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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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 2013

Shetty, Siri, — People v. Villalba, E057151, — Statute of Limitations — Jon D. Ferguson, Judge — Opinion by McKinster, J., with Hollenhorst, J., King, J. Conditionally reversed and remanded with directions. Appellant was charged with crimes more than seven years after they were committed, which was beyond the six-year statute of limitations. The charging documents indicated the prosecution was time-barred, and the documents did not allege any facts which might have tolled the statute of limitations. The Court of Appeal found that the record was insufficiently developed to allow a determination that the prosecution was time-barred, and so remanded for an evidentiary hearing in which the issue may be litigated. (I) AMJ

Hermansen, Kurt David – People v. Torres, G047492 – Sufficiency of Evidence/Gang Offense – William R. Froeberg, Judge – Thompson, J., with Rylaarsdam, Acting P.J., Moore, J. Conviction for active participation in a criminal street gang reversed as evidence showed appellant acted alone. (I) LAR

Erickson, Kristin – In re G.P., G048213 – Insufficient Evidence – Jane L. Shade, Temporary Judge - Rylaarsdam, Acting P.J., with Aronson, J., Fybel, J. True finding of violating Penal Code section 626.2, unauthorized entry on a school campus, reversed because record contains no evidence that minor was served with written notice of his suspension by registered or certified mail. (I) PED

Margolis, Gideon – People v. Sosa, G047793 – Sentencing Error – Daphne Sykes Scott, Judge – O’Leary, P.J., with Moore, J., Aronson, J. Judgment modified to strike the one-year enhancement for a prison prior where a five-year serious felony prior was imposed based upon the same prior conviction. (I) PED

McGann, Sarah — People v. Williams, D062840 — Drug Program Fee — Albert T. Harutunian III, Judge — Opinion by Haller, J., with Huffman, J., McIntyre, J. Court of Appeal found $570 drug program fee to have been miscalculated and reduced it to $540. (A) PMI.

Boyce, Robert — People v. Cuevas, D062707 — Sentencing — Aaron H. Katz, Judge — Opinion by Irion, J., with McConnell, P.J., Benke, J. Prison prior enhancement based upon same offense as serious felony prior enhancement must be stricken rather than stayed per People v. Jones (1993) 5 Cal.4th 1142, 1150. (I) APJ

Schuck, John — People v. Derritt, E057057— Penal Code Section 654 — Donald G. Umhofer, Judge — Opinion by Miller, J., with Hollenhorst, J., King, J. Trial court erred in imposing a term for possession of ammunition in addition to the term for possession of a firearm, because the ammunition was loaded in the firearm resulting in an indivisible course of conduct. The term is stayed under Penal Code section 654. (I) AMJ

Toole, Merrill Lee — In re J.O., E057541 — Sibling Set Determination — Matthew C. Peratoni, Judge — Opinion by Hollenhorst, J., with King, J., Miller, J. Father argued that since the children were placed with mother and family maintenance services were ordered, it was error for the trial court to designate the children a sibling set in an effort to limit father’s reunification period to 6 months. The Court of Appeal agreed and directed the juvenile court to vacate that portion of its order. Appellate court affirmed the rest of the trial court’s order including issuance of restraining order against father. (I) LLF

Hill, Melissa – People v. Mateo, G047761 -- Restitution Fines -- James A. Stotler, Judge - Bedsworth, Acting P.J., with Aronson, J., Ikola, J. Restitution fine and parole revocation fine modified from $240 to $200 based on ex post facto principles. (I) PED

Male, Jesse -- People v. Smith, E057023 -- Probation Conditions - Harold T. Wilson, Jr., Judge – Hollenhorst, Acting P.J., with McKinster, J., Miller, J. Several probation conditions related to gang activity and possession of drug paraphernalia modified for being overbroad and/or vague. (A) PED

O’Connor, Sheila – In re D.K., E057973 -- Probation Conditions – Larry W. Allen, Judge - Hollenhorst, Acting P.J., with King, J., Miller, J. Two probation conditions related to association with drug sellers and possession of paraphernalia modified for being overbroad. (A) PED

Mckinney, David — People v. Pulling, E055447 — Prison Priors — Ronald J. Johnson, Judge — Opinion by Codrington, J., with Ramirez, P. J., Richli, J. Trial court erred in imposing a three-year prison prior enhancement based on the same conviction that supported a five-year serious felony enhancement. Prior ordered stayed reducing the sentence by three years. Court erred in staying a one year prison prior that was based on a different prior conviction, because the court only had the authority to impose it or strike it. Remanded to the trial court to exercise its discretion. (I) AMJ

Levy, Richard — People v. Yablonsky, E055840 — Parole Revocation Fine — John M. Tomberlin, Judge — Opinion by McKinster, J., with Hollenhorst, J., King, J. Given sentence of life without possibility of parole (LWOP), parole revocation fine stricken not only because it is inapplicable to a LWOP sentence but also because it was ex post facto to this old, cold case murder. (I) HCC

Trop, Neil — In re Michael C., D064180 — Permanent Restraining Order — Gary M. Bubis, Judge — Opinion by Aaron, J., with Benke, J., McDonald, J. Father argued the permanent restraining order was invalid because it was not supported by substantial evidence and because it omitted the distance which he must stay away from his sons and their foster family. The Court of Appeal upheld the restraining order finding substantial evidence supported its issuance but ordered the trial court modify the order to conform to the oral instructions of the juvenile court and include the distance father must stay away. (I) LLF

Kessler, Daniel — People v. Graham, E057103 — Insufficient Evidence Gang Offense and Enhancements — Christine Pate, Judge — Richli, J., with Ramirez, J., Codrington, J. Conviction for substantive gang offense reversed because appellant committed crime alone. In addition, true findings on gang allegations reversed for insufficient evidence (the Court found this issue to be viable and not moot despite the fact that the trial court had stricken the enhancements). The Court found that none of the five reasons given by the expert in support of his opinion was sufficient to show that the offense was committed for the benefit of a gang. (I) MCR

Rogers, Tracy — People v. Boatman, E054852, (2013) 221 Cal.App.4th 1253 — Insufficient Evidence Premeditation/Deliberation — Elisabeth Sichel, Judge — Opinion by King, J., with Hollenhorst, J., Codrington, J. Court of Appeal agreed with appellant’s argument that insufficient evidence supported finding of premeditation and deliberation in this case where appellant shot his girlfriend in a house full of people, claimed it was an accident during some messing back and forth with the gun, and was obviously distraught after the shooting. Court of Appeal reduced the conviction to second degree murder. (Mod-I) APJ

Haggerty, Edward — People v. Jennings, E056095 — Insufficient Evidence Gang Offense/Restitution Fine — Jean P. Leonard, Judge — Opinion by Richli, J., with McKinster, J., Codrington, J. Appellant contended the evidence was insufficient to sustain a conviction for Penal Code section 186.22, subdivision (a). After the opening brief was filed, the Supreme Court decided People v. Rodriguez, the People conceded, and the Court of Appeal agreed that there was no evidence appellant acted with anyone else. Probation recommended a restitution fine of $5,000, but the trial court indicated that the minimum was appropriate and imposed $240. At the time of the offense, the minimum was $200. Based on the trial court’s comment, the Court of Appeal concluded that imposition of the $240 violated ex post facto principles. (I) HCC

DiGuiseppe, Raymond — People v. Argallon, D062524, — Credits/Abstract of Judgment — Michael T. Smyth, Judge — Opinion by Haller, J., with McConnell, P.J., McIntyre, J. Court of Appeal and Attorney General agreed that appellant was entitled to 23 additional days of actual custody and the corresponding conduct credits and that the abstract incorrectly described one of his convictions as robbery when it was actually for possession of a firearm by a felon. (I) AMJ

Weinberg, Allen, — People v. Ramirez, E056794, — Abstract of Judgment — Elisabeth Sichel, Judge — Opinion by King, J., with McKinster, J., Richli, J. Abstract of judgment incorrectly recorded a crime of conviction as shooting at an inhabited house/building and is ordered changed to reflect a conviction for shooting at an occupied motor vehicle. The date of conviction on another count is also ordered corrected. (I) AMJ

Lathrop, Stephen M. – People v. Romero, E057660 -- Sentencing – Michael B. Donner, Judge - Hollenhorst, J., with Ramirez, P.J., King, J. Trial court incorrectly thought it had no discretion to impose concurrent sentences for the three Penal Code section 288, subdivision (a) offenses. Case remanded for a new sentencing hearing. (I) LAR

Farmani, Tony – People v. Garrett, E055776 – Dual Convictions -- David B. Downing, Judge - Richli, J., with McKinster, Acting P.J., Condrington, J. Convictions for rape of an intoxicated person and sexual penetration of an intoxicated person stricken as evidence showed only a single act of rape and only a single act of penetration and appellant was already convicted of forcible rape and forcible sexual penetration based upon those acts. (I) PED

McKinney, David – People v. Aguilar, G047777 – Sentencing – Carla Singer, Judge – Opinion by Rylaarsdam, Acting P.J., with Bedsworth, J., Aronson, J. The trial court erroneously enhanced appellant’s sentence for four counts of committing a lewd act upon a child (Pen. Code, § 288, subd. (a)). Because the alleged prior occurred in 2003, it did not precede the crimes committed in the instant offense (occurring in 2001 & 2002). Therefore, the 50 to life terms are reduced to 25 years to life under Penal Code section 667.61, subdivision (j)(2). (I) LKH

Marshall, Gregory — People v. Volanti, E056896 — Abstract of Judgment — John D. Molloy, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Codrington, J. Abstract of judgment ordered corrected to reflect the court’s oral pronouncement of $450.34 in booking fees rather than the clerk’s erroneous entry of $490. (I) AMJ

Schuck, John — People v. Tate, D063475 — Fines — Charles W. Ervin, Judge — Opinion by McIntyre, J., with Nares, J., McDonald, J. Trial court erred in imposing greater restitution fines (from statutory minimum to $400), following revocation of probation. It also erred in imposing a parole revocation fine because defendant was sentenced under Penal Code section 1170, subdivision (h), and, under that statute, he will never be subject to parole. (I) AMJ

Macomber, Thomas — People v. Cook, E054307, (2013) 222 Cal.App.4th 1 — Great Bodily Injury Enhancement — Dennis A. McConaghy, Judge — Opinion by Miller, J., with McKinster, Acting P.J., Codrington, J. Court of Appeal (Division Two) agreed with appellant and found that pursuant to Penal Code section 12022.7, subdivision (g), a great bodily injury enhancement does not apply to any victim who is also the victim of a manslaughter conviction in the case. In so holding, the court disagreed with Division One’s opinion in People v. Julian (2011) 198 Cal.App.4th 1524. In this case, although the enhancements had been stricken, the court held that the findings must also be reversed. (Mod-A) APJ

Gardner, Cliff — In re Ayache, G049290 (G043201) — Street Gang Participation — William F. Froeberg, Judge — Opinion by Moore, J., with Bedsworth, J., Aronson, J. The Court of Appeal had affirmed convictions for murder, attempted murder, and active participation in street gang, while appellant acted alone. The Supreme Court denied review without prejudice to bringing habeas depending on the outcome of Rodriguez. After Rodriguez, defendant sought habeas, respondent conceded, and the Court of Appeal dismissed the criminal street gang conviction. (I) HCC

De La Sota, Richard — People v. Riley, E056633 – Sufficiency of Evidence Aggravated Kidnapping — Duke D. Rouse, Judge — Opinion by Codrington, J., with McKinster, J., Richli, J. Defendant was convicted of six counts of kidnapping for robbery based on evidence he robbed a restaurant and in the process moved the manager and four other employees to the manager’s office, where a cash safe was located. The Court of Appeal reversed conviction for aggravated kidnapping of restaurant manager because the evidence showed his forced movement to his office to open the safe was merely incidental to the robbery. However, the court found the evidence was sufficient as to the other four employees; their presence was not required to open the safe, and so their movement was not merely incidental to the robbery. (I) NFA

Torres, Steven — People v. Delena, Jr., E056696 — Sentencing — Elia V. Pirozzi, Judge — Opinion by Codrington, J., with Ramirez, J., Hollenhorst, J. One-strike 15-years-to-life prison term for continuous sexual abuse under Penal Code section 288.5 was an ex post facto application of law where the verdict was not sufficient to establish the date of the offenses. Case is remanded for a determinate sentence. Remand also ordered for resentencing where the trial court did not exercise discretion when it interpreted Penal Code section 667.61 as mandatorily requiring consecutive sentences. (I) PMI

Ordonez, Sarita — In re J.H., E057327 — Probation Condition — Barbara A. Buchholz, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., King, J. Probation condition prohibiting minor from appearing at any court building or court parking lot unless he is a party, defendant or subpoenaed witness is overbroad because it applies to cases that are not gang-related, and so unnecessarily restricts minor’s access to the courts. The condition is ordered modified to narrow the restriction to gang-related court cases with specified exceptions. (I) AMJ

De la Sota, Richard — People v. Hernandez, E056469 — Sentencing — Eric Hegelsen, Judge — Opinion by Richli, J., with McKinster, J., Miller, J. Five of appellant's convictions for violating Penal Code section 288, subdivision (b) were alleged to have occurred over a one year period during which the statute's punishment was increased. Since the evidence did not establish the crimes occurred before the new statute with the longer punishment became effective, the sentences on those five counts had to be reduced from upper terms of 10 years to upper terms of 8 years. (I) ABM

King, Nancy — People v. Morales, G046967 — Instructional Error —William R. Froeberg, Judge — Opinion by Aronson, J., with Moore, Acting P. J., and Thompson, J. Murder conviction reversed. Under the modified wording of CALCRIM number 417 [uncharged conspiracy], as well as CALCRIM number 582 [involuntary manslaughter] the contemplation of involuntary manslaughter as a natural and probable consequence of the conspiracy could not furnish a basis for convicting appellant of the greater crime – murder. Where the co-conspirator commits “only” involuntary manslaughter, and no confederate in the conspiracy commits murder or child abuse causing death, conspirators cannot be liable for these greater offenses as a natural and probable consequence of their intended crime. Because the instructions expressly provided for alternate theories on which to convict appellant of murder (as a perpetrator, an aider and abettor, or on the conspiracy theory), it was impossible to determine whether the jury concluded appellant’s agreement to commit abuse likely causing great bodily injury (as contemplated in the conspiracy theory instruction) or an awareness that her negligence could cause great bodily injury (a prerequisite for involuntary manslaughter) presented the necessary danger to human life to constitute implied malice murder, given they were instructed that great bodily injury may be merely “greater than minor or moderate harm.” (CALCRIM No. 582 [“Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm”].) Accordingly, the error was not harmless. (I) CBM.

McPartland, Michael B. — People v. Johnson, E056878, (2013) 222 Cal.App.4th 486 — Disclosure of Juror Information/Sentencing — McConaghy, Judge — Opinion by Richli, J., with Ramirez, J., McKinster, J. Where trial court did not seem to realize that juror declarations showed that the jury improperly considered the defendant’s failure to testify, the Court of Appeal has remanded for proper consideration of appellant’s motion to disclose jurors’ identifying information motion. Case also remanded for resentencing because the Court of Appeal agreed with appellant’s argument that under Penal Code section 1170, subdivision (g) (which prohibits multiple enhancements for infliction of great bodily injury on a single victim in the commission of a single offense) the finding of great bodily injury in this case could not be used to impose both a great bodily injury enhancement under Penal Code section 12022.7, and a serious felony five-year enhancement under Penal Code section 667, subdivision (a) (by elevating the underlying offense to a serious felony). (I) PMI

Klein, Jill M. — People v. Essapour, D062563 — Restitution — Melinda J. Lasater, Judge — Opinion by McIntyre, J., with McConnell, J., Nares, J. Restitution order of $2,293,915 reversed to the extent it required defendant to pay restitution to multiple victims whose losses preceded his involvement in a conspiracy to defraud elderly homeowners into refinancing their mortgages. Restitution order was also reversed because the trial court made a calculation error and double counted certain amounts in the restitution award. (I) PMI

Seaman, Clayton — People v. Rodriguez, E054118 — Insufficient Evidence — John Tomberlin, Judge — Opinion by King, J., with Ramirez, J., Hollenhorst, J. True findings of robbery special circumstance reversed for insufficient evidence because the robbery was completed prior to any kidnaping. (I) MCR

Kelly, David — People v. Meraz, E055229 — Insufficient Evidence — James S. Hawkins, Judge — Opinion by Hollenhorst, Acting P. J., with McKinster, J., King, J. Under the principles of People v. Rodriguez (2012) 55 Cal.4th 1125 and People v. Lamas (2007) 42 Cal.4th 516, the Court of Appeal found insufficient evidence to support appellant’s two gang-related convictions (unlawful participation in a criminal street gang and carrying a loaded firearm while an active participant in a criminal street gang) where the evidence did not show the felonious criminal conduct was committed by at least two gang members. The mere presence of other gang members in the car from which appellant ran did not satisfy this requirement. Further, because there was no evidence of gang promotion distinct from the misdemeanor weapon possession offense, this minor offense could not be elevated to a felony based on appellant’s mere gang membership. (I) CBM

November 2013

Stubb, Paul – People v. Verska, E055855 – Receiving Stolen Property, Duplicative Counts – Michael B. Donner, Judge – Opinion by King, J. with Hollenhorst, Acting P.J., Miller, J. A jury convicted appellant of two counts of receiving stolen property based on his possession of a golf cart (count 2) and a trailer (count 4). The Court of Appeal reversed the conviction and sentence for one count because the golf cart and trailer were attached and moved as one unit. Therefore, as the Attorney General conceded, the record supports only one conviction for receiving stolen property. (A) LKH

Shetty, Siri — People v. Vance, E054460 — Sufficiency of Evidence Aggravated Kidnaping — Duke D. Rouse, Judge — Opinion by Codrington, J., with McKinster, J., Richli, J. Court of Appeal reversed one count of kidnaping for robbery based on insufficient evidence where appellant moved a Jack in the Box manager from the counter to his office, where the safe was located. The court found the movement was only incidental to the robbery. However, the court affirmed four additional counts of kidnap for robbery as to four other employees whose movement to the manager’s office was not necessary to open the safe. (I) NFA

Siroka, Matthew — People v. Enriquez, G047553 — Residence Probation Condition — W. Michael Hayes, Judge — Opinion by Aronson, J., with Moore, J., Thompson, J. Court of Appeal struck probation condition giving probation officer authority to approve/disapprove appellant’s place of residence. The court found this condition was an unconstitutionally overbroad constraint on the right to travel. Further, because the claim was a facial constitutional challenge to the condition and a pure question of constitutional law, the issue was raisable on appeal despite the lack of objection below. The court also ordered additional presentence custody credits to correct a calculation error by the sentencing court. (A) NFA

Boyer, Ron — People v. Nunez, E055034, (2013) 220 Cal.App.4th 1527 — Application of Excess Credits/Realignment — Anthony R. Villalobos, Judge — Opinion by McKinster, J., with Miller, J., Codrington, J. In the unpublished portion of the opinion, the Court of Appeal concluded the trial court erred in awarding insufficient presentence custody credits and ordered the correct calculation plus the concomitant good conduct credits. Because appellant had already been released to county supervision, on rehearing appellant requested that his period of supervision be reduced by the number of excess credit days (as might happen to a parole period under analogous circumstances). The Court of Appeal declined, concluding, unlike parole, the statutory language of the Realignment Act gave the court no such authority. Still, the court noted that appellant was not without a remedy: he could file a motion in the trial court under Penal Code section 1203.3 to modify his term of probation or a motion under section 2900.5, subdivision (a), to allow excess time spent in custody, including section 4019 credits, to be applied toward base fines and restitution fines at a rate of not less than $30 per day. (I) HCC

Goldstein, Michael — People v. Lettice, D062445, (2013) 221 Cal.App.4th 139 — Amendment of Information — Daniel P. Goldstein, Judge — Opinion by Aaron, J., with McDonald, J., O’Rourke, J. Trial court erred by acceding, without exercise of discretion, to the prosecution’s filing of an amended information adding a fourth count and prior strike allegation after defendant had already pleaded guilty pursuant to a plea bargain. Appellant subsequently pleaded guilty to the amended information; however, on appeal, the Court of Appeal agreed with appellant’s argument that, because the trial court did not understand it had discretion to forbid the amendment, it did not exercise discretion. Reversal is required because there is a reasonable probability that the court would have exercised its discretion to deny leave to amend. (A) AMJ

