use and self-reported mental illness did not have "any negative impact on the children." (I) LLF

Martin. Arthur — People v. Thomas, D057485 — Correction of Abstract of Judgment and Minute Order — Frank A. Brown, Judge — Opinion by Nares, J., with Aaron, J., Irion, J. Appellant contended, respondent conceded, and the Court of Appeal agreed, that minute order and abstract of judgment erroneously reflect stayed sentences for enhancements which were not found true. Case remanded for correction. Appellant also contended and respondent conceded the abstract of judgment should be corrected to show a co-defendant was jointly and severally liable for victim restitution, and the Court of Appeal ordered the restitution order so modified. (I) HCC

Lathrop, Stephen — People v. Castro, E053888 — Instructional Error — Eric G. Helgesen, Judge — Opinion by Ramirez, P.J., with Richli, J., Codrington, J. Reversed in part. Attorney General agreed that the jury was erroneously instructed as to aggravated sexual assault by force in that the instruction omitted the force/duress/fear elements. The Court of Appeal found the error prejudicial because the evidence was in conflict. The Court of Appeal also found that fines for forced oral copulation and aggravated sexual assault by force were erroneously calculated because the trial court did not make a determination, based on the conflicting evidence, of when the offenses occurred in relation to the amendment increasing the fines. (I) AMJ.

Andreasen, David— People v. Nguyen, G045443 — Judgment of Acquittal— Gregg L. Pickett, Judge — Opinion by Fybel, J., with Moore, J., Aronson, J. Court of Appeal ordered judgment of acquittal under Penal Code section 1118.1 for insufficient evidence of transportation, where the defendant was found sleeping in a parked car that had marijuana inside. (A) JLP

Turkat-Schirn, Megan — In re S.O., E055222 — Indian Child Welfare Act — Matthew Perantoni, Judge — Opinion by Richli, J., with Ramirez, J., Hollenhorst, J. Reversed due to agency's failure to properly notice the Blackfeet tribe and the BIA. Agency specifically ordered to inquire of maternal grandmother as to pertinent family background information. (I) ACS

Coleman, Jared — People v. Mitchell, D059254, 2012 WL 3660270 — Invalid Admission of Priors — Richard S. Whitney, Judge — Opinion by Haller, J., with Huffman, J., Irion, J. Court of Appeal agreed that the findings on the prior prison term and strike allegations must be vacated because appellant was not properly advised by the court of his constitutional rights and no waiver was secured. The case is remanded for determination of the prior prison term and prior strike allegations and for resentencing based on that determination. (A) AMJ

 

July 2012
Marshall, Marilee — People v. Delgado, E054385 — Fees — Elisabeth Sichel, Judge — Opinion by Hollenhorst, J., with Ramirez, P. J., McKinster, J. In this re-sentencing appeal, Attorney General conceded and Court of Appeal agreed that security fee imposed pursuant to Penal Code section 1465.8 must be reduced to amount authorized at time of conviction. In addition, fines and assessments related to a dismissed count must be stricken. Finally, on its own motion, the Court of Appeal ordered correction of various errors in the abstract of judgment. (I) APJ

Neff, Cathy — People v. Diaz, G044411, People v. Diaz (June 28, 2012) 207 Cal.App.4th 396 — Burglary Tools — Richard W. Stanford, Jr., Judge — Opinion by Aronson, Acting P.J., with Fybel, J., Ikola, J. Court of Appeal concluded that common latex gloves and the bag in which they were found do not constitute burglary tools for purposes of Penal Code section 466. The court applied the doctrine of ejusdem generis, which applies to limit the general terms of the statute ("or other instrument or tool") to things which are similar to the enumerated items. Since a bag containing latex gloves and latex gloves are not similar to the enumerated items listed in Penal Code section 466, the court concluded they did not constitute burglary tools. Appellant's conviction for violating Penal Code section 466 is reversed for insufficient evidence. (A) LKH.

Miller, Gerald — People v. Ewing, E053816 — Credits Waiver — Rodney A. Cortez, Judge — Opinion by McKinster, J., with Ramirez, P. J., King, J. In a case where appellant waived pre-sentence conduct credits in order to participate in the Drug Court program, the Court of Appeal found that the waiver was valid as to credits earned prior to the waiver, but that the trial court erroneously deprived appellant of conduct credits earned after the waiver. Case remanded for calculation of post-waiver conduct credits. (I) APJ

Cannon, Gregory — People v. Navarro, D058994 — Fines — John B. Gibson, Judge — Opinion by Irion, J., with Benke, J., Nares, J. Court erred in imposing a $40 court security fee, which was in effect at time of sentence, but was not in effect at time of conviction. Judgment modified to reflect $30. (I) AMJ

Brines, Cindy — In re D.R., D060551, — Lesser Included Offense — Carolyn M. Caietti, Judge — Opinion by McDonald, J., with Haller, J., Aaron, J. True finding for grand theft must be stricken because it is a lesser included offense of robbery. (A) AMJ

Bases, Arielle — People v. Jones, G046175 — Suppression Motion — Richard M. King, Judge — Opinion by Ikola, J., with Bedsworth, J., Moore J. Automobile was stopped and driver was going to be arrested for driving on a suspended license. To avoid impounding the vehicle, officers decided to release it to the passenger, appellant. To confirm she was a licensed driver an officer searched her purse without first requesting permission and came up with cocaine. Attorney General conceded and Court of Appeal agreed that motion to suppress the contents from the search of the purse should have been granted. Automobile exception to warrant requirement did not apply as no probable cause to search the auto existed and the driver's consent to search the auto did not extend to the contents of the passenger's purse. Moreover, the search was not justified as an inventory search as the officers intended to release the car to the passenger so the purse would never have been searched. (A) PED

Cannon, Gregory — People v. Smith, D060317, People v. Smith (June 8, 2012) 206 Cal.App.4th 1081 — Enhancement Modification — Patrick F. Magers, Judge — Opinion by Benke, J., with Nares, J., Haller, J. Judgment modified to strike the 10 year enhancement on attempted murder count imposed pursuant to Penal Code, section 186.22, subdivision (b)(1) and instead impose a 15-year minimum parole eligibility term pursuant to section 186.22, subdivision (b)(5). (I) PED

Polsky, David — People v. Hernandez, E053563 — Enhancement Modification — Edward D. Webster, Judge — Opinion by Codrington, J., with Ramirez, J., Miller, J. Judgment modified to strike the 10 year enhancement on attempted murder count imposed pursuant to Penal Code, section 186.22, subdivision (b)(1) and instead impose and a 15-year minimum parole eligibility term pursuant to section 186.22, subdivision (b)(5). In addition, this minimum parole eligibility term was ordered stayed because appellant's sentence was also enhanced per Penal Code section 12022.53, subdivision (e)(2) and a defendant cannot be punished under both sections, unless the defendant personally used a firearm, which was not the case here. (I) PED

McPartland, Michael — People v. Flores, G045144 — Dual Conviction— M. Marc Kelly, Judge — Opinion by Rylaarsdam, J., with Aaronson, J., Ikola, J. Conviction for continuous sexual abuse of a minor (Pen. Code, § 288.5) reversed where it overlaps temporally with convictions for sodomy or sexual intercourse with a minor (Pen. Code, § 288.7, subd. (a)) and oral copulation or sexual penetration of a minor (Pen. Code §288.7, subd. (b). (I) PED

Shaler, Susan — People v. Ruiz, D059387— Penal Code Section 654/Fees — Miriam I. Morton, Judge — Opinion by McIntyre, J., with Benke, J., O'Rourke, J. Sentence for street terrorism offense must be stayed because this count arose only as a result of the defendant's commission of the other offenses for which he is being separately punished. Judgment also modified to strike the order assessing attorney fees in the amount of $150 where no hearing was held on the defendant's ability to pay and there was no evidence in the record to support such a finding. (I) PED

Lathrop, Stephen — People v. Kennedy, E053593 — Attempted Murder Degree — Duke D. Rouse, Judge — Opinion by Ramirez, P. J., with Richli J., Codrington, J. Where pleadings did not allege the attempt murder was committed with premeditation and deliberation as required by Penal Code section 664, subdivision (a), appellant was deprived of statutory notice and a due process right to fair notice. Accordingly, the jury's true finding on this allegation could not stand; case remanded for resentencing to a determinate term. (I) CBM.

Klaif, Leonard — People v. Williams, E053750 — Fines & Fees — Elaine M. Johnson, Judge — Opinion by McKinster, J., with Ramirez, P.J., King, J. Defendant was granted probation under certain terms and conditions, including payment of various fines and fees. His probation was transferred to Georgia where he completed probation and paid various fees due to the State of Georgia. When he was brought before the court in California, the court terminated his probation and advised that outstanding fines and fees would be collected civilly. Appellant requested a hearing on ability to pay, but the court summarily concluded that if appellant could pay Georgia, he could pay California. The Court of Appeal concluded that due process required a hearing and remanded the case for a determination of ability to pay based upon appellant's current financial status. (I) HCC

Marshall, Greg – People v. Tolbert, D060357 – Sentencing on Remand –Jean P. Leonard, Judge –Opinion by O'Rourke, J., with Benke, J., McDonald, J. In first appeal, Court of Appeal remanded, directing sentencing court to make specified changes and prepare a modified abstract of judgment; on remand the sentencing court made additional changes not referenced in the remand order. On appeal from this resentencing, Court of Appeal held sentencing court's jurisdiction was limited by the directives in the remand order. Accordingly, the sentencing court was ordered to conform the sentence to the limited changes directed by the original remand order. (I) NFA

Robertson, Thomas -- In re Ceasar G., D060605 – Lesser Included Offense - Browder A. Willis, III, Judge - McIntyre, J. With McConnell, J., Huffman, J. True finding on a theft allegation was reversed as it was an offense necessarily included within the robbery true finding. (A) LAR

Auwarter, Neil –People v. Valenzuela, E053963 – Presentence Credits – Bryan Foster, Judge –Opinion by Hollenhorst, J., with Richli, J., King, J. Court of Appeal remanded case to sentencing court for determination of presentence conduct credits under Penal Code section 4019 where sentencing court had failed to award conduct credits. (S) NFA

Braden, Julie — In re Y.M., D060420 — Termination of Dependency Jurisdiction Reversed — Michael Imhoff, Commissioner — Opinion by Haller, J., with Benke, J., Nares, J. Appeal by minor from Guatemala who was the victim of human sexual trafficking. She challenged the juvenile court's decision to dismiss dependency jurisdiction that was premised on, among other things, the fact the minor was under federal jurisdiction in a program for unaccompanied alien children. Court of Appeal reversed finding concurrent federal and state jurisdiction over such children. Since the juvenile court had not made a variety of findings that were necessary in a case of this nature before terminating jurisdiction, the case was remanded for further proceedings. (I) LMF

Crawford, James — People v. Jones, E054853 — Penal Code Section 654/Abstract of Judgment — Larrie R. Brainard, Judge — Opinion by Ramirez, P. J., with Richli, J., Codrington, J. The Attorney General conceded and the Court of Appeal agreed that appellant's sentence for resisting a peace officer must be stayed pursuant to Penal Code section 654 when appellant is also serving a concurrent sentence for willfully evading a peace officer and appellant committed both offenses with the same intent and objective. Parties also agreed that the abstract of judgment must be corrected to reflect updated custody award. (I) APJ

Fabian, Carl/Larson, Eric — People v. Pena (Bobby/Louie), E052558, People v. Pena (July 13, 2012) 207 Cal.App.4th 944 — Instructional Error/Penal Code Section 654 — Helios Hernandez, Judge — Opinion by Ramirez, P.J., with McKinster, J., Richli, J. Gang enhancements and substantive gang offenses reversed as to both appellants due to trial court's failure to instruct that only felony vandalism may be used to support a finding of primary activities of the gang. In this case, the jury was instructed that the primary activities of the gang included vandalism but did not instruct that the vandalism must result in damage exceeding $400. The Court of Appeal found that, because the bulk of the evidence of the gang's primary activities related to vandalism, the instructional error was prejudicial. The court also agreed that sentences for discharging a firearm from a motor vehicle must be stayed pursuant to Penal Code section 654 when appellants are also being punished for attempting to murder one victim and assaulting another with a firearm. (I) APJ

Jones, Rebecca/Grove, Kimberly — People v. Gaines/Lavender, D057655 — Juror Misconduct — Donal B. Donnelly, Judge — Opinion by McDonald, J., with Nares, Acting P.J., Aaron, J. Court of Appeal agreed with appellants' argument that juror misconduct in this case warranted a new trial. Jurors declarations, offered in support of a motion for new trial, indicated that jurors had discussed the failure of defendants to testify and connected that failure to the question of guilt. The Court of Appeal found that the trial court erroneously excluded some of the objective statements in these declarations indicating a connection between failure to testify and guilt. In addition, the Court of Appeal found that in this case, where there was no forensic evidence connecting defendants to the torture/murder and the evidence presented was sharply conflicting, the presumption of prejudice resulting from juror misconduct was not rebutted. (I) APJ

Cannon, Gregory — People v. Ware, E052725 — Instructional Error — Duke D. Rouse, Judge — Opinion by King, J., with Ramirez, J., Richli, J. In a case where it was alleged both that appellant committed a forcible rape during a burglary (15-life) and that he entered with the intent to commit forcible rape (25-life), the trial court failed to instruct the jury to determine whether appellant entered the victim's apartment with the intent to commit forcible rape. The Court of Appeal found this error was prejudicial because the evidence supported a reasonable inference that he entered the apartment to commit theft, but not forcible rape, and decided to forcibly rape the victim only after he entered her apartment. Appellant's one strike sentence on the forcible rape conviction was reduced from 25 years to life to 15 years to life, doubled to 30 years to life based on appellant's prior strike conviction. Thus, his indeterminate term of 69 years to life was reduced to 49 years to life. (I) BCT.

