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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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 2014

Dodd, John L. — People v. Cornelio, D063608 — Preemption — Richard S. Whitney, Judge — Opinion by O’Rourke, J., with McConnell, P.J., McDonald, J. Court held that Penal Code section 399, subdivision (a) preempts section 192, subdivision (b). Appellant was convicted of involuntary manslaughter (section 192) and two counts of owning an animal that kills a human being (section 399, subd. (a)). Appellant’s two pit bulls got out of her yard and mauled the 75 year old next door neighbor, who eventually died after many amputations and infections. Involuntary manslaughter conviction reversed. (I) LAR

Larson, Eric — People v. Mason, D063793 — Possession of Firearm by a Felon/ Three Strikes Law — David M. Gill, Judge — Opinion by McConnell, P.J., with O’Rourke, J., Irion, J. People charged appellant with four different counts of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)) based on four separate dates when appellant possessed the same gun. Court found the possession to be a continuing offense. The government presented no evidence that appellant’s possession of the gun was anything but continuous over the period encompassing the four dates and no evidence showing any interruption of this possession. All but one of appellant’s possession offenses reversed for lack of evidence. Court erred by tripling appellant’s LWOP sentences under the Three Strikes law from three to nine, agreeing with People v. Coyle (2009) 178 Cal.App.4th 209, 219 and disagreeing with People v. Hardy (1999) 73 Cal.App.4th 1429, 1434. In the LWOP sentence, there is no possibility for parole and thus no minimum term to triple. (I) CBM

Fabian, Carl — People v. Ward, D064330 — Penal Code Section 654/Custody Credits — Allan J. Preckel, Judge — Opinion by McDonald, J., with Huffman, J., Irion, J. Where the jury convicted appellant of both a burglary and the underlying target felony, trial court erred when it imposed punishment for both crimes. Court of Appeal ordered sentence for underlying target felony to be stayed under Penal Code section 654. (People v. Islas (2012) 210 Cal.App.4th 116, 130.) Trial court improperly calculated appellant’s actual presentence time; Court of Appeal awarded one additional day. (I) CBM

Jones, Jason — People v. Land, D065369 — Probation Conditions — Evan P. Kirvin, Judge — Opinion by Haller, J., with O’Rourke, J., Aaron, J. The Court of Appeal modified appellant’s probation condition which prohibited him from remaining “in a building, vehicle or in the presence of any person where [he] know[s] a firearm, deadly weapon, or ammunition exists.” Appellant argued successfully the probation condition would prohibit him from entering courthouses, state office buildings, or banks for example, where firearms are legally possessed. He’s now prohibited “from being in the presence of those he knows illegally possess firearms, deadly weapons or ammunition.” (A) LKH

Lankford, Valerie; Tobin, Amy — In re Hailey B., D065577 — Sibling Exception — Cynthia A. Bashant, Judge — Opinion by Nares, J., with McConnell, P.J., Haller, J. Two minor-appellants argued and the Court of Appeal agreed that the trial court erred in applying the sibling exception to adoption when the evidence that termination of parental rights would substantially interfere with the sibling relationship was only supported by speculative evidence of future possible problems. Agency also appealed and minors both joined agency’s briefing. (I) LLF

Bishop, Rosemary — In re Joseph B., D065833 — Uniform Child Custody Jurisdiction and Enforcement Act — Laura Birkmeyer, Judge — Opinion by Haller, J., with O’Rourke, J., Irion, J. Court of Appeal reversed on grounds that agency failed to contact child’s home state of Nevada prior to issuing permanent jurisdiction/disposition orders. (I) ACS

Norman, Jan — People v. Kohut, D065969 — Improperly Induced Guilty Plea — Richard A. Erwood, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Haller, J. In the opening brief, appellant argued that his due process rights were violated by the destruction of evidence and that he should be allowed to withdraw his guilty plea as a result. When respondent argued, among other things, that there was no prejudice from the destruction of evidence because appellant pleaded guilty to charges not affected by the destruction, appellant argued he should nevertheless be allowed to withdraw his plea because it was induced by a failure to advise him that he was waiving his appellate rights. The Court of Appeal allowed respondent to file a supplemental brief on this new issue and then found that appellant should be allowed to withdraw his plea because the fact that the government expressly did not require an appeal waiver and the trial court signed appellant’s request for certificate of probable cause, which included the destruction of evidence issue, misled appellant into thinking his right to appeal this issue was preserved. Court of Appeal also addressed the destruction of evidence issue on the merits and found no error. Case remanded to give appellant an opportunity to withdraw his plea. (I) APJ

Breakey, Lise — People v. Robinson, E056791 — Lesser Included Offense — Thomas E. Kelly, Judge — Opinion by McKinster, J., with Richli, J., Miller, J. Mayhem conviction is reversed as lesser included of aggravated mayhem, which was charged in a separate count. (I) DKR

Grove, Kimberly/McKinney, David — People v. Ayon/Garcia-Vega, E057831 — Fines — Bernard Schwartz, Judge — Opinion by King, J., with Ramirez, P.J., Richli, J. Remanded with directions to prepare supplemental sentencing minute orders showing that no parole revocation restitution fines were imposed on appellants and to prepare amended abstract of judgment, also showing that no parole revocation restitution fines were imposed. (I) LAR

Auwarter, Neil — People v. Romancorrea, E059568 — Fines and Fees — Thomas E. Kelly, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. A week after sentencing the trial court issued an amended abstract 1) increasing the restitution fines under Penal Code section 1202.4 and 1202.45 from $1000 to $5000 and 2) adding a $450 booking fee under Government Code section 29550. The Court of Appeal reversed both. As to the increased restitution fines the court found the trial court lost jurisdiction to increase the fines when the original sentence was imposed and entered in the minutes. As to the booking fee, the court found that if the booking fee were mandatory then the imposition of the fee post-sentencing would be permissible as the correction of an unauthorized sentence. Here, however, it could not be determined whether the fee was mandatory versus discretionary because the record did not identify the arresting agency. Remanded for rehearing on the booking fee question. (S) NFA

Klaif, Leonard J. — People v. Valdivia, E059857 — Unauthorized Order — Rushton, Michael J., — Opinion by Gaut, J., with Ramirez, P.J., McKinster, J. Appellant is serving 19 years in state prison for a series of sex crimes. The trial court erred when it required appellant to participate in sex crime counseling in prison without statutory authority to do so. Order stricken. (I) LAR

Hinkle, Stephen — People v. Hillard, E060101 — Prior Convictions — Mark Mandio, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J. Where appellant never admitted the prior convictions and the trial court never found the prior convictions to be true, the five-year prior serious felony enhancement and the doubled sentence on the offense due to a strike prior are reversed . The matter is remanded to the trial court. (I) PMI

Hennessey, Patrick J. — People v. Calvin, G048597 — Sentencing — William R. Froeberg, Judge — Opinion by Fybel, J., with Rylaarsdam, J., Bedsworth, J. Trial court erred in imposing a two-year sentencing enhancement under former Penal Code section 12022.6 based on the total value of the money stolen from all the victims. Instead, a one-year enhancement should have been imposed based on the version of section 12022.6 in effect at the time of sentencing. (I) LAR

Irza, Helen — People v. Valdez, G048627 — Qualified Right to Self Defense/Initial Aggressor Instructions — Sheila Hanson, Judge — Opinion by Aronson, J., with O’Leary, P.J., Bedsworth, J. Court of Appeal reversed the appellant’s attempted voluntary manslaughter conviction because the trial court failed to instruct the jury with all of the relevant instructions on the right to self defense by an initial aggressor who has chosen to engage in mutual combat. In particular, the trial court failed to instruct the jury that, if an initial aggressor uses only non-deadly force and the opponent responds with such sudden and deadly force that the aggressor is unable to withdraw from the fight, the aggressor has to right to defend with deadly force and is not required to stop fighting, communicate the desire to stop fighting, or give the opponent a chance to stop fighting. The court found prejudice where there was evidence that the reason the defendant shot at rival gang members during a confrontation was that he was suddenly rushed by 15 of them who were armed with poles, bats, rocks and bricks. (S) HSI.

Bostwick, James R. — People v. Mendoza, G048949 — Penal Code Section 654 — Carla M. Singer, Judge — Opinion by Rylaarsdam, J., with Bedsworth, J., Moore, J. Evidence showed false imprisonment was part of the initial plan of the robbery and, although the means of completing it changed, the objective of doing so as part of the robbery never did. Amended abstract ordered staying the sentence for false imprisonment by violence pursuant to Penal Code section 654. (I) LAR

Sheehy, Kevin — People v. Sorto, G049199 — Sentencing — Lance Jensen, Judge — Opinion by Bedsworth, J., with Rylaarsdam, J., Thompson, J. Abstract of judgment and sentencing minute order modified to reflect Penal Code section 12022.5, subdivision (a) gun enhancements on three counts are stayed where the more punitive gun enhancement allegations on those counts were found true. Additionally, the section 186.22, subdivision (b) gang enhancement must be corrected to a stayed term of 3 years, not 10 years. (I) PMI

Beckham, Sylvia — In re Q.S., G049486 — Penal Code Section 29820 Firearm Restriction — Gregory Jones, Judge — Opinion by Rylaarsdam, J., with O’Leary, P.J., Moore, J. Because minor did not commit an qualifying offense, the probation condition pursuant to Penal Code section 29820 which prohibits minor from possessing a firearm before he reaches the age of 30 must be stricken. (I) MCR

Vallandingham, Robert — People v. Viloria, G049657 — Penal Code Section 995 — Kimberly Menninger, Judge — Opinion by Fybel, J., with Rylaarsdam, J., Bedsworth, J. Court of Appeal affirmed the trial court’s order setting aside the violent felony allegation that another person was present in the residence appellant burgled, under Penal Code section 667.5, subdivision (c)(21). Trial court properly granted appellant’s Penal Code section 995 motion because no evidence presented at the preliminary hearing showed the presence of anyone other than appellant at the time of the burglary. (I) CBM

Levy, Richard — People v. Gray, G049823— Murder Special Circumstance Instructions — Christian F. Thierbach, Judge — Opinion by Aronson, J., with O’Leary, P.J., Thompson, J. Court of Appeal reversed one of two special circumstances found true in this case: a gang murder special circumstance where the trial court had failed to instruct on it. The court found the error was not harmless beyond a reasonable doubt because the evidence would have allowed the conclusion appellant was motivated by a personal vendetta rather than an intent to promote his gang. (I) NFA

November 2014

Kent, Jill — In re Kenneth T., D064724 — Wobbler Determination — Polly H. Shamoon and Browder A. Willis III, Judges — Opinion by Nares, J., with Huffman, J., McDonald, J. Penal Code section 496, receiving stolen property, is punishable as either a felony or a misdemeanor. Juvenile court was required under Welfare and Institutions Code section 702 to explicitly declare on the record whether the offense was a misdemeanor or a felony. Minor contended, respondent conceded, and the court agreed, the juvenile court failed to make such an explicit declaration at any of the hearings. The case was remanded to the juvenile court with directions to make an explicit declaration on the record whether the offense is a misdemeanor or a felony. (A) HCC

Rudasill, Denise M. — People v. Lagrange, D065065 — Probation Condition — Joseph P. Brannigan and Eugenia Eyherabide, Judges — Huffman, J., with McDonald, J., O’Rourke, J. The trial court’s written order imposed two probation conditions; however, there was no mention of these conditions in the court’s oral statements regarding the conditions of probation. Case remanded for trial court to determine whether these conditions should be imposed, modified, or stricken. (I) LAR

Riopelle, Sahyeh — In re Alyssa A., D065357 — Private Parental Termination — Kimberlee A. Lagotta, Judge — Opinion by Aaron, J., with Huffman, J., Nares, J. Reversal of the judgment terminating father’s parental rights under Family Code section 7822, subdivision (a)(2) (abandonment of child for six months with a non-parent), as the proper code section in this case was section 7822, subdivision (a)(3) (abandonment of child for one year with other parent). As the court’s order depended upon a finding of six month abandonment rather than one year abandonment, case remanded for appropriate determination under the applicable statute. (I) CAG