Tetreault, Nancy – People v. Raines, D062264 – One Strike Law – Peter C. Deddeh, Judge – Opinion by Irion, J. with Benke, Acting P.J., Aaron, J. Appellant was convicted of committing a lewd act upon a child (Pen. Code, § 288, subd. (a)) with personal infliction of bodily harm (Pen. Code, § 288, subd. (i)(l)). The jury found true allegations under the “One Strike” law that appellant personally inflicted bodily harm on a victim under 14 years of age and personally inflicted great bodily injury (Pen. Code, § 667.61, subds. (a), (c), (d)). At sentencing, the trial court imposed three life terms for this single count, including two 25-life terms under the “One Strike” law and one life with parole term pursuant to Penal Code section 288, subdivision (i)(l). The Court of Appeal remanded the matter to the trial court with instructions to impose a single 25 year to life term for count 1, pursuant to 667.61, subdivisions (a), (c), and (d). Because Penal Code section 288, subdivision (i)(l) and the “One Strike” law are alternative sentencing schemes, only the greater sentence should be imposed. (I) LKH

Lathrop, Stephen — People v. Zarate, E054970 — Proposition 36 Retroactivity — Mark E. Johnson, Judge — Opinion by Hollenhorst, J., with McKinster, J., Miller, J., concurring in part and dissenting in part. Three Strikes sentence reversed and case remanded for resentencing to a two-strike sentence under Prop. 36. Majority ruled Prop. 36 applies to defendants whose cases were not yet final upon effective date of the new law, disagreeing with and criticizing People v. Yearwood (2013) 213 Cal.App.4th 161. (I) JLP/ABM

Ferguson, Susan — People v. Sanders, E055814 — Judge Recusal — Richard Peel, Judge — Opinion by Hollenhorst, J., with McKinster, J., Miller, J. Where the trial judge became aware during jury deliberations that he had acted as the deputy district attorney in a prior case against defendant, the judge should have recused himself from sentencing defendant. Court of Appeal ordered remand for new sentencing hearing. (Mod-A) MCR

Staley, John — People v. Pirtle, D063488 — Custody Credits — Dwayne K. Moring, Judge — Opinion by McIntyre, J., with Huffman, J., McDonald, J. Appellant contended, respondent conceded, and Court of Appeal agreed that the trial court erroneously calculated his total presentence custody credits by calculating the actual custody credits and conduct credits for his two cases separately, rather than adding the actual custody credits for his two cases together and then calculating his conduct credits based on the aggregate number of actual custody credits. (I) HCC

Ford, Patrick — People v. Jones, E057705 — Fines After Probation Revocation — Helios Hernandez, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., King, J. Parties and Court of Appeal agreed that previously imposed restitution and probation revocation fines could not be increased upon sentencing after revocation of probation. (I) APJ

Buckley, Christian — People v. Contreras, G047603 — Proposition 36 Retroactivity — Sheila Hanson, Judge — Opinion by Ikola, J., with Moore, J., Fybel, J. Three Strikes sentence reversed and case remanded for resentencing where Court of appeal found Prop 36 applies retroactively to defendants who were sentenced prior to its enactment, but whose cases are not yet final on appeal. (I) MCR

Hart, Mark Alan – People v. Lowe, D059007 (2013) 221 Cal.App.4th 1276 – Penal Code Section 654 – Harry A. Staley, Judge - Nares, J., with Huffman, J., and Haller, J. In an unpublished portion of the opinion, the Court of Appeal found that appellant’s sentence for burglary should have been stayed because the burglary was merely incidental to, and a means of perpetrating, the intended felonies (appellant was also convicted of robbery, oral copulation and rape of specific victim of the burglary). (I) LAR

Johnson, Lauren — In re Z.A., E057737 — Indian Child Welfare Act — Matthew C. Perantoni, Judge — Opinion by Ramirez, J., with McKinster, J., Richli, J. Mother argued and the Court of Appeal agreed, based upon the appellate record, that the juvenile court and the agency failed in their duty of inquiry after mother claimed Indian heritage through her biological mother. Mother was adopted and, on appeal, provided a declaration from the biological grandmother about mother’s Indian heritage (which the Court of Appeal declined to consider). Court ordered limited remand for the agency to obtain all information from the mother, biological maternal grandmother and Wisconsin child welfare agency which was involved in mother’s adoption. Remand is limited to ICWA issue. (I) LLF

Rich, Renee – People v. Gonzales, E055779 – Pre-sentence Custody Credits – Arthur Harrison, Judge – Opinion by Miller, J. with McKinster, Acting P.J., Richli, J. The trial court is directed to amend the sentencing minute order and abstract of judgment to reflect 798 days of actual custody credit for a total of 917 days (798 actual + 119 conduct). The trial court erred in awarding only 796 actual custody credits. (I) LKH

Boyce, Robert/White, Catherine — People v. Vasquez G046668/People v. Juarez, G047179 — Juror Replacement — W. Michael Hayes , Judge — Opinion by Aronson, J., with O’Leary, J., Fybel, J. Murder conviction reversed and case remanded where the trial court erred in dismissing the foreperson based upon erroneous finding the foreperson was unable to understand the law. (I) MCR

Male, Jesse/Martin, Arthur — People v. Dunson, E056631 — Conditions of Supervised Release — B.J. Bjork, Judge — Opinion by Hollenhorst, J., with King, J., Miller, J. Court agreed two conditions of supervised release were overbroad and required modification. One condition said client could not associate with "gang members" or users of "controlled substances." The Court of Appeal agreed the condition needed to specify that "gang" referred to "criminal street gang" and "controlled substances" had to be illegal. The Court of Appeal also ordered revision of a condition requiring client get approval of the probation officer before changing his residence. Since the vehicle theft crimes to which client pled guilty did not involve a residence, the Court found the condition requiring "approval" of a change of residence overbroad and ordered it be modified to require only that the client "inform" the probation officer of a change of residence 24 hours in advance. (A) JLP/(Staff) ABM

Caldwell, William —In re T.C., E057399 — Insufficient Evidence — Christopher B. Marshall, Judge — Opinion by McKinster, J., with Miller, J., Codrington, J. Social services did not meet their burden that the parent’s mental illness placed minor at risk of harm under Welfare and Institutions Code section 300, subdivision (b). (I) CAG

October 2013

Wilson, Sachi — People v. Tapia, D061650 — Penal Code section 654 — Kenneth K. So, Judge — Opinion by Benke, J., with Haller, J., O’Rourke, J. Concurrent sentences for two incest convictions stayed because they were based on the same act and committed with the same intent as the corresponding rape charges. (I) PMI

Marshall, Marilee — People v. Lendo, E058046 — Fines/Custody Credit/Equitable Relief— Charles J. Koosed, Judge — Opinion by Ramirez, P. J., with McKinster, J., Richli, J. So that he might serve parole out-of-state, appellant asked the trial court to convert his $5,000 restitution fine to a jail sentence that he could serve concurrently with the remainder of his prison term. The court “granted” defendant’s motion, but ordered that the jail sentence be served consecutive to the prison sentence rather than concurrent. On appeal, appellant argued, respondent conceded, and the Court of Appeal agreed that the superior court lacked jurisdiction to modify the sentence and granted appellant’s request that the consecutive time he had already served be credited against the fine at the rate of $30 per day. (I) HCC

Buckley, Christian — In re Carlos R., D058583 — Lesser Included Offense — James Lauer, Jr., Juvenile Court Referee, Opinion by McDonald, J., with McIntyre, J., Aaron, J. Court of Appeal reversed theft count as an LIO the robbery offense of which appellant was also convicted. (I) NFA

Hickey, Brendan— In re Daniel G., G047775 — Firearms Ban — Cheryl Leninger, Judge — Opinion by Fybel, J., with O’Leary, J., Rylaarsdam, J. Firearm ban under Penal Code section 29805 reversed where minor was not found true of a qualifying offense under the statute. (A) MCR

Greifinger, David – In re C.F., E056937 – Boykin-Tahl Waivers in Juvenile Cases – Barbara A. Buchholz, Judge – Opinion by Richli, J., with McKinster, J., Miller, J. Court of Appeal agreed that juvenile court’s failure to orally advise minor of any Boykin-Tahl rights prior to his admission was not harmless where minor had no prior adjudications and no experience in court, and there was no evidence counsel had advised minor of his constitutional rights. The juvenile court’s statement that minor had waived his constitutional rights was merely a recitation of a familiar statement made by the court in taking admissions. Court of Appeal reversed the disposition and remanded for minor to be advised and either waive rights or proceed to trial if he so chooses. (A) LKH

Hart, Mark — People v. Villagran, E054899 — Penal Code Section 290.3 Fine/Section 1202.05 No-Visitation Order — Eric G. Helgesen, Judge — Opinion by McKinster, J., with Hollenhorst, Acting P. J., Miller, J. Court of Appeal agreed that the trial court erred in calculating the sex offense fine using the current payment structure for the offenses which occurred before this current structure was adopted. Fines reduced to payment structure in place when offenses were committed. In addition, the “no-visitation” order under Penal Code section 1202.05 is stricken as improper for two victims who had reached majority at the time of sentencing. Attorney General had argued that various penalty assessments omitted by the trial court should be imposed by the appellate court. Appellate court declined the request, but remanded for trial court to consider imposition of various penalty assessments as well as appellant’s ability to pay certain assessments which were predicated on an ability to pay. (I) CBM

Wenzell, Lewis — People v. Benitez, G041201 — Hearsay, Confrontation, Melendez-Diaz — Raymond L. Haight, III, Judge — Opinion by Rylaarsdam, J., with O’Leary, J., Bedsworth, J. Defendant was convicted of possessing methamphetamine, in part based on testimony of a laboratory analyst who did not perform the testing. The Court of Appeal initially affirmed based on People v. Geier (2007) 41 Cal.4th 555. The California Supreme Court granted appellant’s petition for review and transferred the case back to the Court of Appeal to reconsider in light of Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305. The Court of Appeal then reversed on right to confrontation grounds. The prosecution then petitioned for review, which the Supreme Court granted and then transferred back to the Court of Appeal a second time to reconsider in light of the California Supreme Court’s decisions in Lopez, Dungo, Rutterschmidt and the U.S. Supreme Court’s Williams v. Illinois (2012) 567 U.S. ___. On the second transfer, the Court of Appeal again reversed the conviction because the non-testifying lab analyst certified the report under penalty of perjury, supplying the requisite “degree of formality or solemnity” to trigger appellant’s right to confrontation. (I) NFA

Fields, Lori/McGowan, Jesse— In re A.N., E056082 — Modification of Jurisdiction Order — Gregory S. Tavil, Judge — Opinion by King, J., with Ramirez, P. J., Codrington, J. Case involved an extremely contentious family law case that spilled over into juvenile court. The Court of Appeal reversed two jurisdiction counts under section 300, subdivision (b), finding they were not supported by sufficient evidence. A third count that was added by the court, sua sponte after closing arguments, was also reversed. The court concluded that adding the count (which referenced the mother’s boyfriend and was unrelated to any of the other counts), was prejudicial because the parties had no notice nor the opportunity to address and defend the new allegation. A fourth allegation, regarding the father’s demand for perfectionism and added sua sponte by the court, was also reversed because it failed to state a basis for dependency jurisdiction. Substantial evidence supported the remaining jurisdiction findings and the decision to remove the children from the parents. (I) LMF

McKinney, David – People v. Sanchez, G047063 – Insufficient Evidence Gang Offense – W. Michael Hayes, Judge – Fybel, J., with O’Leary, P.J., Thompson, J. Under the recent California Supreme Court’s decision in People v. Rodriguez, the conviction for street terrorism was reversed because appellant was acting alone when he fatally shot the victim. (I) LAR

Morse, David – People v. Phillips, E055866 – Insufficient Evidence Attempted Murder/Kill Zone Theory – Bernard Schwartz, Judge – Miller, J., with Hollenhorst, J., McKinster, J. Appellant’s three attempted murder convictions along with associated enhancements are reversed. The prosecution had set forth a “kill zone” theory in support of the charges. Appellant had shot at one person, the subject of a murder charge, and then directed his gun in the general direction of a larger group. Because there was no evidence appellant attacked the group in order to assure the murder victim’s death, substantial evidence did not exist to support the three attempted murder convictions. (I) LAR

Kassman, Martin — People v. Phillips, E055742 — Penal Code Section 654 — Christian F. Thierbach, Judge — Opinion by Miller, J., with Hollenhorst, J., McKinster, J. Court of Appeal ordered the trial court to stay consecutive term for grand theft where appellant was separately sentenced for identity theft (§ 530.5) based on the same incident, in which appellant used a stolen or altered credit card to make a store purchase. Remanded to allow court to modify its discretionary sentencing choices, but not to exceed the original total of 10 year, 4 months. (I) NFA

Auwarter, Neil — People v. Cole, D062648 — Victim Restitution — Kenneth K. So, Judge — Opinion by Irion, J., with Benke, J., Aaron, J. Trial court granted $400 victim restitution to Police Department under Penal Code section 1202.4 for the cost of a forensic examination of appellant in this sexual assault case. Court of Appeal struck this award because a governmental agency incurring expense in investigating or prosecuting a crime is not a “victim” for restitution purposes. (S) NFA

Quinlan, Sheila — In re Moises R., D063355 — Insufficient Evidence — Richard R. Monroy, Judge — Opinion by McConnell, P.J., with Haller, J., McDonald, J. Two counts of lewd acts on a minor reversed because the actions forming the basis of the convictions were merely preparatory to the acts forming the basis for the two sodomy offenses. (A) DKR

Vogelmann, Monica — In re Adolfo M., D063789 — Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) — Garry G. Haehnle, Judge — Opinion by McDonald, J., with Nares, J., Aaron, J. Reversal for failing to apply the UCCJEA for Mexican child. (I) CAG

Stevenson, Theresa — People v. Morgan, E056537 — Sentencing — Dennis A. McConaghy, Judge — Opinion by Ramirez, J., with Hollenhorst, J., King, J. Two-year sentence for petty theft (which had been stayed under Penal Code section 654) is reduced to six-months where the trial court erroneously imposed a sentence for grand theft. The abstract of judgment is also corrected to reflect a conviction for petty theft, not grand theft. (I) PMI

Quinlan, Sheila — In re Larry W., D062607 — Probation Condition/Credits/ Maximum Time — Michael T. Smith/Browder A. Willis, Judges — Opinion by Haller, J., with Huffman, J., Irion, J. Probation condition prohibiting unsupervised presence in downtown San Diego is unconstitutionally vague because it does not specify the geographic boundaries of the prohibited area. Probation department is directed to provide minor with a written description of the geographic boundaries. The juvenile court failed and is directed to calculate minor’s pre-commitment custody credits and specify his maximum permissible period of confinement because he was committed to the Breaking Cycles program. (A) AMJ

Dorian, Melanie — People v. Shovey, E056139 — Attorney Fees — Rodney A. Cortez, Judge — Opinion by Codrington, J., with McKinster, J., Richli, J. Respondent and Court of Appeal agreed with appellant that order to pay attorney fees must be stricken because the trial court failed to provide appellant with the notice and hearing required by the authorizing statute, Penal Code section 987.8. Matter remanded for a hearing to determine appellant’s ability to pay the disputed fee. (Mod-A) CBM.

White, Catherine — People v. Martin, E055372 – Credits — Jean P. Leonard, Judge — Opinion by Hollenhorst, J., with King, J., Codrington, J. Trial court failed to calculate and order pre-sentence credit for actual days spent in custody. Trial court is directed to amend the abstract of judgment to reflect 1,740 days of credits. (I) AMJ

Hansen, Jennifer — People v. Virga, G047261/G047262 – Probation Costs — Edward Hall, Temporary Judge — Opinion by Rylaarsdam, J., with Fybel, J., Ikola, J. Court of Appeal agreed that evidence presented at hearing was insufficient to support trial court’s finding that appellant had the ability to pay probation costs of $3,264.90. The trial court is directed to enter a new order that appellant shall not be required to pay any of the costs. (A) AMJ

Koryn, Daniel — People v. Johnson, D062887 — Abstract of Judgment — Jeffrey F. Fraser, Judge — Opinion by Huffman, J., with Nares, J., O‘Rourke, J. Court of Appeal agreed with the parties that the abstract of judgment should be corrected to reflect that the restitution fine was imposed joint and severally with co-defendants, as reflected in the reporter’s transcript and the minutes. (I) HCC

Haggerty, Edward – People v. Gutierrez, D063498 – Sentencing – Patrick F. Magers, Judge – Irion, J., with Benke, J., Nares, J. Trial court erred by imposing an indeterminate term of seven years to life on the witness intimidation count pursuant to Penal Code section 186.22, subdivision (b)(4)(C), because appellant was not convicted under Penal Code section 136.1, subdivision (c)(1). Per People v. Lopez (2012) 208 Cal.App.4th 1049 the indeterminate gang enhancement may be imposed for victim or witness intimidation only if the defendant was convicted of section 136.1, subdivision (c)(1) because that subdivision is the only provision in section 136.1 that refers to use of an implied or express threat. (I) LAR

Fisher, Lelah — In re Neveah T., D064188 – Indian Child Welfare Act (ICWA) — Michael J. Imhoff, Commissioner — Opinion by Nares, J., with Huffman, J., Haller, J. Jurisdiction and disposition orders are reversed pending proper inquiry and notice regarding ICWA. The father told the agency he was a registered member of the Apache Tribe. The court declined to order notice until father completed the ICWA long form (ICWA-030). The social worker gave father the form but took no further steps. Five months later, the court found father was a member of the Apache Tribe, and ordered him to complete and submit the long form to the social worker within a week. The court then entered jurisdiction and disposition orders. The Court of Appeal reversed those orders, directed the agency to conduct a proper ICWA inquiry and provide notice to any identified tribes. The judgment was to be reinstated only if no tribe claimed the children were Indian children. (I) LMF

September 2013

Hinkle, Stephen — People v. Childers, D062971 — On-Bail Enhancement — John S. Einhorn, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. Defendant was prepared to admit to on-bail enhancement but court failed to ask him to do so. Under these circumstances, both parties agreed it was error to impose the enhancement. The Court of Appeal found error and, with respect to remedy, agreed with the People that rather than striking the enhancement, the matter must be remanded back to the trial court to make necessary findings. (I) PMI

Klaif, Leonard — In re D.J., E057587 — Wobbler Determination — Honorable Brian Saunders, Judge — Opinion by Ramirez, P. J., with King, J., Codrington, J. Although both counts in juvenile case alleged as felonies, court never affirmatively exercised discretion to determine nature of crimes. Matter remanded to juvenile court for express declaration, after exercise of discretion, whether counts one and two should be deemed felonies or misdemeanors. (I) CBM

Nalls, Christopher – People v. Gonzalez, G043384 – Insufficient Evidence Gang Offense – M. Marc Kelly, Judge – Opinion by Fybel, J. with O’Leary, P.J., Bedsworth, J. Court of Appeal reverses appellant’s conviction for street terrorism (Pen. Code, § 186.22, subd. (a)) where there was insufficient evidence appellant acted with one or more gang members in committing the felonious criminal conduct. (I) LKH

Sheehy, Kevin — People v. Castro, E056083 — Insufficient Evidence Gang Offense/Sentencing and Clerical Errors — Dennis A. McConaghy, Judge — Opinion by Miller, J., with Hollenhorst, J., McKinster, J. Two counts of active gang participation reversed due to insufficient evidence appellant acted in concert with other gang members. Sentence on a misdemeanor count that had been dismissed ordered stricken. Deletion of victim restitution from minute order and abstract of judgment ordered when the court did not orally impose victim restitution. (I) PMI

Hart, Mark — People v. Figueroa, G046684 — No-Visitation Order — Richard F. Toohey, Judge — Opinion by Fybel, J., with O’Leary, P.J., Rylaarsdam, J. Attorney General conceded and Court of Appeal agreed that court’s no-visitation order issued under Penal Code section 1202.05 was invalid because victims were no longer minors at the time of sentencing. (See People v. Scott (2012) 203 Cal.App.4th 1303, 1307.) Order stricken. (I) CBM