Dwyer, John P. -- People v. Solorza, D058184 -- Credits Calculation - Jean Leonard, Judge - O'Rourke, J. With McConnell, J., Benke, J. Attorney General conceded and Court of Appeal agreed that the operative date for calculating appellant's custody credits was his arrest date not the date he was subject to arrest; hence, appellant is entitled to 6 more days of credit. (I) LAR

Turkat Schirn, Megan — In re K.G., E054952 — Reversal of Jurisdictional Findings— Lawrence P. Best, Temporary Judge — Opinion by Richli, J., with Ramirez, J., Codrington, J. Child (about 18 months old) suffered a "pinch mark" to her ear. Photos showed bruise no wider than a pencil eraser. Cause could not be determined nor whether she was in care of mother or father. COA holds insufficient evidence to show injury was "serious physical harm." Request for Publication Pending. (I) ACS

Kraft, Rudy — People v Cebada — G045059, SVP Commitment Reversed — Katrina West, Judge — Opinion by Rylaarsdam, P. J., with Bedsworth, J., Fybel, J. Trial court excluded as hearsay the client's five-page release plan that detailed his plans should he be released from the hospital. The appellate court concluded the plan was not hearsay but was evidence of the client's state of mind and directly relevant to the issue of probability of his re-offending. The court found prejudicial error under Watson for three reasons: the prosecutor commented extensively about the release plan in his rebuttal argument to the jury, knowing the jury was not going to be provided the document; the jury specifically requested the document during its deliberations; and, the evidence that the client was an SVP was "in equal balance." Case was remanded for a new trial. (I) LMF

Wells, Mary — People v. Adair, D059701 — Penalty Assessments — Laura W. Halgren, Judge — Opinion by Haller, J., with McDonald, J., McIntyre, J. The trial court imposed a lump sum of $840 various penalty assessments, but the amounts and statutory bases for the penalty assessments were not specified in the oral pronouncement of judgment, the minute order, or the abstract of judgment. Appellant requested, respondent did not oppose, and the court granted that the case be remanded for delineation of the amount of each penalty assessment and its statutory basis. (I) HCC

Lathrop, Stephen/Shaler, Susan — People v. Carter/Norton D058172 — Penal Code Section 654/Fines — Eric G. Helgesen, Judge — Opinion by McConnell, P. J., with Nares, J., Aaron, J. Court of Appeal agreed with appellants' argument, in light of the recent decision in People v. Mesa (2012) 54 Cal.4th 191, that the consecutive sentence for gang participation must be stayed because it is based upon the conduct underlying the murder conviction for which appellants have been separately punished. In addition, with respect to appellant Norton, the Court of Appeal agreed that the matter must be remanded for a hearing regarding the Penal Code section 1202.4 fine where the abstract of judgement reflects a $5,000 fine but the record is not clear about the court's intent. (I) APJ

Glaser, Donald — People v. Perry, D060378 — Weapon Enhancement — Charles G. Rogers, Judge — Opinion by Nares, J., with Huffman, J., McIntyre, J. One year enhancement for knife use stricken, where use of a knife was an element of assault with a deadly weapon. (A) HCC

Schiavoni, Johanna — In re William H., D058974 — Juvenile Wobbler Determination — Albert T. Harutunian, III and Carolyn Caietti, Judges — Opinion by Huffman, J., with Haller, J., O'Rourke, J. Juvenile court erred in failing to determine expressly whether battery with serious injury was a felony or misdemeanor; matter remanded. (A) HCC

Hong, Esther — In re Z.A., D060033 — Miranda — Lawrence Kapiloff, Retired Judge – Aaron, J., with Benke, J, McIntyre, J. Judgment reversed because court prejudicially admitted into evidence the minor's statements to police, which were obtained in violation of Miranda. While in custody, the minor said: "I do . . . don't want to answer any more [sick] questions." In response, the officers intensified, rather than stopped, the interrogation. Importantly, the court found appellant's questions about how long her boyfriend would be in custody did not amount to reinitiating conversation, and further, the trial court did not obtain a new waiver as would have been required if there had been a re-initiation. (A) JLP

 

June 2012
Curnow, Rodger/Sheehy, Kevin/Lathrop, Stephen — People v. Garcia/Uruiza/Sullivan, D059014 — Gang Enhancement — Kyle S. Brodie, Judge — Opinion by Aaron, J., with McDonald, Acting P.J., O'Rourke, J. The Court of Appeal agreed that the trial court erred in imposing and staying a 10-year gang enhancement per Penal Code section 186.22, subdivision (b)(1), when appellants' sentences are all indeterminate; judgment modified to indicate 15-year minimum parole eligibility per Penal Code section 186.22, subdivision (b)(5). (I) APJ

Bauguess, Susan — People v. Porch, G044583 — Lesser Included Offense/Abstract of Judgment — Gary S. Paer, Judge — Opinion by Moore, J., with Bedsworth, Acting P.J., Aronson, J. The Court of Appeal agreed with appellant's argument that he could not be convicted of robbery and receiving stolen property based upon the taking of the same property. Although respondent sought to distinguish the counts by claiming each was based upon separate items of property, the Court of Appeal agreed that the government did not rely upon a specific item of property to support the robbery count at trial and is precluded from arguing a new theory on appeal. In addition, the abstract of judgment must be corrected to reduce restitution award to that orally pronounced. (I) APJ

Bauguess, Susan — People v Casey I., G045374 — Delinquency Disposition — James P. Marion, Judge — Opinion by the Court Appeal from disposition order of commitment to the Division of Juvenile Facilities (formerly CYA), after extended commitment under Welfare and Institutions Code section 1800 et seq. was imposed. Following the California Supreme Court decision In re C.H. (2011) 53 Cal.4th 94, the appellate court granted appellant's motion for summary reversal based on the fact appellant's offense was not an offense listed in Welfare and Institutions Code section 707. The finding appellant was physically dangerous was affirmed, but the disposition order requiring placement with DJF was reversed with directions to hold a new disposition hearing. (I) LMF.

Boyce, Robert E. — People v. Reyes, E052749 — Dual Convictions David B. Downing, Judge — Opinion by Ramirez, J. with Richli, J. and King, J. Appellant's conviction for attempted robbery (attempting to steal cash from cash register) reversed because it was part of the same course of conduct as his conviction for completed robbery (taking a pack of cigarettes). (I) LAR

Howell, Robert— People v. Brittian, D058372 — Restitution Fine — Judge Larrie R. Brainard — Opinion by McIntyre, J., with McDonald, J., O'Rourke, J. Restitution fine of $40,000 under Penal Code section 1202.4 reduced to $10,000 as the maximum permitted by the statute regardless of the number of counts. The Attorney General conceded this issue. (I) NFA

Hinkle, Stephen M. — People v. Monica Barbosa, E053444 — Fees — Elaine M. Johnson, Judge — Opinion by Codrington, J., with Hollenhorst, J., Richli, J. Orders for payment of booking fee, drug program fee, and probation supervision costs are vacated and matter remanded to trial court with instructions to hold a hearing re: defendant's ability to pay these fees as the court failed to make this determination at sentencing hearing. (I) PED

Covin, Randi — People v. Blackmore, G043963 — Lesser Included Offense — Lance Jensen & Gary S. Paer, Judges — Opinion by Bedsworth, J., with Moore, J., Aronson, J. Conviction for false imprisonment ordered reversed because it is a lesser included offense of kidnapping conviction. (I) PED

Turkat-Schirn, Megan — In re Christal R., E053787—Placement—Michael J. Rushton, Judge — Opinion by Codrington, J., with Ramirez, J., and King, J., concurring. The Court of Appeal reversed the disposition findings denying placement of the child with the non-offending father. (I) CAG.

Williams, Rex — People v. Woods, E053768, — Insufficient Evidence Priors — Richard A. Erwood, Judge — Opinion by Miller, J., with Hollenhorst, J., McKinster, J. Matter remanded for resentencing because the jury's true finding on one of the prior strike convictions was not supported by substantial evidence that it qualified as a serious and/or violent offense and sentence on one of the prior prison terms must be stricken because insufficient evidence reflects that defendant served separate prison sentences deriving from his prior convictions for robbery and possession of a firearm. (I) AMJ.

Farber, William — People v. Terry, G046116 — Sentencing — Craig E. Robison, Judge — Opinion by Aronson, J., with Fybel, J., and Ikola, J. Trial court erred by staying, rather than striking the section 667.5, subdivision (b), enhancements. Also, abstract of judgment needed to be corrected to reflect that appellant pleaded guilty to assault by means of force likely to produce great bodily injury rather than assault with a deadly weapon. (I) LAR

Koryn, Daniel — People v. Ibarra, D057714 — Sentencing — Robert F. O'Neill, Judge — Opinion by Irion, J., with Nares, J. And Aaron, J. Trial court erred in imposing both the gang and firearm enhancements for appellant's convictions on robbery counts. (I) LAR

Angres, Robert — People v. Hill, E053994 — Booking/Appointed Counsel Fees — Anthony R. Villalobs, Judge — Opinion by Ramirez P. J., with Miller, J., Codrington, J. Court of Appeal agreed with appellant's arguments that case must be remanded for determination of ability to pay booking and appointed counsel fees. (I) APJ

Torres, Steven — People v. Lopez, E052901 — Abstract of Judgment — Mark E. Peterson, Judge — Opinion by Codrington, J., with Ramirez, P.J., Miller, J. Abstract of judgment ordered corrected to stay assault with deadly weapon sentence to conform to oral pronouncement and to correct an indeterminate life term to conform to law. (I) HCC

Sheehy, Kevin — People v. Phan, D045029 — Pre-sentence Custody Credits — John D. Conley, Judge — Moore, J., with Bedsworth, Acting P.J., Ikola, J. Court of Appeal ordered the pre-sentence custody credits corrected to reflect a total of 1,288 custody credits, rather than the 1,285 originally awarded. (I) LKH

Larimore, Jolene — People v. Jaimes, G045054 — Residency Restrictions — Richard Stanford, Judge — Opinion by Rylaarsdam, Acting P.J., with Moore, J., Ikola, J. Court of Appeal concluded the residency restriction of Jessica's Law constitutes punishment, and thus must be submitted to the jury. The residency restriction is stricken. (I) LKH

Weinberg, Allen — People v. Arredondo, E053020 — Sentencing — Jon D. Ferguson, Judge — Opinion by McKinster, J., with Ramirez, P.J., Richli, J. The Attorney General conceded and the Court of Appeal agreed that under the 2002 version of Penal Code section 667.61, only a single one-strike sentence could be imposed when the two relevant offenses occurred on a "single occasion" within the meaning of that statute. Case is remanded for trial court to determine whether the determinate sentence on the other relevant offense should be imposed concurrently or consecutively. Various corrections to the abstract of judgment also ordered. (I) APJ

Shaler, Susan — People v. Hernandez, D059431, — SVP Commitment Reversed — Michael T. Smyth, Judge — Opinion by McConnell, P.J., with Huffman, J., Irion, J. Indeterminate SVP commitment reversed in accordance with People v. McKee (2010) 47 Cal.4th 1172. Case remanded to trial court for reconsideration of the equal protection argument pending finality of the proceedings in McKee. (I) LMF.

Baugess, Susan — People v. Rodriguez, G045911 — Defendant's Presence — Frank F. Fasel, Judge — Opinion by Aronson, J., with Rylaarsdam, J., Fybel, J. Court of Appeal reversed trial court's resentencing decision, following Court of Appeal reversal for resentencing, made without the defendant or counsel present. (I) JLP.

Gorguinpour, Hassan — In re Joseph B., E054134 — Dependency True Finding Reversed — Barbara A. Buchholz, Judge — Opinion by Hollenhorst, J., with McKinster, J., Miller, J. The true finding on the allegation that mother was suffering from an undiagnosed mental illness that put her child at risk of serious emotional harm or injury was reversed because an allegation under Welfare and Institutions Code Section 300, subdivision (b) doesn't provide for jurisdiction based on emotional harm. Respondent conceded, but noted that the emotional harm language was properly pled in section 300, subdivision (c) which was not challenged. This case demonstrates that the court may reverse some of the true findings by the juvenile court even if others are affirmed. (I) CAG

Vogelmann, Monica/Gold, Neale B. — In re Raymundo L., D060778 — Termination of Parental Rights Reversed — Blaine K. Bowman, Judge — Opinion by McDonald, J., with Nares, J., Irion, J. Stipulation for reversal accepted by Court of Appeal. Reversal because the foster parents no longer wish to adopt the teenaged dependents, but will care for them until they are adults. (I) CAG

Buckley, Christian/Dodd, John — People v. Cleaves, E053526, — Restitution — Jerry E. Johnson, Judge — Opinion by Ramirez, J., with McKinster, J., Richli, J. $54,000 restitution order to Animal Services for the cost of caring for the neglected horses was unauthorized and ordered stricken. Because Animal Services is not a direct victim of defendant's criminal conduct, restitution in its favor was not permitted under Penal Code section 1202.4, subdivision (k)(2). The trial court also did not exercise independent judgment in ordering restitution; it merely incorporated the existing judgment from a collateral civil matter. Finally, the payment of the prior judgment imposed in the collateral civil matter cannot be imposed as a condition of probation, but only the subject of a separate order enforceable civilly. (I) AMJ.