Miller, Gerald — People v. Bridgett, D065402 — Three Strikes Reformation Act; Penal Code Section 1170.126 — David J. Danielson, Judge — Opinion by Huffman, J., with Benke, J., McIntyre, J. Appellant received consecutive indeterminate Three Strikes sentences in two separate cases in 2003–one a cocaine possession case and the other a robbery case. He later filed a Penal Code section 1170.126 petition seeking resentencing in the cocaine possession case; however, the trial court denied the petition based on its finding defendant was disqualified by his conviction of robbery in the other case, which the trial court found was an offense punishable by life imprisonment within the meaning of sections 1170.12, subdivision (c)(2)(c)(IV). The Court of Appeal reversed because an offense punishable by life imprisonment within the meaning of the disqualifying provisions of the Three Strikes Reformation Action is an offense punishable by life under its own terms, not by virtue of the Three Strikes law. The Court of Appeal declined to address whether the error was harmless by virtue of another disqualifying provision of the Act and remanded for a new hearing under section 1170.126. (I) NFA

Ting, Allison — People v. Louie, D065964 — Lesser Included Offense/Insufficient Evidence Gang Offense — R. Glenn Yabuno, Judge — Opinion by Haller, J., with McDonald, J., O’Rourke, J. Court of Appeal dismissed appellant’s conviction for carjacking because it is a lesser included offense of kidnapping during carjacking. Further, the gang participation offense was dismissed because there was no evidence appellant acted with another gang member when committing the offense. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1128, 1132.) (I) LKH

Gorman, Seth — In re Jonathan A., D066345 — Presumed Father Status — Michael Martindill, Referee — Opinion by Benke, J., with Haller, J., O’Rourke J. Juvenile court deferred paternity ruling until testing was complete. Appellant’s test results were 99.99 percent probability he was the father. Appellant’s requests for presumed father status and for a hearing on that issue were denied because the referee mistakenly believed the prior judge already denied them. Appellant’s case was remanded to the juvenile court for a hearing on appellant’s presumed father status. (I) LMF

Gardner, Cliff — People v. Gomez, et.al., E057193 — Cruel and Unusual Punishment — John M. Tomberlin, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., Miller, J. Appellant was 16 years old at the time of the murder and sentenced to life without the possibility of parole. Sentence vacated and matter remanded to the superior court for resentencing consistent with the views expressed in Miller v. Alabama. (I) BCT

Brownell, Gordon — People v. Gutierrez, E057193 — Clerical Error — John M. Tomerlin, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., Miller, J. Court ordered the lower court to amend the minutes of the sentencing proceeding and the abstract of judgment to reflect oral pronouncement. (I) BCT

Lubliner, Steven — People v. Madrigal, E057687 — Sentence Enhancements — Eric M. Nakata, Judge — Opinion by Codrington, J., with Hollenhorst, J., Richli, J. Court of Appeal reversed a one-year Penal Code section 667.5, subdivision (b) (prison prior) enhancement because a five-year prior serious felony enhancement under Penal Code section 667, subdivision (a), had been imposed for the same prior. (I) NFA

Cannon, Gregory — People v. Suruy, E057934 — Sentencing — Michael B. Donner, Judge — Opinion by King, J., with Richli, J., Miller, J. Defendant was sentenced to prison for multiple robberies. The sentencing court ordered that defendant participate in substance abuse counseling and that he not possess deadly weapons or firearms for life. The Court of Appeal vacated the substance abuse counseling order because Penal Code section 1203.096 only authorizes the court to recommend counseling; it vacated the weapons ban because it was not authorized by any statute. (I) NFA

Butterick, Jessica — People v. Armstrong, E058473 — Marsden Motion — John M. Tomberlin, Judge — Opinion by Ramirez, P.J., with Richli, J., Miller, J. Trial court summarily denied as untimely appellant’s request for a new appointed attorney on the second day of trial. Court of Appeal held it was error not to hold a Marsden hearing and remanded for that purpose. (A) NFA

Annicchiarico, David — People v. Ojeda, E058700 — Clerical Error — John M. Davis, Judge — Opinion by Gaut, J., with Ramirez, P.J., Miller, J. Minute order and abstract of judgment ordered corrected to reflect that the sentencing court did not impose any restitution fines. (I) AMJ

Buckley, Christian — People v. Fleming, E059240 — Violation of Plea Agreement — Gerard S. Brown, Judge — Opinion by Hollenhorst, J., with Richli, J., Codrington, J. Court of Appeal remanded for trial court to specifically enforce or withdraw its approval of the plea agreement. In this case, the plea agreement called for probation, but on the day of sentencing appellant rejected probation. Under the circumstances, the trial court could not unilaterally change the terms of the plea and sentence appellant to prison. Instead, the court was required to withdraw its approval of the agreement. (I) LKH

Baugess, Susan S. — People v. George, E059313 — Sentencing — Michael B. Donner, Judge — Ramirez, P.J., with McKinster, J., Miller, J. Remanded for resentencing. The consecutive sentence for active participation in a street gang should have been stayed pursuant to Penal Code section 654. Also remanded for the court to state reasons to impose consecutive sentences for two sex crimes under either section 1170.1 or 667.6 of the Penal Code. (I) LAR

Curnow, Rodger — People v. Rocha, E059570 — Penal Code Section 654 — Bernard Schwartz, Judge — Opinion by Codrington, J., with Ramirez, P.J., McKinster, J. Appellant’s sentence for participating in a street gang is ordered stayed pursuant to Penal Code section 654. (People v. Mesa (2012) 54 Cal.4th 191, 193.) (I) LKH

Stanton, Marta — People v. Mercadel, G048881 — Conditions of Mandatory Supervision under Realignment — David A. Hoffer, Judge — Opinion by Bedsworth, J., with Rylaarsdam, J., Aronson, J. Defendant received a “split” sentence under Realignment, i.e., a term in county jail followed by a period of supervised release. The conditions of supervised release included a requirement that the probation officer approve appellant’s place of residence. The Court of Appeal vacated the residence approval condition because it was not “narrowly tailored,” as is required for terms limiting a fundamental constitutional right, such as the right to travel (or stay). (I) NFA

Schwartzberg, Richard — In re Michael D., G049287 — Probation Conditions — Gregory W. Jones, Judge — Opinion by Thompson, J., with Aronson, J., Fybel, J. Weapons condition modified to state, “Minor not to knowingly use or possess any dangerous, illegal, or deadly weapons or knowingly be in the presence of any illegally armed person.” With respect to the other contested condition, respondent conceded and court agreed prohibiting direct or indirect contact with “the victims or witnesses of any other offense alleged against you” is vague and overbroad because it fails to put minor on notice of the persons he is prohibited from contacting. The condition was modified to state, “Minor not to knowingly initiate contact or cause to be contacted by any means with the victims or witnesses of any offense alleged against you.” (I) HCC

October 2014

Peabody, Jennifer — People v. Winston, D066681 — Abstract of Judgment — Charles J. Koosed, Judge — Opinion by Huffman, J., with Benke, J., Nares, J. Abstract of Judgment amended: (1) sentence imposed as “consecutive and stayed” under Penal Code section 654 is corrected to “concurrent and stayed,” and (2) the $10 Penal Code section 1202.5 fine is stayed to match the trial court’s oral pronouncement. Respondent argued the $10 fine was mandatory because the court found defendant had the ability to pay a restitution fine of $2,500. The Court of Appeal held respondent’s claim of error was forfeited for failure to raise it in the trial court. (I) PMI

King, Nancy — People v. Velasquez, D063570 — Impartial Jury — Runston G. Maino, Judge — Opinion by Nares, J., with Benke, J., Huffman, J. Reversed and remanded because trial court erred when it denied both of appellant’s motions to discharge Juror No. 9 following her disclosure during trial that she had a personal relationship with two of the victims. The court found the record demonstrated the juror was sufficiently biased toward believing the victims who identified appellant as the shooter although no other evidence tied him to the shooting which constituted good cause to discharge the juror. (I) BCT

Boyce, Robert — People v. Williams, D063742 — Out-of-State Priors — Charles Rogers, Judge — Opinion by Haller, J., with Benke, J., McIntyre, J. Court of Appeal reversed prior felony strike based on appellant’s prior Oklahoma kidnapping conviction because Oklahoma law does not require the asportation element required for a California kidnapping, and nothing in the reviewable record of the Oklahoma conviction established asportation occurred. (I) NFA

Kleven-McGann, Sarah — In re Dillion S., D064181 — Welfare and Institutions Code Section 654 Informal Supervision — Browder A Willis, Judge — Opinion by O’Rouke, J., with Aaraon, J., Benke, J. Juvenile court abused its discretion when it found minor had not successfully completed his program of informal supervision under Welfare and Institutions Code section 654. The court refused to dismiss the People’s section 602 petition based on the minor’s failure to pay victim restitution, but failed to consider minor’s ability to pay. Remanded for the juvenile court to reconsider the motion to dismiss minor’s 602 petition. (A) MCR

Crooks, Gary — People v. Rust, D064264 — Proposition 36 Diversion — Aaron H. Katz, Judge — Opinion by McIntrye, J., with Haller, J., O’Rourke, J. Appellant was on Proposition 36 probation on two drug cases. She violated probation by shoplifting and pleaded guilty in the new case. The plea bargain provided she would be continued on Proposition 36 for the two prior drug cases. Contrary to the plea bargain, the trial court placed her on formal probation on the new case and the two prior drug cases. The Court of Appeal orders specific enforcement of the plea bargain. (I) PMI

Tobin, Wayne C. — People v. Sandoval, D064331 — Waiver of Jury Trial on Priors — Allan J. Preckel, Judge — Opinion by McIntyre, J., with Haller, J., O’Rourke, J. Prison prior allegations reversed and remanded for a new adjudication where the trial court failed to properly advise defendant as required by In re Yurko (1974) 10 Cal.3d 857, and failed to obtain an express waiver of defendant’s right to a jury trial. (A) PMI

Babcock, Russell — People v. Davidson, D064378 — Modified Transportation Statute — Lantz Lewis, Judge — Opinion by McConnell, P.J., with Haller, J., Aaron, J. Transportation conviction is reversed because statute modified during pendency of appellant’s case to require transportation for sales and there is no evidence of intent to sell. (I) DKR

Booher, Robert — Wofford v. Superior Court, D064633, Certified for Publication, 2014 WL 5358347 — Realignment Act — Desiree A. Bruce-Lyle, Judge — Opinion by Haller, J., with Huffman, J., Aaron, J. Court of Appeal granted Wofford’s petition for writ of mandate. Wofford was on mandatory supervision and filed a motion requesting that she be permitted to apply for transfer of her supervision to Virginia through the Interstate Compact. The superior court found that she was ineligible to apply for transfer of supervision under the Realignment Act. The Court of Appeal held that she was eligible and directed the superior court to correct its order to reflect that offenders released on mandatory supervision under the Realignment Act are eligible to apply for transfers of supervision to other states under the Interstate Compact agreement. (I) BCT

Quinlan, Sheila — People v. Mullendore, D064675 — Instructional Error — Evan P. Kirvin, Judge — Opinion by Haller, J., with McDonald, J., Aaron, J. Court of Appeal held that a violation of Vehicle Code section 23110, subdivision (a) [throwing a substance at a vehicle on a highway, a misdemeanor] is a lesser included offense of subdivision (b) [throwing or projecting a substance at a vehicle with intent to do great bodily injury, a felony]. The trial court prejudicially erred when it failed to instruct on the lesser included misdemeanor offense. (A) PMI

Bjerkhoel, Alissa — In re Juan A., D064890, Certified for Publication, 2014 WL 5358275 — Insufficient Evidence — Richard R. Monroy, Judge — Huffman, J., with Benke, J., Nares, J. Minor appealed contending there was not sufficient evidence to support the true findings on either the resisting an officer charge or the disturbing the peace charge. The Court of Appeal agreed after “careful examination of the record,” (the court stated it was using appellant’s factual statement as the respondent’s brief omitted a material statement of the police officer explaining she never ordered the minor to stop), reversed the true findings, and ordered the juvenile court to dismiss the petition. (A) LAR