Fitzer, Richard — People v. Clarkebey, E054547— Abstract of Judgment — Jeffrey Prevost, Judge — Opinion by McKinster, J., with Hollenhorst, Acting P.J., Miller, J. Abstract of judgment corrected to indicate a stayed sentence and to strike a prison prior that trial court erroneously stayed. (I) APJ

Andreasen, David – People v. Chavez, E054719 – Lesser-Included Offense – Robert E. Law, Judge – Opinion by Miller, J. with Richli, Acting P.J., King, J. Appellant’s conviction for resisting an officer (Pen. Code, § 148, subd. (a)(1)) is reversed because it is a lesser included offense of resisting an officer by force or violence (Pen. Code, § 69). (A) LKH

Bergen, Ann — People v. Mitchell, G046858 — Penal Code Section 654 — William Lee Evans, Judge — Opinion by O,Leary, J., with Moore, J., Aronson, J. The trial court erred in failing to stay the sentence for appellant’s attempted second degree robbery conviction where the attempted robbery was facilitated by an aggravated assault for which appellant was separately and more greatly punished. (A) PED

Shaler, Susan — People v. Winter, D062455 — Lesser-Included Offense — Allan J. Preckel, Judge — Opinion by Haller, J., with McConnell, J., O’Rourke, J. Attorney General conceded and Court of Appeal agreed that the conviction for battery with serious bodily injury was a lesser-included offense of mayhem and ordered it stricken. (I) BCT

Truax, Chris — People v Hill, E054823, — SVP Commitment Reversed — James T. Warren, Judge — Opinion by McKinster, J., with Hollenhorst, J., Richli, J. The court dismissed the appellant’s written Marsden motion, ruling he was not entitled to a hearing. The Court of Appeal concluded the defendant had a due process right in SVP proceedings to the effective assistance of counsel and to a Marsden hearing. The court also found the Chapman standard of prejudice applied because a due process right was implicated. Nevertheless, the denial of hearing in this instance was prejudicial under both the Chapman and Watson standards; the written motion listed a number of complaints which if true, supported a finding the defendant received inadequate representation. (I) LMF

Cannon, Gregory — People v. Armenta, E054533 — Clerical Errors — Richard Todd Fields, Judge — Opinion by Richli, J., with Hollenhurst, P. J., King, J. The abstract of judgment is erroneous because the trial court did not expressly impose the reflected fines and the People forfeited these fines by failing to request them in the trial court. The respondent conceded the point. (I) HCC

Fabian, Carl — People v. Santana, D059013 — Stay Enhancement and Remand for Abstract of Judgment Correction — Mark E. Johnson, Judge — Opinion by Aaron, J., with Benke, J., McDonald, J. This opinion follows a remand by the California Supreme Court. In the present opinion, the Court of Appeal addressed two sentencing contentions which had been raised in the previous appeal but had not addressed in the prior opinion due to the court’s reversal of the underlying count. First, although the Court of Appeal disagreed with defendant that the trial court should have stricken a concurrent three-year term on the Penal Code section 12022.7, subdivision (a), great bodily injury enhancement, it concluded that the trial court erred in that it should have stayed the enhancement under Penal Code section 12022.53, subdivision (f), and People v. Gonzalez (2008) 43 Cal.4th 1118, 1130. Second, the court and People agreed that the abstract of judgment must be corrected on remand, because it contained various errors and it was impossible to discern what the trial court ultimately intended in terms of a final sentencing minute order and complete abstract of judgment. (I) AMJ

Lathrop, Stephen/Lampkin, David — People v. Gonzalez/Martinez, E054599 — Insufficient Evidence Attempted Murder/Assault with a Firearm — Dwight W. Moore, Judge — Opinion by King, J., with McKinster, J., Richli, J. Two counts of pre-meditated attempted murder and one count of assault with a firearm reversed on insufficient evidence because the prosecution proceeded on a direct perpetration theory as to each defendant and gave no aiding and abetting instructions. The court found that the evidence introduced at trial did not support a direct perpetration theory. (I) PED

McGill, Martha — People v. Kelly, G046870 — Penal Code section 654 — William L. Evans, Judge — Opinion by O’Leary, J., with Aronson, J., Ikola, J. The trial court erred in failing to stay the sentence for kidnapping per Penal Code section 654 because appellant committed this crime in furtherance of committing the sodomy by force offense for which appellant was separately punished. (I) PED

Tetreault, Nancy — People v. Castillo, E056490 — Restitution Fine — Bernard Schwartz, Judge — Opinion by Richli, J., with Ramirez, J., King, J. Restitution fine of $2,000 imposed after re-sentencing reduced to the originally imposed amount of $1,000 based on state double jeopardy principles. (I) PED

Schaefer, Laura/Weinberg, Allen — People v. Ramirez/Armendariz, G044703, (2013) 219 Cal.App.4th 655 — Cruel and Unusual Punishment/Instructional Error — William Froeberg, Judge — Opinion by Rylaarsdam, with Moore, J., concurring, Aronson, J., concurring and dissenting. The LWOP plus 65-years-to-life sentence imposed against appellant Ramirez and the 90-years-to-life sentence imposed against Armendariz amounted to cruel and unusual punishment, in light of their youth at the time of the crimes. Both sentences are reversed and the case remanded to the trial court with directions to re-sentence each to a term which allows him a meaningful opportunity to obtain release within a reasonable period based on demonstrated maturity and rehabilitation. With regard to appellant, Armendariz, the court agreed with his contention that the trial court prejudicially erred in its instruction to the jury on both direct aider and abettor liability and the natural and probable consequences doctrine. With regard to direct aider and abettor liability, the court found that in this instance, the instructions did not adequately inform the jury that Armendariz’s culpability for first degree murder as a direct aider and abettor must be based on his own premeditation, and not on the premeditation of Ramirez. With regard to natural and probable consequences, the court opined that the jury was erroneously asked only to determine whether murder was a natural and probable consequence of one or more of the lesser crimes intended by Armendariz; it was not asked to determine whether Ramirez’s premeditation of that murder was also a natural and probable consequence. Absent a factual finding that Ramirez’s premeditation of the murder was part of the natural and probable consequences of the lesser crime(s) intended by Armendariz, Armendariz cannot be held culpable for that premeditation. Because the jury instructions on these points were flawed, and the court found that the error was not harmless beyond a reasonable doubt, the jury’s verdict of first degree murder against Armendariz was reversed. (I) PED

DeVito, Cara -- People v. Silva, E055801 – Gang Enhancement – Ingrid A. Uhler, Judge - Ramirez, P.J., with King, J., Codrington, J. Court of Appeal’s holding in a co-defendant’s appeal (People v. Beltran, E053541) that there was insufficient evidence their gang had, as one or more of their primary activities, the commission of “assault with a deadly weapon or by means likely to produce great bodily injury, robbery, murder/manslaughter, the sale or possession for sale, transportation of controlled substances, and/or sale, delivery, or transfer of firearms” is law of the case for this appeal and requires reversal of the true findings as to the street gang allegations for both crimes and the firearm allegations for the murder. (I) LAR

Haggerty, Edward — People v. Zapata, G047277 — Proposition 36 Retroactivity — W. Michael Hayes, Judge — Opinion by Rylaarsdam, J., with Bedsworth, J., Aronson, J. Division Three disagreed with Yearwood and concluded that Proposition 36 was retroactive to cases not final. The court noted Yearwood’s concerns about retroactivity may be valid but they are not reflected in the ballot arguments in favor of the Act. Additionally, these same apprehensions apply to a qualifying defendant sentenced after the Act’s effective date, yet the trial court has no discretion to impose a Third Strike sentence even if it believes a defendant is or will be dangerous in the future, based on defendant’s conduct in custody or elsewhere. Given the Estrada presumption, the absence of any expressed intent or its clear “equivalent” that the Act apply prospectively only, and the stated intent underlying the Act, the court concluded the Proposition applied retroactively to judgments not yet final on the Act’s effective date. (I) HCC

Wrubel, Suzanne — People v. Johnson, E055133 — Instructional Error/Lesser-Included Offense — Kyle S. Brodie, Judge — Opinion by Hollenhorst, J., with McKinster, J., Miller, J. Court of Appeal agreed with appellant’s contention that the trial court erred by failing to instruct the jury on theft as a lesser-included offense of robbery when there was substantial evidence that the taking of property was an afterthought in an assault arising from a domestic dispute. Given the evidence, the jury could reasonably have concluded that the initial assault took place when the victim tried to stop defendant from taking away his (appellant’s) daughter. If it believed that scenario, the jury could have reasonably determined that the intent to remove victim’s property arose only after the victim was knocked unconscious, making the crime theft rather than robbery. (I) HCC

Grimm, Cynthia — In re Jorge V., D063338 — Notice of Deferred Entry of Judgment Option — Polly Shamoon, Judge — Opinion by McConnell, J., with Huffman, J., McDonald, J. In juvenile appeal, true finding and disposition were reversed and case remanded because, although the prosecution determined the client was eligible for deferred entry of judgment, it did not provide client with the required written notice and did not file the required form with the court. (Welf. & Inst. Code, §§ 790 et seq.; Cal. Rules of Court, rule 5.800(b)(1).) The court did not notice the juvenile or his parents and did not hold a hearing on deferred entry of judgment. (A) JLP/ABM.

Dain, Anthony — People v. Corlley, D062346 — Penal Code Section 654 — Edward P. Allard, III, Judge — Opinion by O’Rourke, J., with Huffman, J., McIntyre, J. Court of Appeal found error under Penal Code section 654 to sentence separately on convictions for possession of a firearm and possession of ammunition during a single course of conduct. (I) PMI

Torres, Steven — People v. Pineda, E055505, — Gang Enhancements — Edward D. Webster, Judge — Opinion by Miller, J., Ramirez, J., Codrington, J. Court of Appeal reversed 10-year gang enhancement under Penal Code section applicable to violent felonies because appellant neither personally used a firearm nor personally inflicted great bodily injury, as statutorily required at the time of the 2010 offense. (Former Pen. Code, § 186.22, (b)(1)(C).) Remanded to impose the base gang enhancement (2, 3 or 4 years) under section 186.22, subd. (b). (I) NFA

Rehm, Joanna — People v. Adrino, E055371 — Abuse of Discretion/Denying Probation — Eric Helgesen, Judge — Opinion by Hollenhorst, J., with Ramirez, J., Miller, J. Remand for re-sentencing where trial court was found to have relied upon improper factors in denying appellant probation. (I) MCR

Kessler, Daniel — People v. Covarrubias, D062686 — Restitution Fines/Presentence Credits — David M. Szumowski, Judge — Opinion by Irion, J., with McDonald, J., McIntyre, J. Trial court imposed a $200 restitution fine under Penal Code section 1202.4, subdivision (b), and granted probation; at subsequent revocation of probation the court increased the restitution fine to $960. Court of Appeal held the initially imposed fine could not later be increased and so reduced it to $200. Court of Appeal also awarded conduct credits under section 4019 for presentence custody following the initial probation/sentencing hearing. The trial court had denied all conduct credits because appellant’s plea agreement agreed to waive conduct credits; but that agreement could only reasonably be read to waive conduct credits accrued up to the date of the plea, not those accrued for custody served after the plea but before the ultimate revocation and sentencing. (I) NFA

McKenna, Patrick — In re T.M., G045930— Search and Seizure — Jacki C. Brown, Judge — Opinion by Aronson, J., with O’Leary, J., Bedsworth, J. Court of Appeal reversed juvenile true finding of narcotics offense because juvenile court erred in denying the minor’s suppression motion. Police responded to a 911 hang-up call from a residence in which numerous tenants lived in different rooms. With the owner’s permission, the officer went from room to room asking if tenants had called 911 and if they were OK. The officer looked through one open door and saw the minor sitting on a bed in an interior room. The officer entered without asking permission and, in talking to the minor, noted signs of intoxication, leading to the minor’s arrest. Court of Appeal held the suppression motion should have been granted because the officer did not have consent to enter the minor’s individual room, nor did the exigent circumstance or community caretaking exception apply given the officer’s observation of the minor from the doorway, from which it was evident there was no exigency or urgent danger. (A) NFA

Schuck, John — People v. Everette, E055145 & E055146 — Lesser-Included Offenses — J. Thomspon Hanks, Judge — Opinion by Codrington, J., with Hollenhorst, J., Richli, J. Possession of cocaine base conviction reversed as lesser-included offense of possession of same cocaine base for sale. (I) DKR

Wruebel, Suzanne — People v. Rangel, G046590 — Penal Code Section 654 — Gregg Prickett, Judge — Opinion by Rylaarsdam, J., with Bedsworth, J., Moore., J. Sentence on carjacking, residential burglary and false imprisonment stayed to the robbery count under Penal Code section 654 because the were all committed with the same objective. (I) MCR

Cilli, Gregory — People v. Edwards, E055959— Insufficient Evidence Gang Offense — Jean Leonard, Judge — Opinion by Ramirez, J., with Codrington, J., Miller, J. Penal Code section 186.22 conviction reversed for insufficient evidence appellant acted in concert with other gang members. (I) MCR

August 2013

Booher, Robert — In re I.D., D063120 — Penal Code Section 654/Probation Condition — Richard R. Monroy, Judge — Opinion by Nares, J., with McIntyre, J., O’Rourke, J. The judgment is modified to stay execution of the four-month sentence imposed for the finding on the obstruction of telephone line offense, because minor had the same intent and objective as for her violation of the offense of dissuading a witness from reporting a crime in that minor ripped the phone away from her mother and out of the wall to prevent her mother from calling the police. The weapons probation condition is unconstitutionally vague and is modified to include an express knowledge requirement. (I) AMJ

Moller, Richard J. — In re C.C., G047202 — Suppression of Evidence/Appealability of Juvenile Disposition — Deborah J. Chuang, Judge — Opinion by Rylaarsdam, J., with Bedsworth, J., Aronson, J. In response to Attorney General’s argument that denial of suppression motion was not appealable after disposition because minor was not declared a ward, the Court of Appeal concluded that section 725, refers to judgments, whether wardship is declared under subdivision (b) or not (subd. (a)); hence, the denial was appealable. The court further found that without any evidence that minor’s car was located on school grounds, there was insufficient evidence to permit the juvenile court’s application of relaxed standards permitting searches of students by school authorities and reversed the judgment. (I) HCC

Kessler, Daniel J. — People v. Dennis, E055848 — Statute of Limitations — W. Charles Morgan, Judge — Opinion by Ramirez, J., with Miller, J., Codrington, J. 2011 conviction for robbing a bank in 2007 ordered reversed because the People failed to prosecute the defendant within the three year statute of limitations. (I) PED

Bauguess, Susan — People v. Ferris, E056284 — Attorney’s Fees — Stanford E. Reichert, Judge — Opinion by Hollenhorst, Acting P.J., with McKinster, J., Richli, J. Where appellant was sentenced to four years in prison and trial court failed to make finding of ability to pay or unusual circumstances per Penal Code section 987.8, subdivision (g)(2)(B), and the record does not support any such finding, the Attorney General conceded and Court of Appeal agreed the order requiring appellant to pay attorney fees must be stricken. (I) APJ

Stevenson, Theresa — People v. Church, D062490 — Violation of Plea/Invalid Cruz Waiver — Juan Uloa, Judge — Opinion by Benke, J., with Huffman, J., O’Rourke, J. Court of Appeal reversed sentence, where trial court had imposed three year term instead of two year term stipulated in plea agreement. Although appellant violated a term of his release pending sentencing, the trial court was required to impose the stipulated term or allow appellant an opportunity to withdraw his plea because the court had not, prior to release, obtained a waiver from appellant of his right to withdraw the plea per People v. Cruz (1988) 44 Cal.3d 1247. (I) JLP

Dodd, John — People v. Cline, E056489 — Presentence Credits — Kelly L. Hansen, Judge — Opinion by Richli, J., with King, J., Codrington, J. Court of Appeal ordered increase of presentence conduct credits under the version of Penal Code section 4019 in effect on the date of the offense (two days of conduct credit for four days served). The trial court had erroneously limited conduct credits to 20% of actual days due to appellant’s prior felony strike. In fact, the strike limits post-sentence conduct credits to 20%, but not presentence conduct credits. (I) NFA

Marshall, Marilee – People v. Rodriguez, E057722 – People’s Appeal/Speedy Trial Violation – Dennis A. McConaghy, Judge – Codrington, J., with Ramirez, P.J., and Miller, J. Court of Appeal affirmed trial court’s dismissal of case based on finding of actual prejudice to defendant and no justification for the delay in prosecution. (I) LAR

Booher, Robert/Crooks, Gary — People v. Salas/Santiago, E054312 — Gang Offense — Mark Mandio, Judge — Opinion by Richli, J., with King, J., Miller, J. Insufficient evidence presented to support conviction of the substantive crime of active participation in a criminal street gang because one appellant acted alone in carrying a knife (the other appellant had no knowledge of the knife). (I) PMI.

Harris, Donna — People v. Morales, D061830 — Lesser Included Offenses — John S. Einhorn, Judge — Opinion by Nares, J., with McIntyre, J., Aaron, J. Court of Appeal reversed grand theft conviction as an offense necessarily included within the crime of robbery of which appellant was also convicted based on the same taking of Gucci handbags from Neiman Marcus. (I) NFA

Booher, Robert — People v. Guillen, E055022 (2013) 218 Cal.App.4th 975 — Restitution Fine — Elaine M. Johnson, Judge — Opinion by McKinster, Acting P. J., with Richli, J., King, J. In this People’s appeal from the trial court’s order dismissing the originally-imposed restitution fines when it terminated probation early under Penal Code section 1203.4, after defendant successfully completed the court-ordered drug treatment program, judgment is affirmed. Once the Penal Code section 1203.4 motion was granted, appellant was “released from all penalties and disabilities resulting from the offense,” with exceptions not applicable here. This statutory directive includes the proper suspension and dismissal of the restitution fine. (I) CBM

Tavano, Joseph — In re Patrick S., D063016, — Disposition — Laura J. Birkmeyer, Judge — McIntyre, J., with McConnell, P. J., Nares, J. Juvenile court’s finding it would be detrimental to 14-year-old-boy to be placed with his father was reversed for lack of substantial evidence. The juvenile court concluded the lack of a relationship with father, the fact the minor did not want to live with father and his family, father’s deployment in the Navy for a substantial period of time, and the lack of an ICPC evaluation, did not establish detriment sufficient to prevent placement under section 361.2. The Court of Appeal concluded father was a competent, caring and stable parent, with no risk factors in his home. The boy’s anxiety about living with father, without a showing father would be unable or unwilling to obtain therapeutic services for him, did not support a detriment finding. And while the boy’s preferences should be considered, they are not the deciding factor. (I) LMF

Koryn, Daniel G. – People v. Herrera, E054953 – Penal Code Section 654 – F. Paul Dickerson, III, Judge – McKinster, J., with Richli, J., King, J. Because both resisting an executive officer and misdemeanor battery on a peace officer are based upon the same acts, the misdemeanor sentence must be stayed pursuant to Penal Code section 654. (I) LAR

Dodd, Karen — In re D.W., E057650 — Indian Child Welfare Act — John M. Monterosso, Judge — Opinion by Ramirez, J., with Hollenhorst, J., McKinster, J. Parties stipulated to a reversal of judgement and remand based on violation of the Indian Child Welfare Act. After reviewing the entire record, the Court of Appeal agreed the agency and the juvenile court failed to adequately comply with inquiry and notice requirements of the ICWA by omitting known relative information on the ICWA forms mailed to the tribes. (I) LLF

Yanis, Mark — People v. Perry, E055361 — Violation of Plea Agreement — Becky Dugan, Judge — Opinion by King, J., with Ramirez, P. J., Codrington, J. Where written plea agreement contained the notation “Ct. 5 (§ 654)”, the plea agreement was conditioned upon the staying of the sentence on count 5 pursuant to Penal Code section 654. The trial court improperly failed to follow the plea agreement when it imposed the term for count five concurrent to the principle term and failed to stay the term under Penal Code section 654. Appropriate remedy is to implement the reasonable expectations of the parties – an order for the stay of the sentence on count 5, not a withdrawal of the plea. Because the total term of incarceration would not change, the trial judge is not bound to a disposition she would find unsuitable by this order for specific enforcement. (I) CBM