De La Sota, Richard – People v. Mesa, 54 Cal.4th 191 – Penal Code Section 654 – Helios J. Hernandez, Judge – Opinion by Liu, J. with Cantil-Sakauye, C.J., Werdegar, J., and Corrigan, J.; Chin, J., Kennard, J., and Baxter, J. dissenting. The case arose out of two shootings occurring on separate days. For each shooting, appellant was convicted of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) committed for the benefit of a criminal street gang (§ 186.22, subd. (b)), possession of a firearm by a felon (former § 12021, subd. (a)(1)), and active participation in a criminal street gang (§ 186.22, subd. (a)). The defendant was sentenced for the two assaults, plus 10 year enhancements for the gang allegations, and consecutively sentenced for the firearm possession and active participation offenses. On appeal, the Court of Appeal ordered the sentences for firearm possession stayed pursuant to section 654, but rejected the argument that the sentences for active participation should also be stayed. The California Supreme Court found that the sentences for active participation must also be stayed. (A) LKH

McKenna, Patrick — People v. Hanna, D060276 — Presentence Custody Credits — Lantz Lewis, Judge — Opinion by Benke, J., with McConnell, J., O'Rourke, J. Court of Appeal awarded an additional 274 days of presentence custody for the period of incarceration from defendant's probation revocation to the date of sentencing because the record demonstrated the current offense was the sole reason for the probation revocation under Penal Code section 2900.5 and the doctrine of In re Joyner (1989) 48 Cal.3d 487, 489. (A) NFA

White, Catherine —People v. Miles, E052647 — Sentencing Enhancements — F. Paul Dickerson, III, Judge — Opinion by McKinster, Acting P.J., with King, J., Miller, J. Court of Appeal found that nine five-year enhancements (eight under Penal Code section 667, subdivision (a) and one under Penal Code section 667.6, subdivision (a)) must be stricken because they were not specifically pleaded and proved. The court rejected the Attorney General's argument that appellant's admission of strike priors were sufficient to authorize imposition of the enhancements. (I) APJ

McKenna, Patrick — In re O.H., D058880 — Delinquency Sex Offender Registration — Browder A. Willis, Judge — Opinion by Nares, Acting P.J., with McDonald, J., Aaron, J. Minor was committed to the Department of Juvenile Justice (DJJ) based upon the aggregation of four sustained petitions. One of the petitions was for a Penal Code section 288, subdivision (a), offense. At the disposition hearing, the court noted that the mandatory lifetime registration requirement was an unfortunate consequence of his decision to commit the minor to DJJ. The court also noted that the minor was not a sexual predator and not likely to re-offend. Under these circumstances, the Court of Appeal agreed with minor's argument that his trial attorney was ineffective for failing to apprise the court of its discretion not to aggregate the sex offense petition as a way of avoiding the lifetime registration requirement. (A) APJ

Hill, Melissa — People v. Villanueva, G045585 — Lesser Included Offenses — James A. Stotler, Judge — Opinion by Bedsworth, J., with O'Leary, P.J., Rylaarsdam, J. Appellant was convicted of forcible lewd act on a child (Pen. Code, § 288, subd. (b)) and the lesser included offense of lewd act on a child (Pen. Code, § 288, subd. (a)) for the same six acts. The Court of Appeal reversed appellant's convictions for the lesser included offenses (counts 2, 4, 6, 8, 16 and 18). (I) LKH.

Hickey, Brendan — In re Johnny E., D060192 — probation conditions — Browder A. Willis III, Judge — Opinion by McDonald, J., with McConnell, J., Nares, J. Court of Appeal and respondent agreed that several of appellant's probation conditions were constitutionally overbroad because they lack a scienter requirement and the conditions related to "gang" association are vague and should be modified to refer to "criminal street gang." (A) AMJ

Bronson, Phillip — People v. Garcia, G044012 — stay — Frank F. Fasel, Judge — Opinion by Aronson, J., with Rylaarsdam, J., Bedworth, J. Trial court erred in imposing a sentence on the substantive gang crime because it violated Penal Code section 654 under People v. Mesa (2012) 54 Cal.4th 191. (I) AMJ

May, Michelle — People v. Neal, D059315 — Instructional Error, Murder — Michael T. Smyth, Judge — Opinion by McConnell, P.J., with McDonald, J., Irion, J. Appellant was acquitted of first degree murder, but convicted of second degree murder on a conspiracy theory. However, contrary to the bench notes of CALCRIM No. 563 which direct not to cross-reference murder instructions for the crime of conspiracy to commit murder because of the confusion which cross-referencing may cause, the trial court did just that. Therefore, the instruction impermissibly allowed the jury to convict for conspiracy to commit murder on an implied malice theory which is a legal impossibility. (People v. Swain (1996) 12 Cal.4th 593.) (I) HCC.

Ihara, Patricia — People v. Rose, D057948 — Sentencing — Michael A. Smith, Judge — Opinion by McConnell, J., with McIntyre, J., O'Rourke, J. Two 5-year section 667, subdivision (a)(1) sentence enhancements stricken where the allegations had been dismissed and the jury should not have considered them. (S) PMI

Vento, Christine — People v Loza, D057568 — Ineffective Assistance of Counsel — John M. Tomberlin, Judge — Opinion by Aaron, J., with Nares, J., McDonald, J. The Court of Appeal reversed co-defendant Jeanne Loza's first degree murder conviction and remanded for further proceedings because it found that her trial attorney's failure to object to the trial court's instructions to the jury concerning the intent element of aiding and abetting, as well as to the court's response to the jury's questions on this issue, constituted ineffective assistance of counsel. (I) BCT.

 

May 2012
Haggerty, Edward — People v. Sanchez, D058817 — Serious Felony Prior Enhancement — Matias R. Contreras, Judge — Opinion by Haller, Acting P.J., with McDonald, J., Irion, J. Because appellant did not suffer a current conviction for a serious felony (the violation of Penal Code section 4501.5 [battery by a prisoner on a non prisoner] is not a crime delineated in Penal Code section 1192.7, subdivision (c)), the trial court erred when it imposed a five year sentence enhancement pursuant to Penal Code section 667, subdivision (a). Case remanded for resentencing. (I) CBM

Schuck, John — People v. Reeves, E052778 – Pitchess Remand/Suppression Motion/Fees – Robert Baysinger, Judge – Opinion by McKinster, J., with Ramirez, P. J., Miller, J. Court of Appeal conditionally reversed the judgment with directions for the trial court to conduct a Pitchess motion, reconsider appellant's motion to suppress evidence (because trial court had erroneously determined it was without jurisdiction to reconsider a previously denied motion), and conduct a hearing to determine defendant's financial ability to reimburse the county for the cost of the public defender or to strike the reimbursement order. (I) MCR

Levy, Richard — People v. Roldan, G044859, 205 Cal.App.4th 969 — Unavailable Witness — Francisco P. Briseno, Judge — Bedsworth, J., with Moore, J., Ikola, J. Court of Appeal agreed with appellant's argument that the prosecution failed to exercise due diligence in securing the presence of a witness who had been deported by the time of trial. The trial court had declared the witness unavailable and admitted his preliminary hearing testimony after finding that the prosecution acted in good faith and exercised due diligence by contacting I.C.E. in an effort to keep the witness present. Defendant argued the prosecution should have sought to have the witness detained as a material witness or allowed him to be conditionally examined on videotape, so the jury would have had the opportunity to observe his demeanor under questioning. Defendant also claimed that since the prosecution knew the witness was going to be deported after the preliminary hearing, it should have impressed on him the need to stay in touch with investigators or at least informed defense counsel of his impending deportation. Agreeing that there was not sufficient showing of due diligence, the Court of Appeal reversed the counts related to the shooting of the absent witness. (I) HCC

Raneri, Lisa —In re Jacob F., E053153— Extrinsic Fraud —Wilfred J. Schneider, Jr., Judge — Codrington, J., with Hollenhorst, J., King, J. Although the Court of Appeal affirmed the judgment that appellant was not the presumed father, it reversed a finding that he had committed extrinsic fraud. Appellant's seeking a family court paternity judgment at the time the dependency action was pending did not constitute extrinsic fraud. Appellant was understandably mystified about the relationship between the two kinds of courts. (I) CAG

Buckley, Christian C. – People v. Absolor, D059219 — Insufficient Evidence — Kathleen M. Lewis, Judge — McIntyre, J., with Nares, J., Aaron, J. Appellant's criminal liability was based on an aiding and abetting theory. Court of Appeal found that though the evidence showed appellant's presence around the scene of a transaction, it did not prove an affirmative act that assisted in achieving the crime of possessing marijuana for sale. (I) LAR

Polsky, David/Owen, Tom — People v. Garcia/Rodriguez, D058280 — Gang Enhancement — Timothy R. Walsh, Judge — Opinion by Nares, J., with McConnell, P. J., and Aaron, J. Because each appellant is serving a life term for his murder conviction, the court erred when it imposed a determinate 10 year sentence for the gang enhancement associated with this conviction. Under Penal Code section 186.22, subdivision (b)(5) and People v. Lopez (2005) 34 Cal.4th 1002, punishment for the enhancement is rendered when the court orders a minimum parole eligibility period of 15 years; 10-year gang enhancement is stricken. (I) CBM

Bostwick, James — People v. Mandock, E053742 — Lesser Included Offense/Booking Fee — Eric G. Helgesen, Judge — Opinion by Miller, J., with Hollenhorst, Acting P.J., Codrington, J. Conviction for false imprisonment dismissed as an offense necessarily included within the offense of kidnapping. In addition, booking fee stricken as unauthorized without showing that $414.45 reflects actual administrative costs incurred. Matter remanded to determine whether booking fee should be imposed. (I) APJ

Farmani, Tony — People v. Hernandez, D059514 — AIDS Education — Richard E. Mills, Judge — Opinion by O'Rourke, J., with McDonald, Acting P.J., Irion, J. Court of Appeal found order to complete AIDS education per Penal Code section 1001.10 unauthorized when appellant was neither placed on probation nor participating in a drug diversion program. (A) APJ

Lechman, Cristina/Handy, Elizabeth — In re D.B., D060599 — Evidentiary Hearing Re: Visitation — Blaine K. Bowman, Judge — Opinion by McIntryre, J., with Nares, J., Irion, J. Agency sought to restrict visits by parents with 12-year-old child to grounds of group home, but parents wanted to have child transported to their home for visits. Mother's counsel asked for "a chance to be heard" and father's attorney asked for an evidentiary hearing. The Court of Appeal held the trial court's refusal to hold a hearing was a clear denial of the parents' due process right to an evidentiary hearing on the proposed visitation restriction and such an error was not harmless. (I) LLF

Demson, Jonathan — People v. Odu, E052347 — Insufficient Evidence — W. Charles Morgan, Judge — Opinion by Ramirez, P.J., with Richli, J., Miller, J. Conviction for failure to appear reversed along with an on-bail enhancement based on that conviction. Because there was no evidence appellant ever signed a written release agreement as required by Penal Code section 1318, there was insufficient to support the conviction under Penal Code section 1320. (A) APJ

McPartland, Michael/Jones, Sharon — People v. Resendiz/Arroyo, G043741 — Penal Code Section 654/Gun Enhancement for Gang Offense — Patrick Donahue, Judge — Bedsworth, J., with Aronson, J., Fybel, J. Trial court erred in separately punishing for both street terrorism and the felonious underlying conduct, because both had the same objective and both were carried out during a single episode. With respect to Resendiz only, trial court erred in applying both penalty provisions under Penal Code section 186.22, subdivision (b), and section 12022.53 subdivisions (b) and (c) on attempted murder counts, because Resendiz did not personally use a firearm. (I) AMJ.

Hickey, Brendan — People v. Yang, G045308 – Dual Conviction – James Edward Rogan, Judge — Opinion by The Court. Conviction for receiving stolen property reversed where defendant also convicted for robbing victim of same property. (A) PED

Crooks, Gary — People v. Brodie, D058053 — Penal Code Section 654 — Mark E. Petersen, Judge — Opinion by Nares, J., with McConnell, P. J., McDonald, J. Judgment modified to stay under Penal Code section 654 the execution of both the consecutive one-year term imposed for appellant's robbery conviction and the eight-month sentence imposed for the Penal Code section 12022.6, subdivision (a)(2) excessive taking enhancement as defendant committed kidnapping and robbery offenses during an indivisible course of conduct. (A) PED

Coleman, Jared — In re Joel G., D060564 — Lesser Included Offense — Browder A. Willis, III, Judge — Opinion by Benke, Acting P.J., with Haller, J., Aaron, J. True finding of petty theft stricken as offense necessarily included within robbery offense also found true. (A) APJ

Mishkin, Cindi — People v. Nunez, D060225 — Penal Code Section 290.3 Fine — Charles R. Gill, Judge — Opinion by Nares, J., with McConnell, J., and Aaron, J. Where appellant's crimes occurred between 2002 and 2004, the court violated ex post facto principles when it imposed the Penal Code section 290.3 fine based on the amount set by statutory amendment in 2006, not the one delineated in the statute in effect at the time of appellant's crimes. (S) CBM

Ramos, Benjamin - In re Eccher, G045503 — Parole Suitability Writ — Craig E. Robison, Judge — Aronson, J., with Rylaarsdam, J., and Ikola, J. Based on his rehabilitation and exemplary prison record over 24 years, and after 9 parole hearings spanning 17 years, D obtained the Board's parole suitability determination in 2010, which Governor Schwarzenegger reversed. The trial court granted D's habeas challenge and the AG appealed. Court of Appeal affirmed, finding that the record discloses the Governor made his determination based on putative evidence that, while D had addressed his severe drug problem, he also suffered from anger management issues. However, nothing in the evidence the Governor relied upon suggested D posed a present threat to public safety if released on parole. There was no rational nexus between the evidence and the Governor's determination of current dangerousness. The Governor's decision was vacated and the Board's July 2010 parole suitability determination was reinstated. (I) LAR

Stralla, Ava — People v. Biby, G045189 — Pre-sentence Conduct Credits — James A. Stotler, Judge — Opinion by Rylaarsdam, Acting P.J., with Bedsworth, J., Ikola, J. Attorney General conceded and Court of Appeal agreed that appellant is entitled to 202 days of pre-sentence conduct credit despite the fact that he is serving a Three Strikes sentence. (I) APJ