Jones, Cynthia — People v. Corpening, D064986 — Dual Convictions — Frances M. Devaney, Judge — Opinion by Huffman, J., with Benke, J., McIntyre, J. Appellant contended, respondent conceded, and Court of Appeal agreed that conviction for receiving stolen property based on same goods as those for which appellant was convicted of robbery and carjacking was improper, and the receiving conviction was dismissed.. (I) HCC

Owen, Thomas — People v. Flores, D065273 — Insufficient Evidence — Kathleen M. Lewis, Judge — Huffman, J., with McDonald, J., Aaron, J. Court of Appeal agreed that there was insufficient evidence to support two of the oral copulation charges alleged to have occurred at a specific residence. (I) LAR

Hennessey, Patrick — People v. Williams, D065613 — Pitchess Motion — Eric M. Nakata, Judge — Opinion by McIntyre, J., with O’Rourke, J., Irion, J. Judgment conditionally reversed because the trial court erred in not releasing a citizen’s complaint against the arresting officer to the defense after reviewing the officer’s personnel records. The trial court was ordered to release the discovery to the defense and, if defendant can demonstrate he was prejudiced by the denial of the discovery, the trial court must order new trial. If prejudice cannot be shown, then the judgment is reinstated and the trial court’s ruling is subject to review on appeal. (I) BCT

Moran, Jamie — In re Emilio M., D065901 — Dependency Disposition — C. Bashant, Judge — Opinion by O’Rourke, J., with Huffman, J., Irion, J. Father argued the court’s order removing his son from his custody was not supported by substantial evidence. The court reversed the disposition order finding the trial court lacked authority to order removal because father was no longer living with mother and did not have custody of the child at the time the petition was filed. (I) LLF

Lathrop, Stephen (for appellant Johnson) — People v. Windfield/Johnson, E055062, (2014) 228 Cal.App.4th 1406 — Cruel and Unusual Punishment, Youthful Offenders — Steven A. Mapes, Judge — Opinion by Ramirez, P. J., with Miller, J., Codrington, J. Co-appellants Windfield and Johnson were convicted of first degree murder and related offenses based on acts occurring when Johnson was age 17. Johnson received a sentence of 90 years to life. The Court of Appeal held that Johnson’s life sentence was constitutionally cruel and unusual under the rule of Miller v. Alabama (2012) 567 U.S. – [132 S.Ct. 2455] because the trial court had imposed a mandatory functional life sentence on this youthful offender without individualized consideration. The court so held even though the only mandatory portion of the sentence was only 50 years, and the remaining 40 years was discretionary consecutive sentencing. (I) NFA

White, Catherine — People v. Flores, E057411 — Three Strikes — Annemarie G. Pace, Judge — Opinion by Codrington, J., with Ramirez, P.J., King, J. Trial court erred when it imposed a Three Strikes sentence of 25-years-to-life for false imprisonment because the crime is not a serious offense and under the Three Strikes Reform Act a determinate sentence should have been imposed. (I) DKR

Kelly, David L. — People v. Martinez, E057930 — Penal Code section 654 — Elisabeth Sichel, Judge — Opinion by Codrington, J., with Ramirez, P.J., McKinster, J. Because appellant’s attempted murder convictions were based upon his intent in aiding and abetting a robbery, he could not be sentenced separately for the robbery and attempted murders as to each victim. Sentences ordered stayed pursuant to Penal Code section 654. (I) PMI

Boyer, Ron — People v. J.S., E058471 — Review of Initial MDO Commitment— Steve Malone, Judge — Opinion by Hollenhorst, J., with McKinster, J., Codrington, J. Appellant filed a petition pursuant to Penal Code section 2966, subdivision (b), requesting counsel and judicial review of an MDO classification and initial commitment. Appellant received appointed counsel but, for reasons not directly attributable to appellant, the trial could not be held until after the end of the initial one-year commitment. Opposing counsel filed and the trial court granted a motion to dismiss the petition as moot because it was not heard within the initial year. The court reversed, holding that a petition filed pursuant to Penal Code section 2966 is timely filed if it is filed during the initial year of commitment, and is not subject to dismissal on grounds of mootness. The Court of Appeal also found that a petition is not moot if the hearing occurs after expiration of the commitment period. (I) LMF

Robertson, Thomas — People v. Good, E058431 — Gun Enhancement — Elaine M. Johnson and Albert J. Wojcik, Judges — Opinion by King, J., with Hollenhorst, J., Miller, J. Personal use of firearm enhancement stricken because it is an element of underlying negligent discharge of a firearm offense. (I) DKR

Crawford, James M. — People v. Parker, E058874 — Penal Code Section 654 — David A. Gunn, Judge — Opinion by Ramirez, P.J., with Richli, J., and Miller, J. The concurrent sentence on appellant’s conviction in count two for resisting a peace officer should have been stayed pursuant to Penal Code section 654 as it constituted part of the same course of action as that underlying count 1 - unlawful possession of methamphetamine while riding a bicycle. (I) PMI

Weinberg, Allen — People v. Galloway, E059039 — Pre-Sentence Conduct Credits — Ferguson, Jon D., Judge — Opinion by Gaut, J. (Ret.), with Ramirez, P.J., King, J. Appellant argued, respondent conceded, and the court agreed the trial court erred in failing to award him 160 days of pre-trial conduct credit. The trial court acted at the suggestion of the People to award defendant no days of pre-sentence conduct credit on a Three Strikes sentence, on the erroneous assumption that such credits cannot not be earned on an indeterminate life sentence. Not only are pre-sentence credits warranted but where the offense, as here, is not violent, credits are not limited to 15% under section 2933.1. Therefore, one-fore-one credits awarded. (I) HCC

Auwarter, Neil — In re Wilson, Habeas Corpus, E061447 (related appeal E059824) --Ineffective Assistance of Counsel/Guilty Pleas/Strikes— Gerard S. Brown, Judge — Order by Codrington, J. Defendant pleaded guilty in 2005 to robbery with a prior felony strike, for a stipulated sentence of 15 years, after being advised by defense counsel that he faced a possible life term due to the two alleged prior felony strikes: a 1998 assault under section 245, subdivision (a)(1), and a 2003 Oklahoma robbery. The current petition for habeas corpus challenged the plea as unintelligent and the product of ineffective assistance by trial counsel because in fact neither alleged prior was a strike offense. The 1998 assault was with force likely to cause great bodily injury, not a weapon; and the Oklahoma robbery was not identical to California robbery because under Oklahoma law robbery does not require intent to permanently deprive. The Court of Appeal issued an order to show cause and returned the case to the trial court, finding 1) from the existing record it appeared the 1998 assault was not a strike; 2) the record was inadequate to determine whether the Oklahoma robbery was a strike; but 3) even if the Oklahoma robbery was a strike, it cannot be determined defendant would have pleaded guilty had he been properly advised he faced only one possible strike. (S) NFA

Raneri, Lisa/McGowan, Jesse/Prince, Diana — In re Y.P., E060155 — Inter-County Transfer of Juvenile Dependency Case — Jacqueline C. Jackson, Judge — Opinion by Ramirez, P.J., with King, J., Miller, J.
Court of Appeal reversed the juvenile court order transferring the case from Riverside County to Los Angeles County. The basis for the transfer order was limited to minor’s habitual runaway status and minor’s failure to meet the inter-county protocol one-year residency requirement. Also, the transfer-out hearing was held with only the juvenile court officer present. The juvenile court erred in ordering the transfer without proper notice to any party, without counsel for minor, and without consideration of whether the transfer was in the minor’s best interest. (I) LMF

Torres, Tonja — People v. Vilchis, G047762 — Natural and Probable Consequences — David A. Hoffer, Judge — Opinion by Moore, J., with Ikola, J., Thompson, J. First degree murder conviction is reversed because jury was instructed on natural and probable consequences in violation of People v. Chiu (2014) 59 Cal.4th 155. Although natural and probably consequences was only one of three theories offered by the prosecution, the Court of Appeal found the instructional error prejudicial because it could not conclude that the jury did not convict based on the improper theory. (I) DKR

Gambale, Jennifer — In re David A., G048377 — Insufficient Evidence — Cheryl Leininger, Judge — Opinion by Bedsworth, J., with O’Leary, J., Moore, J. Conviction of unlawful assault weapon activity (Penal Code section 30600) reversed because the evidence was insufficient that appellant, who was a passenger in the car, had constructive possession of the gun as required for appellant to be guilty of transporting it. (Mod-A) BCT

Schraer, George — People v. Carrasco, G048458 — Penal Code Section 654/Credits — Thomas M. Goethals, Judge — Opinion by O’Leary, with P.J., Bedsworth, J., Moore J. Sentence on appellant’s robbery conviction must be stayed under Penal Code section 654 because the first degree murder conviction was based on a felony (robbery)-murder theory. Abstract of judgment must be amended to reflect the 1,587 days of presentence custody credit verbally ordered by the trial court which was not recorded in the abstract. (I) AMJ

Christiansen, Mark — People v. Espinoza, G048522 — Instructional Error — John Conley, Judge — Moore, J., with O’Leary, P.J., Bedsworth, J. Trial court erred in modifying CALCRIM No. 376, possession of recently stolen property as evidence of a crime, because here it created an inference appellant was guilty of felony murder stemming from his possession of stolen property. Reversed and remanded for new trial. (I) LAR

Martin, Art — People v. Thomas, G048719 — Penal Code 654/Parole Revocation Fine — Thomas M. Goethals, Judge — Opinion by Fybel, J., with O’Leary, J., Moore, J. Appellant’s sentences for committing robbery and burglary are stayed because he had a single objective in committing those crimes in addition to the murder of which he was convicted. The parole revocation fine is stricken because appellant was sentenced to a term of life without parole and the fine may not be imposed when the sentence does not allow for a period of parole. (I) AMJ

Christiansen, Mark — People v. Bush, G049918 — Serious Felony Priors — Michael Donner, Judge — Opinion by Moore, J., with Bedsworth, J., Fybel, J. True finding on one of two Penal Code section 667, subdivision (a)(1) serious felony prior convictions reversed because they were not brought and tried separately and the abstract of judgment ordered amended to reflect imposition of two, not three, five-year enhancements. (I) BCT

Gordon, Laura — People v. Dibernardo, G049920 — Abstract of Judgment — Albert J. Wojcik and Angel M. Bermudez, Judge — Opinion by Rylaarsdam, J., with O’Leary, P.J., Thompson, J. Parties and Court of Appeal agreed that abstract of judgment must be corrected to delete a restitution award of $80,578 that was not ordered by the court on the record. (I) APJ

September 2014

Haggerty, Edward — People v. Morris, D062824 — Presentence Conduct Credits — David M. Gill, Judge — Opinion by McConnell, P.J., with Haller, J., McIntyre, J. Attorney General conceded and Court of Appeal agreed that where crime here occurred in 1995, the trial court improperly denied presentence conduct credits under Penal Code section 2933.2, which did not become effective until June 3, 1998. Case remanded for trial court to calculate and award appropriate presentence conduct credits. (I) CBM

Haggerty, Edward — People v. Mays, D065616 — One Strike Law/Presentence Credits — Richard A. Erwood, Judge — Opinion by Irion, J., with Huffman, J., McDonald, J. The parties and the court agreed that the trial court erred under Penal Code section 667.61, subdivision (f), in imposing sentence on a count for simple kidnapping where the factor of simple kidnapping was also used as necessary prerequisite to impose a 25-year-to-life sentence for forcible rape under the One Strike Law. Also, the parties and court agreed the trial court erred in delegating calculation of presentence credits to the Department of Corrections and Rehabilitation. (I) HCC

Boyce, Robert E. — People v. Quijano, D065968 — One Strike Law — Bernard Schwartz, Judge — Opinion by Haller, J., with Benke, J., Huffman, J. Court of Appeal found that trial court erred under Penal Code section 667.61, subdivision (f), in imposing a three-year enhancement pursuant to Penal Code section 12022.75 for administering a controlled substance when the same factor was also used to sentence appellant to 15-years-to-to life under the One Strike Law. In addition, the Court of Appeal rejected respondent’s claim that because the crime involved a child under age 14, the 15-year-to-life sentence was unauthorized and should be increased to a 25-year-to-life sentence. The court found that where the manner in which the case was pleaded, tried, and presented at sentencing reflects a decision by the prosecution to pursue a 15-year-to-life sentence instead of the 25-year-to-life sentence and Penal Code section 667.61 does not require the prosecution to pursue the harsher sentence. (I) PMI