Siroka, M. — People v. Warren, E056792 — Penal Code Section 654/Fees — Charles Everett Stafford, Judge — Opinion by Richli, J., with King, J., Codrington, J. Court of Appeal agreed that the sentence for either appellant’s grand theft or felony vandalism must be stayed under Penal Code section 654 because the vandalism was committed only for the sake of the theft. Case also remanded for determination of ability to pay presentence probation report fee and probation supervision fee. (I) PMI

Shaler, Susan – People v. Esparza, E055493 - Penal Code Section 654 – Bernard Schwartz, Judge – Opinion by Miller, J. with Hollenhorst, Acting P.J., McKinster, J. The Court of Appeal ordered appellant’s sentence for active participation in a criminal street gang stayed pursuant to Penal Code section 654 where appellant is being separately punished for the offenses upon which the gang offense was based. (I) LKH

Bauguess, Susan — People v. Salazar, G047211 — Motion to Dismiss — Richard M. King, Judge — Opinion by Ikola, J., with O’Leary, J., Moore, J. Four lewd acts convictions under Penal Code section 288, subdivision (c)(1), are overturned because trial court erroneously denied appellant’s motion to dismiss under Penal Code section 1118.1 after prosecution failed to offer evidence of appellant’s age to prove he was at least 10 years older than the child. Court of Appeal held that defendant’s appearance was not sufficient proof that he was at least 10 years older than the child and the prosecution’s elicitation of appellant’s age during the defense case did not cure the error. (I) DKR

Gambale, Erica — In re E.L., E057943 — Lesser Included Offense/Probation Condition — Lawrence P. Best, Judge — Opinion by Ramirez, P.J., with King, J., Codrington, J. Court of Appeal agreed that the true finding on a receiving stolen property allegation must be reversed when the same property was also the subject of a robbery true finding. Court of Appeal also agreed that a condition of probation prohibiting drug possession must be modified to make it clear that the minor may possess prescription medications. (A) HCC

Boyer, Ron – People v. Vera, G047014 – Reasonable Doubt Instruction – Richard W. Stanford, Jr., Judge – Moore, J., with Rylaarsdam, Acting P.J., and Aronson, J. Court of Appeal found the trial court violated appellant’s due process rights when it repeatedly made comments to the jury that diminished the presumption of innocence and suggested the burden of proof was something other than proof beyond a reasonable doubt. Court of Appeal stated the trial court paraphrased the law incorrectly and incompletely; and furthermore, belittled and ridiculed concepts in our system of justice that are essential to due process and fairness. Reversed and remanded. (I) LAR

Derrick, John — People v. Guzman, G046266 — Gang Evidence/Opinion Testimony — Daniel J. Didier, Judge — Opinion by Rylaarsdam, P.J., with Aronson, J., concurring, and with Bedsworth, J., dissenting. In a case that involved no gang charges or allegations, Court of Appeal found the trial court prejudicially erred in allowing prosecution to cross-examine defense witnesses about their gang affiliations, admitting gang-related evidence, including gang expert testimony, and giving a modified instruction on the use of the gang expert’s testimony. Court of Appeal found that the prosecution’s justification for this evidence was unpersuasive and, because the case was a credibility contest, with much inconsistency among prosecution witnesses, these errors created an unacceptable risk the jury concluded defendant must be a bad person because of association with violent gang members. (Mod-A) AMJ

Rogers, Tracy A. — People v. Alphonso, D061986 — Penal Code Section 654 — George W. Clarke, Judge — Opinion by Nares, J., with Haller, J., & Aaron, J. In this case involving domestic violence and rape, sentence on six counts stayed under Penal Code section 654 because the offenses were committed as part of the same course of conduct. (I) PMI

Love, Christopher — People v. Reyes, E056346 — Penal Code Section 654 — Annemarie G. Pace, Judge — Opinion by Ramirez, P.J., with King, J., Codrington, J. Concurrent term for the criminal threats conviction must be stayed because the threat was an indivisible part of the assault for which appellant was separately punished. (A) AMJ.

Multhaup, Eric — People v. Brown, G046404 — Cruel and Unusual Punishment — Thomas Goethals, Judge — Opinion by Thompson, J., with Aronson, J., Ikola. Court of Appeal found trial court had failed to recognize its authority to strike a murder special circumstance to avoid constitutionally cruel and unusual punishment. The trial court had found that it was precluded by Penal Code section 1385.1, which states a sentencing court may not strike a murder special circumstance in the interest of justice under section 1385. The Court of Appeal found this statutory preclusion did not limit a sentencing court’s obligation to avoid imposing cruel and unusual punishment. Remand for resentencing was required because mitigating facts regarding appellant’s limited role in the killing, together with comments made by the sentencing court, suggested the court might have stricken the special circumstance had it recognized its authority to do so. (I) NFA

McKinney, David — People v. Simon, G045927 — Murder Special Circumstances — Thomas Goethals, Judge — Opinion by Thompson, J., with Aronson, J., Ikola. Court of Appeal reversed gang murder special circumstance based on erroneous jury instruction. The gang murder special circumstance (Pen. Code, § 190.2, subd. (a)(22) applies to an intentional killing for the benefit of a gang. Section 190.2, subdivision (c) extends this special circumstance to an aider who intends to kill for the benefit of the gang. But here the jury was incorrectly instructed that appellant could be liable for the aider special circumstance based on “reckless indifference.” (I) NFA

July 2013

Sheehy, Kevin — People v. Juarez, E055235 — Pre-sentence Conduct Credit — Bryan Foster, Judge — Opinion by King, J. with Ramirez, P.J., Miller, J. Under People v. Brown (2012) 54 Cal.4th 314, appellant is awarded an additional 342 conduct credits. (I) AMJ

Buckley, Christian – People v. Weir, D063067 – Competency Proceedings – Frederick Maguire, Judge – Opinion by McDonald, J., with McConnell, P.J., Aaron, J. After the trial court suspended criminal proceedings and ordered a mental competency examination under Welfare and Institutions Code section 1368, it erred in appointing only one medical expert to evaluate appellant. The Attorney General conceded the error. The judgment of mental incompetency and order of commitment are reversed. (I) LKH

Crawford, James M. — People v. Monplaisir, E055168 — Validity of Guilty Plea — Richard A. Erwood, Judge — Opinion by McKinster, J., with Hollenhorst, J., Richli, J. Matter remanded to allow appellant the opportunity to withdraw his guilty plea where he was induced to plead guilty by the false promise that he would be able to appeal the denial of his speedy trial motion. To assist appellant in his decision, the court also reached the merits of the issue and determined there was no error in denial of the speedy trial motion. (I) BCT

Haggerty, Edward – People v. Hutt, E054442 – Fines/Pre-sentence Custody Credit – Jeffrey Prevost, Harry A. Staley, & Thomas Kelly, Judges – Opinion by King, Acting P.J., with Miller, J., Codrington, J. Court of Appeal struck the $70 fine erroneously imposed pursuant to section 264, subdivision (b). The statute authorizes a fine not to exceed $70 against any person who violates section 261 or 262, but appellant was not convicted of these offenses. In addition, the trial court failed to award appellant any presentence custody credits. The Court of Appeal amended the judgment and ordered the abstract of judgment amended to reflect 2,646 days of presentence custody credits. (I) LKH

Duxbury, Brett — People v. Kong, E054664 — Pre-sentence Credit — David B. Downing, Judge — Opinion by Hollenhorst, J., with Richli, J., Miller, J. Trial court erred in failing to award any credit in this murder case. Appellant was entitled to all days spent in custody under Penal Code section 2900.5. (I) AMJ

Stockwell, Sarah — People v. Green, D062646 — Penal Code Section 654/Fines — Joan P. Weber, Judge — Opinion by McIntyre, J., with McConnell, P.J., Irion, J. Attorney General conceded and Court of Appeal agreed that trial court erred in considering a stayed count when it calculated appellant’s restitution fine pursuant to the formula set forth in Penal Code section 1202.4, subdivision (b). (Mod-A) APJ

Keiter, Mitch/Keller, Roni — In re Kabran J., et al., E056898 — Indian Child Welfare Act — M. Perantoni, Judge — Opinion by Richli, J., with Ramirez, J., Hollenhorst, J. Parents argued, and the Court of Appeal agreed, the agency did not comply with the Indian Child Welfare Act (ICWA) when one tribe asked three times in writing for further information about the paternal grandfather and the agency did not respond. Limited remand ordered to comply with the ICWA. (I) LLF

Prince, Diana — In re L.P., E057054 — Reunification Services — Matthew Perantoni, Judge — Opinion by McKinster, J., with Ramirez, J., Codrington, J. Termination of parental rights reversed. Mother argued the court erred in denying her reunification services when her whereabouts were unknown at the disposition hearing but she appeared for the first time before the section 366.26 hearing, held 6 months later. Parents had been denied reunification services when the court set the section 366.26 hearing. The Court of Appeal held the trial court erred in setting the section 366.26 hearing instead of the 6-month review hearing when mother’s location was unknown. Appellate court held the juvenile court could not terminate mother’s parental rights based on denial of reunification under section 361.5, subdivision (b)(1), and found mother was entitled to at least 2 months of reunification because she appeared 2 months before the end of the 6-month review period. (I) LLF

Jones, Sharon —People v. Hardy, E055057 — New Trial Motion/Penal Code Section 654 — J. Thompson Hanks, Judge — Opinion by Richli, J., with King, J., Miller, J. Judgment reversed because trial court failed to make adequate inquiry into defendant’s motion for new trial when it did nothing more than “lodge” the motion. Additionally, two consecutive sentences for false imprisonment and dissuading a witness were ordered stayed under Penal Code section 654 because there was no evidence of separate intent or objective other than that underlying the burglary count, for which appellant was separately sentenced. (I) JLP

Beckham, Sylvia — People v. Jennings, G047068 — Lesser Included Offense — M. Marc Kelly, Judge — Opinion by Aronson, J., with O’Leary, P.J., Thompson, J. Appellant contended, respondent conceded, and Court of Appeal agreed appellant’s conviction for simple possession must be reversed because it is a lesser included offense of possession for sale when the offenses are based on the same contraband. (I) HCC

Peabody, Jennifer – People v. Abad, G046685 – Insufficient evidence – W. Michael Hayes, Judge – Opinion by Fybel, J., with Bedsworth, Acting P.J. and Aronson, J. Appellant’s conviction for street terrorism (Pen. Code, § 186.22, subd. (a)) is reversed because appellant acted alone in shooting the victim. Attorney General conceded reversal is required under People v. Rodriguez (2012) 55 Cal.4th 1125, 1132. (I) LKH

Redmond, Kathleen – People v. Aguilar, E054955 - Pitchess Error – Steven G. Counelis/ Arjuna T. Saraydarian, Judges – Opinion by Hollenhorst, Acting P.J., with Richli, J., Miller, J. Trial court erred in finding no relevant materials in personnel files where files contained complaints alleging perjury and excessive force. Matter conditionally reversed. Trial court ordered to disclose the material and defendant given opportunity to investigate. If new trial is requested and prejudice demonstrated, trial court must order a new trial; otherwise, judgment will be reinstated. (I) AMJ

Hansen, Jennifer — In re S.W., D061514 — Lesser Included Offense/Custody Credit — Richard R. Monroy/Carlos O. Armour, Judges — Opinion by Haller, J., with McConnell, P.J., Huffman, J. Appellant contended, respondent conceded, and the Court of Appeal agreed that the trial court erred in failing to strike a grand theft person true finding as a lesser included offense of a robbery. Further, the juvenile court failed to give the minor credit for time in custody from arrest until disposition. (A) HCC

Strong, Jeanine — People v. Ayala-Vega, D061966 — Probation Conditions/Fines/ Fees — Robert J. Kearney, Judge — Opinion by McIntyre, J., with McConnell, P.J., Irion, J. Court of Appeal agreed that conditions of probation related to alcohol consumption were not related to the burglary offense in this case and must be stricken. In addition, the court found that condition prohibiting minor’s presence in a building where he knows firearms are kept must be modified to restrict only the presence of illegal firearms. Court also struck as overbroad condition requiring probation officer’s pre-approval of residence.
Court of Appeal also agreed that matter must be remanded for hearing because various fines and fees were not delineated and announced on the record, a penalty assessment was incorrectly calculated, and the restitution fine violated ex post facto. (A) HCC/JLP

Johnson, Mark — People v. Davis, E055957 — Insufficient Evidence — James S. Hawkins, Judge — Opinion by Ramirez, P. J., with King, J., Codrington, J. Felony petty theft conviction is reduced to a misdemeanor because the law requires three qualifying prior theft convictions and, here, defendant had only one prior theft conviction. (I) AMJ

Angres, Robert — People v. Inscore, D062644 — Probation Condition — John M. Thompson, Judge — Opinion by McConnell, J., with Nares, J., O’Rourke, J. Condition requiring defendant to obtain her probation officer’s approval as to her choice of residence stricken because it is overly broad and violates her constitutional right to travel and freedom of association. (I) AMJ

Carroll, Steven — In re Devin C., D062312 — Pre-commitment Credit — Cynthia Ann Bashant, Judge — Opinion by Benke, J., with McIntyre, J., O’Rourke, J. Minor is entitled to pre-commitment custody credit against his maximum term of confinement amounting to 71 days. (A) AMJ

Torres, Steven – People v. Liwanag, G046823 – Pre-sentence Conduct Credit – Daniel J. Didier, Judge – Opinion by Thompson, J. with O’Leary, P.J. and Moore, J. The trial court erred in limiting appellant’s pre-sentence custody award to actual credits. The judgment is modified to reflect 50 days pre-sentence conduct credits in addition to the 339 actual days awarded. (I) LKH

Jones, Cynthia – People v. Pacely, D062198 – Pre-sentence Conduct Credits – Esteban Hernandez, Judge – Opinion by Haller, J. with Huffman, Acting P.J., Nares, J. Court of Appeal ordered the judgment modified to award appellant a total of 748 custody credits (374 actual, plus 374 conduct credits). The trial court erred in limiting the custody credits to 15% when the current offense was not violent. Further, the record did not establish appellant had incurred a serious felony prior conviction, hence, he was entitled to 100% conduct credit under the January 2010 version of section 4019. The Court of Appeal rejected the Attorney General’s argument that appellant’s conviction for 12025(b)(3) [felony-elevating gang participation allegation] was sufficient to establish he had suffered a serious felony prior. (I) LKH

St. Julian, Andrea — In re Leticia A., D063361 — Dependency Jurisdiction & Disposition Orders Reversed — Michael J. Imhoff, Commissioner — Opinion by O’Rourke, J., with Benke, J., Irion, J. Finding there was evidence the parents maintained a residence in Mexico, the Court of Appeal reversed jurisdiction and disposition orders because the juvenile court did not determine whether it had subject matter jurisdiction under the UCCJEA. The issue was not raised in the trial court, so the case was remanded with directions the juvenile court conduct a hearing in the issue. (I) LMF

Moller, Richard J. — People v. Brents, G047287 — Restitution — Thomas M. Goethals, Judge — Opinion by Thompson, J., with Aronson, J., Fybel, J. In this appeal from a re-sentencing, judgment modified to reduce the restitution fine and the parole revocation fine to $200 each as this was the amount of fine imposed by the original sentencing judge. (I) PED

Matulis, Jean. — People v. Lucas, G045634 — Serious Felony Prior — Patrick Donahue, Judge — Opinion by Fybel, J., with Rylaarsdam, J., Ikola, J. The trial court erred in imposing a five-year sentencing enhancement under Penal Code section 667, subdivision (a), because defendant’s previous serious felony conviction was reduced to a misdemeanor and dismissed. (People v. Park (2013) 56 Cal.4th 782.) (I) PED

Rogers, Tracy — People v. Navarro, E055421— Pre-sentence Conduct Credits — Kyle S. Brodie, Judge — Opinion by Miller, J., with Ramirez, J.,Hollenhorst, J. Attorney General conceded and Court of Appeal agreed a miscalculation of credits entitled appellant 118 additional days. (Mod-I) JLP

Ballantine Jean— People v. Cho, G047006 — Enhancement — James Edward Rogan, Judge — Opinion by Bedsworth, J., with O’Leary, J., Thompson, J. Attorney General conceded and Court of Appeal agreed trial court erred in imposing consecutive enhancement on concurrent count. (I) JLP

Farber, William — People v. Rosel, G047003 — Sentencing/Abstract of Judgment/Gang Offense — Jonathan S. Fish, Judge — Opinion by Moore, J., with O’Leary, J., Bedsworth, J. Court and Attorney General agreed the trial court imposed an unauthorized sentence by ordering a concurrent 1 year and 4 months on an offense for which the maximum was one year in county jail. They also agreed that the abstract incorrectly recorded the conviction as Penal Code section 243, subdivision (c)(2) rather than section 243, subdivision (b). Gang offense also reversed per People v. Rodriguez (2012) 55 Cal.4th 1125, because appellant acted alone. (I) AMJ

Buckley, Christian — People v. Austin, D060993 — Abstract of Judgment — Howard H. Shore, Judge — Opinion by Benke, J., with McConnell, P.J., Irion, J. Court ordered correction of abstract to reflect appellant was convicted of assault by means likely to produce great bodily injury in counts 2 and 3 and assault with a deadly weapon/force likely to cause great bodily injury in counts 4 and 5, consistent with the verdicts, rather than assault with a deadly weapon on all counts. (I) AMJ

Zachary Winnick — People v. Scott Case No. G047218 — Clerical Error — Richard M. King, Judge — Opinion by Ikola, J., with O’Leary, J., Bedsworth, J. Booking fee stricken because not imposed by trail court. (A) PMI

June 2013

Miller, Gerald — People v. Calvo, G047191 — Gang Offense — Dan McNerney, Judge — Opinion by O’Leary, J., with Moore, J., Thompson, J. Reversal of gang offense because appellant acted alone per People v. Rodriguez (2012) 55 Cal.4th 1125. (I) DKR

Yockelson, Alan — People v. B.A., G047410 — Insufficient Evidence — Nick A. Dourbetas, Judge — Opinion by Rylaarsdam, J., with O’Leary, J., Fybel, J. Reversal of true finding that minor violated Vehicle Code section 23110, subdivision (a). Court of Appeal found insufficient evidence minor intended to willfully or purposely throw a rock toward a car on the street as the statute requires. (I) PED

Hill, Melissa — People v. Cabrera, G042390 — Gang Offense — David A. Thompson, Judge — Opinion by Rylaarsdam, J., with Bedsworth, J., Fybel, J. Gang offense conviction reversed based on insufficient evidence that the crime was committed by at least two gang members. (I) AMJ

Curnow, Rodger – People v. Gary, E055074 – Sentencing – W. Charles Morgan, Judge – Opinion by Ramirez, P.J., with McKinster, J. and Codrington, J. The Court of Appeal remanded the case for re-sentencing on one count because the oral pronouncement was not clear as to whether the court intended to impose the middle or upper term. In sentencing appellant, the court stated it would select the middle term of three years in state prison. However, the middle term is two years and the aggravated term is three years. (I) LKH

Bronson, Phillip — People v. Ceja, G044737 — Gang Offense — Richard W. Stanford, Judge — Opinion by Aronson, J., with Bedsworth, J., Ikola, J. Court of Appeal reversed conviction for crime of active gang participation based on appellant’s possession of ammunition because evidence demonstrated appellant committed the offense alone. (I) NFA

Ulibarri, Patricia — People v. Morones, D061505 — Sentencing — Frank A. Brown, Judge — Opinion by McDonald, with McConnell, P.J., McIntyre, J. Appellant contended, respondent conceded, and the Court of Appeal agreed the trial court erred in imposing a consecutive 10-year determinate term for a gang allegation, since a life term had been imposed on a conspiracy to commit murder. (I) HCC