O'Connor, Sheila — People v. Hernandez, D059220 — Detention/No Reasonable Suspicion — Laura W. Halgren, Judge — Opinion by McDonald, Acting P.J., with McIntyre, J., Aaron, J. Court of Appeal found no reasonable suspicion to detain where the only factors the officer could articulate were that defendant was wearing black, walking outside of a bank, and just "didn't look natural." Judgment is reversed and guilty pleas vacated. (A) MCR

Fabian, Carl — People v. Scott, E052276 — Abstract of Judgment — Patrick F. Magers, Judge — Richli, J. with Ramirez, J. and Miller, J. Abstract of judgment and sentencing minute order erroneously included an enhancement to count 1 of 15 years to life, which the trial court did not impose and which is not statutorily authorized. (I) LAR

Larson, Eric — People v. Sanchez, D059932 — Enhancements — Jeffery F. Fraser, Judge — Opinion by Haller, J., with Benke, J., Irion, J. Appellant contended and respondent conceded the three-year sentence for the Penal Code section 12022.7, subdivision (a) enhancement for one count must be stayed in light of the Penal Code section 12022.53, subdivision (d) enhancement imposed on the same count. (I) HCC

Schuck, John — People v. Victor Erazo, G045542 — Request to Replace Retained Counsel — Lance Jensen, Judge — Aronson, J., with O'Leary, P.J., and Fybel, J. Defendant requested to discharge his retained attorney and replace him with the Public Defender's Office, which had briefly represented him earlier in the case. The trial court denied the request. The Court of Appeal found the trial court erred by following the procedures utilized under Marsden, which focus on the quality of counsel's representation rather than the potential disruption occasioned by discharge of retained counsel. Case remanded for the trial court to reconsider the request under the proper standard [per People v. Ortiz (1990) 51 Cal.3d 965] and then proceed accordingly. (I) LAR

Scott, Patricia — People v. Johnson, D058488 — Ex Post Facto — David M. Gill, Judge — Opinion by Benke, J., with Nares, J., Haller, J. Appellant contended and respondent conceded the parole revocation fine (Pen. Code, § 1202.45) stayed until parole was revoked, enacted in 1995, cannot be imposed with respect to an offense committed in 1988. (I) HCC

McKim, Joanna — People v. McCullough, E052601 — Credits/Abstract of Judgment — Donna G. Garza, Judge — Opinion by Ramirez, P. J., with Richli, J., King, J. The trial court erred in calculating appellant's actual days of custody. The Court of Appeal ordered the judgment modified to reflect an additional 282 days of presentence custody credit. Further, the Court of Appeal also ordered the sentencing minutes and abstract of judgment corrected. Both reflected a $70 security fee, but only a $60 security fee was imposed at sentencing. (I) LKH

Hernandez, Michael — In re Joey G., D059598, 2012 WL 1860919 — Wardship/ Estrada — Christine V. Pate, Judge — Opinion by Huffman, J., with McIntyre, J., O'Rourke, J. Minor was a dependent child against whom a delinquency petition was filed charging grand theft and receiving stolen property. Minor admitted the theft. The Court of Appeal reversed the court's decision regarding minor's status as a ward and remanded to permit the court to obtain and consider a joint report prepared by minor's probation officer and social worker in accordance with section Welfare and Institutions Code 241.1. The court published the opinion to underscore the importance of following the Legislature's clear instructions in section 241.1. In the unpublished portion, the court reversed and remanded the judgment based on the amendment to the theft statute, i.e., the dollar amount no longer constituted grand theft. (A) HCC

Redmond, Kathleen — People v. Liodas, G043270 — Booking Fee — Dennis A. McConaghy, Judge — Opinion by Hollenhorst, J., with Miller, J., Codrington, J. Trial court erred in not determining defendant's ability to pay the booking fee; case remanded for a hearing on that issue. (A) AMJ

 

April 2012
Tetreault, Nancy — People v. Vallejo, D059940 — Abstract of Judgment — Randall D. White, Judge — Opinion by Huffman, Acting P. J., with Haller, J., Irion, J. Correction of Abstract of Judgment to comply with oral pronouncement. Fine reduced to $1,300 from twice that amount. (I) APJ

Schorr, Steven — People v. Gonzales, G044503 — Sentencing — John Conley, Judge — Opinion by Aronson, J., with O'Leary, J., Bedsworth, J. Case remanded for resentencing in this Three Strikes case because the evidence failed to establish that appellant's prior assault conviction qualified as a strike since it neither showed he personally used a deadly weapon, nor otherwise personally inflicted great bodily injury in that prior offense. In the prior assault offense, appellant had pleaded guilty to "aiding and abetting" the assault that resulted in great bodily injury. The Court of Appeal held that aiding and abetting the personal infliction of injury is not the same as inflicting it oneself, and therefore does not qualify under the statutory requirement for conduct the defendant personally commits. (I) BCT.

Ulibarri, Patricia — People v. Cortez, G044581 — Presentence Credits — W. Michael Hayes, Judge — Opinion by Ikola, J., with Bedsworth, J., Moore, J. Court modified the judgment to award one additional day of presentence credit. (I) BCT.

Schwartzberg, Richard — People v. Torres, D060112 — Pre-Arrest Delay — Craig G. Riemer, Judge — Opinion by Huffman, J., with McDonald, J., Aaron, J. Judgment reversed because trial court committed error in denying appellant's motion to dismiss. Appellant was denied due process as a result of the 14-year delay between the filing of the criminal complaint and his arrest and the People's justification for the delay was virtually nonexistent. (I) AMJ

Ganaja, Gail — People v. Roman, E053068 — Penal Code Section 654 — Mary E. Fuller, Judge — Opinion by Ramirez, P. J., with King, J., Codrington, J. Convicted of being an ex-felon in possession of a firearm and destroying or concealing evidence, appellant was sentenced as to both. Appellant argued the trial court erred when it failed to stay the sentence on the destroying or concealing evidence conviction because he had the same intent when he both possessed the firearm and concealed or destroyed it as evidence in a police investigation. The Court of Appeal agreed. Respondent did not address the merits of this argument, but rather asserted that it is moot because the trial court sentenced defendant on the concealing or destroying evidence charge to 50 days in custody, with credit for 50 days already served, thus precluding any effective relief and making the claim moot, because defendant already served the 50 days. The Court of Appeal disagreed that no effective relief is available, i.e., the 50 days could be credited to time served on the five-year sentence that was also imposed. (A) HCC

Nichols, Diane — People v. Rodriguez, G044311 — Penal Code Section 654/Street Terrorism Enhancement — Dan McNerney, Judge — Opinion by O'Leary, P.J., with Moore, J., Ikola, J. Appellant contended and the Court of Appeal agreed the trial court erred by failing to stay the sentence on count 3, street terrorism, pursuant to Penal Code section 654, because he had the same intent and objective in count 1 (first degree murder), or count 2 (possession of a firearm by a felon). Appellant contended and respondent conceded the trial court erroneously imposed and stayed a 10-year enhancement on count 1, murder, pursuant to Penal Code section 186.22, subdivision (b)(1)(C), because murder is punishable by life in prison. (I) HCC

Hermansen, Kurt — People v. Ybarra, D058842 — Insufficient Evidence — Louis R. Hanoian, Judge — Opinion by Huffman J., with Aaron, J., Irion, J. One of two convictions for committing a forcible lewd act is reversed as evidence was not sufficient to show that more than one act occurred. (I) PED

Vallandigham, Robert — People v. Schlichter, E052751 — Sentencing — Ronald M. Christianson, Judge — Opinion by Ramirez, P.J., with King, J. Codrington, J. Appellant was convicted of three counts of misdemeanor elder abuse (Pen. Code, § 368, subd. (b)(1)). The trial court sentenced appellant to 270 days for each count. However, the maximum sentence for a first time offense is 180 days in jail. Thus, the Court of Appeal remanded the matter to the superior court, ordering it to re-sentence appellant on the first count to no longer than six months in county jail. (A) LKH.

McPartland, Michael -- People v. Carcamo, D058587 — Sentencing — J. Richard Couzens, Judge — Opinion by Benke, J. , with McConnell, P.J., O'Rourke, J. Appellant was convicted in count 4 of attempted murder, with allegations that he did so for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)) and another principal in the offense discharged a firearm (Pen. Code, § 12022.53, subds. (c) & (e)(1)). The Court of Appeal found that the trial court erred in sentencing appellant to life with the possibility of parole, a consecutive 25 years-to-life for personal discharge of a weapon, and a consecutive 10 year term for the gang enhancement on this count. Where the discharge of the firearm did not cause great bodily injury, the trial court should have imposed a consecutive 10 year term under section 12022.53, subdivision (c), instead of 25-to-life. Also, because appellant did not personally discharge the firearm, the 10-year gang enhancement under section 186.22 was not authorized in addition to enhancement under section 12022.53. (Pen. Code, § 12022.53, subd. (e)(2)). Thus, appellant's total sentence on count 4 must be modified to reflect an indeterminate life sentence, plus a consecutive 20 year term. In count 2, appellant was convicted of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) on a different victim, with allegations that he personally used and discharged a firearm (Pen. Code, § 12022.5, subd. (a)), personally inflicted great bodily injury (Pen. Code, § 12022.7, subd. (a)), and committed the crimes for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)). The Court of Appeal found that the trial court erred in imposing a 10-year term for the gang enhancement, in addition to enhancements for great bodily injury and use of a firearm. The Court of Appeal concluded use of the great bodily injury or firearm enhancement to categorize the offense as a violent felony, resulting in a gang enhancement of 10 years under Penal Code section 186.22, subd. (b)(1)(C), violated section 1170.1, subdivisions (f) and (g) [only the greatest enhancement may be imposed for use of a firearm or infliction of great bodily injury]. (I) LKH.

Peabody, Jennifer — People v. Gilbert Wollman, E052333 — Dual Conviction — John G. Evans, Judge — Opinion by Codrington, J., with Hollenhorst, J., King, J. Conviction for oral copulation with a child under 14 (Pen. Code, § 288, subd. (c)) reversed where it overlapped temporally with conviction for continuous sexual abuse of a child under 14 (§ 288.5, subd. (a)). Case remanded for re-sentencing. (I) PED

Boyce, Robert/Dain, Anthony – People v. Jacobo/Mendoza, D060352/E051087 — Witness Unavailability/Prosecutorial Misconduct — James S. Hawkins, Judge — Opinion by Huffman, Acting P.J. with Aaron, J. Irion, J. Jacobo and Mendoza were convicted of kidnapping Rafael Benitez to commit robbery, burglary, false imprisonment, and robbery. The jury separately convicted Mendoza of burglary, kidnapping, and false imprisonment of a separate victim. The Court of Appeal reversed on two separate grounds. First, the court concluded the trial court erred in finding a witness unavailable and admitting her preliminary hearing testimony against appellants. The court found the prosecution had not satisfied its due diligence obligation and the error was prejudicial as to Mendoza. Second, the Court of Appeal concluded the prosecutor committed prejudicial misconduct when she relied on Mendoza's post-arrest statement to law enforcement in arguing Jacobo's guilt. Mendoza's post-arrest statement was the only evidence supporting these arguments. The Court of Appeal found defense counsel was ineffective in failing to object and revered affected convictions. (I) LKH.

Andreasen, David — People v. Aguirre, G045009 — Entrapment — Lance Jensen, Judge — Opinion by Ikola, J., with Rylaarsdam, J., Fybel, J. In a case involving an internet sting operation, appellant neither requested nor received an entrapment jury instruction as set forth in CALCRIM No. 3408. Appellant argued and the Court of Appeal agreed the trial court, sua sponte, should have instructed the jury with regard to the affirmative defense of entrapment. The initial internet post by Jess (an undercover agent), made in a forum reserved for adults, did not indicate Jess was 13, but instead stated the individual making the post was a woman seeking a man. In response to defendant's demand to see a photograph of Jess, the police selected and transmitted a provocative photograph to defendant, which appeared to depict a sexually developed young woman. Jess initiated contact with defendant on numerous occasions over the course of the week and transmitted communications that arguably goaded defendant into meeting her. The foregoing constituted substantial evidence of entrapment. (A) HCC

Carroll, Steven — People v. Walthour, D059410, — Credits/Fees — Louis R. Hanoian, Judge — Opinion by Mcdonald, J., with Benke, J., Irion, J. Court and respondent agreed that appellant is entitled to two more presentence custody credits. Court ordered stricken an immediate critical needs account fee (ICNA) which was ordered by the trial court in addition to the criminal conviction assessment in that the statute does not mandate an independent fee for the ICNA. (A) AMJ.