Vento, Christine — People v. Batchelor, E054475, (2014) 229 Cal.App.4th 1102 — Instructional Error — Robert E. Law, Judge — Opinion by Hollenhorst, J., with McKinster, J., Codrington, J. In a first trial, appellant was found guilty of gross vehicular manslaughter, and the jury hung on a second degree murder charge based upon the same death. At a second trial, appellant was convicted of second degree murder. On appeal appellant argued that the trial court erred in denying his request that the jury be informed that he had been previously convicted of gross vehicular manslaughter and that the failure to do so improperly presented the jury with an all-or-nothing choice. The Court of Appeal agreed that the trial court’s refusal gave the jury the false impression that appellant would be left entirely unpunished for his actions if the jury did not convict him of murder. An appropriate way to dispel this notion would have been to inform the jury of the results of the first trial and to emphasize that its only task was to consider whether the elements of the single remaining offense had been proven beyond a reasonable doubt. The Court of Appeal further noted that the trial court’s error was compounded by the prosecutor’s argument to the jury which certainly created the misleading impression that unless the jury found defendant guilty of the murder charge, he would not be held accountable at all for the death. Given that the first jury had hung when presented with both charges, the Court of Appeal found prejudice per People v. Soojian (2010) 190 Cal.App.4th 491, 520. (I) HCC

Schraer, Joshua — People v Watt, E058212, (2014) 229 Cal.App.4th 1215 — Probation Conditions — Michael B. Donner, Judge — Opinion by Ramirez, P.J., with Richli, J., Miller, J. In an unpublished section of the opinion, Court of Appeal agreed with appellant’s argument that probation conditions requiring probation officer’s approval of residence and change in residence are over-broad and not reasonably related to rehabilitation. Conditions ordered stricken. (A) PED/APJ

Rogers, Tracy/Capriola, William — People v. Jaquez/Cisneros, E058626 — Dual Convictions/Penal Code Section 654 — Michael A. Sachs, Judge — Opinion by Richli, J., with McKinster, J., Codrington, J. Court of Appeal found appellants were improperly convicted of two counts of robbery involving one victim during an indivisible course of conduct (the counts alleged both the direct victim and Papa John - the victim’s employer when he was robbed). The court ordered one robbery count stricken along with the fines that were imposed as to that stricken count. Further, sentences for burglary and criminal threats ordered stayed pursuant to Penal Code section 654. (I) LAR

Brody, Steven — In re S.G., E059479 — Probation Conditions — Lynn M. Poncin, Judge — Opinion by Ramirez, P.J., with King, J., Miller, J. Court of Appeal modified two probation conditions: the prohibition against possession of weapons is modified to permit possession of a weapon when used in self-defense. The prohibition against possession of aerosol paint containers, etc. is modified to include a “knowing” requirement. (A) LKH

Angres, Robert — People v. Garcia, G048020, (2014) 229 Cal.App.4th 302 — Due Process/Erroneous Use of Evidence — Lance P. Jensen, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Thompson, J. A published reversal in this case involving continuous sexual abuse of a child where the prosecutor repeatedly ignored the trial court’s in limine ruling, excluding evidence of appellant’s sexual orientation, and argued in closing that the issue was relevant to the question of motive. While the court found that the prosecutor may not have intentionally engaged in misconduct, the prosecutor’s actions deprived appellant of a fair trial and were not harmless beyond a reasonable doubt. The opinion concludes: “Due process and the interests of fairness dictate that appellant be judged by what she did, not who she is. Nothing less will do.” (I) LKH

Baugess, Susan/Matulis, Jean — People v. Alvarez/Cisneros, G048425 — Destruction of Evidence — Steven D. Bromberg, Judge — Opinion by Moore, J., with Aronson, J., Thompson, J. Government appealed trial court’s decision to dismiss charges as to three defendants based upon police failure to retain evidence under California v. Trombetta (1984) 467 U.S. 479. The three defendants had been charged with robbery based on an incident in which one of them allegedly snatched a chain from the victim’s neck in a parking lot. When the defendants were contacted by police shortly after the incident, they denied involvement and exhorted the arresting officer to check the police video camera that typically recorded activities in the parking lot. Although the officer agreed he would do so and, at an early hearing, the prosecutor represented that any videos would be preserved, the video was not preserved and, instead, was routinely erased by police staff who maintained the camera system. The Court of Appeal affirmed the dismissal of charges as to two defendants, finding the video material as to their defense, in part because it might have showed they merely stood by while the other defendant committed the crime. However, the court reversed as to that other defendant, the alleged perpetrator, finding that his joinder of the motion to dismiss did not adequately establish materiality as to him. (I) NFA

Beckham, Sylvia — People v. Harjo, G049234 — Probation Supervision Fee — William D. Claster, Judge — Opinion by Rylaarsdam, J., with Bedsworth, J., Aronson, J. The court held that persons under mandatory supervision pursuant to Penal Code section 1170, subdivision (h) are not required to pay the costs of mandatory supervision. The trial court’s order was unauthorized because the language of section 1170, subdivision (h)(5)(B)(i) does not authorize the imposition of probation supervision fees pursuant to section 1203.1b. (I) BCT

Larson, Eric — People v. Mihason, G049905 — Graham A. Cribbs, Judge — Fines/Credits -- Opinion by O’Leary, P.J., with Rylaarsdam, J., and Thompson, J. Attorney General and Court of Appeal agreed trial court erred in ordering a parole revocation fine, because defendant was sentenced to prison for life without the possibility of parole. There was also agreement that abstract of judgment and minute order fail to reflect the court’s verbal order of actual days credits in the amount 1,678 days. (I) AMJ

Carroll, Steven — People v. Tucker, D064405 — Presentence Custody Credits — Runston G. Maino, Judge — Opinion by Huffman, J., with McConnell, P.J., McDonald, J. Court of Appeal awarded an additional 868 days of presentence custody credits for probation revocation custody in another case in which probation was revoked due to the offense in the present case. The court rejected respondent’s claim that probation was not revoked solely because of the current offense, but also for other offenses that were charged but dismissed as part of a plea agreement. (I) NFA

Leftwich, Maria — People v. Felfie, D065957 — Insufficient Evidence Prison Prior — Richard Fields, Judge — Opinion by Aaron, J., with McConnell, P.J., Nares J. One year prison prior enhancement pursuant to Penal Code section 667.5, subdivision (b), stricken due to insufficient evidence that appellant had not been free from custody for five years prior to the current offense. Case remanded to allow prosecution an opportunity to present additional evidence. (A) MCR

DiGuiseppe, Raymond — People v. Perez, D066231 — Waiver of Rights – Elizabeth Sichel, Judge — Opinion by Irion, J., with Huffman, J., McDonald, J. Court of Appeal found defendant did not voluntarily and intelligently waive his rights before admitting his prior serious and violent felony convictions. The adjudication of the prior conviction allegations is thus vacated in this “truly silent record” appeal. (I) LAR

Katz, Paul J. — In re O.E., E058049 — Deferred Entry of Judgment — Tamara L. Wagner, Temporary Judge — Richli, J., with Ramirez, P.J., Miller, J. In this delinquency case, the prosecution failed to comply with statutory requirement to determine whether minor was eligible for deferred entry of judgment and advise him of his eligibility prior to the jurisdictional hearing. The failure was prejudicial because minor contested the allegations against him and, as a result, made himself ineligible for deferred entry of judgment, even though he would otherwise have been eligible and, in the juvenile court’s opinion, suitable. Because the minor had already successfully completed probation by the time of the opinion, the Court of Appeal ordered the case remanded for minor to admit the allegations and the juvenile court to enter an order of deferred entry of judgment, then dismiss the case, deem the arrest never to have occurred, and seal the records. (A) LAR

Holzer, William — People v. Covington, E059389 — Attorney’s Fees — William Jefferson Powell, IV, Judge — Opinion by Ramirez, P.J., with Richli, J., Miller, J. Court of Appeal rejected the Attorney General’s argument that appellant had forfeited his right to challenge imposition of attorney’s fees. The issue is not forfeited by failure of counsel to object because an attorney cannot be expected to object to payment of his/her own fees. Court of Appeal further agreed with appellant that the record did not provide sufficient evidence of his ability to pay and remand would be a waste of resources given the presumption under Penal Code section 987.8, subdivision (g)(2)(B), that a defendant sentenced to prison does not have the ability to reimburse defense costs, and the probation officer’s observation that appellant was without employment and lacked assets. (A) APJ

Love, Jack — In re M.T., E060637 — Indian Child Welfare Act (ICWA) — Harry A. Staley, Judge — Opinion by Ramirez, J., with King, J., Codrington, J. Partial reversal to comply with notice per ICWA. Mother argued, and the Court of Appeal agreed, that the agency was required to notify the Blackfoot tribes once mother claimed possible Indian heritage from that tribe. (A-M) LLF

Kassman, Martin — People v. Rivas, G048320 — Sentencing — Carla Singer, Judge — Opinion by Aronson, J., with Moore, J., Thompson, J. Appellant was convicted of three counts of lewd act, one of which was forcible. The trial court imposed a full upper-term consecutive sentence for the forcible lewd act conviction. Court of Appeal found trial court erroneously believed Penal Code section 667.6, subdivision (d) applied, requiring the court to impose a mandatory full consecutive sentence for that count when, in fact, imposition of a full term consecutive sentence was unauthorized because the crime did not involve the same victim on the same occasion. Sentence reversed and case remanded for resentencing. (I) LAR

Brisbois, Patricia — People v. Newsom, G049816 — Sentencing — Jule Fleuret, Judge — Opinion by Bedsworth, J., with Aronson, J., Fybel, J. Appellant’s sentence was enhanced by 10 years twice: once for personal gun use under Penal Code section 12022.5, subdivision (a), and once for having committed the same felony to benefit a gang under Penal Code section 186.22, subdivision (b)(1). Because appellant’s sentence may not be doubly enhanced for using a firearm during a single offense, the enhancements imposed must be stricken pursuant to Penal Code section 1170.1, subdivision (f). Remanded for resentencing. (I) MCR

August 2014

Blake, Christopher — In re Jordan W., D065452 — Indian Child Welfare Act (ICWA) —Laura Birkmeyer, Judge — Opinion by McIntyre, J., with Haller, J., McDonald, J. Court remanded case for ICWA notice to the tribes. (I) CAG

Burz, Dacia — People v. Salcido, E055709 — Insufficient Evidence Gang Offense — Ronald L. Johnson, Judge — Opinion by Richli, J., with Miller, J., Codrington, J. Conviction for active gang participation reversed where defendant acted alone, as opposed to collaborating with fellow gang members. (I) LKH

Shevelson, Courtney, People v. Barahona, E057558 — Parole Revocation Fine – Bernard Schwartz, Judge — Ramirez, P.J., with King, J., Codrington, J. Parole revocation fine stricken because appellant received a life-without-parole sentence. (I) (LAR)

Weinberg, Allen — People v. Harrison, E057917 — Sentencing — John B. Gibson, Judge — Opinion by Ramirez, P.J., with Richli, J., Miller, J. Court of Appeal agreed with appellant’s argument that sentence for driving or taking a vehicle must be stayed pursuant to Penal Code section 654 because both the taking and the driving of the vehicle were part of the same course of conduct as the separately sentenced residential burglary which resulted in the taking. In addition, both parties and the Court of Appeal agreed that the matter must be remanded to correct a number of other sentencing errors: indeterminate and determinate terms must be calculated separately; prison priors enhancements must be found true or dismissed; prison prior enhancement cannot be imposed for the prior which also constitutes a serious felony “nickel” prior; prison prior enhancements cannot be imposed per count; two serious felony prior enhancements could not be imposed for two priors that were not brought and tried separately; and credits could not be limited per Penal Code section 2933.1 when appellant was not convicted of a violent offense. (I) APJ