Ihara, Patricia — People v. Griffin E055126 — New Trial Motion — Michael D. Wellington, Judge — Opinion by Richli, J., with King, J., Codrington, J. After a motion for new trial, the trial court found that trial counsel had performed deficiently in many ways, but found the errors not to be prejudicial. The Court of Appeal found, instead, that the errors, including the failure to object to examples of prosecutorial misconduct, undermined confidence in the result and reversed two counts of first degree murder, one count of unlawful possession of a firearm, and one count of unlawful possession of ammunition with various enhancements. Sentence of life without the possibility of parole vacated and matter remanded for sentencing on single remaining count of threatening a witness. (S) PMI

Ihara, Patricia — People v. Rice, E055973— Gang Offense and Enhancement — John M. Tomberlin, Judge — Opinion by McKinster, J., with Ramirez, J., Codrington, J. Reversal of gang conviction and enhancements where proof of the gang’s primary activities was insufficient. (S) PMI

Crawford, James — In re Steven P., G047292 — Dual Conviction — Donna L. Crandall, Judge — Opinion by O’Leary, P.J., with Moore, J., Thompson, J. True finding of receiving stolen property reversed because minor separately found to have robbed a person of the same property. (I) APJ

Lemon, Clare — In re M.L., E057367 — ICWA — Cheryl C. Kersey, Judge — Opinion by McKinster, J., with Ramirez, P. J., Codrington, J. Order terminating parental rights reversed due to error in ICWA noticing. Certified return receipt for one of the 10 tribes to which notice was sent was not provided to the juvenile court nor was it in the appellate record. (A) LMF

Ford, Patrick — People v. Villapondo, G046110 — Jury Instructions — Greg L. Prickett, Judge — Opinion by Fybel, J., with Ikola, J., Thompson, J. Trial court prejudicially erred when it failed to instruct sua sponte on the defense of entrapment. (I) DKR

Angres, Robert — People v. Nguyen, G046381 — Credits/Fines — Richard M. King, Judge — Opinion by Fybel, J., with Ikola, J., Thompson, J. Court of Appeal agreed with the parties that appellant was entitled to 88 days good conduct rather than the 35 days awarded based upon the credits statute in effect at the time of the offense. Appellant argued trial counsel ineffective for stipulating to the restitution ordered as to two individuals. The Court of Appeal reversed the order of nearly $2,500 to one individual because it was based upon loss related to a burglary of which appellant was acquitted. As to the other individual, the Court of Appeal remanded for a new restitution hearing because it was not clear that the $19,500 ordered resulted from the offense of which appellant had been convicted: possession of the victim’s access card. Finally, where trial court had initially imposed minimum fine of $200, but then increased it to $240, based upon new law, the Court of Appeal concluded that the minimum was intended and the minimum at the time of the offense ($200) must be imposed to avoid violating the prohibition against ex post facto laws. (I) HCC

Polsky, David — People v. Sauceda, E057032 — Penal Code Section 995 Motion (People’s Appeal) — Helios Hernandez, Judge — Opinion by Ramirez, J., with Richli, J. and Hollenhorst, J. Court of Appeal affirmed superior court’s ruling on defendant’s motion to suppress evidence finding that defendant’s presence in a high crime area at 8:50 p.m. was not sufficient to support reasonable suspicion, even if the court presumed defendant attempted to avoid contact with law enforcement by walking away from investigators. (I) PMI

Rogers, Tracy A. -- People v. Waiters, E053353 – Sentencing – R. Glenn Yabuno, Judge -- King, J., with Ramirez, P.J., McKinster, J. Trial court erred by staying the firearm enhancement while imposing and executing the armed principal and gang enhancements. To apply the principles set forth in Sinclair (2008) 166 Cal.App.4th 848, the trial court must impose and execute the firearm enhancement, impose and stay the armed principle enhancement, and (in its discretion) either (1) impose and stay or (2) strike the gang enhancement. Case remanded for resentencing. (I) LAR

Williams, Rex — In re Oscar A., G047567 — Probation Condition — Nick A. Dourbetas, Judge — Opinion by O’Leary, J., with Ikola, J. and Thompson, J. Probation condition prohibiting minor from using or possessing “sexually explicit material” is unconstitutionally vague and overbroad. Condition modified to specify in detail the prohibited material and exclude material found in school textbooks. (I) PMI

Weinberg, Allen — People v. Figueroa, G046456 — Gang Enhancement — Francisco Briseno, Judge — Opinion by Rylaarsdam, J., with Ikola, J., Thompson, J. Court of Appeal modified three-strikes life sentence by vacating the erroneously imposed 10-year consecutive gang enhancement imposed under Penal Code section 186.22, subdivision (b)(1)(C), in favor of the 15-year parole minimum mandated by section 186, subdivision (b)(5). (I) NFA

Romero, Lynda — People v. Downs, E055378 — Gang Offense/Cumulative Error — Cara D. Hutson, Judge — Opinion by Miller, J., with King, J., Codrington, J. Defendant was convicted of first degree murder, with a criminal gang enhancement, and of a separate count of participating in a criminal gang. The Court of Appeal reversed the substantive gang participation count pursuant to People v. Rodriguez (2012) 55 Cal.4th 1125 because there was no evidence appellant acted with another gang member. The court also reversed the murder conviction because of the cumulative prejudice from several errors: 1) Jurors were incorrectly instructed they could consider appellant's prior conviction for evading police as evidence of the count 1 gang enhancement; 2) defense counsel was ineffective in failing to request the trial court sanitize the evidence of appellant's prior conviction or redact excludable portions of appellant's police interview; and 3) The prosecution gang expert was erroneously allowed to express an opinion, in non-hypothetical form, on the ultimate question of whether appellant committed the murder to promote the gang. (I) NFA

Nancy, Olsen — People v. Espinoza, G046206 — Gang Offense — David A. Hoffer, Judge — Opinion by Moore, J., with O’Leary, P.J., Ikola, J. Defendant argued, respondent conceded, and the Court of Appeal agreed that insufficient evidence supported gang offense conviction because there was no evidence that the assault on the victim was committed with other gang members or that there was any connection between the assault and the gang. (I) AMJ

Male, Jesse — In re Salma R., G047175 — Probation Conditions — Nick A. Dourbetas, Judge — Opinion by O’Leary, P.J., with Aronson, J., Fybel, J. Minor contended, respondent conceded, and the Court of Appeal agreed that certain probation conditions were vague or overbroad. Specifically, the minor argued that the condition that minor not to associate with anyone who is using, selling, possessing, or under the influence of alcohol or controlled substances was too restrictive in that she may not have control of a situation where an adult may be in under medication or possessing alcohol lawfully. The court ordered modifications of the conditions agreeable to the parties. (A) HCC

Lathrop, Stephen — People v. Evans, E056152 — Gang Offense — Kelly L. Hansen, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. Appellant contended, respondent conceded, and the Court of Appeal agreed that because appellant acted alone the evidence was insufficient to convict him of active participation in a criminal street gang. (I) AMJ

Owen, Tom – People v. Jonathan Gonzalez, G046382 – Gang Offense – William R. Froeberg, Judge – Opinion by Thompson, J. with O’Leary, P.J., Bedsworth, J. Appellant’s conviction for street terrorism is reversed because appellant acted alone. (I) LKH

Coleman, Jared G. — People v. Levi James, D062386 — Lesser Included Offense — Richard E. Mills, Judge — Opinion by Huffman, J., with McIntyre, J., Aaron, J. Petty theft reversed as a lesser included offense of robbery. (A) PMI

Ganaja, Gail — People v. Jennings, E055053 — Insufficient Evidence — Harry A. Staley, Judge — Opinion by Hollenhorst, J., with Richli, J., Miller, J. Appellant contended, respondent conceded, and the Court of Appeal agreed that for a controlled substance, Xanax, generically known as alprazolam, which she possessed, appellant was improperly charged and convicted under Health and Safety Code section 11377, subdivision (a). Health and Safety Code section 11375, subdivision (a), provides that it, rather than section 11377, applies when the controlled substance is alprazolam. Because the latter section provides that the offense is a misdemeanor, not a “wobbler,” as would be a violation of section 11377, and because appellant had sufficient notice of the charged conduct the remedy was to reduce the offense to a misdemeanor rather than to dismiss. (A) HCC

May 2013

McPartland, Michael — People v. Vargas, E055811 — Sentencing — Mark Mandio, Judge — Opinion by Codrington, J., with Richli, J., King, J. Appellant contended, respondent conceded, and the Court of Appeal agreed the trial court erred in imposing the fixed, three-year term for the gang enhancement when appellant is serving a sentence of 25-years-to-life for murder. Under the exception for felonies punishable by an indeterminate life term (Pen. Code, §186.22, subdivision (b)(5)), the three-year gang enhancement term attached to the murder offense is ordered stricken. (I) HCC

Capriola, William — People v. Church, D060600 — Prison Prior — John S. Einhorn, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Aaron, J. The Attorney General conceded and Court of Appeal agreed that prison prior enhancement, based upon same prior conviction as a five-year serious felony prior enhancement, must be stricken rather than stayed. (I) APJ

Bjerkhoel, Alissa — People v. Sharif, D061508 — Application of Excess Credit — Leo Valentine, Jr., Judge — Opinion by Nares, Acting, P.J., with McIntyre, J., Irion, J. The Attorney General conceded and the Court of Appeal agreed that Penal Code section 2900.5, subdivision (a) requires that excess pre-sentence custody credit be applied to reduce appellant’s fines. (A) APJ

Fabian, Carl — People v. Romero, D060887 — Lesser Included Offenses — K. Michael Kirkman, Judge — Opinion by McIntyre, J., with Huffman, J., Irion, J. The court reversed the convictions for driving under the influence causing injury and driving with blood alcohol level above .08 because they are lesser included offenses of appellant’s gross vehicular manslaughter conviction. (I) BCT

Ulibarri, Patricia – People v. Motuga, G046239 – One-Strike Law Sentencing – Lance Jensen, Judge – Opinion by Ikola, J., with Aronson, Acting P.J., and Fybel, J. The trial court imposed two consecutive sentences of 15 years to life under the One Strike law, erroneously believing consecutive sentencing was mandatory. The sentence is reversed for the trial court to exercise its discretion. (I) LKH

Harris, Donna – In re Rodolfo H., G045924 – Admission of Evidence – Nick A. Dourbetas, Judge – Opinion by O’Leary, J., with Moore, J., and Fybel, J. Reversal of 23 vandalism charges required because juvenile court erred when it admitted a book of 23 photographs of each incident of graffiti without laying a proper foundation by having the photographer testify as to the authenticity of the photographs. (I) DKR

Bostwick, James — People v. Jackson, E056632 — Specific Performance of Plea Agreement/Booking Fee — Michael J. Rashton, Judge — Opinion by Ramirez, J., with Hollenhorst, J., Richli, J. Court of Appeal agreed counts and allegations promised to be dismissed as part of plea agreement should be dismissed and that booking fee imposed pursuant to Government Code section 29550.2 must be stricken for insufficient evidence of the ability to pay. (I) JLP

Farber, William -- People v. Terrill, E057058 – Abstract of Judgment – Michael S. Hider, Judge - Ramirez, P.J., with Hollenhorst, J., and Richli, J. Abstract of judgment incorrectly listed appellant’s offense as assault with a deadly weapon, which is a strike offense, when the jury expressly found appellant guilty of assault by force likely to produce great bodily injury, which is not a strike offense. Court ordered abstract of judgment corrected. (I) LAR

Brisbois, Patricia – People v. Santifer, E055446 – Restitution – David B. Downing, Judge – Ramirez, P.J., with McKinster, J., Codrington, J. Restitution and parole revocation fines reduced to $200 each since those were the amounts in effect on the date appellant committed the crimes. Further, amount of fine imposed based on stayed count ordered stricken pursuant to Penal Code section 654. (I) PED

Nelson, Laurel — People v. Vidana, E056140 — Penal Code Section 4019 — Ingrid Uhler, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., Richli, J. Appellant contended, responded conceded, and the Court of Appeal agreed, that since appellant had committed his offenses after October 1, 2013, he was entitled to pre-sentence conduct credit under the latest version of Penal Code section 4019: two days of conduct credit for every two days spent in custody.. (I) HCC

Buckley, Christian – People v. Brown, E053330 – Prior Convictions – F. Paul Dickerson III, Judge – Opinion by Ramirez, J., with McKinster, J. and King, J. Appellant was sentenced to 33 years to life as a Third Striker. On appeal, he argued the trial court abused its discretion in denying, without an evidentiary hearing, his motion to dismiss the three prior convictions on the ground that his plea as to each was not knowingly and intelligently entered. The Court of Appeal agreed with appellant and remanded the matter to the trial court, directing it to hold a hearing on whether defendant was properly advised of his Boykin/Tahl rights and intelligently waived those rights or if any failure was prejudicial. (I) LKH

LeRoy, Doris — People v. Park (2013) 56 Cal.4th 783 — Serious Felony Enhancement/Wobbler — Francis M. Devaney, Judge — Opinion by Cantil–Sakauye, C.J., unanimous. The Supreme Court reversed the judgment of the Court of Appeal insofar as it had upheld imposition of the five-year enhancement. The prior offense that triggered application of the five-year sentence enhancement was a conviction for assault with a deadly weapon which had been reduced to a misdemeanor pursuant toe Penal Code section 17, subdivision (b)(3), then dismissed pursuant to Penal Code section 1203.4, subdivision (a)(1), before appellant committed the crimes in the current case. The Court of Appeal held that the conviction remained a prior serious felony for purposes of sentence enhancement under section 667, subdivision (a), notwithstanding its reduction to a misdemeanor, and affirmed the five-year sentence enhancement imposed by the trial court. The Supreme Court concluded that reduction of the offense to a misdemeanor meant it could not longer qualify as a serious felony prior. (I) HCC

Auwarter, Neil — In re Fulton, G045774 — Sex Offender Registration — Craig E. Robison, Judge — Opinion by Moore, J., with O’Leary, J., Rylaarsdam, J. Petitioner pled guilty in 2009 to failing to register as a sex offender under Penal Code section 290, et seq. The underlying sex offenses were military convictions for sodomy and indecent acts as defined by the Uniform Code of Military Justice. After the guilty plea, the Court of Appeal decided People v. Rodden (2010) 186 Cal.App.4th 24, holding that the under section 290, et seq., a non-California offense must be identical to a registerable California crime under the “least adjudicated elements” test. Thus, a non-California offense whose elements were not identical to a registerable California crime did not require registration, even though the record of the offense might establish that in fact the act committed amounted to a registerable California offense. In 2011, the California Department of Justice sent petitioner a letter stating that in light of Rodden his military offenses did not require sex offender registration. Petitioner then petitioned for habeas corpus, arguing that his military priors were not registerable offenses under Rodden and the least adjudicated elements test; that he therefore was under no duty to register as a sex offender; and that his guilty plea was not knowing and intelligent. The Court of Appeal agreed, rejecting two claims by respondent. First, respondent claimed that before Rodden, the governing law was the contrary policy espoused by the California Department of Justice, under which any factually identical non-California crime mandated registration. Rejecting this argument, the court found the power to interpret statutes resides with the courts, not the executive, and so the DOJ’s pre-Rodden interpretation of the statute was never the governing law in California. Second, respondent pointed out that the Legislature, in response to Rodden, had in 2011 amended the statute to include as a registerable offense any non-California crimes whose adjudicated facts would qualify it as a registerable California crime. Respondent argued as a matter of statutory interpretation this amendment demonstrated the Legislature’s intent. The court disagreed, holding that defendant could not be punished ex post facto by a statutory amendment. Conviction reversed. (S) NFA

Bjerkhoel, Alissa — In re Carlos G., D062787 — Juvenile Credits — Carlos O. Armour — Opinion by Huffman, J., with Haller, J., Aaron, J. Juvenile court has a duty to calculate custody credit and failure to do so in this case was error. (A) PMI

Bishop, Siobhan — In re I.B., E057087 — Welfare and Institutions Code Section 388 — Cheryl C. Kersey, Judge — Opinion by Ramirez, P.J., with Richli, J., Miller, J. Juvenile court abused its discretion when it denied the father’s section 388 petition to return custody or reinstate reunification services. The petition was considered at the section 366.26 hearing and the court terminated parental rights after denying the petition. The child welfare agency supported the father’s petition, but the minor’s attorney opposed it. On appeal, the agency continued to agree with the father’s position on the 388 issue. After analyzing the Kimberly F. factors, the court concluded the factors favored father’s position. Because the juvenile court abused its discretion denying the petition, the order terminating parental rights was also reversed and the parties restored to their prior positions. (A) LMF

Levin, Hart – People v. Cooper, E056157 – Penal Code Section 654 – Michael B. Donner, Judge – Opinion by Hollenhorst, J., with Ramirez, P.J., Richli, J. Court of Appeal ordered appellant’s sentence for grand theft of an English bulldog stayed pursuant to section 654. Appellant was already punished for theft of the vehicle and both thefts occurred at the same time because the bulldog was in the backseat of the victim’s car when it was taken. (A) LKH

Macomber, Thomas – People v. Behbahani, D059705 – Probation Conditions – McConnell, P.J., with Nares, J., McIntyre, J. Court of Appeal struck appellant’s probation conditions requiring him to obtain the probation officer’s approval for his residence and employment. Court agreed that appellant’s employment had no relation to the crime of illegally possessing a gun and tracking employment would not deter future criminality. Further, the court rejected the Attorney General’s argument that possession of the gun in the home made residence related to the crime and/or future criminality. (A) LKH

Staley, John — People v. Johnson, D061792 — Custody Credits — Robert F. O’Neill, Judge — Opinion by O’Rourke, J., with Haller, J., McDonald, J. Appellant argued, respondent conceded, and Court of Appeal agreed the record was unclear when custody began because original probation report stated one date of arrest and supplemental probation report stated another. The case was remanded to verify the correct date and correct any discrepancy in custody credits. (I) HCC

Williams, Rex — People v. Heard, D060921 — Parole Revocation Fine — Louis R. Hanoian, Judge — Opinion by Haller, J., with McDonald, J., O’Rourke, J. Appellant argued, respondent conceded, and Court of Appeal agreed that the minute order and abstract of judgment incorrectly referred to a parole revocation restitution fine that was unauthorized and not imposed by the court. The court modified the minute order to strike the reference to this fine and instructed the superior court to prepare an amended abstract of judgment reflecting this change. (I) HCC

Ulibarri, Patricia — People v. Rosales, E055105 — Unauthorized Fine — Eric G. Helgesen, Judge — Opinion by Hollenhurst, J., with Ramirez, J., Richli, J. $20,000 fine imposed pursuant to Penal Code section 667.6, subdivision (f), for persons convicted of certain enumerated sex offenses who had previously been convicted of one such offense was unauthorized and ordered stricken because appellant had no qualifying prior conviction. (I) AMJ

Morse, David — People v. Gonzales, E054350 — Prison Prior — Gary B. Tranbarger, Judge — Opinion by Hollenhurst, J., with Ramirez, J., Richli, J. Trial court erred in imposing a three-year enhancement under Penal Code section 667.5, subdivision (a), because it was based on the same conviction as his five-year serious felony enhancement under Penal Code section 667, subdivision (a). (I) AMJ

Brownell, Gordon — People v. Guadarrama, G046312, LWOP Sentencing Discretion/Penal Code Section 654 — Richard F. Toohey, Judge — Opinion by Moore, J., with Rylaarsdam, J., Bedsworth, J. Remanded for resentencing. Trial court was under the mistaken belief that it had no discretion except to sentence defendant to life without possibility of parole on each murder count. Under Penal Code section 190.5, subdivision (b), the court had the discretion to sentence defendant to 25 years to life instead. Sentence on one count of street terrorism must be stayed under Penal Code section 654. (I) AMJ

Kleven, Sara — In re Timothy N, D061891 — Plea Enforcement — Carlos O. Armour, Judge — Opinion by Aaron, J., with Nares, J., McDonald, J. For purposes of enforcing plea bargains, a defendant successfully completes probation even if he has not fully paid restitution where remaining amount is converted to a civil judgment. Thus, even though restitution had not yet been paid in this case, trial court erred when it refused to reduce the burglary charge to a misdemeanor as required by the terms of the plea bargain upon successful completion of probation. (A) DKR

Male, Jesse — In re M.J., E057262 — Juvenile Disposition — F. Paul Dickerson, III, Judge — Opinion by Hollenhorst, Acting P., J., with Richli, J., and Miller, J. Juvenile court committed four separate disposition errors. The Attorney General conceded all but the last error; the Court of Appeal agreed with minor.
(1) Trial court failed to designate whether minor’s crime was felony or misdemeanor. Case remanded for this determination.
(2) Maximum term of confinement improperly calculated because the trial court failed to stay one count pursuant to Penal Code section 654 where minor’s single act of resistance constituted a violation of both Penal Code sections 69 [resisting arrest] and 243, subdivision (b) [battery on an officer].
(3) Trial court failed to award two days of presentence custody credit when minor had spent two days in juvenile hall before resolution of his case.
(4) Two probation conditions involving “controlled substances” unconstitutionally over-broad because they encompassed legally controlled substances such as many prescribed medications. Terms modified to specify “illegal controlled substances”. 
(A) CBM

Shaler, Susan — People v. Scroggins, D061289 — Instructional Error — George W. Clark, Judge — Opinion by McConnell, P.J., with Haller, J., Irion, J. Appellant contended and respondent conceded the trial court’s instruction on the union of act and intent prejudicially failed to convey to the jury that appellant’s lewd intent had to coincide with his touching of one alleged victim. As instructed, the jury could have separated his touching of her, which occurred when he tried to kidnap her, from his intent to derive sexual gratification. Rather than reversing, the Court of Appeal reduced the offense to an attempted lewd act, which is a necessarily included offense. (I) HCC

April 2013

Seaman, Clayton — People v. Mora, D062007, (2013) 214 Cal.App.4th 1477 — Restitution Fine — Poli Flores, Jr., Judge — Opinion by Benke, J., with Haller, J., O’Rourke, J. The trial court erroneously imposed a duplicate restitution fine ($240) upon revocation of probation after having imposed a $200 fine when probation was ordered. The parole revocation fine is also reduced from $240 to $200. (I) AMJ NOTE: The opinion was partially published to address issue of whether realignment applies in a case where sentence was previously imposed and execution suspended (court found realignment does not apply retroactively in such a case). In an unpublished section the court applies waiver against the People on a restitution fine issue that People raised for first time on appeal. 