Hinkle, Stephen — People v. Nugent, E051982 — Penal Code Section 654 — Richard J. Hanscom, Judge — Opinion by Ramirez, P. J., with McKinster, J., Richli, J. Appellant was convicted of possessing a nunchaku, billy club, and cane sword, each with gang enhancement, plus gang participation. Appellant contended and the court agreed the sentence for his active gang participation should have been stayed pursuant to the prohibition on multiple punishment for the same act. (I) HCC

Mazur, Janice — People v. Barton, E052492 — Penal Code Section 4019 (Two-tier) — Cheryl C. Kersey, Judge — Opinion by Hollenhorst, Acting P.J., with Miller, J., Codringron, J. Court of Appeal agreed that trial court erred in using two-tiered system of calculating appellant's pre-sentence conduct credits. Instead, appellant was entitled to credits award based upon law in effect at time of sentencing. (I) APJ

Larson, Eric R. — P. v. Wessels, D058021 — Credits — Patricia K. Cookson, Judge — Opinion by O'Rourke, J., with Benke, J., McDonald,J. The trial court denied defendant (convicted of murder) any custody credits. Penal Code section 2933.2, subdivision (d) provides that section shall only apply to murder that is committed on or after the date on which that section became operative - which was in June of 1998. Since the murder in this case occurred in 1994, defendant was entitled to custody credit (334 days). (I) LAR

Wrubel, Sharon — People v. Lymuel, D059805 — Penal Code section 1202.45 Fine — Christian F. Thierbach, Judge — Opinion by McConnell, P.J., with Benke, J., McIntyre, J. Parole revocation fine imposed under Penal Code section 1202.45 stricken because appellant serving a LWOP sentence and is not eligible for parole. (I) CBM

Vento, Christine — People v. Magallenez, E052841 — Sentencing — Annemarie G. Pace, Judge — Opinion by Richli, J., with Ramirez, P.J., Miller, J. When the court imposed sentence for count three (unlawful possession of a firearm) to run consecutively to count one (first degree murder) pursuant to the two-strikes scheme of Penal Code section 667, subdivision (c)(6), it failed to state any reasons for this sentencing choice. Appellant asserted, the People conceded, and the Court of Appeal accepted the concession, that a remand for resentencing is appropriate for the court to exercise its discretion and determine whether the sentence for count three should run consecutively or concurrently to count one. (I) CBM

McGill, Martha — People v. Flint-Spivey, D058910 — Instructional Error/Penal Code Section 654 — Joe O. Littlejohn, Judge — Opinion by McDonald, J., with McIntyre, J., dissent by Benke, J. In a case where appellant suffered conviction for active participation in a gang, as well as gang enhancements. The majority concluded the instructions on the gang participation offense (Pen. Code, § 186.22, subd. (a)) did not separately define the "pattern of criminal gang activity" of which he was required to have actual knowledge, and, therefore, the jury was without any guidance when it determined whether there was evidence showing that appellant had actual knowledge the gang engaged in a pattern of criminal gang activity. Under the circumstances of this case, the error was prejudicial notwithstanding similar instruction in regard to the gang enhancement. The People conceded and the court agreed that the trial court erred in imposing nine concurrent terms, when there were only four victims, requiring remand for resentencing. (I) HCC

LeRoy, Doris — People v. Bejasa, E051308 — Miranda/Romberg Test/Three Strikes/ Penal Code Section 654 — Mark E. Petersen, Judge — Opinion by King, J., with Richli, J., Codrington, J. Under an independent determination, the court determined appellant, following a serious injury collision, was in custody for Miranda purposes, where appellant had already made certain incriminating statements; the officer advised him he was being "detained" for possible parole violation; he was handcuffed and placed in the back of a squad car; and this was not a typical traffic stop. The court also concluded that responses to the Romberg test communicate an assertion of fact or belief that was relevant for its accuracy, not for the manner in which it was delivered, and defendant's estimation of time is testimonial evidence for which a Miranda admonition is necessary. With regard to sentencing, because the trial court erroneously believed it was "mandated to impose consecutive sentences" and the record did not demonstrate that it would have otherwise imposed consecutive sentences, defendant is entitled to a new sentencing hearing at which the court properly exercises its sentencing discretion. Moreover, the minuscule amount of methamphetamine in defendant's possession (Count 2) tended to show that there was no intent to possess the drug for a purpose other than short term intoxication. Therefore, Penal Code section 654 prohibits punishment for both offenses, and the execution of the sentence for count 2 must be stayed, regardless if the court were to choose consecutive or concurrent sentencing. (I) HCC

Weaver, Eric — People v. Torres, E052071 — Penal Code Section 654 — Paul E. Zellerbach, Judge — Opinion by Codrington, J., with Richli, Acting P.J., King, J. Court of Appeal agreed with appellant's argument that his concurrent sentence for a substantive gang crime must be stayed when he has been separately punished for the underlying attempted murder because both offenses were committed with the single objective of attempting to kill for the benefit of the gang. (I) APJ

Mishkin, Cindi — People v. Rogers, D059240 — Penal Code Section 290.3 Fine — Charles W. Ervin, Judge — Opinion by Aaron, J., with McDonald, J., O'Rourke, J. Because the court reduced all discretionary fees upon counsel's request — given appellant's mental instability, lack of assets, and indigence, but then stated appellant's ability to pay the Penal Code section 290.3 fine could be assessed at a later date, the trial court erroneously understood its discretionary power with respect to this fine and thus failed to properly execute its discretion. Case remanded for trial court to determine whether appellant has the ability to pay the fine. (S) CBM

Bronson, Phillip — In re Robert J., G045231 — Miranda — Nick Dourbetas, Judge — Opinion by Fybel, J., with Bedsworth, Acting P.J., Aronson, J. In a case where the trial court expressly declined to consider the minor's age in finding there was no custody and denying the Miranda motion, the Court of Appeal agreed with the parties that the case must be remanded for the trial court to reconsider in light of the holding in J.D.B. v. North Carolina (2011) ___ U.S. ___, ___ [131 S.Ct. 2394, 2398-2399] that age of the child is relevant to the question of custody. (I) APJ

Kosofsky, Syda — People v. Gipson, E050627 — Credits — Annemarie G. Pace, Judge — Opinion by Ramirez, J., with Hollenhorst J., Codrington, J. Because the prosecution did not plead or prove defendant's prior robbery conviction in the trial court, it cannot be used against defendant in the subsequent prosecution to disqualify him from the increased credits available to him under Penal Code section 4019. Further, the trial court erred in using a two-tier approach for presentence custody credit earned prior to the January 25, 2010 amendment. All of defendant's section 4019 credits should have been awarded at the increased rate. (A) AMJ.

Edwards, John — People v. Henriquez, E052987 — Dual Enhancement — Daniel A. Ottolia, Judge — Opinion by Codrington, J., with Hollenhorst, Acting P.J., Miller, J. The Court of Appeal accepted the Attorney General's concession to appellant's argument that vicarious arming enhancements must be stricken when they were attached to convictions for assault with a firearm which requires being armed as an element. (I) APJ

St. Julian, Andrea/Hook, William — In re Kaylee H., D060499, 205 Cal.App.4th 92 — Dependency Petition and Probate Guardianship — Cynthia A. Bashant, Judge — Opinion by Irion, J., with McDonald, J., O'Rourke, J. Miscarriage of justice for juvenile court to order social services agency to file a dependency petition when child was in a probate guardianship with relatives who were suitable and protective of her. (I) ACS

 

March 2012
Romero, Lynda A. – P v. Greene, D057657 – Abstract of Judgment -Michael T. Smyth, Judge – Opinion by Haller, J., with McConnel, P.J., with Aaron, J.
Superior court ordered to modify the abstract of judgment to (1) remove the section 1202.45 parole revocation restitution fine and (2) to specify that the $13,865 victim restitution fee is owed jointly and severally with co-defendants. (I) LAR

McPartland, Michael – People v. Roa, G044460 – Penal Code Section 654 – M. Marc Kelly, Judge – Opinion by Moore, J., with Bedsworth, Acting P.J, with Aronson, J.
Appellant was convicted of second degree murder and receiving stolen property, and the jury found true allegations that both crimes were committed for the benefit of a criminal street gang. Appellant was also found guilty of street terrorism. He was sentenced separately to all three offenses. On appeal, the Court of Appeal concluded appellant's sentence for street terrorism must be stayed pursuant to Penal Code section 654. The jury was instructed that the second degree murder and receiving stolen property constituted "felonious criminal conduct." (I) LKH.

Hennessey, Patrick — People v. Tafolla, G044426 — Insufficient Evidence — Jacki C. Brown, Judge — Opinion by Aronson, J., with Bedsworth, J., with O'Leary, J.
The Court of Appeal reversed the juvenile court's order finding minor engaged in active participation in a criminal street gang and committed the graffiti and knife possession offenses for the benefit of his gang. The court found insufficient evidence to support street terrorism and the gang allegations because the two predicate offenses were more than three years apart from each other and both were more than three years before the offenses charged against minor. (I) LKH.

Lampkin, David — People v. Huber, E052734 — Sentencing — Albert J. Wojcik, Judge — Opinion by King, J., with Hollenhorst, J., with Codrington, J.
Court of Appeal reversed the two five year terms imposed for two prior serious felony priors attached to the hit and run because hit and run is not a serious felony. Further, the court found there was insufficient evidence supporting the prison prior finding based on appellant's out-of-state conviction. Finally, the court corrected clerical errors in the abstracts of judgment. (I) LKH.

Bauguess, Susan — People v. Carruthers, E052445 — Credits/Fees/Parole Period — Bryan Foster, Judge — Opinion by Ramirez, P.J., with Richli, J., with Miller, J.
The Attorney General conceded and the Court of Appeal agreed that the trial court erroneously calculated and awarded too few days of credit for actual time served in custody. In addition, the Court of Appeal found that the trial court must have mis-spoke when it imposed a booking fee of $89.76 instead of the recommended $79.86. Finally, everyone agreed that the trial court erred when it imposed a lifetime parole period instead of the authorized five-year parole period. (I) APJ

Hong, Esther— People v. Flores, E052078, — Fees — Anthony Villalobos, Judge — Opinion by King, J., with Ramirez, J., with Codrington, J.
Trial court erred in imposing $30 for facility fee and $30 for court security fee because the statute authorizing a facility fee and the statute increasing the security fee from $20 to $30 took effect after defendant's convictions. The order imposing a facility fee is reversed. The amount of the security fee is modified to $20. (A) JLP/AMJ

Marshall, Marilee — People v. Davila, G044123, — Credits — Michael Hayes, Judge — Opinion by Ikola, J., with Rylaarsdam, J., with Bedsworth, J.
Defendant is awarded an additional 769 days of credits, because the record is unclear, as conceded by the respondent, as to whether defendant waived his prior custody credits as a part of a negotiated probation. The remedy is not to return it to the trial court, as requested by respondent, but to modify the amount on appeal, because the record does not reveal a knowing and intelligent waiver of defendant's right to custody credit. (I) AMJ

Albert, Mark — People v. Nelson, E051476 — Retroactive Statutory Amendment/Mitigated Punishment — Kyle S. Brodie, Judge — Opinion by McKinster, J., with Hollenhorst, J., with Richli, J.
Defendant pleaded guilty to grand theft for stealing slabs of wood ("biscuits") from a national forest. After the theft, plea, and sentencing (probation), but before finality of appeal, the statutory amount for grand theft was increased from more than $400 to more than $950. Here, the precise value of the biscuits of could not be determine from the record, i.e., could not be established to be more than $950. Appellant argued, respondent conceded, and the Court agreed that the statutory amendment retroactively applied to appellant. The court ordered that the judgment be modified by reducing defendant's grand theft conviction from a felony to a misdemeanor unless the district attorney, within 30 days from the date the remittitur is issued, files an amended felony complaint charging defendant with grand theft under section 487, subdivision (a), in which case the judgment is reversed. (A)/ HCC

Buckley, Stephen & Christian — People v. Cardwell, 2012 WL 556222 — Penal Code Section 464 Burglary — Larrie R Brainard, Judge — Opinion by Benke J., with Haller, J., with McIntyre, J.
Published Decision holding that appellant cannot be guilty of violating Penal Code section 464 [burglary by use of an acetylene torch] when the torch was used to cut a hole in the exterior of the Best Buy Store and the statute unambiguously requires that the defendant first be inside "any building" and then use a device listed in the statute to open, or attempt to open, "any vault, safe, or other secure place." (Pen. Code, §464.) (I) PED

Whatley, Jerry — People v. Wilkerson, E052094 — Directed Verdict — Dennis A. McConaghy, Judge — Opinion by Miller, J., with Hollenhorst, J., with Codrington, J.
Under a complicated fact pattern, the trial court was found to have directed the jury's verdict on a special finding because the verdict form provided to the jury eliminated other relevant considerations based on its finding of a single fact being true. The directed verdict was found to be a structural error, resulting in two counts being conditionally reversed, subject to retrial of the statute of limitations allegations. (I) PED

Zimmerman, Harry — People v. Judson Lee, G044235 — Overbroad Probation Condition — Patrick Donahue, Judge — Opinion by O'Leary, J., with Bedsworth, J., with Aronson, J.,
Condition of probation prohibiting sex offender from possessing "any type of toys, video games, or similar items designed for the entertainment of children" found to be unconstitutionally vague because (1) the condition does not specify the items prohibited from being possessed, (2) certain items may be an indication of defendant's attempt to lure minors to his residence in one context but not in another. Hence, the condition as currently written does not provide fair warning to defendant of the items he may and may not possess. (I) PED

Harris, Donna — People v. Lo, D060000 — Fine — Charles Gill, Judge — Opinion by O'Rourke, J., with McConnell, P.J., with Nares, J.
By expressly adopting the recommendations in the probation report, the trial court imposed a $200 base fine, a $560 penalty assessment, and a $40 surcharge. Appellant argued $40 of the $560 appears to be unauthorized by law. While conceding them merits, respondent lamented the appeal on such a de minimis issues and sought dismissal. The Court of Appeal concluded the $40 of the penalty assessment attributable to Penal Code section 1465.7, subdivision (a), duplicated the separate $40 surcharge and ordered the $560 penalty assessment reduced by $40. (I) HCC

Moran, Jamie/ Lankford, Valerie — Tracy J. v. Superior Court of San Diego County, D060252, 202 Cal.App.4th 1415 — Ana Espana, Judge — Opinion by McIntyre, J., with MacDonald, J., with Aaron, J.
Reversal due to agency not providing reasonable services for two developmentally disabled parents. (I) [ACS].