Tripp, Pamela Rae — San Bernardino County Children and Family Services v. S.L, E058270 — Procedural Due Process — Cheryl C. Kersey, Judge — Opinion by King, J., with Miller, J., Codrington, J. Order approving removal of children from their de facto parents reversed. Court completely failed to consider whether removal was in minors’ best interests. Court also erred in summarily denying de facto parents’ section Welfare and Institutions Code section 388 petition seeking return. Matter remanded to juvenile court to determine if adoption by de facto parents is in children’s best interest. (I) LMF

Torres, Scott — People v. Keen, E058506 — Prison Prior/Penal Code Section 654 — Jerry E. Johnson, Judge — Opinion by Ramirez, P.J., with Richli, J., and Miller, J. Following People v. Jones (1993) 5 Cal.4th 1142, Attorney General conceded and Court of Appeal agreed one of the prior prison term enhancements under Penal Code section 667.5, subdivision (b) must be stricken because it was based upon the same conviction that constituted a serious felony prior under section 667, subdivision (a). In addition, trial court erred by failing to stay the sentence for assault with a deadly weapon because the same intent which supported this crime – slashing of the victim’s face – also supported the mayhem conviction. (I) CBM

Gambale, Jennifer — People v. Crawford, E059026 — Attorney’s Fees/Condition of Probation — R. Glenn Yabuno, Judge — Opinion by Richli, J., with McKinster, J., Miller, J. Appellant contended, respondent conceded, and the Court of Appeal agreed that the trial court erred by making the payment of fees a condition of probation. (I) HCC

Knight, Richard — Riverside County Department of Public Social Services (DPSS) v. R.J., E060299 — Indian Child Welfare Act (ICWA) — Jacqueline C. Jackson, Judge — Opinion by McKinster J., with Richli, J., Codrington, J.Order terminating parental rights was conditionally reversed based on incomplete ICWA notice. Case remanded to juvenile court with directions ordering DPSS to notify Cherokee tribes of proceedings and father’s claim of Cherokee ancestry. (I) LMF

Schaefer, Laura/Weinberg, Allen — People v. Ramirez/Armendariz,G044703 — LWOP (Gutierrez)/Natural and Probable Consequences (Chiu) — William Froeberg, Judge — Rylaarsdam, J., with Moore, J., Aronson, J. Initially in this appeal, limited relief was granted, but review was sought on other issues. The Supreme Court granted review, and subsequently transferred the matter back with directions to vacate the decision and reconsider the matter in light of People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez), which not only holds that Penal Code section 190.5 creates no presumption in favor of sentencing a juvenile defendant found guilty of special circumstances murder to LWOP, but also addresses how the United States Supreme Court’s decision in Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455, 183 L.Ed.2d 407] should be applied in a juvenile homicide case. The Court of Appeal consequently remanded the case to the trial court with directions to resentence both defendants in light of the guidelines set forth in Gutierrez. The court also revised its opinion in light of the Supreme Court's more recent opinion in People v. Chiu (2014) 59 Cal.4th 155, which held as a matter of law, that an aider and abettor cannot be held culpable for first degree murder based on the natural and probable consequences doctrine. In keeping with that decision, the court directed the trial court, on remand, to allow the prosecutor to either accept a reduction of Armendariz’s conviction on count 1 to second degree murder or to retry the charge of first degree murder based solely on the aiding and abetting theory. (I) HCC

Angres, Robert – People v. Alberto Vasquez, G047787 — Penal Code Section 654 — William R. Froeberg, Judge — Opinion by Moore, J. with Rylaarsdam, J., Bedsworth, J. Appellant pleaded guilty to carjacking and robbery as part of a plea to the court. On appeal, the Court of Appeal ordered the sentence for the robbery stayed pursuant to Penal Code section 654. The Court of Appeal confirmed no certificate of probable cause was required to raise this issue because appellant’s plea was an “open plea” and he did not waive his right to appeal. (I) LKH

Buegen, Heather — In re J.D., G048287 — Terms of Probation — Kimberly Menninger, Judge — Opinion by Ikola, J., with O’Leary, P.J., Rylaarsdam, J. Where wardship taken under Welfare and Institutions Code section 601 for truancy, drug testing ordered as a term of probation must be limited to urine testing. Also, court’s justification of officer safety concerns to support requirement of Fourth Amendment waiver was inadequate. There is nothing in the record to suggest minor is a member of a criminal street gang, owns a weapon, or acted aggressively towards the officers. Mere facts minor lives in a bad area of town and has a fence around his patio are insufficient to justify complete waiver ordered. However, case remanded so that trial court can exercise its discretion and consider whether waiver supported by minor’s drug use and intentional spurning of drug testing. (A) CBM

Ballantine, Jean/White, Catherine — People v. Tuff/Matthews, G049321 — Sentencing — Jeffrey Prevost, Judge — Opinion by Rylaarsdam, J., with Bedsworth, J., Fybel, J. As to Tuff, the lookout in a home invasion robbery, sentences on one robbery count and simple assault must be stayed under Penal Code section 654 because the offenses were committed with the single objective of facilitating the home invasion robbery. In addition, the full 1-year terms on firearm enhancements attached to consecutive robbery counts should have been imposed at one-third the midterm.. As to both appellants, sentences for witness intimidation must also be stayed under Penal Code section 654 as the acts were part of the same course of conduct. (I) PMI

Lagerlof, Janice — People v. Eubanks, G049817 — Penal Code section 654 stay — Harold T. Wilson, Jr., Judge — Opinion by O’Leary, P.J., with Moore, J., Ikola, J., concurring. Under Penal Code section 654, trial court erred in ordering a consecutive one-year term for the count 2 robbery conviction because the count 1 felony-murder conviction was the sole theory of murder under which the case was prosecuted and, hence, separate terms for the underlying felony of robbery and murder is prohibited. The judgment is modified by staying execution of sentence on count 2. (I) PED/AMJ

McPartland, Michael B. — People v. Waterman, G049821 — Sentencing — J. David Mazurek, Judge — Opinion by Fybel, J., with Bedsworth, J., and Moore, J. After finding Penal Code section 654 applicable to appellant’s convictions for robbery, kidnapping to commit a robbery, and kidnapping to commit a carjacking, the trial court erred by imposing concurrent sentences instead of staying execution of sentence as to two of those offenses. The trial court also erred when it imposed sentences on prior conviction enhancements it found to be true, but failed to expressly identify which prior conviction enhancement applied to which conviction. Case is remanded for resentencing. (I) PMI

Mortazavi, Dawn — In re Juan O., D064957 — Probation Condition — Carlos O. Armour, Judge — Opinion by McConnell, P.J., with Huffman, J., Aaron, J. Minor argued, respondent conceded, and Court of Appeal agreed that probation condition not to use force, threat, or violence on another person was unconstitutionally overbroad. The court modified to add “except in lawful self-defense.” (A) HCC

Annicchiarico, David — Peoplev . Rios, D065786 — Self-defense Instruction — Charles J. Koosed, Judge — Opinion by Haller, J., with McConnell, P.J., Irion, J. Trial courts’s refusal to instruct on self-defense where overall circumstances showed an ongoing heated argument between appellant and her boyfriend in which the boyfriend lunged at appellant and tackled her to the ground before appellant stabbed him with a knife requires reversal of assault with a deadly weapon and corporal injury to co-parent counts. (I) DKR

Edwards, John — People v. Gonzalez, E057526 — Unanimity Instruction — Michael B. Donner, Judge — Opinion by Ramirez, P.J., with Richli, J., Miller, J. Two misdemeanor counts of making annoying/harassing telephone calls reversed for failure to give unanimity instruction. (I) BCT

Klein, Jill — People v. Lujano, E057671 (2014) 229 Cal.App.4th 175 — Search and Seizure/Sentencing — Charles J. Koosed, Judge — Opinion by Hollenhorst, J., with McKinster, J., Codrington, J. Court of Appeal reversed appellant’s robbery conviction and gun enhancement after finding that the trial court erred in denying appellant’s motion to suppress evidence on Fourth Amendment grounds. Even though the police had reasonable suspicion to detain another man whom they observed him outside appellant’s home stripping copper wire from an air conditioner, officers lacked probable cause required to enter and detain appellant inside his home. Evidence supporting all of appellant’s convictions/enhancements flowed from the search. Robbery conviction and gun enhancement reversed because they resulted from a jury trial. However, convictions that resulted from a guilty plea with an appeal waiver could not be reversed because appellant failed to obtain a certificate of probable cause. While appellant remains convicted of possessing methamphetamine, receiving stolen property, and possession of a firearm by a felon, sentence on the latter count must be stayed pursuant to Penal Code section 654 because it is based upon the same conduct as the receiving stolen property count. (I) PMI

Stralla, Ava — People v. Rodriguez-Lopez — Probation Condition — Eric M. Nakata, Judge — Opinion by McKinster, J., with Miller, J., Codrington, J. The probation condition that defendant must “not remain in, or reenter, the United States without proper written authorization by the Department of Homeland Security - Bureau of Citizenship and Immigration Services. Upon reentering the United States, report forthwith to the probation officer with written proof of said authorization” is ordered stricken. No change of circumstance justified this modification of defendant’s probation conditions. (I) PMI

Knight, Richard — In re A.R., E058363 — Dependency Jurisdiction/Disposition — Matthew C. Perantoni, Judge — Opinion by Richli, J., with King, J., Miller, J. Court reversed all true findings on the petition for insufficient evidence, including those of domestic violence, one father’s substance abuse, and the behavior of another father, as well as the abuse of a sibling. Disposition orders removing children from mother’s custody also reversed.
(A) ACS

Gorguinpour, Hassan — In re J.S., et al., E058963 — Dependency Jurisdiction — Lily L. Sinfield, Judge — Opinion by Richli, J., with Miller, J., Codrington, J. While jurisdiction was affirmed on other grounds, it was reversed on the grounds that mother failed to protect the children from sexual abuse by the father as court found that allegation was not supported by substantial evidence. (I) ACS

Holzer, William G. — People v. Jackson, E059725 — Instructional Error — William Jefferson Powell, Judge — Opinion by Codrington, J., with McKinster, J., Miller, J. Grand theft conviction reversed because the trial court erred in failing to instruct the jury regarding the dollar amount it would have to find defendant stole in order to convict her of grand theft. There was substantial evidence from which the jury could have found defendant stole an amount which made the offense a misdemeanor petty theft as opposed to a felony. Case remanded for prosecution to decide whether to retry the case or accept a reduction of offense to petty theft. (A) AMJ/PED

Buckley, Christian — In re Jones, E061332 — Insufficient Evidence Gang Offense — John Davis, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. On an Order to Show Cause by the Supreme Court, the Attorney General conceded, and because the evidence showed that petitioner possessed cocaine without assistance, participation, or association of another gang member, petitioner was not guilty of gang participation. Habeas writ granted and judgment of conviction vacated. (I) HCC

Nalls, Christopher – People v. Vargas, G047358 — Sentencing — Froeberg, Judge — Opinion by Ikola, J., with Aronson, J., and Fybel, J. In the opening brief, counsel argued the use of the prior juvenile adjudication to enhance the minor’s sentence violated the minor’s right to a jury trial. The CSC granted minor’s petition for review to exhaust state remedies and transferred the case back to the COA with directions to vacate its decision and consider a new issue: the validity of the section 667, subdivision (a)(1) serious prior felony enhancement. Respondent conceded and the Court of Appeal agreed that basing the serious felony enhancement on a juvenile adjudication improper noting that while the Three Strikes law expressly includes certain juvenile ajudications, the Victim’s Bill of Rights refers only to prior convictions which are not the same as juvenile adjudications. (I) PMI

Ulibarri, Patricia J. — People v. Melendez, G047964 — Insufficient Evidence Gang Offense — Patrick Donahue, Judge — Opinion by Thompson, J., with Fybel, J., Ikola, J. Applying People v. Rodriguez (2012) 55 Cal.4th 1125 to one of the active participation convictions, there was insufficient evidence to support the third element [i.e., willfully promoting, furthering, or assisting in any felonious criminal conduct by members of that gang] because the members of the group were never identified and the prosecution presented no evidence establishing that any of them were Logan Street gang members.
(I) LAR