Buckley, Christian — People v. Negron, D061663 — Mental Incompetence — Yvonne Esparanza, Judge — Opinion by Benke, J., with Haller, J., McIntyre, J. Appellant faced probation revocation and sentencing on a felony case and a contemporaneous hearing on two new misdemeanor charges. After the court revoked probation and sentenced appellant on the felony case and as the court turned its attention to the misdemeanor charges, a doubt as to appellant’s competency arose, and the court suspended proceedings. The court concluded, however, that the felony sentence should stand because there had been no basis to question appellant’s competency during the felony proceedings. After an evaluation in the misdemeanor cases, appellant was determined to be mentally incompetent. On appeal, respondent conceded and Court of Appeal agreed that the trial court abused its discretion in concluding appellant was competent during the felony proceeding which occurred “moments” before the doubt as to competency arose. Court of Appeal reversed the revocation and sentencing. (I) HCC

Duxbury, Brett – People v. Achekzai, G046435 – Dual Use of Sentencing Factors – Daniel J. Didier, Judge – Opinion by Moore, J., with Rylaarsdam, Acting P.J., Aronson, J. Court of Appeal reversed the five year sentence for the great bodily injury enhancement (Pen. Code, § 12022.8) because appellant was already punished for inflicting great bodily injury on the victim when he received the life sentence under section 667.61, subdivision (e)(3). (Pen. Code, § 12022.8). (I) LKH

Shudde, Athena – People v. Cordero, G046211 – Penal Code Section 654 – James Edward Rogan, Judge – Opinion by Fybel, J. with Bedsworth, Acting P.J., Moore, J. Appellant’s 16-month concurrent term for street terrorism (Pen. Code, § 186.22, subd. (a)) is ordered stayed pursuant to Penal Code section 654 where the separately punished attempted murder constituted the felonious criminal conduct prong of the street terrorism count. (I) LKH

Moller, Richard Jay — People v. Holman, E054989 (2013) 214 Cal.App.4th 1438 — Restitution Fine — Elaine M. Johnson, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. After appellant successfully completed her court-ordered drug treatment program, the court, pursuant to the terms of a plea agreement, terminated probation early, and dismissed all pending cases (Pen. Code., § 1203.4). In addition, the court suspended or dismissed all fines, including any restitution fines that had not been fully paid. The People appealed, contending that the trial court erred in suspending, or dismissing, or otherwise terminating the unpaid restitution fines. Court of Appeal affirmed the trial court’s order, finding that suspension or dismissal of all fines followed as a consequence of dismissing the cases per Penal Code section 1203.4, which was a required term of defendant’s plea bargain. (I) HCC

Harris, Donna — People v. Sedej, D056955— Great Bodily Injury Enhancement — Melinda J. Lassiter, Judge — Opinion by O’Rourke, J., with Huffman J., Nares, J. Imposition of great bodily injury enhancements ordered stricken because the victim was also the subject of a gross vehicular manslaughter conviction in the same case. (Pen. Code §12022.7, subd. (g).) (I) PED

Johnson, Mark — People v. Cook, D060594 — Admission of Evidence — Desiree Bruce-Lyle, Judge — Opinion by O’Rourke, J., with Aaron J., Nares, J. Imposition of gang enhancement ordered stricken because Court of Appeal concluded it was possibly the result of erroneously admitted gang expert evidence concerning four gang shootings not shown to be connected to appellant or appellant’s gang. (A) PED

Buckley, Christian — People v. Alvarez, G046490 — Specific Performance of Plea Agreement — Gregg L. Prickett, Judge — Opinion by Fybel, J., with O’Leary, J., Thompson, J. Appellant reached a written plea agreement with the prosecution, which was part of a joint agreement with a co-defendant. When the co-defendant backed out of the joint agreement, appellant and the District Attorney sought to carry out appellant’s agreement, but the trial court refused to approve the agreement without the participation of the co-defendant. Defendant was then convicted in a jury trial and appealed. Court of Appeal held the trial court abused its discretion in rejecting the plea agreement, explaining that whether to accept a solo verses joint plea is a decision for the District Attorney, not the court. As a remedy, the court ordered specific performance of the plea agreement. (I) NFA

Zehner, Michelle — In re L.H., E056239 — Lesser Included Offense — Roger A. Luebs, Judge — Opinion by McKinster, J., with Ramirez, P. J., King, J. Court of Appeal agreed with minor’s argument that true finding of assault with a deadly weapon must be reversed when it is based upon the same conduct as the offense of assault with a deadly weapon on a peace officer which was also found true. (A) APJ

Cilli, Gregory — People v. Frausto, D061739 — Probation Condition — Kerry Wells, Judge — Opinion by McDonald, J., with McConnell, P.J., Benke, J. Probation condition prohibiting appellant from any gang area is vague and over-broad and is modified to add a knowing element. (I) AMJ.

Larson, Eric — People v. Davis, D061059 — Firearm Enhancement — John M. Tomberlin, Judge — Opinion by Huffman, J., with Nares, J., McDonald, J. Attorney General conceded and Court of Appeal agreed that the three-year firearm allegation found true pursuant to Penal Code section 12022, subdivision (d), did not apply in this case because appellant was not convicted of one of the drug-related offenses required under that section. As a result, enhancement reduced to the one-year provided for under Penal Code section 12022, subdivision (a). (I) APJ

Stevenson, Theresa — People v. White, D060969 — Rape/Dual Convictions — Frank A. Brown, Judge — Opinion by Huffman, J., with McDonald, J., concurring, Benke, J., concurring and dissenting. Court of Appeal agreed with appellant’s argument, based upon People v. Gonzalez (2012) 211 Cal.App.4th 405 (of which review has since been granted), that appellant cannot stand convicted of two rapes (of unconscious person and of intoxicated person) based upon a singe act because Penal Code section 261 describes a single crime that can be committed in various ways. Accordingly, appellant’s conviction for rape of an unconscious person is vacated. In dissent, Justice Benke opined that convictions under the various subdivisions of Penal Code section 261 are proper and Penal Code section 654 provides sufficient protection against double punishment. (I) APJ

Smith, Barbara — People v. Mendez, G046167 — Gang Participation Offense — William R. Froeberg, Judge — Opinion by Bedsworth, J., with Moore, J., Aronson, J. Gang participation offense reversed for insufficient evidence where it was committed by appellant alone, even though he was avenging a grievance of a fellow gang member. Opinion follows People v. Rodriguez (2012) 55 Cal.4th 1125. (I) NFA

Rudasill, Denise -- People v. Gomez, D061952 – Restitution/Harvey Waiver - Charles R. Gill, Judge – McIntyre, Acting P.J., with Aaron, J., Irion, J. After appellant pleaded guilty to two out of nine charged counts of robbery and executed a Harvey waiver, the trial court ordered defendant to pay restitution, including to the victims of the dismissed counts. Appellant contended the trial court erred in finding that his Harvey waiver prevented him from presenting evidence at the restitution hearing regarding causation of the losses. Court of Appeal agreed and reversed the restitution award to the victims of the dismissed counts and remanded the issue to the trial court to hold a further hearing regarding causation. (I) LAR

Wass, Valerie — People v. O’Neal, E054210, — Sentencing Error/Fines — Kyle S. Brodie, Judge — Opinion by McKinster, J., with Ramiriez, J., King, J. After case was remanded for a new trial and the jury rendered the same verdict that had originally be reached, the trial court sought to give appellant a sentence no greater than the originally imposed sentence of 17 years and 8 months. On remand, however, the prosecution had not alleged one of the three prison prior enhancements originally alleged. Therefore, the only way the trial court could get to the same sentence it had previously imposed was to simply subtract 3 years from the authorized sentence of 20 years eight months. Court of Appeal agreed with the Attorney General that the resulting sentence was unauthorized and the parties agreed that the closest authorized sentence that could be imposed without violating double jeopardy is 16 years 8 months. Trial court also erred in increasing the fine to $2,400 rather than imposing the previously ordered amount of $2,000. (I) AMJ

DiGuiseppe, Raymond — People v. Solari, E055426 — Victim Restitution — Honorable Harold T. Wilson, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., Richli, J. Victim restitution order to San Bernardino City Fire Department stricken because, although the organization put out the fire ignited by appellant, it was not the direct victim of the fire appellant set on SANBAG property. People conceded the restitution order was improper. (I) CBM

Norman, Jan/Yanis, Mark — In re K.G./W.W, E056026 — Victim Restitution — Larry W. Allen, Judge — Opinion by Hollenhorst, Acting P.J., with McKinster, J., Codrington, J. Judgment affirmed in this People’s appeal. Court did not abuse its discretion when it ordered minors to pay $25,000 less than the full amount of victim restitution (fire set by minors caused approximately $450,000 in damage). First, the People are estopped from complaining about the order because it had agreed to the victim restitution order at the time it was contemplated and imposed. Second, compelling and extraordinary factors for ordering less than the full amount were stated on the record, and the court was permitted to consider the parents’ inability to pay in setting the amount of restitution under Welfare and Institutions Code section 730.7, subdivision (a). (I) CBM

Morse, David — People v. Williams, E054152 — Sentencing — John D. Molloy, Judge — Opinion by King, J. with Miller, J., Codrington, J. Trial court failed to understand it had discretion to decide whether determinate and indeterminate terms for sexual offenses could run concurrently or consecutively. Respondent agreed. New sentencing hearing ordered. (I) AMJ

Lim, Lillian — In re Quincy A., D062029 — Wobbler Determination — Browder A. Willis/Richard R. Monroy, Judges — Opinion by Huffman, J., with McConnell, J., Irion, J. Matter remanded to the juvenile court for compliance with Welfare and Institutions Code section 702, requiring court to expressly exercise its discretion to determine whether offense is a misdemeanor or a felony, and possible recalculation of minor’s maximum period of confinement. (A) PED

King, Nancy — People v. Reed, E055747 — Registration Fine/Abstract of Judgment — Richard John Hanscom, Judge — Opinion by Miller, J., with Ramirez, J., McKinster, J. Attorney General conceded and Court of Appeal agreed that sex offender registration fine must be reduced to the amount authorized at the time of the offenses (in this case, $1,400 rather than the $1,800 imposed). In addition, the abstract of judgment must be corrected to reflect nine-year concurrent terms on three counts rather than the 25-years-to-life terms currently shown. (I) APJ

Cannon, Gregory — People v. Smith, D060317 — Penal Code Section 654/Gang Enhancement — Patrick F. Magers, Judge — Opinion by Benke, J., with, Nares, J., Haller, J. Re-issuance of opinion following remand by California Supreme Court in light of the decision in People v. Mesa (2012) 54 Cal.4th 191, 199-200 that Penal Code section 654 does not permit separate punishment for a Penal Code section 186.22, subdivision (a) crime of active participation in a criminal street gang when the only evidence of such participation is the current charged offenses. Gang offense ordered stayed. In addition, imposition of ten year gang enhancement imposed under Penal Code section 186.22, subdivision (b)(1)(c) removed in lieu of the 15 year minimum parole eligibility period imposed for life sentences pursuant to Penal Code section 186.22, subdivision (b)(5.) (I) PED

Carroll, Steven — People v. Zuniga, G046419 — Restitution Fine/Presentence Credits/Probation Costs — David Hoffer, Judge — Opinion by Fybel, J., with Rylaarsdam, Acting P. J., Bedsworth, J. Attorney General conceded and Court of Appeal agreed that the $240 Penal Code section 1202.4 restitution fine must be reduced to $200 under ex post facto principles because although appellant was sentenced in 2012, the underlying crimes occurred in 2011 before the minimum amount was raised. Also, the trial court erred when calculating both the actual days in custody and the corresponding conduct credit days. Finally the trial court erred when it ordered appellant to pay the cost of probation without first determining whether appellant had the ability to pay those costs, as required by the plain language of Penal Code section 1203.1b. In doing so, this opinion follows that of People v. O’Connell (2003) 107 Cal.App.4th 1062. (A) CBM

Nalls, Christopher – People v. Yu, G046106 – Sentencing – Lance Jensen, Judge - Ikola, J., with Moore, Acting P.J., Aronson, J. Trial court ordered to strike the 10 year term for the gang enhancement as to count 1 and instead impose the 15-year parole minimum and conduct a new sentencing hearing for exercise of discretion to deciding whether to strike the gang enhancement attached to count 2. (I) PED

Wilson, Sachi,— People v. Moats — On-Bail Enhancement — Margie G. Woods, Judge — Opinion by McDonald, J., with Benke, J., Haller, J. The court reversed the on-bail enhancement because the prior pending case which was the basis of the enhancement was subsequently dismissed as part of the plea agreement. The court found that the enhancement could not be imposed unless the defendant was convicted of both the prior and subsequent offenses. (I) BCT

Siroka, Matthew – People v. Banales – Stay Away Orders – Poli Flores, Jr., Judge – Opinion by Benke, Acting P.J., with Haller, J., Aaron, J. The Court of Appeal struck the order preventing appellant from entering the premises of the school district because the appellant was not placed on probation as required by the authorizing statute. The Attorney General conceded this order should be stricken. (A) LKH.

Tobin, Amy — In re G.A., D062943 — Welfare and Institutions Code Section 388 Petition — David B. Oberholtzer, Judge, — Opinion by McIntyre, J., with Benke, J., Huffman, J. Appellate court agreed with appellant-father that trial court erred in denying father’s Welfare and Institutions Code section 388 petition in which he asked for additional reunification services with his now five year old son. Once released from fire camp, father did all he could to comply with services. His visits with his son were described as consistently showing a parental role and empathy towards his son. Appellate court used Kimberly F. factors in its decision.. (I) ACS

Yockelson, Alan — People v. Tuck, E055503 — Pre-sentence Custody Credits — Edward D. Webster, Judge — Opinion by Ramirez, P.J., with King, J., Codrington, J. Appellant’s pre-sentence conduct credits were erroneously limited to 15% pursuant to Penal Code section 2933.1 despite the fact that appellant’s conviction for gang participation does not qualify as a violent felony as required for the limitation to apply. Modified abstract of judgment ordered to reflect modified award of pre-sentence credits. (I) APJ

McPartland, Michael — People v. Johnson, E054490 — Serious Felony Prior — Kyle S. Brodie, Judge — Opinion by McKinster, J., with Hollenhorst, Acting P.J., Codrington, J. Court of Appeal found that five-year serious felony enhancement (Pen. Code, § 667, subd. (a)) must be stricken because the allegation was not added to the information until after the jury had been discharged. It did not matter in the court’s consideration that a strike prior had been alleged based upon the same conviction or that appellant had waived jury trial on the priors that had been alleged. Instead, the court found dispositive the fact that the prosecutor provided no justification for the delay in alleging the enhancement. (I) APJ

Ballantine, Jean — People v. Lewis, E055569 — Penal Code Section 654/Three Strikes Reform Act — Eric M. Nakata, Judge — Opinion by McKinster, J., with Hollenhorst, Acting P.J., Codrington, J. In this appeal from a re-sentencing remand, the Court of Appeal found that the new case of People v. Jones (2012) 54 Cal.4th 350, required that one of appellant’s sentences for possessing a firearm as a felon and receiving stolen property, both of which offenses were based upon possession of the same firearm, must be stayed. In addition, the Court of Appeal found that appellant must be re-sentenced in accordance with the requirements of the Three Strike Reform Act because he qualifies for re-sentencing under the act and the judgment in his case is not yet final. (I) APJ

March 2013

Bostwick, James R. – People v. Camacho, E055232 – Insufficient Evidence – Mark E. Petersen, Judge – McKinster, J., with Hollenhorst, J., and Miller, J. Appellant’s conviction for active gang participation reversed because there was insufficient evidence appellant acted in concert with another gang member in possessing drugs or deadly weapon. (I) LAR

De La Sota, Richard/Shaler, Susan — People v. Tercero/Cortez, G046162 — Lesser Included Offense/Gang Offense – David A. Thompson, Judge — Opinion by Aronson, J., with Moore, Acting P.J., Ikola, J. Attorney General conceded and Court of Appeal agreed that kidnap convictions must be reversed because the offense is necessarily included within the offense of kidnap during carjack and the convictions for both in this case were based upon the same conduct. (I) APJ

Brisbois, Patricia – People v. Hernandez, G046096 – Unauthorized Sentence – Carla Singer, Judge – Opinion by Moore, J. with O’Leary, P.J., Bedsworth, J. Appellant was convicted of violating Penal Code section 286, subdivision (c)(1) and section 288a, subdivision (c)(1). The trial court erred in imposing 15 to life terms on each of these counts and the Court of Appeal reversed finding the offenses do not qualify for sentencing under section 667.61. (I) LKH

Schorr, Steven — People v. Andrew Cervantes, G046036 — Insufficient Evidence/Gang Offense — William R. Froeberg, Judge — Opinion by Thompson, J., with Rylaarsdam, J., Bedsworth, J. Court of Appeal reversed the substantive gang crime conviction based on the California Supreme Court’s recent decision in People v. Rodriguez (2012) 55 Cal.4th 1125 because appellant acted alone during the commission of the homicide. (I) BCT

Lankford, Valerie (mother); Trop, Neil (child); Gabrielidis, Cristina (father) — In re R.G., D061671 — W.&I. Code §388 Petition — Carol Isackson, Judge — Opinion by McIntyre, J.,with Benke, J., concurring, Haller, J., dissenting. Order denying mother’s §388 petition is reversed, along with termination of both parents’ parental rights to their now three-year-old son. It appeared that in her participation in recovery mother was “not simply going through the motions of recovery, but rather, finally appeared to have discovered the keys to its continued success.” Minor’s counsel both at trial and on appeal agreed with mother’s position. Dissent focused on standard of review. While it noted that mother’s progress was “impressive” and that it was a close case, it believed the factual findings were supported by substantial evidence and that court did not abuse its discretion in making its decision. (I) ACS 

Cox-Harguindeguy, Marianne — In re J.E., G046215 — Evidence Code Sections 1040 and 1042 – Nick Dourbetas, Judge — Opinion by Aronson, J., with Moore, J., Ikola J. True finding reversed when location of testifying officer is kept confidential under Evidence Code section 1040, but his location was material and there was insufficient corroboration of officer’s testimony as required per Evidence Code section 1042. (I) MCR