Matsumoto, Ellen/Wrubel, Sharon/Lagerlof, Janice — People v. Zabalza/Rodriguez/ Garcia, D058181 — Enhancements/Minute Order/Abstract of Judgment — John J. Ryan, Judge — Opinion by Huffman, J., with Haller, J., with Irion, J.
The trial court erred by imposing enhancements under both Penal Code sections 12022.5, subdivision (a) and 186.22, subdivision (b)(1)(). Only, the greater, the latter, may be imposed, the and the former was order stricken. Various errors in the sentencing minute order and abstract of judgment were ordered amended, including restitution to be made to the Victim Compensation Claims Board and that such restitution was joint and several.
(I) HCC

Nichols, Diane — People v. Ware, E052149 — Weapon Enhancements/Sentencing — Craig G. Riemer, Judge — Opinion by Ramirez, P.J., with Richli, J., with Miller, J.
The trial court imposed a 10 year enhancement for defendant's use of a gun and a one year enhancement for his use of a knife as to all three offenses. (Pen. Code, §§ 12022.53, subd. (b) & 12022, subd. (b)(1).) The parties agreed that only one weapon use enhancement may be imposed, and the Court of Appeal directed the knife use enhancements be stayed as to all three offenses. Various errors in the order of concurrent sentencing were ordered corrected. The parties agreed that the trial court erred in ordering defendant to undergo HIV testing, and the Court of Appeal directed the trial court to strike this order from the minutes of the sentencing hearing. (I) HCC

Stanton, Marta/Williams, Rex — People v. Gambina, G044728, — Penal Code Section 654 — Gary S. Paer/Richard M. King, Judges — Opinion by O'Leary, J., with Bedsworth, J., with Moore, J.
Judgment modified to stay the two-year prison term on count 2, criminal threats, pursuant to Penal Code section 654, because count 1, criminal threat, was made minutes apart from count 2 and both had the same objective which was to recover defendant's missing check so he could pay his bail bondsman. (I) AMJ

Polsky, David — People v. Ramos, E052150 — Lesser Included Offense/Sentence — Richard A. Erwood, Judge — Opinion by Hollenhurst, J., with King, J., with Codrington, J.
Court of Appeal and respondent agreed that defendant's convictions of first degree burglary as to each victim must be reversed because they are lesser included offenses of his convictions of assault with intent to commit forcible rape during the commission of a first degree burglary. Case remanded for resentencing where trial court failed to articulate reasons for its sentence choices and failed to specify whether counts 9 and 10 should run consecutively or concurrently as required under Penal Code section 669 and to indicate whether defendant was to serve the indeterminate sentence consecutively or concurrently to the determinate sentence. It also erred in ordering determinate sentencing on counts 10 and 11 rather than indeterminate sentencing; matter remanded for the court to determine whether these counts are to run consecutive or concurrent (I) AMJ

Frizzell, Doris – People v. Fuentes, D058057 – Sentencing – John M. Thompson, Judge – Opinion by McConnell, P.J., with McDonald, J., with McIntyre, J.
Appellant was convicted of four counts, sentenced to one indeterminate term for count 1, plus determinate terms for counts 2 through 4. The trial court erred in imposing 4 - five year terms under section 667, subdivision (a)(1), one for each count. The Court of Appeal ordered two of the five year terms stricken, as only one can be imposed for the total determinate term. In addition, the trial court erred in imposing a one year term under section 667.5, subdivision (b) and a five year enhancement under section 667, subdivision (a)(1) for the same prior. The one year term imposed under section 667.5, subdivision (b) is ordered stricken. Finally, the abstract of judgment is ordered to be corrected, to reflect the correct sentencing date, the correct amount of victim restitution ($11,003.25, not $111,003.25), the pre-sentence custody credits awarded, and the dismissal of the enhancements under sections 12022.7, subdivision (b) for counts 2 and 3. (I) LKH

Staley, John — People v. Majors, D060173 — Fees — David M. Gill, Judge — Opinion by Aaron, J., with McConnell, J., with Nares, J.
The Court of Appeal reversed the booking fee and drug program fee and remanded to the trial court to determine whether appellant has the ability to pay those fees. In this case, the Attorney General filed a letter brief stating that "it does not have the resources to respond in a full brief to such de minimis claims..." and requested the appeal be dismissed suggesting appellant should have sought correction in the trial court. The Court of Appeal construed respondent's failure to address the merits as an implied concession that the booking fee and drug program fee were improperly imposed. (I) BCT

Shudde, Athena/Brisbois, Patricia — People v. Robins/Dalke, D058619 — Instructions/Hearsay/Sufficiency of Evidence — Cheryl C. Kersey, Judge — Opinion by Aaron,.J., with Huffman, J., with Irion, J.
The two defendants were convicted of attempted murder, conspiracy to commit murder, and assault with a deadly weapon, when one of the them slashed the victim's throat. The trail court erroneously instructed using the jury standard instruction on conspiracy (CALCRIM No. 415), rather than the standard instruction on conspiracy to commit murder (CALCRIM No. 563), which differs from CALCRIM No. 415 and must be given when a defendant is charged with conspiracy to commit murder. Appellants contended that the trial court erroneously instructed the jury that appellants could be found guilty of conspiracy to commit murder upon proof of a conspiracy to commit either murder, attempted murder, or assault with a deadly weapon. Respondent acknowledged that the trial court's instruction on conspiracy to commit murder contained "errors and internal inconsistencies," but contended that it is not reasonably likely that the jury misunderstood the court's instruction and that any instructional error was harmless. The Court of Appeal concluded that the trial court's instruction was fundamentally flawed, hopelessly contradictory, and entirely inadequate, since the target offense of a conspiracy to murder may only be murder. In view of the magnitude of the errors in the trial court's instruction and their combined effect, the errors were not harmless beyond a reasonable doubt and required reversal, since the evidence of conspiracy to murder was not overwhelming. The trial court also found a New York prior to be a strike as to Dalke. The trial court admitted certain documents over Dalke's hearsay objections. On appeal, respondent conceded the correctness of the objections. As to the remaining documents, Dalke had pleaded in New York to attempted assault in the second degree. While completed second degree assault requires physical injury by means of a dangerous or deadly weapon, it does not require personal infliction, i.e., one may be an aider and abettor, and conviction of an attempt did not prove personal infliction of great bodily injury. The true finding was set aside, though double jeopardy does not preclude re-trial (Monge). (I) HCC

Capriola, William - People v. Alfredoe, D059302 - Probation Conditions/Fees - Peter C. Deddeh, Judge - Opinion by Aaron, J. with McDonald, J., with McIntyre, J.
Court security fee of $40 ordered to be reduced to $30; also, trial court erred in failing to include an express knowledge requirement to certain probation conditions. (I) PED

Sheehy, Kevin — People v. Collins, G044797 — Sentencing — Richard W. Stanford, Jr., Judge — Opinion by O'Leary, J., with Bedsworth, J., with Moore, J.
Sentence for robbery ordered stayed under Penal Code section 654 where defendant was separately sentenced for murder committed during the robbery. Appellant fatally shot the robbery victim when the victim resisted. The Court of Appeal held both crimes were pursuant to a single criminal intent. The court also ordered the award of pre-sentence credits under Penal Code section 2900.5 and 4019, holding the trial court had mistakenly concluded the imposition of an indeterminate term for the murder precluded pre-sentence custody credits. (I) NFA.

Nalls. Christopher — People v. Nowling, D059252 — Penal Code Section 654 — Michael Smyth, Judge — Opinion by Irion, J., with Haller, J., and Aaron, J.
Appellant argued that his sentence for kidnapping must be stayed pursuant to Penal Code 654 because he is also being punished for kidnapping for ransom based on the same conduct. The Attorney General agreed, but argued that the trial court did stay the sentence, although ambiguously, and only correction of the minute order and abstract of judgment is required. The Court of Appeal agreed with the Attorney General and the stay is ordered effectuated. (MI) APJ.

Herring, Conrad — People v. Fisk, D059516 — Fine —Charles W. Ervin, Judge — McIntyre, J., with Haller, Acting P.J., with Irion, J.
The Attorney General conceded and the Court of Appeal agreed that the formula used by the probation officer to calculate the $560 penalty assessment on a $200 base fine includes $40 pursuant to Penal Code section 1465.7, subdivision (a), which duplicates a separate $40 surcharge attributable to the same statute. Therefore, the penalty assessment was ordered reduced to $520. (MA) APJ

McPartland, Michael — People v. Hernandez, G044619 — Credits — Richard W. Stanford, Judge — Opinion by Fybel, J., with Bedsworth, J., with Araonson, J..
Trial court erred when it miscalculated the total actual days of presentence custody credits and failed to award any presentence conduct credits. The court agreed with appellant's calculations and directed the trial court to amend the abstract of judgment to reflect 499 days of actual custody credits and 74 days of conduct custody credits pursuant to Penal Code section 2933.1. (I) CBM

Power, Richard — People v, Miracle, D059949 — Sentencing — Kathleen Lewis, Judge — Opinion by Benke, J., with McConnell, P.J., with Haller, J.
Where appellant was found to have properly alleged that he may be suffering from on or more of the statutory conditions as a result of service in a combat theatre in the United States military, sentence vacated and remanded because the trial court erred in not holding a hearing before sentencing as required under former Penal Code section 1170.9. (I) MCR

Herring, Conrad — People v. Chavarin, D059218 — Insufficient Evidence — William D. Lehman, Judge — Opinion by Huffman, J., with Benke, Acting P.J., with Irion, J.
Court of Appeal agreed with appellant's argument that insufficient evidence supported his child endangerment conviction where evidence showed child was supervised and drugs were discovered in a child-proof container and pipe with residue was found on a cabinet shelf in separate bedroom. Conviction reversed. (MA) APJ

Nordin, Kenneth — People v. West, E053086, — Sentencing — Kyle S. Brodie, Judge — Opinion by Richli, J., with McKinster, J., with Miller, J.
The court ordered the judgement modified to strike two of the one-year enhancements imposed under Penal Code section 667.5, subdivision (b) for the prior robbery and burglary convictions as those priors were used to impose two five-year prior serious felony conviction enhancements under Penal Code section 667, subdivision (a). (I) BCT.

Fabian, Carl — People v. Wallace, D059178 — Penal Code Section 654 — Edward D. Webster, Judge — Opinion by McIntyre, J., with McConnell, P.J., with Benke, J.
Defendant engaged in a shootout with four police officers and was convicted of the attempted murders of two of them and assault with a firearm as to all four; sentence was imposed on all of these counts. Appellant argued and the court agreed that Penal Code section 654 required staying punishment on the assault counts as to the two officers as to whom appellant was also punished for attempted murder. (I) HCC

Braden, J.— In re Marqueen P., D059965 —Termination of Jurisdiction — Carol Isackson, Judge — Opinion by Nares J., with McConnell, P.J., with O'Rourke, J.
Order terminating jurisdiction of child, C.T., is affirmed; the order terminating jurisdiction as to child M.P., is reversed as risk remains because of untreated domestic violence. (I) CAG.

Weinberg, Allen — People v. Garcia, G044232, 204 Cal.App.4th 542 — Right to a Unanimous Jury Verdict — Gary S. Paer, Judge — Opinion by Moore, J., with O'Leary, P.J., with Ikola, J.
Court of Appeal reversed convictions for four counts of attempted murder (Pen. Code, §§ 664/187), being a gang member in possession of a loaded firearm in public (Pen. Code, § 1203, subds. (A)(1), (a)(2)(C)), and active participation in a criminal street gang (Pen. Code, § 186., subd. (a)), and the attendant enhancements, finding appellant was denied his right to a unanimous jury verdict. During deliberations, the court was advised that two jurors (Nos. 174 & 181) needed to be replaced because they were unable to serve. Juror No. 174 was excused and an alternate replaced. The trial court confirmed no jury verdicts had been reached, and instructed the jury to begin deliberations anew. The following day, the attorneys suggested that the court keep Juror No. 181 on the panel until the end of the day, at which point the court could excuse Juror No. 181 and seat an alternate juror the next morning. At the end of the day, the court excused Juror No. 181 outside the attorney's presence. The next morning, after the court had already excused Juror No. 181, it asked the attorneys if they agreed an alternate could be seated. The parties agreed, an alternate was seated, and the jury was instructed to begin deliberations anew. The court then asked if the jury had previously reached any verdicts. The foreperson said it had reached verdicts on six of the seven counts while Juror No. 181 was still a member. The attorneys agreed the verdicts could be sealed. The newly reconstituted juror reached a verdict on the remaining count. The court accepted all the guilty verdicts and true findings. The 11 jurors from the original jury were polled as to sealed verdicts. Eleven days later, the court had former Juror No. 181 brought back to court, and she confirmed the sealed verdicts had been hers. The Court of Appeal reversed the verdicts returned by the original jury (sealed verdicts), finding appellant was denied his right to a unanimous jury verdict. The court rejected the Attorney General's arguments that appellant received a unanimous verdict on the eleventh day when Juror No. 181 confirmed the sealed verdicts were hers, finding that Juror No. 181 was no longer a sworn juror because she, and in fact the entire jury, had already been discharged. The Court of Appeal further rejected the Attorney General's argument that appellant had waived his right to an unanimous jury. Although counsel agreed to the trial court's process, appellant never personally waived his right to have a unanimous jury verdict. (I) LKH

Stubb, Paul — People v. Aguilera, D059937 — Lesser Included Offense Instruction — Richard Erwood, Judge — Opinion by O'Rourke, J., with McConnell, J., with Benke, J.
The trial court committed prejudicial instructional error when it failed to instruct the jury that Penal Code section 148, subdivision (a)(1) is a lesser included offense of Penal Code section 69. (A) MCR