Vento, Christine — People v. Kieu, G048645 — Penal Code Section 654/Credits — Richard F. Toohey, Judge — Opinion by Rylaarsdam, J., with O’Leary, J., Thompson, J. Trial court erred under Penal Code section 654 when it sentenced defendant concurrently for aggravated mayhem and torture, because defendant’s actions formed an indivisible continuous course of conduct with one objective. The sentence for torture is ordered stayed. Trial court also erred in applying Penal Code section 2933.5 to deny conduct credits. Defendant was entitled to presentence conduct credits under Penal Code section 2933.1. (I) AMJ

Halka, Valdemar/Wallingford, Jerome — People v. Rodriguez/Lopez G049804 — Lesser Included Offenses/Sentencing — Stephan G. Saleson, Judge — Opinion by Aronson, J., with Fybel, J., Ikola, J. Petty theft conviction stricken because it was an offense necessarily included within the robbery offense. Consecutive terms for robbery and carjacking stayed pursuant to Penal Code section 654 because the act was also the basis for felony murder count. (I) NFA

Gold, Peter — People v. Dozier, G049817 — Penal Code Section 654 — Harold T. Wilson, Jr., Judge — Opinion by O’Leary, P.J., with Moore, J., Ikola, J. Under Penal Code section 654, trial court erred in ordering a consecutive one-year term for the count 2 robbery conviction because the count 1 felony-murder conviction was the sole theory of murder under which the case was prosecuted and, hence, separate terms for the underlying felony of robbery and murder is prohibited. The judgment is modified by staying execution of sentence on count 2. (I) PED/AMJ

Multhaup, Eric — People v. Santillan, G049908 — Lesser Included Offense/Sentencing — John M. Tomberlin, Judge — Rylaarsdam, J., with Bedsworth, J., Aronson, J. Abstract of judgment to be amended to delete the conviction on count 2, carjacking, since it is a lesser included offense of count 4, kidnapping for carjacking. (I) LAR

July 2014

Grove, Kimberly/Schaefer, Laura — People v. Chavez/Elias, D061946, (2014) 228 Cal.App.4th 18 — Juvenile Life Without Parole (LWOP) Sentencing/Parole Revocation Fine —Joan P. Weber, Judge — Opinion by Benke, J., with McDonald, J., Aaron, J. In light of Miller and Gutierrez, defendants’ LWOP sentences for murders committed when they were juveniles are reversed and remanded for resentencing. In an unpublished part of the opinion, the parole revocation fines were also reversed because a LWOP sentence precludes the possibility of parole. (I) PMI

Adler, E. Elliot – People v. Ramos, D064383 – Lesser Included Offenses – Timothy M. Casserly, Judge – Opinion by Aaron, J., with Benke, J., Nares, J. Court of Appeal reversed appellant’s conviction for unlawful driving or taking a vehicle because it was based upon the same act as appellant’s vehicle theft conviction and one cannot be convicted of both based upon the same act. (A) LKH.

Staley, John — People v. Park, D064924 — Re-sentencing Credits — Francis M.
Devaney, Judge — Opinion by Huffman, J., with McConnell, P.J., Aaron, J. Defendant argued, respondent conceded, and the Court of Appeal agreed, that per People v. Buckhalter (2001) 26 Cal.4th 20, when a prison term is modified as a result of an appellate sentencing remand, the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody, but is only required to calculate and award conduct credits earned while confined in the county jail prior to the first commitment. Remanded for calculation of credits. (I) HCC

Wells, Mary/Rehm, Johanna/Jones, Cynthia — People v. DeVaughn (Michael)/ DeVaughn (Anthony)/Macey E052088, (2014) 227 Cal.App.4th 1092 — Insufficient Evidence/Penal Code Section 654 — Elisabeth Sichel/Stephen Sillman, Judges — Opinion by Ramirez, P.J., with McKinster, J., King, J. In this case involving multiple counts including theft, identity theft, money laundering and operating an unlicensed escrow, the Court of Appeal reversed several counts of money laundering for insufficient evidence because the checks at issue did not meet the requirements of a “monetary instrument” within the meaning of the money laundering statute. In addition, a stayed enhancement was ordered stricken because the jury had not made a finding as to the enhancement allegation. And finally, four counts of operating an unlicensed escrow were ordered stayed per Penal Code section 654 because the offenses were incidental to underlying thefts for which appellant is being separately punished. (I) HCC

Boyce, Robert/Covin, Randy — People v. Diaz/Figueroa, E055382 — Gang Enhancement — Opinion by Miller, J., with Ramirez, P. J., Codrington, J. 10-year gang enhancements ordered stricken where appellants’ underlying convictions are punishable by life imprisonment. Instead, defendant’s deemed not eligible to be paroled for a minimum of 15 years pursuant to Penal Code section 186.22, subd. (b)(5). (I) PED

Bacall, Michael - People v. Williams, E058386 — Sentencing — Graham Anderson Cribbs, Judge - Gaut, J., with Ramirez, P.J., and Richli, J. Where two serious felony prior convictions arose from charges that were not brought and tried separately, they can support only one five-year enhancement under section 667, subdivision (a). Thus, the trial court erred in imposing two five-year enhancement and the Court of Appeal stayed one of the two enhancements per rule 4.447 of the California Rules of Court. (I) LAR

Strong, Jeanine — People v. Smith, E058585 — Attorney’s Fees — Bridgid M. McCann, Judge — Opinion by Gaut, J., with Ramirez, P.J., Richli, J. Court of Appeal found that the issue of ability to pay attorney’s fees was not forfeited under People v. McCullough (2013) 56 Cal.4th 589 because the Supreme Court included attorney fees in a list of statutes in which include “procedural requirements or guidelines for the ability-to-pay determination,” thereby weakening the justification for finding forfeiture. Here, the record demonstrated the trial court did not explicitly consider the required factors, as it was required to do. It was unclear whether defendant could pay the fees, but in the interest of conserving the judicial resources that would be expended in a remand to hold a hearing on this issue, the court struck the counsel fee. (A) HCC

Jones, Sharon — People v. Martin, E058888 — Penal Code section 1170.126: Right to Be Present — James S. Hawkins, Judge — Opinion by Codrington, J., with McKinster, J., King, J. Court of Appeal reversed the trial court’s denial of appellant’s petition for re-sentencing pursuant to Penal Code section 1170.126. Appellant, who is serving a 26 year to life sentence for possession of .12 grams of methamphetamine, personally filed the petition and was appointed counsel for a hearing regarding dangerousness. However, appellant never communicated with counsel and, although counsel told the court appellant had waived his appearance for the hearing, the record contained no evidence of any written waiver. Court of Appeal found appellant was denied his constitutional and statutory right to be present at his resentencing hearing. Further, because his presence in a wheelchair could have affected the court’s determination of his dangerousness and he could have assisted in addressing the disciplinary actions raised by the government, his absence was prejudicial. Moreover, counsel’s failure to communicate with appellant and failure to ensure his presence at the hearing constituted ineffective assistance of counsel. (I) CBM.

Zehner, Michelle — People v. Cooper, E059303 — Attorney’s Fees/Abstract of Judgment — Mary E. Fuller, Judge — Opinion by Codrington, J., with King, J., Miller, J. Court of Appeal agreed with appellant’s argument that trial court erred in ordering appellant to pay attorney’s fees without a hearing regarding his ability to pay and without sufficient evidence on the record of ability to pay. The court rejected respondent’s argument that the issue was forfeited. Case is remanded for notice and hearing. In addition, abstract of judgment ordered corrected to reflect only one prior strike conviction. (A) APJ

Dain, Anthony — People v. Valencia, G047798 — Evidentiary Error/Instructional Error — Carla Singer, Judge — Opinion by Thompson, J., with Aronson, J., Fybel, J. Appellant was convicted of second-degree murder and assault by means of force likely to cause great bodily injury or death for killing her child during delivery, which she performed herself. Conviction reversed because trial court erred by improperly restricting defense expert witness testimony and by failing to instruct the jury on misdemeanor assault in relation to involuntary manslaughter as a lesser included offense to second degree murder and also as a lesser included offense of assault on a child with force likely to produce great bodily injury or death. (I) BCT

Shudde, Athena — People v. Phung, G048108 — Natural and Probable Causes Instructional Error — James A. Stotler, Judge — Opinion by Ikola, J., with O’Leary, P.J., Moore, J. On rehearing, after the decision in People v. Chiu (2014) 59 Cal.4th 155, the Court of Appeal reversed appellant’s first degree murder conviction because one of the theories of guilt was that appellant aided and abetted an offense a natural and probable consequence of which is first degree murder. Under Chiu this is not an available theory of guilt. Respondent conceded that the error was prejudicial in this case. (I) APJ

Klaif, Leonard — People v. Robinson, G048155, (2013) 227 Cal.App.4th 387 — Insufficient Evidence — James A. Stotler, Judge — Opinion by Bedsworth, J., with Fybel, J., Ikola, J. The Attorney General conceded and Court of Appeal agreed that two convictions of sexual battery by fraud are not supported by sufficient evidence because the victims were aware that the conduct was lewd at the time and not fooled into thinking it was part of a beauty treatment as appellant had suggested. Convictions reduced to misdemeanor sexual battery and matter remanded for resentencing. (I) APJ

Beckham, Sylvia – People v. Velasquez, G048581 – Evidentiary Error – Carla Singer, Judge – Opinion by Rylaarsdam, J., with Aronson, J., Ikola, J. Appellant’s convictions for unlawful possession of a firearm and ammunition by a felon reversed. Court of Appeal found prejudicial error in admitting evidence of a tattoo on appellant’s torso depicting a woman brandishing an assault rifle with smoke coming from its barrel. (I) LKH.

Ferrentino, Correen — People v. Goliath, G049025 — Lesser Included Offenses/Redundant Grand Theft Counts — M. Mark Kelly, Judge — Opinion by Ikola, J., with O’Leary, P. J., Fybel, J. Appellant pleaded guilty to the entirety of the counts and enhancements alleged against him. After the judgment was affirmed on appeal due to failure to obtain a certificate of probable cause, appellate counsel successfully petitioned for a writ of habeas corpus in Federal District Court, premised on the ineffective assistance of defendant’s prior counsel in failing to seek a certificate of probable cause. The trial court then issued the certificate and the Court of Appeal reviewed appellant’s contentions. Court of Appeal reversed convictions for two offenses, simple kidnapping and carjacking, as necessarily included offenses of kidnapping to commit robbery and kidnapping during the commission of carjacking. Six other counts of grand theft were stricken pursuant to the Bailey doctrine which allows only one conviction of grand theft if multiple thefts are committed pursuant to one intention, general impulse and plan. (People v. Bailey (1961) 55 Cal.2d 514.) In so doing, the court declined to apply the new rule from People v. Whitmer (2014) 59 Cal.4th 733 (a defendant may be convicted of multiple counts of grand theft based on separate and distinct acts of theft, even if committed pursuant to a single overarching scheme) retroactively. (I) BCT

Owen, Thomas — People v. Speight, G049626 — Cruel and Unusual Punishment/Ineffective Assistance of Counsel - Albert J. Wojcik, Judge – Opinion by O’Leary, P.J., with Aronson, J., Thompson, J. Appellant argued his 69-years-to-life sentence constituted a de facto life sentence because he was a juvenile offender who would not be eligible for parole until he turned 88 years old, which is beyond his life expectancy. He also argued the two 25-years-to-life firearm enhancements constituted cruel and unusual punishment, because the sentences were grossly disproportionate to the facts of the case, and that he received ineffective assistance of counsel because defense counsel did not object to the imposition of the enhancements. Court of Appeal found defense counsel’s representation fell below an objective standard of reasonableness concerning sentencing and that defendant was prejudiced by the error. Case remanded to trial court for a new sentencing hearing. The Court noted in a footnote that based on the Attorney General’s calculations, appellant would not be eligible for parole until about five months before his natural life expectancy ended and that “such a sentence is a de facto life sentence.” (I) LAR