Aquilina, John – People v. Ramirez, G047015 – Penal Code Section 654 – Dan McNerney, Judge – Opinion by Rylaarsdam, Acting P.J., with Bedsworth, J., Thompson, J. Appellant was convicted of second degree robbery with personal use of a deadly weapon and assault with a deadly weapon. He was sentenced to concurrent terms on each count. The Court of Appeal ordered appellant’s sentence for count 2 stayed pursuant to Penal Code section 654 because the assault was an indivisible part of the robbery. (I) LKH

Hill, Melissa — People v. Gonzalez, G046564 — Insufficient Evidence/Gang Offense — Patrick Donahue, Judge — Opinion by Aronson, J., with Fybel, J., Thompson, J. Conviction for gang participation is reversed based on insufficiency of the evidence because defendant acted alone in committing the offenses. (I) AMJ

Erickson, Kristin — People v. Camarena, G043978 — Insufficient Evidence/Gang Offense — W. Michael Hayes, Judge — Opinion by O’Leary, J., with Rylaarsdam, J., Moore, J. Defendant was convicted of active gang participation, based on evidence he acted alone in committing the crime of being a felon in possession of a firearm. The Court of Appeal initially affirmed the conviction. Subsequently, however, the California Supreme Court decided People v. Rodriguez (2012) 55 Cal.4th 1125, holding that the substantive gang participation offense may not be committed alone, i.e., it must be committed together with another gang member. Defendant then filed a request to recall the remittitur, citing People v. Mutch (1971) 4 Cal.3d 389, on the ground the Camarena decision required his conviction be reversed. The Court of Appeal agreed, recalled the remittitur, considered briefing on the issue, and reversed the conviction. (I) NFA 

Ordonez, Sarita — In re Marcos B., G046268 (2013) 214 Cal.App.4th 299 — Evidence Code Sections 1040 and 1042 — Deborah C. Chuang, Judge — Opinion by Rylaarsdam, J., with Bedsworth, J., Aronson, J. Published reversal. Minor deprived of fair trial due to juvenile court’s abuse of discretion in maintaining confidentiality of testifying officer’s location per Evidence Code section 1040 and in determining that the location was not material per Evidence Code section 1042. Court of Appeal’s review of in camera hearing revealed that the prosecution provided no reason for maintaining confidentiality of location. Further, the case against minor relied heavily on the observations of the undercover testifying officer and his location was material in determining his ability to observe. In light of this materiality, Evidence Code section 1042 required independent corroboration of the officer’s observations which was lacking in this case. (A) HCC

Levy, Richard — People v. Wilkins, S190713 (2013) 56 Cal.4th 333 — Felony Murder/Escape Rule — Richard F. Toohey, Judge — Opinion by Cantil-Sakauye, C.J., unanimous. Appellant was convicted of first degree murder based upon the felony murder theory. The evidence showed that he committed a burglary and stole several household items, including a stove. As he was driving away with the loot, about an hour later and 62 miles away, the stove fell of his truck, killing a motorist who swerved to avoid it. The trial court instructed the jury, per CALCRIM 549, that for the felony-murder rule to apply, the burglary and the act causing the death must be part of one “continuous transaction.” It refused defendant’s request that the jury be instructed, per CALCRIM 3261, that, for purposes of felony murder, the felony continues only until the perpetrator has reached a place of temporary safety. The Court of Appeal found no error in the trial court’s refusal to instruct the jury on the “escape rule” and affirmed. The Supreme Court noted that in cases like the present one, involving a single perpetrator, it had never suggested that if the perpetrator flees the scene of the crime and reaches a place of temporary safety before the killing, the killing and the felony could still be considered part of one continuous transaction. Even under the prosecution’s theory of events, given the separation of time and space and lack of evidence that anyone was even aware of the burglary, a jury could have concluded that the fatal act occurred after appellant had reached a place of temporary safety. Thus, the high court concluded it was prejudicial error to refuse the instruction on the escape rule. (A) HCC

Rehm, Joanna — People v. Donald, E054644 — Penal Code Section 654/Abstract of Judgment — Larrie R. Brainard, Judge — Opinion by Ramirez, P.J., with Richli, J., Miller, J. Respondent conceded and Court of Appeal agreed that trial court erred in imposing a concurrent term rather staying sentence for assault when sentence was also imposed for a simultaneous criminal threat. The trial court also imposed a weapons enhancement to the wrong count and the abstract was ordered corrected. (I) HCC

Baugess, Susan — People v. Rodriguez, E053806 — Penal Code Section 654 — Harry A. Staley, Judge — Opinion by Ramirez, J., with Richli, J., Miller, J. Defendant was convicted of grand theft for fraudulently causing $80,000 to be wired from the bank account of the victim to the account of a third party. In addition, defendant was convicted of two counts of money laundering: one for using a cashier’s check to withdraw the money from the third party account and the other for depositing the money in defendant’s own account. Defendant received consecutive terms for each count of money laundering. The Court of Appeal reversed, holding the withdrawal and deposit of the funds using the same cashier’s check amounted to a single criminal transaction and the sentence on one count must be stayed. (I) NFA

Male, Jesse — In re V.E., E055527 — Probation Conditions — Charles Stafford, Judge — Opinion by McKinster, J., with Hollenhorst, J., Miller, J. Given likelihood minor would at some time need a legally prescribed controlled substance, probation conditions prohibiting drug possession and association with persons possession drugs modified to include the concept of illegality. Similarly, prohibition against association with persons he knows to be engaged in graffiti modified to prohibit association with persons he knows to be engaged in unauthorized graffiti. (A) PED

Goldstein, Michael — People v. L.T., E055784 — Inadequate Boykin-Tahl Advisal — Thomas S. Garza, Judge — Opinion by Ramirez, J., with McKinster, J., Miller, J. Minor’s admission to a petition ordered reversed due to the Juvenile Court’s failure to advise him of his constitutional rights. (A) PED

Robertson, Thomas — People v. Vorabduth, D061714 — Insufficient Evidence — Patricia Cookson, Judge — Opinion by Benke, J., with McIntyre, J., Aaron, J. Two of three counts of receiving stolen property ordered reversed where there was no evidence appellant received stolen property on more than one occasion. Court Operations assessment fee ($40 per count) ordered reduced by $80. (A) PED

Dodd, John — People v. Ortiz, E055511 — Insufficient Evidence — John Tomberlin, Judge — Opinion by Hollenhorst, J., with Richli, J., King, J. Conviction for being a felon in possession of a firearm reversed because the predicate felony conviction had been reduced to a misdemeanor. (A) PED 

Jones, Rebecca — People v. Green, E054565 — Penal Code Section 1202.45 — Michael A. Smith, Judge — Opinion by Hollenhorst, J., with McKinster, J., Codrington, J. Attorney General conceded and Court of Appeal agreed parole revocation restitution fine under Penal Code section 1202.45 should be stricken because client has life without parole sentence. (I) JLP

Grimm, Cynthia — People v. Stafford, E055138 — Probation Conditions — Kenneth Barr, Judge — Opinion by Hollenhorst, J., with McKinster, J., Codrington, J. In this pornography possession case, Court of Appeal struck six probation conditions and ordered four additional conditions modified to meet constitutional muster. The Court struck three drug conditions on Lent grounds (People v. Lent (1975) 15 Cal.3d 481, 486) because there was not evidence the offenses involved drug use. It likewise struck conditions prohibiting possession or use of restraint devices, personal contact magazines, and identity-concealing items. It modified an over-broad polygraph condition to limit the scope of questions to those regarding the sex offender surveillance program. It modified a vague probation condition that prohibited exposure of sexually explicit materials to include a definition of sexually explicit. It also modified an over-broad and vague condition limiting contact with minors and places minors congregate to add knowledge requirements and an exception when accompanied by certain adults. Finally, it modified the over-broad field interrogation condition to limit questioning to the defendant’s criminality and compliance with probation terms. (A) JLP

De La Sota, Richard – People v. McGowan, Jr., E054756 – Serious Felony Priors/ Restitution Fines – Albert J. Wojcik, Judge – Opinion by Hollenhorst, Acting P.J., with Richli, J., King, J. Appellant was sentenced to a total term of 168 years plus 440 years to life for committing various sex offenses against different victims on different occasions after having suffered three serious felony strike priors. The Court of Appeal reduced appellant’s sentence by 110 years because the trial court erred in imposing three five-year serious felony enhancements per indeterminate term. All three arose out of the same proceeding, thus only one five year prior applies per indeterminate term. In addition, the Court of Appeal struck the $10,000 victim restitution ordered pursuant to Penal Code section 1202.4, subdivision (f)(3)(F) and $10,000 fine ordered pursuant to section 288, subdivision (e), because both fines apply only where a person has been convicted of a violation of section 288 and appellant was not. (I) LKH

Levy, Richard/Multhaup, Eric — People v. Uribe/Lucero, E053314 — Insufficient Evidence/Gang Primary Activities — Craig Riemer, Judge — Opinion by Ramirez, P.J., with Richli, J., King, J. In this LWOP murder case based on various special circumstances, including gang participation, and also including a gang offense and gang enhancements, appellants contended that the evidence was insufficient to support the jury’s finding that one of more of the gang’s activities was murder, attempted murder and vehicle theft as alleged. The Court of Appeal agreed, reversing the substantive gang offense conviction, the gang special circumstance finding and two gang enhancements. (I) HCC

Williams, Rex — People v. Smith, E055127 — Ex Post Facto/Court Security Fees — Thomas E. Kelly, Judge — Opinion by Ramirez, J., with McKinster, J., King, J. Appellant argued the imposition of $40 court security fee for each of his two convictions violated ex post facto principles where the amendment which increased the fee from $30 to $40 went into operation after his conviction but prior to sentencing. The Court of Appeal could find no cases addressing the applicability of the 2011 amendment to Penal Code section 1465.8 where the conviction predated the amendment, as happened here. Because the great weight of authority holds that the date of the conviction is controlling, the fee provided by the version of section 1465.8 in effect at the time of defendant’s conviction should have been imposed. The court ordered the fee be reduced to $30 per conviction. (I) HCC

McPartland, Michael – People v. Gillespie, G046143 – Pre-sentence Custody Credit – Steven D. Bromberg, Judge – Opinion by Ikola, J. with O’Leary, P.J., Moore, J. The trial court erred in limiting appellant’s pre-sentence conduct credits to 15%. Appellant was convicted of first degree burglary and, even though someone was present in the home at the time, the People did not so allege under 667.5, subdivision (c)(21). Because this allegation must be pleaded and proved in order for the burglary to qualify as a violent crime, the trial court erred in limiting appellant’s credits to 15%. Appellant was entitled to credits calculated pursuant to 4019 (the version in effect on the date appellant committed the offense). (I) LKH

Garfinkle, Elizabeth — In re Niko P., G045909 — Lesser Included Offense — Jacki C. Brown, Judge — Opinion by Moore, Acting P.J., with Aronson, J., Ikola, J. Attorney General conceded and Court of Appeal agreed minor cannot be adjudicated of both receiving and robbing someone of the same property. (A) APJ

Jones, Cindy – People v. Alvarado, D062347 – Insufficient Evidence/Instructional Error – Harry M. Elias, Judge – Opinion by Irion, J. with McConnell, P.J., Aaron, J. Appellant’s conviction for making criminal threats is reversed for insufficient evidence where the victim did not suffer “sustained fear.” Court of Appeal found the fear experienced was “no more than momentary, fleeting or transitory.” In addition, appellant’s conviction for attempting to make criminal threats is also reversed where the court’s instruction on attempt did not refer to the concept of sustained fear. (I) LKH

Bitar, Adrea — In re Elizabeth V., D061651 — Probation Conditions — Carlos O. Armour, Judge — Opinion by Nares, J., with Huffman, J., McDonald, J. Court of Appeal struck probation condition prohibiting online commerce. It also modified a condition prohibiting computer and Internet use other than for school-related assignments to include an exception for supervised use permitted by the probation officer. It added a knowledge requirement to a condition prohibiting riding in a car with more than one person under age 18. Finally, it struck a condition prohibiting court appearances (when not a witness or party) and remanded for the trial court to fashion a narrower condition. (A) JLP

Johnson, Mark - People v. Cook, D060594 - Gang Evidence - Desiree Bruce-Lyle, Judge - O’Rourke, J., with Nares, J., Aaron, J. Trial court erred in admitting detective’s testimony regarding gang shootings because it was devoid of any probative value in that it failed to establish the shootings involved rival gangs, did not identify the gang affiliations of either the shooters or the victims, and did not explain what it had to do with defendant or his gang. Gang enhancement stricken. (A) PED

Katz, Paul — In re S.B., a minor, E056724 —Deferred Entry of Judgment — Larry W. Allen, Judge — Opinion by Ramirez, J., with McKinster, J., King, J. Minor was made a ward of the juvenile court after the court found true allegations that minor committed solicitation for murder. The prosecutor indicated on Form JV-750 that minor fulfilled each of the statutory requirements for deferred entry of judgment (DEJ), but then erroneously checked the box indicating the minor was “ineligible.” The People agreed with appellant’s contention that the jurisdictional findings and dispositional orders must be vacated and the case remanded for a hearing under Welfare and Institutions Code section 790 so the juvenile court can consider whether the minor is suitable for DEJ. (A) BCT

Annicchiarico, David — People v, Dunlap, D062241 — Protective Order — Kathleen M. Lewis, Judge — Opinion by Huffman, J., with Nares, J., O’Rourke, J. The trial court sentenced appellant to prison and issued a three-year criminal protective order (Pen. Code, § 136.2) barring him from contacting the victim. Respondent conceded and Court of Appeal agreed the authority of section 136.2 exists only during the pendency of the criminal case. As there was no other applicable statutory authority for the protective order and there was no showing a protective order was appropriate under the court’s inherent authority, the order must be stricken. (I) HCC

Norris, Ronda – People v. Lozano, D059304 – Fines - Melinda J. Lasater, Judge – Huffman, J., with McConnell, P.J., Haller, J. Court erred in imposing a $200 court facilities fee when only $150 for the five felony convictions was appropriate. (I) PED

Mazur, Janice — People v. Drury, D061480 — Custody Credits — Charles W. Ervin, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Haller, J. Respondent conceded and Court of Appeal agreed that trial court had miscalculated conduct credits. (I) HCC

Schaefer, Laura — People v. Martinez, G045725 – Gang Offense/Penal Code Section 654 — Daniel McNerney, Judge — Opinion by Ikola, J., with O’Leary, J., Moore, J. Court of Appeal ordered sentence for gang participation crime stayed pursuant to Penal Code section 654 where defendant was separately sentenced for the underlying crime of murder. (I) NFA

Power, Richard — People v. Sosa, G047054— Scope of Probation Search —Richard King, Judge — Opinion by Aronson J., with Rylaarsdam, J., Moore, J. Probation search of a non-probationer’s room found illegal where a generalized concern for officer safety does not justify a “protective sweep” of the entire house. (I) MCR

February 2013

Ulibarri, Patricia — People v. Botello, D059714 — Sentence — Craig G. Reimer, Judge — Opinion by O’Rourke, J., with Nares, J., McDonald, J. The sentence on count 5, assault with intent to commit rape, was reversed and the matter remanded with directions that the trial court re-sentence appellant to a determinate term under Penal Code section 220, subdivision (a)(1) rather than a life term under subdivision (b) because it was not charged, nor did the jury find beyond a reasonable doubt, that he committed an assault with intent to commit rape “in the commission of a residential burglary” as required by subdivision (b). (I) BCT

Buckley, Christian — People v. Landry, D061123 — Residency Restriction of Penal Code section 3003.5 — Michael T. Smyth, Judge — Opinion by O’Rourke, J., with Benke, Acting P. J., and Nares, J. Attorney General conceded and Court of Appeal accepted the concession (without deciding the underlying issue: see In re James F. (2008) 42 Cal.4th 901, 911) that the residency restriction of Penal Code section 3003.5 did not apply to appellant because he is no longer on parole. Application of restriction to registrants not on parole was a question left unanswered by the high court in In re E.J. (2010) 47 Cal.4th 1258. (I) CBM.

Covin, Randi — People v. Micek, G045870 — Probation Report Correction — Patrick H. Donahoe, Judge — Opinion by Thompson, J., with O’Leary, J., Fybel, J. Court of Appeal ordered correction of probation report. Minor victim testified she touched appellant’s penis voluntarily, contradicting probation report account that appellant “made” her minor touch him. (I) NFA

Power, Richard — People v. J.I.A. G040625 — Juvenile Offender/Cruel and Unusual Punishment — James A. Stotler, Judge — Opinion by O’Leary, J., with Bedsworth, J., Fybel, J. Juvenile Offender’s sentence of 50 years to life plus two consecutive life terms, making him initially eligible for parole at age 70 found to be cruel and unusual in light of the USSC decision People v. Caballero (2012) 55 Cal.4th 262. Sentence modified to run several counts concurrently as opposed to consecutively, making him first eligible for parole at approximately age 56. (I) PED

Marshall, Marilee — People v. Johnson, E055194 — Registration Requirement — David Cohn, Judge — Opinion by Codrington, J., with McKinster, J., King, J. Trial court erred in denying defendant’s petition for writ of mandate challenging a mandatory registration requirement for the Penal Code section 288a, subdivision (b)(2) offense, because the mandatory requirement violated his right to equal protection. Matter remanded for hearing on discretionary registration. (I) AMJ.

Shudde, Athena — People v. Royal, E054640 — Sentence/Fines & Fees — Michael B. Donner, Judge — Opinion by Codrington, J., with McKinster, J., Miller, J. Trial court erroneously imposed an upper term of six years for second degree robbery; appellate court reduced the term to five years. The Court of Appeal agreed with the parties that the criminal conviction assessment fee and the court security fee should be reduced because the trial court struck one of defendant’s convictions. The court also found that $20,000 fine could not be imposed pursuant to Penal Code section 667.6, subdivision (f), because that section applies only to defendants sentenced under subdivision (a) or (b) of the same statute (which appellant was not). (I) HCC

Crawford, James – People v. Solarez, E053971 – Insufficient Evidence Gang Offense (Rodriguez) – Jeffrey Prevost, Judge, Opinion by McKinster, J. with Hollenhorst, Acting P.J., Richli, J. Appellant was convicted of active participation in a criminal street gang although he acted alone. On appeal, appellant argued there was insufficient evidence to support the conviction for active participation in a criminal street gang because there was no evidence he “willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of th[e] gang.” The Court of Appeal agreed, following the California Supreme Court’s decision in Rodriguez (2012) 55 Cal.4th 1125 and reversed the conviction. (I) LKH

Prince, Diana — In re D.V., E056572 — Limited Reversal ICWA Notice — Matthew C, Perantoni, Judge — Opinion by Ramirez, P.J., with Richli J., King, J. Mother identified her father and grandfather has having Indian heritage. The notice sent to the tribes only contained their names and did not contain necessary information such as the date and place of their births. There was no evidence the Department asked mother or the other maternal relatives it was in contact with for this information; one of these relatives was seeking placement of the minor so the information was readily available. Order terminating parental rights reversed with a limited remand to allow for proper notice to the tribes. (I)/(S) LMF

Yockelson, Alan — People v. Pangan, G046491, (2013) 213 Cal.App.4th 574 — Direct Restitution — James A. Stotler, Judge — Opinion by Bedsworth, J., with Moore, J., Fybel, J. Trial court erred when calculating restitution based on loss of future earnings without accounting for the time value of money and defense counsel was ineffective for not raising the issue below. (I) DKR

Ferguson, Susan L. – People v. Deering, E054053 – Instructional Error - John M. Tomberlin, Judge - McKinster, J., with Ramirez, J., and Miller, J. Trial court had a duty to instruct on the elements of theft by false pretenses with respect to one of the counts based upon the evidence at trial. The absence of any instruction defining “stolen” or “theft” reduced the prosecution’s burden of proof, in that the jurors were allowed to find defendant guilty without having to analyze the evidence within the framework of the legal definitions of those terms. The prosecutor’s argument here exacerbated the problem by misstating the law: prosecutor implied that defendant committed theft merely by failing to return an original engine when the replacement engine failed without regard to the element of fraud. (A-M) LAR

Male, Jesse — In re J. N., E055580 — Probation Conditions/Fines — Samuel Diaz, Jr., Judge — Opinion by Hollenhorst, J., with Richli, J., King, J. The court reversed the $1,660 fine and remanded for the juvenile court to clearly state the nature of the fine/fee and the statutory authority for it. Further, the court agreed with minor’s contention that two probation conditions were over-broad because they would prohibit him from using commonly prescribed controlled substances. Therefore, the court modified the conditions to read “not knowingly possess illegal controlled substances.” (A) BCT.