Thoma, Jeffrey – People v. Juan S., G043262 – Instructions/ Miranda Violation – Kimberly Menninger/Lance Jensen, Judges – Opinion by Fybel, J., with Rylaarsdam, Acting P.J., with Ikola, J.
This was a direct file case, in which minor was charged with murder (Pen. Code, § 187, subd. (a)) committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)), and street terrorism. The case involved a fight between two rival gangs. The Varrio Viejo criminal street gang entered territory claimed by the Varrio Chico criminal street gang with the intention of fighting the rival gang. When the Varrio Viejo members hit one Varrio Chico member on the head and fled, Varrio Chico members tried to block the path of the Varrio Viejo car. The Varrio Viejo car sped toward the Varrio Chico members at a high rate of speed. One Varrio Chico member, not minor, threw a concrete block toward the car. The block went through the front windshield, killing a Varrio Viejo member. Evidence was presented that minor was at or near the scene and was a member of the Varrio Chico gang. The Court of Appeal reversed minor's convictions and the gang enhancement, finding the trial court prejudicially erred in failing to modify CALCRIM Nos. 505 and 508 to reflect that minor was not guilty of murder if the person throwing the concrete block was acting in self-defense or defense of others, or was attempting to effect a citizen's arrest. Instead, the trial court read the standardized instructions and refused defense counsel's requests for such modification. Minor's entire defense was based on his lack of involvement, contending he was standing to the side, never saw the incident, and only heard the concrete block hit the car. Thus, the jury could have believed minor was standing to the side, and therefore not personally acting in self-defense or trying to effect a citizen's arrest, but the thrower of the block was acting in self-defense or trying to effect a citizen's arrest. Under these circumstances, the failure to modify the instructions was prejudicial error. The Court of Appeal further agreed the trial court's error in failing to define assault and battery, the target offenses of involuntary manslaughter, was prejudicial error. The Attorney General's office conceded error, but argued there was no prejudice. The Court of Appeal disagreed, noting that if the trial court had properly instructed the jury, it would have received CALCRIM No. 3470, self-defense in non-homicide defenses, which has a slightly different standard. Further, the jury, as previously discussed, did not receive correct instructions on self-defense or defense of others with respect to homicide. Finally, the Court of Appeal remanded the case to the trial court to re-consider the Miranda issue because the trial court failed to consider minor's age at the time the statements were taken. (J.D.B. v. North Carolina (2011) ___ U.S. ___ [131 S.Ct. 2394].) (A) LKH

Caldwell, Beth – People v. G.W., E052295 – Sentencing – Thomas S. Garza, Judge – Opinion by Ramirez, P.J., with Hollenhorst, J., with Richli, J.
Court of Appeal removed the restriction or delay of minor's privilege to operate a motor vehicle. Following a contested jurisdiction hearing, the juvenile court found true an allegation that minor had committed arson of forest land (Pen. Code, § 451, subd. (c)) and placed him on probation. In addition, the court revoked minor's privilege to operate a motor vehicle pursuant to Vehicle Code section 13550. The court reversed this last order, finding the order unauthorized because arson is not a qualifying offense. The court further rejected the Attorney General's argument that the issue had been waived, finding this was not a condition of probation, but rather an ancillary order which the juvenile court was not authorized to make. (A) LKH

Wrubel, Suzanne — People v. Raymond Lopez, D059557 — Evidence — Ruston G Maino, Judge — Opinion by Huffman, J., with Benke, J., with McDonald, J.
Trial court incorrectly admitted unfairly prejudicial evidence about appellant's prior time in prison during his relationship with the victim in a corporal injury on a spouse case (Pen. Code § 273.5, subd (a). (A) MCR

 

February 2012
Fabian, Carl — People v. Perry, D057006 — Minute Order Correction
Where trial court ordered a term to be served concurrently and abstract of judgment likewise indicated concurrent sentencing, but minute order indicated consecutive sentencing, matter is remanded for the superior court to amend its sentencing minute order to reflect concurrent sentencing. (I) HCC

Hopkins, Ann — People v. Hillyer, E052888 — Sentencing – Angel M. Bermudez, Judge – Opinion by Miller, J., with Hollenhorst, Acting P.J., McKinster, J. In two companion cases, the appellate court ordered the sentences modified in several particulars. In an assault case, the sentence was modified to comply with the plea agreement to a total term of five years, where the court had imposed six years. In both cases, various fines and assessments were ordered stricken on various grounds. In both cases, the trial court imposed restitution fines both at the time probation was granted and again when probation was terminated and appellant was sentenced to prison; the latter fines were stricken. In both cases, a court security fee was assessed both at the time probation was granted and again when probation was terminated and appellant was sentenced to prison; the latter fees were stricken. In one case a criminal conviction assessment fee was assessed though the date of the offense pre-dated the effective date of Government Code section 70373; that fee was stricken. In the other, the criminal conviction assessment fee was assessed both at the time probation was granted and again when probation was terminated and appellant was sentenced to prison; the latter fee was also stricken. (A) HCC

Strong, Jeanine — People v. Leverenz, E051822 — Sufficiency of Evidence/ Fine – Patrick F. Magers, Judge – Opinion by McKinster, Acting P.J., with Miller, J., Codrington, JJ.
Because the evidence did not show appellant intended to persuade the victim to actually engage in a sex act with appellant (as opposed for an intent for the victim to want or desire to execute aa sex act with appellant), there is insufficient evidence to support count 2: attempted seduction within the meaning of Penal Code section 288.2. Penal Code section 294 fine stricken as appellant was not convicted of any crime to which this fine attaches. (A) CBM

Ting, Allison — People v. Acosta, E053177 — Dual Conviction/Abstract of Judgment Correction – John M. Davis, Judge – Opinion by Miller, J., with Hollenhorst, Acting P.J., McKinster, J.
Appellant argued, the People conceded, and the Court of Appeal agreed that appellant could not be convicted of both Penal Code section 4573.6 and 4573.8 for simultaneous possession of contraband. Although section 4573.8 is more general, the two statutes are almost identical. The court concluded it would be anomalous to preclude multiple convictions for simultaneous possession of different items of contraband under section 4375.6 (People v. Rouser (1997) 59 Cal.App.4th 1065), but then allow such prosecutions simply because an inmate happens to be charged with simultaneous possession of contraband under both sections 4375.6 and 4375.8. The court also ordered correction of the abstract of judgment in several particulars including an indication of the striking , rather than staying, of certain enhancements. (I) HCC

Lubliner, Steven — People v. Martinez, E052409 — Fines – Harold T. Wilson, Jr., Judge – Opinion by Miller, J., with Hollenhorst, Acting P.J., McKinster, J.
Because the fines under Penal Code sections 1202.4 and 1202.45 must be equivalent, the trial court erred when it ordered appellant to pay $5000 for the first fine (felony restitution fine) and $10,000 for the second (parole revocation fine). The latter fine is modified to reflect a parole revocation fine of $5000. (I) CBM

Boyer, Ronald — People v Harrison, E051465 — MDO Commitment Reversed – Katrina West, Judge – Opinion by Richli, J., with Hollenhorst, Acting P.J., Codrington, JJ.
Trial court concurred with the Board of Parole Hearing determination the client was an MDO. Only one expert testified and no exhibits were introduced. The state used the expert to prove the client was previously evaluated by the necessary two mental health professionals who concluded the client met the MDO criteria. The appellate court reversed finding the expert's testimony did not provide substantial evidence of this fact. Although the expert referred to the existence of two prior evaluations in the client's file, there was no evidence regarding who performed the evaluations or when they were performed, or what they concluded, information necessary to meet the criteria for this element. (A) LMF

Dain, Anthony — People v. Pacheco G044200 — Restitution – William R. Froeberg, Judge, Opinion by Moore, J., with Rylaarsdam, Acting J., Ikola, J.
Because the trial court ordered an identical amount of restitution to be paid by both defendants, the abstract of judgment is ordered amended to reflect they are jointly and severally liable. (I) AMJ

De La Soto, Richard — People v. Harmon, D060128 — Discovery/Fines – Timothy F. Freer, Judge – Opinion by McConnell, P.J., with Benke, J., Irion, J.
Case remanded. Court of Appeal and respondent agreed trial court erred in denying discovery of internal affairs investigation by sheriff's office regarding three deputies pursuant to Penal Code section 1054.1, subdivision (f). Trial court erred in ordering an $8,000 fine and an $80,000 suspended fine under Penal Code sections 1202.4, subdivision (b), and 1202.45. Both fines must be identical and no greater than $10,000. (I) AMJ

Scott, Patricia — People v. Ojito, D055636 — Penal Code Section 654 — Jeffrey F. Fraser, Judge — Opinion by McIntyre, Acting P.J., with O'Rourke, J., Irion, J.
Court of Appeal agreed with appellant's argument that Penal Code 654 requires sentences for criminal threats and assault with a semi-automatic weapon be stayed because the offenses were committed in the course and with the object of kidnaping, an offense for which appellant is being separately punished. (I) APJ.

Lankford, Valerie — T.W. v. Superior Court of San Diego County, D060636 — Writ re: Order Designating Specific Placement of Dependent Child Post-Termination of Parental Rights
Published reversal in which appellate court agreed with minor that juvenile court abused its discretion in failing to remove child from his prospective adoptive placement. Juvenile court had found it was in child's best interests to remain in home even though an older adoptive child was gang-involved, had committed an escalating series of violent crimes and was a 602 ward prior to this child placement. (DLG) ACS

Yockelson, Alan — People v. Barron, E052515 — Enhancement — Harold T. Wilson, Judge — Opinion by Hollenhurst, J., with King, J., Miller, J.
The matter is remanded to the trial court with directions to strike the one-year enhancement imposed for defendant's prior prison term. Only the enhancement with the greater term of imprisonment can be imposed when the same prior offense qualifies as a serious felony under Penal Code section 667, subdivision (a)(1) and resulted in a prior prison term under Penal Code section 667.5, subdivision (b). (I) AMJ.

Ford, Patrick — People v. Halgas, D059428, — Probation Condition — David Szumowski, Judge — Opinion by Benke, J., with Nares, J., Aaron, J.
Probation condition prohibiting defendant from being in a place where alcohol is the "main" item for sale is modified to state "‘where he knows or reasonably should know that alcohol is the main item for sale.'" (I) AMJ.

Hennessey, Patrick — People v. Neely, D060018 — Sentencing — Charles Morgan, Judge — Nares, J., with McConnell, P.J., O'Rourke, J..
Court erred by imposing a consecutive six-year term for the count 2, rape with foreign object conviction under Penal Code section 667.6, subdivision (d), because that mandatory sentencing scheme had no application; rather, the court should have exercised its discretion under Penal Code section 667.6, subdivision (c). (I) AMJ.

Chucas, Terrence — Jennifer R., et al. v. Superior Court, D060294 — Reasonable Services — Laura J. Birkmeyer, Judge — Huffman, J., with Benke, Acting P. J., Irion, J.
Mother argued she did not receive reasonable services because her case plan did not include substance abuse treatment and a mental health evaluation and the Court of Appeal agreed. The court found several indications during the case that mother needed help with substance abuse and, even if the agency's plan was reasonable at the beginning of the case, the agency did not implement its plan in a reasonable manner. (I) LLF

Ganaja, Gail — People v. Brown, E051378 — Suppression Motion / Jurisdiction— Carol D. Codrington, Judge & Mark Mandio, Judges — Opinion McKinster, J., with Ramirez, J., Miller, J.
Where defendant learned of false testimony by an officer at Penal Code section 1538.5 suppression hearing, the trial court erred in finding no jurisdiction to reconsider the suppression motion. The court had jurisdiction because the defendant did not have a full opportunity for a determination of the dispositive issue. (A) JLP/MCR

Shudde, Athena/Brisbois, Patricia — People v. Morales/Ramos, D058192 — Abstract of Judgment Correction — Craig G. Riemer, Judge — Benke, J., with Huffman, J., Irion, J.
Both defendants were found guilty of attempted "second" degree (actually, undifferentiated) murder. However, the abstract of judgment for both defendants identified their convictions on counts 1 through 4 as "1st Attempted Mu[rder]." Respondent conceded and the court agreed that the abstract of judgment should be corrected to reflect the defendants' convictions of attempted "second degree" (undifferentiated) murder. (I) HCC

Torres, Steven — People v. Rivera, G043460 — Parole Revocation Fine — Judith C. Clark, Judge — Ikola, J., with Rylaarsdam, J., O'Leary, J.
Appellant contended, respondent conceded, and the court agreed that a parole revocation fine of $5,000 was improperly imposed on appellant pursuant to Penal Code section 1202.45. This fine was imposed in a minute order and the abstract of judgment, not by the court on the record at the pronouncement of judgment. Because appellant was sentenced to life in prison without parole on both counts, section 1202.45 is inapplicable to his sentence. (I) HCC

Romero, Lynda/Schraer, George — People v. Phommachanh/Sirpangno, D05515 — Gang Enhancement/ Restitution — David M. Gill and Bernard K. Revak, Judges — Huffman, J., with Nares, J., McDonald, J.
Trial court erred in imposing and staying a 10-year gang enhancement under Penal Code section186.22, subdivision (b)(1), because when a defendant is sentenced to a 25-year-to-life term for first degree murder, the 15-year minimum parole eligibility of Penal Code section 186.22, subdivision (b)(5) applies. Court erred in failing to order restitution to be jointly and severally with each of the other four codefendants. (I) JLP/AMJ.