Lathrop, Stephen — People v. Gates, G049834 — Premeditation and Deliberation — Mark E. Johnson, Jeffrey Prevost, Ronald Taylor, and Charles J. Koosed, Judges, — Opinion by Thompson, J., with Moore, J., Aronson, J. The judgment is modified to reflect a conviction of attempted murder without premeditation or deliberation because the jury was not provided with a verdict form on which to make such a finding. Under Apprendi v. New Jersey (2000) 530 U.S. 466 and its progeny, the constitutional requirements of a jury trial and proof beyond a reasonable doubt apply to any fact that is “‘legally essential to the punishment’ [citation], that is, to ‘any fact that exposes a defendant to a greater potential sentence’ than is authorized by the jury’s verdict alone [citation].” (People v. Black (2007) 41 Cal.4th 799, 812.) (I) PED

Bauguess, Susan — People v. Padilla, G048435 — Sentencing — Steven D. Bromberg, Judge — Opinion by Aaronson, J., with O’Leary, J., Bedsworth, J. The judgment is modified to stay the concurrent firearm use enhancement associated with a count of robbery that was stayed pursuant to Penal Code section 654. In addition, appellant entitled to one additional day of actual credit and imposition of a five year period of parole is eliminated as erroneously ordered. (I) PED

Boire, Richard Glen — People v. Robiatti, G047393 — Insufficient Evidence Gang Offense — Carla Singer, Judge — Opinion by O’Leary, J., with Aronson, J., Fybel, J. Following People v. Rodriguez (2012) 55 Cal.4th 1125, the Court of Appeal reversed appellant’s conviction for street terrorism. The Attorney General conceded insufficient evidence supported the conviction where the evidence supported the conclusion appellant was not with another gang member at the time of the underlying offenses. (I) PMI

May/June 2014

Matulis, Jean — People v. Bailey, E058100 — Pre-sentence Credits — Kyle S. Brodie, Judge — Opinion by Ramirez, P.J., with McKinster, J., King, J. Matter remanded because trial court failed to award any credit for pre-sentence custody. (I) APJ

Stockwell, Sarah — In re Luis Z., G048603 — Pre-Disposition Credits — Gregory W. Jones, Judge — Opinion by Ikola, J., with Bedsworth, Acting P.J., Moore, J. Respondent conceded and Court of Appeal agreed the juvenile court erred by failing to give minor credit for the three days he served in custody while awaiting disposition of the first petition against him. (A) HCC

Torres, Steve — People v. Dominguez, G049841 — Ex Post Facto/Statute of Limitations — Kelly Hansen, Judge — Opinion by Rylaarsdam, Acting P.J., with Fybel, J., Ikola, J. Reversal of counts 13-21. Sentence for violating Penal Code section 288, subdivision (a) reversed because in violation of the ex post facto clause where the acts occurred before the enactment of Penal Code section 667.61. Further, prosecution on these counts was barred because the statute of limitation had run. (I) MCR

Johnson, Mark D. - People v. Morales, G049335 – Insufficient Evidence – Michael B. Donner, Judge – Thompson, J., with Aronson, Acting P.J., Fybel, J. Appellant challenged the sufficiency of the evidence to prove he made, or caused another to make, written or oral misrepresentation to reduce workers’ compensation premiums as to 3 of the counts. The Court agreed as to one of the counts because, as to that count, there was no evidence appellant did anything to encourage his son to misrepresent facts in an effort to obtain workers’ compensation insurance from the victim/company. (I) LAR

Hopkins, Ann/Williams, Rex — People v. Acosta et al, G049326 (2014) 226 Cal.App.4th 108 — Probation Supervision Costs — Mark Mandio, Judge — Opinion by Ikola, J., with O’Leary, P.J., Fybel, J. Attorney General conceded and Court of Appeal agreed that the order to pay costs of probation supervision cannot be a made as a condition of probation. Trial court ordered to enter a separate order directing appellants to pay such costs. (I) APJ

Moller, Richard Jay — People v. Lauri, Jaysun, G049100 — Change in Law (Estrada) — J. David Mazurek, Judge — Opinion by Aronson, J., with Rylaarsdam, Acting P.J., Fybel, J. Effective January 1, 2014, the Legislature added subdivision (c) to Health and Welfare section 11379, which provides, “For purposes of this section, ‘transports' means to transport for sale.” The Attorney General conceded and Court of Appeal agreed the amended statute applied in this case and required reversal of appellant's conviction for transportation of methamphetamine and the associated enhancements, where the jury had expressly found he transported methamphetamine for personal use. The matter was remanded for re-sentencing on remaining counts. (I) HCC

Leftwich, Maria — People v. Trejo, G048572 — Gang Enhancement — Nicholas S. Thompson, Judge — Opinion by Ikola, J., with Rylaarsdam, Acting P.J., Fybel, J. In this People’s appeal, Court of Appeal agreed with respondent that the trial court has authority under Penal Code section 1385 to dismiss a Penal Code section 186.22, subdivision (b)(1) enhancement. Matter remanded for court to state its reasons in the minutes as required by Penal Code section 1385, subdivision(a). (A) AMJ.

Boire, Richard — In re A.M., G048430 — Probation Condition — Kimberly Menninger, Judge — Opinion by Fybel, J., with Aronson, Acting P.J., Ikola, J. The probation search condition is invalid under People v. Lent (1975) 15 Cal.3d 481, because it has no relationship to the minor’s habitual truancy (stays home rather than attends school and has no behavioral or disciplinary problems at school), it relates to conduct which is not in itself criminal, and it requires or forbids behavior which is not reasonably related to future criminality. (I) AMJ.

Haggerty, Edward – People v. Ramirez, G048396 – Restitution Hearing – Kazuharu Makino, Judge – Opinion by Bedsworth, J., with O’Leary, P.J., Fybel, J. Trial court’s order requiring appellant to pay $5,685 in restitution is reversed and the matter is remanded for a new restitution hearing. Prosecution failed to provide sufficient documentation to justify the court’s restitution order. No bills or sworn statements were provided; the prosecutor simply submitted the Victim Compensation and Government Claims Board’s request forms indicating the victims had been reimbursed for $5,685 for unspecified medical and mental health services. (I) LKH.

Booher, Robert — People v. Ocampo, G048314 — Pre-sentence Credits — Daniel Barrett McNerney, Judge — Opinion by Aronson, Acting P.J., with Fybel, J., Thompson, J. Correction of miscalculation of actual days spent in custody results in 3 additional days of credit. (I) PMI.

Zimmerman, Harry – People v. Cost, G048222 – Factual Innocence Motion – Nicholas S. Thompson, Judge – Aronson, Acting P.J., with Fybel, J., Thompson, J. Post-judgment order reversed and matter remanded for the trial court to consider and rule upon defendant’s motion to vacate his 2011 misdemeanor convictions, and only then to rule upon his Penal Code section 851.8 motion for a declaration of factual innocence on his felony arrest and to seal and destroy any record of that arrest. (I) LAR

Shudde, Athena — People v. Phung, G048108 — Gang Enhancement — James A. Stotler, Judge — Opinion by Ikola, J., with O’Leary, P.J., Moore, J. Stayed gang enhancement ordered stricken when an enhancement under Penal Code section 12022.53, subdivisions (d), (e)(1), was also imposed and appellant was not found to have personally discharged the firearm as required for imposition of both enhancements per Penal Code section 12022.53, subdivision (e)(2). (I) APJ

Cannon, Gregory L. — People v. Carrasco, G047903 — Insufficient Evidence Gang Offense/Sentencing — M. Marc Kelly, Judge — Opinion by Fybel, J., with Rylaarsdam, Acting P.J., Bedsworth, J. Gang participation conviction is reversed because there is insufficient evidence appellant committed crime with another gang member. The court also erred by imposing punishment on a firearm enhancement, a gang enhancement predicated on a violent felony, and a great bodily injury enhancement, where it was unclear whether two or more enhancements were imposed based on defendant’s personal use of a firearm or the great bodily. In either case, under Penal Code section 1170.1, subdivisions (f) and (g), dual enhancements based on the same fact is prohibited. Remanded for re-sentencing. (I) PMI

Martin, Art – People v. Smith, G047789 – Abstract of Judgment – Gary S. Paer, Jr., Judge -- Opinion by Aronson, J., with O’Leary, P.J., and Ikola, J. Abstract corrected to reflect $1,000 fine rather than $10,000 and to show co-ds are jointly and severally liable for victim restitution. (I) PED

Vento, Christine — People v. Garcia, G047638 — Insufficient Evidence Gang Offense/Enhancement — Steven D. Bromberg, Judge — Opinion by Thompson, J., with Moore, Acting P.J., Aronson, J. Other than appellant’s statements, there was no evidence appellant and his cohorts belonged to any ongoing group that consistently and repeatedly committed robberies or carjackings. Appellant’s statements merely proved he and his friends committed the crimes charged and enjoyed roaming about in an area they claimed as their own, causing fights and stealing personal property, which was simply insufficient to establish the primary activities element of the gang. The prosecution’s decision to forgo gang expert testimony left the jury with no information about criminal street gangs in general, or defendant’s gang in particular. While the crimes committed here were certainly relevant, they were insufficient to establish a pattern of criminal gang activity with respect to an identifiable group that meets the definition of a criminal street gang. Given the insufficiency of evidence of various enhancements as well as certain counts, the matter was remanded for re-sentencing. (I) HCC

Kopas, Marleigh – People v. Hart, G047156 – Sentencing – Thomas M. Goethals, Judge – Rylaarsdam, J., with O’Leary, P.J., Moore, J. Third appeal arising from numerous counts of conspiracy to commit robbery, robbery, street terrorism, and assault with a deadly weapon. Court agreed with appellant’s claim of several sentencing errors, including that 5-year rather than 10-year gang enhancement applies, and ordered the minute order and abstract be corrected. (I) AMJ

Bases, Arielle — People v. Rush, E059518 — Custody Credits — Becky Dugan, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Court of Appeal found Hacienda residential treatment program subjected defendant to sufficient restraints on his liberty for the first 30 days so as to constitute “custody” within the meaning of Penal Code section 2900.5 and that appellant was thus due credits under that section. (A) HCC

Edwards, John — People v. Sanns, E059247 — Recall of Sentence — Michael A. Smith, Judge (Ret.) — Opinion by McKinster, Acting P.J., with King, J., Miller, J. Appellant was convicted of murder and sentenced to life without-possibility-of parole as a minor in 1997. After having served 15 years, he moved for recall of his sentence under Penal Code section 1170, subdivision (d)(2). The trial court mistakenly treated the petition as one for re-sentencing under the Three Strikes Reform Act, Penal Code section 1170.126, and denied the petition because defendant had not been sentenced as a third striker. Respondent conceded and Court of Appeal agreed the trial court’s ruling was in error. Matter remanded for reconsideration as a petition brought under Penal Code section 1170, subdivision (d)(2). (I) HCC

Klaif, Leonard -- People v. Vaca, E059218 – Petition for Dismissal/Expungement – Elisabeth Sichel, Judge - Richli, J., with Hollenhorst, Acting P.J., Codrington, J. Appellant’s plea specified that upon successful completion of probation the court would reduce his convictions for deterring an executive officer and gang participation, to misdemeanors under Penal Code section 17, subdivision (b). Several years later, when appellant filed a petition for reduction and expungement, the trial court denied the motion stating that the conviction for deterring an officer could not be reduced due to an attached gang enhancement. Court of Appeal found trial court relied upon an improper ground to deny the motion as to that conviction and failed to rule on the motion with regard to the remaining conviction or on the request to dismiss the charges. Case remanded for a hearing on the petition and for trial court to exercise its discretion. (I) PED

Comar, Inder — People v. Raymond Zimmerman, E059076 — On-Bail Enhancement/Penal Code Section 654/Pre-Sentence Credits — Michael A. Smith, Judge — Opinion by Ramirez, P. J., with McKinster, J., King, J. In this appeal from a re-sentencing, held after appellant successfully petitioned for a two strikes sentence under Penal Code section 1170.126, the trial court committed three separate errors: (1) it failed to stay the sentence for receiving stolen property, under section 654, where the offense was based on the same acts as those underlying his burglary conviction; (2) it imposed two on-bail enhancements even though appellant was on bail/released on his own recognizance based on only one case prior to committing his subsequent crimes; and (3) if failed to recalculate actual presentence custody time under People v. Buckhalter (2001) 26 Cal.4th 20. (A) CBM.