Larson, Eric — People v. Aguilar, E055007 — Fines — J. Thompson Hanks, Judge — Opinion by King, J., with Ramirez, J., Richli, J. The court reversed the $6,052 fine imposed pursuant to Penal Code section 290.3 and remanded for the trial court to determine whether to impose the fine under former section 290.3 and to state the amount of such fine, if any, and other applicable fines, penalties, or surcharge. (I) BCT

Bauguess, Susan — People v. Meakins, E055488 — Juvenile Offender/Pre-Sentence Credits— Jules E. Fleuret, Judge — Opinion by McKinster, J., with Ramirez, J., & Miller, J. Appellant entitled to award of presentence custody conduct credits for time spent in juvenile hall when his case is directly filed in adult court. (I) PED

Boyer, Ronald — People v. Nunez, E055034 — Penal Code Section 4019/Ex Post Facto — Anthony R. Villalobos, Judge — Opinion by McKinster, J., with Miller, J., Codrington, J. Appellant was sentenced concurrently for a probation violation and a current offense. For the probation case, under People v. Brown, the Court of Appeal used a hybrid formula to award more conduct credit for custody served post January 25, 2010. For the second case, appellant was sentence to “prison,” but under Realignment was ordered to serve it in county jail. The application of Realignment effectively altered the consequences of defendant’s actions completed prior to the change in the law; had defendant gone to prison, he would have been entitled to the additional credits under Penal Code section 2933. Thus, under Weaver v. Graham (1981) 450 U.S. 24, defendant was entitled to additional days of conduct credit. (I) HCC

Paradis, Renee — People v. Hosey, E054443 — Pre-Sentence Custody Credits — Elaine M. Johnson, Judge — Opinion by King, J., with Ramirez, P.J., Richli, J. Appellant challenged the denial of pre-sentence custody credits for time he served as a condition of probation prior to his ultimate prison sentence. The Attorney General agreed and Court of Appeal found that although appellant had been serving time concurrently on a parole violation, awarding credit would not run afoul of People v. Bruner (1995) 9 Cal.4th 1178 and there was no possibility of a duplicate “windfall” because the custody on the parole violation was for the same conduct and there was no sentence being imposed in the parole case to which credit could be applied. (A) HCC

Boyce, Robert — People v. Doreen Alonzo, D059149 — Penal Code Section 654 — Matias R. Contreras, Judge — Opinion by Nare, J., with McIntyre, J., O’Rourke, J. Consecutive four year term for first degree burglary ordered stayed pursuant to Penal Code section 654 where the burglary was the means of perpetrating the kidnaping to commit robbery count. (I) PED

Kehoe, James — People v. Sherow, D062184 — Abstract of Judgment/Minute Order — Craig G. Riemer, Judge — Opinion by O’Rourke, J., with Benke, J., Nares, J. Remand for trial court to modify the sentencing order and amend the abstract of judgment to reflect the correct fines and that appellant was committed to local jail, not state prison. (I) BCT.

Martin, Arthur – People v. Felix, D059719 – Insufficient Evidence/Instructional Error – Paul Dickerson, III, Judge – Opinion by Aaron, J., with McDonald, J. concurring, and Benke, Acting P.J. separately concurring and dissenting. The Court of Appeal reversed two special circumstance true findings: (1) the special circumstance that appellant intentionally killed the victim while lying in wait and (2) the robbery special circumstance. The first special circumstance is reversed for insufficient evidence and cannot be retried. The robbery special circumstance is reversed for instructional error and can be retried if the prosecution elects. As to the robbery special circumstances, the trial court erred in failing to instruct the jury pursuant to CALCRIM 335 that the jury could not convict appellant solely on the accomplice’s uncorroborated testimony. (I) LKH

Booher, Robert — People v. Bauer, D060346, (2012) 212 Cal.App.4th 150 — Right to Counsel — Roderick W. Shelton and Stephanie Sontag, Judges — Opinion by Haller, J., with Benke, J., Aaron, J. Published decision reversing judgment based on contested probation revocation hearing held without defense counsel. Appellant had waived right to counsel and been pro per at initial plea of guilty and sentencing, when he was placed on probation. Subsequent revocation and sentencing hearings were held with appellant unrepresented, and he was not advised at either hearing of his right to counsel. The Court of Appeal held that while a defendant who knowingly elects to waive counsel need not be re-advised of the right to counsel at every hearing in that proceeding, a revocation hearing is a new proceeding requiring re-advisement of the right to counsel. Not deciding whether the error was reversible per se or required a showing of prejudice, the court reversed finding there was prejudice in either event. The case is remanded for a new probation revocation hearing, if appellant opts to be represented by counsel, or, if appellant waives his right to counsel, reinstatement of the judgment. (I) NFA

Margolis, Gideon — People v. Ahmed, D062509 — Victim Restitution — Allan J. Preckel, Judge — Opinion by O’Rourke, J., with Benke, J., Irion, J. Abstract of judgment corrected to reflect joint and several liability. (I) PMI

Lubliner, Steven — People v. Goolsby, E052297 — Insufficient Evidence Arson/Prior Serious Felony Enhancements — Bryan Foster, Judge — Opinion by McKinster, J., with Richli, J., Codrington, J. Appellant was convicted of arson of a structure. Multiple-structure and three 5-year prior serious felony enhancements were found true. The Court of Appeal reversed the conviction of arson of a structure because it found the mobile homes to which appellant set fire were not structures. For the same reason the multiple-structure enhancement was reversed. The court also reversed two of three prior serious felony enhancements because they were not brought and tried separately, as required by section 667, subdivision (a). (I) NFA

Jesse Male — People v. Huyck, E056492 — Fines — Gary B. Tranbarger, Judge — Opinion by King, J., with Richli, J., Miller, J. Restitution and parole revocation fines corrected to reflect the trial court’s oral pronouncement. (A) PMI.

Larson, Eric — People v. Garcia, E054347 — Insufficient Evidence Sexual Penetration — Mark E. Petersen, Judge — Opinion by Mckinster, J., with Hollenhorst, J., Richli, J. Conviction for one count of sexual penetration of a child under the age of 10 (Pen. Code, §288.7, subd.(b)) reversed because the prosecution failed to prove that the single act of digital penetration described by the victim occurred after the effective date of the statute. Clerical errors in the abstract of judgment and sentencing minute also corrected. (I) PED

Irza, Helen — People v. Crawford, D060532 — Sentencing Error/Credits and Abstract of Judgment Corrections — Raymond C. Youngquist, Judge — Opinion by Irion, J., with McIntyre, J., Aaron, J. Attorney General conceded and Court of Appeal agreed that weapon enhancement attached to a subordinate term must be reduced to one-third the one year term. In addition, appellant is entitled to an additional day of credit and ministerial errors in the abstract of judgment must be corrected. (I) APJ

Buckley, Christian — People v. Austin, D061046 — Penal Code Section 654 — Howard H. Shore, Judge — Opinion by Huffman, J., with Nares, J., Haller, J. Court of Appeal agreed that sentence for possession of ammunition by a prohibited person must be stayed under Penal Code section 654 where time was imposed for possession of the gun. (I) AMJ

Yockelson, Alan — People v. Carroll, E056055 — Excess Credits Application — John M. Tomberlin, Judge — Opinion by Ramirez, P. J., with Richli, J., Miller, J. Attorney General conceded and Court of Appeal agreed that excess credits must be applied to fines and fees in this case where appellant was kept in custody prior to release on probation for more days than called for in the plea agreement. (I) APJ

De La Sota, Richrd — People v. Enborg, E054747 — Lesser Included Offenses — Duke D. Rouse, Judge — Opinion by Codrington, J., with Hollenhorst, Acting P.J., King, J. Because false imprisonment is a lesser included offense of kidnapping, and appellant was convicted of both crimes based on the same conduct, the false imprisonment conviction must be vacated. (I) CBM

McKenna, Patrick — In re P.T., E054413 — Wobbler Determination — Samuel Diaz, Jr., Judge — Opinion by McKinster, Acting P. J., with Miller, J., Codrington, J. Court of Appeal accepted the government’s concession that the case must be remanded for the juvenile court to make an explicit finding on the record as to whether the crime constituted a felony or a misdemeanor. The court’s mere repetition of the charging document was insufficient to execute this duty. (A) CBM

Hickey, Brendan — In re P.V., E055066 — Probation Conditions — Jefferson Powell IV, Judge — Opinion by McKinster, Acting P. J., with Miller, J., Codrington, J. Following People v. Patel (2011) 196 Cal.App.4th 956, the Court of Appeal ordered five different probation terms modified to add a scienter, or knowledge, requirement. In addition, the court found the probation condition requiring minor to notify the probation officer of all prescription medications to be unconstitutionally over-broad. This requirement intrudes into minor’s constitutionally protected privacy rights, but has nothing to do with minor’s offense or rehabilitation. And, it clearly involves conduct that is not itself criminal. Because the court’s concern of drug abuse was addressed by probation conditions to attend counseling and to test for drugs at the probation officer’s direction, as well as other proper terms, the provision was stricken. (A) CBM.

Shudde, Athena — People v. Esparza, E056278 — Insufficient Evidence — Gary B. Tranbarger, Judge — Opinion by King, J., with Richli, J., Miller, J. Court of Appeal reversed narcotics possession count for insufficient evidence where the only evidence was that a baggy of methamphetamine was found on the ground five to ten feet from where appellant and two companions were detained by police. (I) NFA.

Haggerty, Edward — People v. Gibson, E055160 — Ex Post Facto/Sentencing — Dennis McConaghy, Judge — Opinion by Codrington, J., with Hollenhorst, Acting P. J., and King, J. (1) Appellant was charged, inter alia, with five sex crimes against two nieces that occurred between 2005 and 2010. Counts three through seven charged violations of the enhanced sodomy statute – Penal Code section 288.7, subdivision (a), which became effective on September 20, 2006 and carries a 25 years to life indeterminate sentence. The People conceded and the court agreed, that the evidence did not show the acts underlying these charges occurred after the effective date of the statute. However, the court agreed with the People that the lesser included offense of sodomy under Penal Code section 286 had been proven by the evidence. Judgment modified to reflect five convictions of Penal Code section 286; case remanded for resentencing. In addition, Penal Code section 290.3 fines associated with these counts reduced to the statutory formula in effect prior to September 20, 2006. (2) Because all of the Penal Code section 288.7 convictions were reversed with respect to the one victim, appellant no longer qualified for the indeterminate sentence on Count 2 [forcible lewd act] under Penal Code section 667.61, subdivision (b). Matter remanded for resentencing, imposing a determinate consecutive sentence for count two. (Penal Code section 667.6, subdivision (d).) In total, 6 indeterminate sentences reversed (10 remain). (I) CBM

Jones, Rebecca — People v Joiner, D056622 — SVP Motion to Dismiss — Leo Valentine, Jr., Judge — Opinion by Nares, J., with Aaron J.; Benke, J., concurring in part and dissenting in part. Joiner’s first SVP trial resulted in a mistrial (jury vote of 8 to 4 in Joiner’s favor). Joiner moved to dismiss for insufficient evidence. The trial court concluded it did not have the authority to grant the motion. Joiner’s petition for mandate was denied, and a second jury trial resulted in an SVP commitment. In the appeal from the second trial, the court concluded the trial court did have the authority to rule on the motion to dismiss filed after the first trial. The court concluded the trial court has the inherent power in SVP proceedings to terminate the proceedings if the People have not provided sufficient evidence of the elements required by the SVP statute. The case was remanded with instructions for the trial court to consider the merits of the motion to dismiss. (I) LMF.

Dorian, Melanie — In re A.S., G046454 — Penal Code Section 654 — Jacki C. Brown , Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Moore, J. Minor argued, respondent conceded, and Court pf Appeal agreed the trial court should have stayed the term for count 3 (public fighting), because it was committed with the same intent as counts 1 (aggravated assault) and 2 (battery with serious bodily injury). (A) HCC

January 2013

Annicchiarico, David — People v. Reinholtz, D060550 — AIDS/HIV Testing/Abstract of Judgment — Lantz Lewis, Judge — Opinion by Benke, J., with McConnell, P.J., Huffman, J. Court of Appeal found there is insufficient evidence to support the order requiring AIDS/HIV testing and the abstract of judgment incorrectly records the date of conviction. Case remanded for corrections. (A) AMJ

Vento, Christine/McKinney, David – People v. Oceguera/Cardenas, G045222 – Penal Code Section 654 - Frank F. Fasel, Judge - O'Leary, J., with Rylaarsdam, J., Thompson, J. In June 2012, the California Supreme Court filed People v. Mesa (2012) 54 Cal.4th 191 (Mesa), which held section 654 prohibits the imposition of separate punishment for street terrorism when the underlying felony forms the basis of the felonious conduct required by section 186.22, subdivision (a). Here, Mesa compelled modification of the judgment to reflect a section 654 stay on count 2. (I) LAR

Aquilina, John — People v. Curry, G045060 — Ineffective Assistance of Counsel [IAC] — Dan McNerney, Judge — Opinion by O'Leary, P.J., with Bedsworth, J., Thompson, J. Habeas corpus petition granted, judgment reversed. Appellant/petitioner was convicted of domestic battery with corporal injury. A necessary element of felony domestic battery is cohabitation. In the case-in-chief, the prosecutor failed to introduce evidence of cohabitation. Despite the lapse, defense counsel failed to move for acquittal or move for new trial. Instead, counsel had defendant testify and elicited some evidence of cohabitation, agreed the court need not instruct upon cohabitation, and conceded same in argument . In a declaration, trial counsel admitted he failed to recognize the prosecution's neglect. The Court of Appeal discerned no reasonable tactical basis for counsel's actions and found the error to be prejudicial. (I) HCC

Knight, Richard — People v. Abdullah, D060027 — Drug Program Fee/Abstract of Judgment — William H. Kronberger, Judge — Opinion by Huffman, J., with McConnell, P.J., Irion, J. Trial court abused its discretion in ordering drug program fee of $570 because substantial evidence does not support the implied finding of ability to pay. Court of Appeal rejected respondent's contention of forfeiture because the claim concerns insufficient evidence which can be raised for the first time on appeal. Court ordered the fees stricken and correction of the abstract of judgment to reflect the trial court's verbal order of $150 for a criminal justice administrative fee rather than $154. (I) AMJ

Rich, Renee — People v. Solia, E053035 — Sentencing — Edward D. Webster, Judge — Opinion by King, J., with Ramirez, P.J., Hollenhorst, J. After granting rehearing, the Court of Appeal reconsidered its opinion and agreed with appellant that all of the terms the court orally imposed on counts 2 through 5 must run concurrent to the 24-year-to-life term imposed on count 1 because the trial court did not state it was imposing consecutive terms on any counts (Penal Code section 669), did not state any reasons for imposing consecutive sentences (California Rules of Court, rule 4.406(b)(5)), and did not announce an aggregate sentence. Therefore, the case was remanded with directions that the trial court issue a new sentencing minute order and a corrected abstract of judgment reflecting concurrent rather than consecutive terms. (I) BCT

Bergen, Ann — People v. Brown, G045367 — Victim Restitution — Kimberly Menninger, Judge — Opinion by O'Leary, J., with Bedsworth, J., Fybel, J. $47,531 victim restitution order reversed, where jury acquitted appellant of driving under the influence causing injury and convicted her of the lesser included offense of driving under the influence. Because victim restitution order was based on injury and jury did not find appellant legally responsible for injuries, order was abuse of discretion. (A) JLP

Quinlan, Sheila — In re D.M., E056295 — Juvenile Sentencing — Roger A. Luebs, Judge — Opinion by Ramirez, J., with Richli, J., King, J. Juvenile court made a true finding in a Welfare and Institutions Code section 602 proceeding, made minor a ward, and placed minor on probation. The court calculated the minor's maximum term of confinement, but failed to calculate the number of pre-disposition custody credits, i.e., the number of days of pre-disposition custody. The Court of Appeal held the juvenile court must calculate pre-disposition custody credits and remanded the case for that calculation. (A) NFA

DeVito, Cara — People v. Speldrick, G044685 — Unanimity Instructional Error — Helios (Joe) Hernandez, Judge — Opinion by Moore, Acting P.J., with Fybel, J., Ikola, J. In a case where the felonious conduct to support the gang offense was listed as either attempted murder or assault with a deadly weapon and there was evidence of more than one assault, it was prejudicial error not to instruct the jury that "it must unanimously agree on the assault underlying the felonious conduct element." In this case, there were separate convictions of attempted murder and assault with a deadly weapon clearly based upon a single act; however, an expert also testified as to other uncharged assaults committed by the defendant and there was no instruction limiting the jury's consideration of those assaults. The error was not harmless because one of the uncharged assaults was graphic and first trial on the charged assault resulted in a hung jury. (I) APJ

Schwartzberg, Richard — People v. Flynn, E054999 — Restitution fines — Elaine C. Johnson, Judge — Opinion by Codrington, J., with McKinster, J., Miller, J. People appealed from trial court's dismissal of defendant's Penal Code section 1202.4, subdivision (b), restitution fine when the court terminated probation and dismissed the case pursuant to section 1203. The Court of Appeal found that, while the imposition of the section 1202.4, subdivision (b), restitution fine was mandatory, the trial court properly dismissed the fine when it terminated defendant's successful probation, converted defendant's guilty plea to a not guilty plea, and dismissed the charges pursuant to section 1203.4, subdivision (a). The court further held the prosecution had failed to preserve any error for appeal by failing to make a specific objection. (I) NFA

Schwartzberg, Richard – People v. Mayorquin, D061874 – Penal Code Section 654 – Melinda J. Lasater, Judge, Opinion by Aaron, J. with Nares, Acting P.J., O'Rourke, J. The jury convicted appellant of multiple drug offenses, including possession of a controlled substance (cocaine) (count 1), transporting a controlled substance (cocaine) (count 2), possession of a controlled substance (methamphetamine) for sale (count 3), transporting a controlled substance (methamphetamine) (count 4), and using a false compartment (count 5). The Court of Appeal modified the judgment to stay execution of the sentences imposed on counts 1, 3, and 5, pursuant to Penal Code section 654. (I) LKH

Irza, Helen – People v. Ramirez, D060767 – Insufficient Evidence/Unauthorized Sentence – Poli Flores, Judge, Opinion by Huffman, J. with Benke, Acting P.J., McDonald, J. Court of Appeal reversed appellant's conviction for carrying a concealed dirk or dagger, concluding there was insufficient evidence the weapon was concealed on appellant's person. No witnesses saw appellant carrying the dagger. During the foot chase, one officer heard a "clang" as something hit the street, but did not see appellant throw anything. After appellant was detained, police recovered a knife lying on the street about six feet from where appellant was sitting. Appellant admitted the knife was his but did not state how he carried it. In addition to reversal of felony count, the sentence for remaining misdemeanor count (possession of burglary tools) reduced from the unauthorized two-year term imposed to six months. (I) LKH

Dodd, John L. – People v. Vasquez, E054991 – 654 sentencing – Gordon R. Burkhart, Judge - McKinster, J., with Hollenhorst, J., Richli, J. Appellant appealed from his conviction on 10 counts arising from the robbery of three people at a place of business. The false imprisonment count of one victim was reversed as it was a necessarily included offense of kidnapping of the same victim. Also, the false imprisonment counts on the other victims (counts 6 and 7) were subject to section 654 because it could not be separately punishable if done solely to facility the underlying robbery counts. (I) LAR

Costan, Charlotte — People v. Tonga, E054683 — Abstract of Judgment — Gerard S. Brown, Judge — Opinion by King, J., with Hollenhorst, Acting P.J., Codrington, J. Abstract of judgment ordered amended to include order that victim restitution obligation is joint and several. (I) APJ

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