Peabody, Jennifer — People v. Reed, D060013 — Jury Instructions — Richard J. Hanscom, Judge — Opinion by Haller, J., with Huffman, J., McDonald, J.
Court of Appeal reversed appellant's conviction of arson of an inhabited structure (Pen. Code. § 451, subd. (b)) because the version of CALCRIM 1515 given to jurors defined the offense as burning a structure or property. The court found the error was prejudicial because the only evidence of fire damage to the structure was the burning of a rug, which jurors could have found was not an attached part of the structure. (I) NFA

Lubliner, Steven — People v. Bumanglag, E052422 — IAC/Hearsay Evidence — Larrie Brainard, Judge — Opinion by Richli, J., with Ramirez, J., Miller, J.
Court of Appeal reversed great bodily injury enhancement for IAC where defense counsel failed to object on hearsay grounds when the prosecution argued to jurors that medical records of the victim's injury admitted to impeach appellant were also admissible for their truth. (I)/NFA

Lampkin, David/de la Sota, Richard/Larson, Eric — People v. Flock/Bewley/Huerta, D057761 — Sentencing/Fines — Jean Pfeiffer Leonard, Judge — Opinion by Irion, J., with Huffman, J., Haller, J.
With respect to appellants Flock and Bewley, the Attorney General conceded and the Court of Appeal agreed that the case must be remanded for re-sentencing because the trial court was under the mistaken impression that full-term consecutive sentences were mandatory pursuant to Penal Code section 667.6, subdivision (d). With respect to Huerta, the Court of Appeal agreed that the victim restitution fine must be made joint and several and that the fine pursuant to Penal Code section 1202.5 must be reduced to $10 total, rather than $10 per count. (I) APJ

Pirko, Johanna — People v. Harvey, D057886 — Criminal Justice Administration Fee — Aaron Katz, Judge — Opinion by McDonald, J., with McConnell, P.J., Nares, J.
Trial court erred by imposing a $154 criminal justice administration fee, pursuant to Government Code section 29550.1, without an express or implied finding that appellant had the ability to pay the fee. (People v. Pacheco (2010) 187 Cal.App.4th 1392, 1400.) Case remanded for a finding on appellant's ability to pay this fee. (A) CBM

Stockwell, Sarah— People v. Alvarado, E053707, — Credits — Eric Nakata, Judge — Opinion by Ramirez, J., with Richli, J., Miller, J.
Trial court erred in calculating defendant's actual presentence custody credits as he was entitled to seven more days; it also erred in failing to award any presentence conduct credits. (I) AMJ

Williams, Rex – People v. Husted, E052831 – Lesser Included Offense/Penal Code section 654 – Honorable Mac R. Fisher, Judge — Opinion by Richli, J., with Ramirez, J., Miller, J.
Where appellant was convicted of petty theft, as a lesser offense of the charged robbery count, as well as the charged petty theft with a prior, both based on the same course of conduct, the petty theft conviction must be dismissed because it is a lesser offense of petty theft with a prior. The trial court erred by imposing concurrent sentences for the burglary and the petty theft with a prior conviction, as there was no evidence supporting the court's implied determination appellant's intent and objective were different for the commercial burglary conviction and the petty theft with a prior conviction. Sentence on the petty theft with a prior conviction ordered stayed pursuant to Penal Code section 654. (I) CBM

 

January 2012
Bostwick, James — People v. Monteiro, G044458 — Fees
Order for attorney fees is reversed because it is based on insufficient evidence of ability to pay. (I) AMJ

Klein, Jill -– People v. Bright, D058076 – Plea Agreements
Court of Appeal ordered appellant's prison sentence reduced from eight years to four years, in compliance with the original plea agreement. The client had been placed on probation with four years stayed. When his probation was revoked, the trial court erroneously sentenced appellant to eight years in state prison. The Court of Appeal also reduced the restitution fine from $1,600 to $200. The $200 fine had been ordered when appellant received probation. Finally, the Court of Appeal remanded the matter to the trial court with instructions to award appellant credit for time served as part of his federal case, in compliance with the plea agreement. (A-M) LKH.

Jones, Sharon/McPartland, Michael — People v. Arroyo/Resendiz, G043741 — Sentencing
As to both appellants, sentence modified to stay sentence on the street terrorism count because Penal Code section 654 prohibits punishment where punishment also imposed for the underlying felonious offense (attempted premeditated murder). As to appellant Resendiz, trial court erred in imposing a 15 year minimum term to the life terms imposed on the attempted premeditated murder convictions, because the 15-year minimum term under Penal Code section 186.22, subdivision (b)(5) (for participating in a criminal street gang where the felony is punishable by life) is not applicable where Penal Code section 12022.53, subdivisions (b) and (c) enhancements for vicarious use and discharge is imposed, unless the defendant personally used or discharged a firearm, and Resendiz did not personally do so. (I) AMJ

Curnow, Rodger — People v. Sturges, D057944 — Sentencing
The Attorney General conceded and the Court of Appeal agreed that appellant's sentence for robbery must be stayed pursuant to Penal Code section 654 when he was also suffering punishment for robbery in concert based upon the same offense. There was also full agreement that a great bodily injury enhancement must be stricken when the same great bodily injury was necessary to the imposition of a gang enhancement. (I) APJ

Boyce, Robert – People v. Lomeli, G044229 – Credits
Court of Appeal modified the judgment to award additional conduct credits. The Attorney General conceded the trial court erred in limiting appellant's conduct credits to 15 percent of his actual custody days pursuant to Penal Code section 2933.1 because that section did not become effective until 1994, one year after appellant's crime occurred. (I) BCT

Norman, Jan – People v. Hirk, G044620 – Fines/Fees/Credits
The court remanded with directions to the trial court to modify the judgment to: 1) strike the $30 fee per conviction under Government Code section 70373, subdivision (a)(1) because the conviction occurred prior to the effective date of January 1, 2009; 2) strike the $40 fee under Penal Code section 1465.8 and instead impose a $20 fee per conviction based upon the statute in effect at the time of the offense; and 3) recalculate the number of days of pre-sentence credit to include Penal Code section 4019 credits as authorized by the statute in effect between January 25, 2010 and September 28, 2010 because the court found the statute applied retroactively. (I) BCT

Hinkle, Stephen — People v. Thornton, E052835 — Fines
The Attorney General conceded and the Court of Appeal agreed that the trial court did not understand that it had discretion to set the Penal Code section 1202.4, subdivision (b)(1) fine and corresponding section 1202.45 fine at an amount below $5,000 (the amount recommended by probation). Rather than remanding, the Court of Appeal exercised its discretion to set the amount at $200 based upon appellant's ability to pay. (I) APJ

Owen, Thomas — People v. Pena, E051620 — Dual Conviction
The Attorney General conceded and the Court of Appeal agreed that pursuant to Penal Code section 288.5, subdivision (c), appellant could not be convicted of a specific act of substantial sexual conduct (aggravated sexual assault) occurring on a date within the time span alleged to support a separate conviction of continuous sexual abuse of a child. Accordingly, the conviction for aggravated sexual assault must be reversed.. (I) APJ

Bostwick, James – Seeley, E053795 – Clerical Error
Court of Appeal struck the Health and Safety Code section 11372.7 fee and related assessments, which had been listed in the sentencing minute order, but were not orally imposed by the court. (I) VPB

Auwarter, Neil — People v. Basinger, E052675 — Sentencing
Trial court granted motion correcting numerous credits calculation errors. Court of Appeal modified judgment to delete incorrect finding that the offense was a "violent" felony within the meaning of Penal Code sections 667.5, subdivision (c), and 2933.1. (S) NFA

Miller, Gerald – People v. Mulholland – Restitution
Court of Appeal reversed the order denying appellant's motion to modify her restitution order. Years after her judgment was final, appellant filed a motion to modify the restitution order to address the contributions of her co-defendants by either reducing the order to $2,500 or making it joint and several. The trial court denied the motion finding it had no jurisdiction. The trial court had jurisdiction to entertain the motion pursuant to Penal Code section 1202.4, subdivision (f)(1). The case is remanded to the trial court to evaluate the merits of the motion. (I) LKH.

Peabody, Jennifer -- People v. Mascarenas, E050575 – Sentencing
Trial court erred in running counts 3 and 4 consecutively when it had also stayed sentences on those counts. The court also erred in imposing a 20 month term (one-third of five years) for the prior serious felony conviction on count 4, because it also imposed five years for the same prior on count 2. (I) LAR

McLaughlin, Rob — In re Anthony J., G045270 — Jurisdiction/Disposition
Father challenged the order sustaining the dependency petition as to him and the order denying placement of the child with him. The court reversed these orders and placed the child with father, holding that there was not substantial evidence from which a reasonable trier of fact could find by clear and convincing evidence that placing the child with father would be detrimental to the child. (I) ACS

Whatley, Jerry — People v. Kent, E053846 — Fees
Trial court erred in imposing fees for two counts when appellant sustained only one conviction; hence, judgment modified. (I) AMJ

Ford, Patrick – People v. Riggins, D057957 -- Lesser Included Offense
Court erred in failing to strike a grand theft conviction charged in count 2 because that charge was a lesser included offense of the robbery charged in count 1. The robbery was based on D's unlawful taking of property belonging to the Gap store from a Gap employee, by force or fear. The grand theft was based upon the unlawful taking of the property belonging to the Gap store. The convictions for both counts, therefore, were based upon the same conduct. (I) LAR

Lubliner, Steven — People v. Rios, E050819 — Instructional Error
Burglary conviction reversed. Trial court erred by not instructing the jury that the prosecution was required to prove, for the offense of burglary, that appellant lacked an unconditional possessory interest in the house. (I) AMJ

Larson, Eric – People v. Rosado, D058356 – Instructional Error
Appellant was convicted of seven counts of committing lewd acts on two of his daughters. The record showed multiple acts that could have supported more than each crime as to each victim. In the charges, the prosecution elected a specific "to wit" act for each count. However, during deliberations, the jury sent several questions to the judge, demonstrating they had some confusion about reaching agreement on the facts regarding certain counts. The court then permitted the prosecution to abandon the election, denied a defense request for a unanimity instruction, and allowed the jury to convict as to "any lewd act." The Court of Appeal held that the trial court prejudicially erred in refusing the unanimity instruction and reversed the convictions on two counts. (I) LAR

Rich, Renee — People v. Noriega, G043988 — Lesser Included Offense
The Attorney General conceded and the Court of Appeal agreed that appellant's conviction for active gang participation must be reversed because it is an offense necessarily included within the offense of carrying a loaded firearm in public while being an active gang member and both convictions were based upon the same conduct. (M-I) APJ

McPartland, Michael/Cava, Dennis — People v. Pruitt, E050545 — Penal Code Section 654/Sentencing
Imposing a term for first degree burglary violates Penal Code section 654 where term also imposed for related robbery. Trial court also erred in exceeding the five-year limit provided by Penal Code section 1170.1, subdivision (a), as it existed in 1996 and 1997 when defendant committed the offenses for consecutively sentenced non-violent crimes; hence the 6 year sentence is reduced to 5 years. (I) AMJ

Capriola, William — People v. Gonzalez, D058023 — Sentencing/Gang Enhancement
Ten-year criminal street gang enhancement under Penal Code section 186, subdivision (b)(1)(C), stricken as inapplicable to appellant's life sentence, which was instead subject to the miminum term of 15 years before parole under section 186, subdivision (b)(5). (I) NFA

Owen, Thomas — People v. Diaz, E050605 — Credits
After trial court neglected to award pre-sentence custody credits, Court of Appeal awarded credits totaling 1100 days. (I) NFA

Blake, Christopher — People v. Hartshorn, D057874 — Civil Commitment Instructional Error
Appellant was committed under Welfare and Institutions Code section 6500 as a mentally retarded person who is a danger to himself or others. The Attorney General conceded, and the Court of Appeal concluded in a published opinion, the trial court should have instructed the jury that "danger to himself or others" means his conduct presents a likelihood of serious physical injury to himself or others. This sua sponte instruction was required by due process. Since the appeal was moot because the client's commitment had expired, the court dismissed the appeal. (I) LMF

Wells, Mary — People v. Gonzales, G044347 — Clerical Errors
Court of Appeal ordered the trial court to correct the sentencing hearing minute order and abstract of judgment where these documents contained sentencing information that conflicted with the oral pronouncement of judgment. (I) BCT

Frizzell, Doris — People v. Martinez, E052705 — Sentencing
Court of Appeal stayed two counts of gang terrorism (Pen. Code. § 422) pursuant to section Penal Code section 654 where defendant was separately sentenced for the felonies underlying those counts. (Citing People v. Sanchez (2009) 179 Cal.App.4th 1297.) Court also ordered correction of abstract, which incorrectly indicated the section 422 offenses were "violent felonies" within the meaning of section 667.5, subdivision (c). (I) HCC

Weis, Lizabeth — People v. Guerrero, E051868 — Dual Conviction
Court of Appeal reversed continuous sexual abuse conviction under Penal Code section 288.5, because defendant could not be convicted both of continuous sexual abuse and discrete sexual offenses of the same victim over the same time period . (I) PED

Paradis, Rene — People v. Camarena, E052958 — Probation Conditions
Because of appellant's past association with a criminal street gang, the trial court imposed several gang-related probation terms; defendant objected to two, one imposing a curfew on him (since he was an adult) and requiring him to report to the "gang detail." The Court of Appeal found the curfew condition unreasonable in its relationship to probation supervision and unreasonable interference with defendant's constitutional rights, which involved only past gang membership, no evidence of any current gang association, no connection or nexus between past gang membership and the present offense, and no nexus of any crime to nighttime activity. Similarly, singling out registration with the "gang detail" was not related to future criminality. The court struck the curfew condition and modified the other to "report to the local police agency."
(A) HCC

Frizzell, Doris — People v. Salomon, D057945 — Clerical Error
Court minutes and abstract of judgment erroneously included a fine under Penal Code section 290.3 contrary to the trial court's express decision not to impose it, finding no ability to pay. (I) AMJ

Farber, William — People v. Rosel, G044481 — Insufficient Evidence
Judgment reversed in part. The evidence was insufficient to support the jury's true finding, under Penal Code secton 186.22, subdivision (b)(1), that the robbery was committed for the benefit of the gang. (I) AMJ

Shetty, Siri – P v. Castellon, G044477 – Sentencing
Appellant was convicted of stalking with a prior conviction in violation of Penal Code section 646.9, subdivision (c)(2), and stalking with a restraining order in violation of section 646.0, subdivision (b). Both counts were based on his conduct from November 26, 2009 to April 5, 2010. Trial court erroneously sentenced him to two six-year terms (doubled by strike prior) to run concurrent with the sentence in count one (kidnapping). Court of Appeal dismissed the stalking in violation of a restraining order count because both counts were based upon the single offense of stalking. Appellant was also charged with five counts of violating the protective order in a previous case. Each count was related to one of the incidents that formed the stalking counts. Court of Appeal held the sentences on the counts be stayed pursuant to Penal Code section 654 as they were all based on the same course of conduct as the stalking offenses. (I) LAR

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