Brisbois, Patricia – People v. Becerra, E058799 – Abstract of Judgment -- Jeffrey J. Prevost, Judge – Codrington, J., with Richli, Acting P.J., Miller, J. Sentencing minute order and abstract of judgment must be corrected to match oral pronouncement of restitution and parole revocation fines. In addition, abstract must be amended to reflect the correct year of offenses in counts 2 and 3. (I) LAR

Klein, Jill — People v. Toncoso, E058207 — Lesser Included Offense — Eric Nakata, Judge — Opinion by Codrington, J., with Hollenhorst, Acting P.J., Richli, J. Convictions for driving under the influence causing injury and driving under the influence with a blood alcohol level of 0.08 percent or higher causing injury reversed because they are lesser included offenses of gross vehicular manslaughter while intoxicated. (I) MCR.

Auwarter, Neil — People v. Martinez, E058136 (2014) 226 Cal.App.4th 759 — Terms of Mandatory Supervision — Steven A. Mapes, Judge — Opinion by Ramirez, P.J., with McKinster, J., King, J. Court of Appeal agreed that term of mandatory supervision under Penal Code section 1170, subdivision (h)(5)(B) was over-broad in limiting appellant’s First Amendment right to access the courts. The contested term precluded appellant, a former gang member, from being in a courthouse or court parking lot unless he was a party or witness. The term was ordered modified to preclude appellant from being in court only when he knows or reasonably should know there is a case involving gang charges or involving a gang member as a witness and, even then, appellant may attend court when he is a party or a witness in a proceeding, or with the permission of the probation officer, or when appellant has other lawful business at the court. (S) NFA

Strong, Jeanine — People v. Hasan, E058099 — Attorney Fees — Julie E. Fleuret, Judge — Opinion by Ramirez, P.J., with McKinster, J., King, J. Remand for evidentiary hearing on ability to pay because trial court ordered appellant to pay attorney fees without notice and a hearing to determine ability to pay. Respondent conceded the error. (A) DKR

Robertson, Thomas E. — People v. Martinez, E057976 — Restitution — Daniel w. Detienne, Judge — Opinion by Codrington, J., with Hollenhorst, Acting P.J., McKinster, J. Victim restitution fine of $425,654.63 reversed where defendant was sentenced to prison and the victim’s injury from a hit and run was not a result of defendant’s criminal conduct in fleeing an accident. (I) PMI.

Sheehy, Kevin — People v. Moreno, E057972 — Pitchess Review — Duke D. Rouse, Judge — Opinion by King, J., with Hollenhorst, Acting P.J., Miller, J. In this appeal from a limited remand for trial court to conduct a review of peace officer personnel files pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, counsel on appeal requested that the Court of Appeal independently review the in camera proceedings for error. The Court of Appeal found that the trial court erred in failing to administer an oath to the custodian of records and take steps to ensure an adequate record for appellate review. The case is once again remanded for another Pitchess review. Concluding that the record is inadequate, the court declined to address appellant’s substantive claims regarding the failure to grant a supplemental Pitchess motion and motion for new trial. (I) APJ

Crawford, James — People v. Acevedo, E057643 — Restraining Order — Timothy F. Freer, Judge — Opinion by King, J., with McKinster, Acting P.J., Miller, J. Restraining order purportedly issued pursuant to Penal Code section 273.5 must be reversed because appellant was not convicted of violating that section, and Penal Code section 136.2 cannot be used to save the order on appeal because appellant’s felony assault and misdemeanor convictions are not crimes of domestic violence as defined by Penal Code section 13700. (I) DKR.

Webb, Reed — People v. Lopez, E057491 — Conditions of Mandatory Supervision — Arthur A. Harrison, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Miller, J. Court of Appeal agreed that several of the conditions of appellant’s supervised release must be modified to include knowledge or intent requirements. In addition, the court added “as defined by Penal Code section 186.22(e) & (f)” to modify reference to “criminal street gangs.” (I) AMJ

Kassman, Martin — People v. Santos, E057284 — Sentencing — John W. Vineyard, Judge — Opinion by Richli, J., with Hollenhorst, Acting P.J., Codrington, J. Case remanded for re-sentencing where trial court stated it was imposing the middle-term of six years for first degree robbery and the sentencing range for that offense is three, four, or six years. (I) APJ

De La Sota, Richard — People v. Morales, E057189 — Insufficient Evidence Gang Enhancement/Dual Enhancements — Cara D. Hutson, Judge — Opinion by Miller, J., with Richli, Acting P.J., Codrington, J. The gang enhancements for Counts 1 and 2 are reversed due to insufficient evidence that one of the primary activities of the gang in question was murder. In addition, the trial court erred in imposing a five-year great bodily injury enhancement on Count 2 because the court also imposed a 25-to-life firearm enhancement and both enhancements cannot be imposed on the same count. (I) PED.

Katz, Paul — People v. Ramirez, E057173 — Restitution Fine — Jeffrey J. Prevost, Judge — Opinion by Codrington, J., with Richli, Acting P.J., Miller, J. Excess days in custody converted to eliminate defendant’s restitution fine. (A) PMI

Nelson, Laurel -- People v. Simmons, E057015 – Pitchess Motion – Michael A. Sachs, Judge - King, J., with McKinster, Acting P.J., Miller, J. Appellant was charged with two counts of resisting arrest and the trial court denied defense request to conduct an in camera review of the officers’ records. Court of Appeal agreed that trial court erred in failing to conduct the review. Judgment conditionally reversed for trial court to conduct Pitchess review. (I) LAR

Boyce, Robert – People v. Amaya, E056611 – Enhancements – J. David Mazurek, Judge – Opinion by Ramirez, P.J., with Hollenhorst, J., Miller, J. The Court of Appeal ordered the true finding for the firearm enhancement under Penal Code section 12022.53, subdivision (b) reversed for the charge of making criminal threats because, as the parties agree, that offense is not included in the list of offenses to which the enhancement applies. (I) LKH

Morse, David McNeil — People v. Boyd, E056276 — Insufficient Evidence — Elisabeth Sichel, Judge — Opinion by Bedsworth, P.J., with Moore, J., Ikola, J. Conviction for street terrorism reversed because the evidence was undisputed that defendant acted alone and, hence, was insufficient to support the charge in light of People v. Rodriguez (2012) 55 Cal.4th 1125. (I) AMJ.

Miller, Gerald — People v. Lupovitz, E055849 — Instructional Error — Opinion by McKinster, Acting P.J., with King, J., Codrington, J. In this pimping and pandering prosecution, the court instructed the jury that to be guilty the defendant had to have exploited all of the women named in the charge. Relying on this instruction, the defense argued the same in closing argument. When, before rebuttal, the prosecutor realized the error and sought correction, the trial court declined to correct the instruction and left it to the prosecutor to argue the correct law in rebuttal. When the jury later requested clarification due to the discrepancy, defense counsel requested an opportunity to reargue. Instead, the trial court informed the jury that only one woman need be involved and did not permit new argument. The Court of Appeal concluded defendant was denied his constitutional right to the effective assistance of counsel and to a fair trial because, in answering the jury’s question, the trial court effectively materially modified the jury instruction on the elements of the crime of pimping. At the very least, the trial court should have granted the request to reopen closing argument, and failure to do so deprived defendant of his right to a fair trial. Remanded for new trial. (I) HCC

Smith, Barbara — In re Elmer A., D064536 — Search and Seizure — Browder A. Willis, III, Judge — Opinion by McDonald, J., with Huffman, Acting P.J., Haller, J. Court of Appeal reversed denial of minor’s suppression motion. In this case, the parties agreed that minor was detained when officer approached and told him to sit on a curb. Court of Appeal found there was no reasonable suspicion to support the detention where officer was responding to a call about an adult Hispanic male selling drugs from a red SUV parked in the back parking lot of an apartment building and minor was found 18 minutes later standing next to a bicycle with another youth in a grassy area behind the complex. Under the circumstances, there was nothing other than that the field was a “high crime area” to support the detention and that was insufficient. (I) APJ

Leftwich, Maria — In re Tatyana S., D064379 — Maximum Term of Confinement — Carlos O. Armour, Judge — Opinion by Benke, Acting P. J., with Huffman, J., and McDonald, J. Where minor placed on probation but not removed from physical custody of her parents trial court erred when it determined the maximum term of confinement based on its true finding. Such calculation is appropriate only where minor removed from physical custody of parents. (Welf. & Inst. Code, § 726, subd. (b).) Improper language stricken from court’s order. (A) CBM.

Smith, Barbara — People v. Smith, D064347 — Unavailable Witness/Due Diligence — Runston G. Maino, Judge — Opinion by O’Rourke, J., with Nares, Acting P.J., McDonald, J. Appellant was charged with assault and battery. Other than the victim himself, who could not identify the appellant, a parolee was the only witness interviewed by police. Although an investigator for the district attorney’s office knew two months before trial that the witness was moving to Michigan, the prosecution made no attempt to subpoena him, keep track of him or ensure they knew his whereabouts until shortly before trial. Had the prosecution done so, it would have had leads to the witness’s location because he was required to register as a sex offender and at some point two months prior to trial, a printout contained a Michigan address for him. Further, the prosecution’s failure to attempt to subpoena the witness before he left California, or invoke the procedures of the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases even after locating him before trial, demonstrated a lack of reasonable diligence. Therefore, the trial court erred in finding the witness unavailable and admitting prior testimony. Given conflicts in the evidence, the violation of confrontation was not harmless and judgment is reversed. (I) HCC

Jauregui-Law, Anna — In re Taurus R., D064345 — Suppression Motion — Richard R. Monroy, Judge — Opinion by Nares, Acting P.J., with McDonald, J., McIntyre, J. Denial of minor’s suppression motion reversed. Minor was arrested for truancy, under the city loitering ordinance, after he was seen walking a short distance away from school in the late morning. A search revealed marijuana and other evidence. The Court of Appeal found that neither the city ordinance, San Diego Municipal code section 58.05, subdivision (b)(1), nor Education Code section 48264, which was cited by the juvenile court, allowed the type of arrest which would justify the search. Because a truancy arrest is not a typical criminal arrest and its purpose is to return the absent student to school as expeditiously as possible, the arrest may not be used as a pretext for investigating criminal matters and does not warrant a typical search incident to arrest. The city ordinance does not provide for any arrest at all. Because there was no valid truancy arrest and no probable cause to arrest for a criminal offense, the pat down and search were invalid. The true findings on three counts of the petition are reversed. (S) AMJ.

Booher, Robert – People v. Garritson, D063942 – Multiple Convictions – Blaine K. Bowman, Judge – Opinion by Irion, J., with Huffman, Acting P.J., McDonald, J. Appellant’s conviction for one count of felony dependent adult abuse is reversed because appellant was convicted of other offenses based upon the same acts of abuse. (I) LKH.

Mortazavi, Dawn S. — People v. Thomas, III, D063928 — Probation Conditions — Albert T. Harutunian III, Judge — Opinion by McIntrye, J., with McDonald, J., dissenting opinion by Haller, Acting P.J. Alcohol-related probation conditions invalid under People v. Lent (1975) 15 Cal.3d 481, because they are not related to defendant’s crime and not reasonably related to preventing future criminality. (A) PMI

Martin, Arthur — People v. Pacheco, D063907 — Lesser Included Offense — Ana L. Espana, Judge — Opinion by Benke, Acting P.J., with McDonald, J., O’Rourke, J. Appellant was convicted of both kidnaping for robbery and simple kidnaping based on the same facts. Respondent conceded and Court of Appeal agreed that the simple kidnaping must be reversed as a lesser included offense. (I) HCC

Romero, Lynda – People v. Diaz, D063686 – Evidence – Alvin E. Green, Judge – Opinion by Aaron, J., with Nares, Acting P.J., McIntyre, J. Appellant was tried two times. After the first trial, the jury convicted him of gross vehicular manslaughter while intoxicated and other alcohol related crimes, but hung on the second degree murder count. He was convicted of second degree murder after the second trial, and this appeal followed. Appellant had previously been convicted of driving under the influence and, as a result, attended mandatory alcohol programs where MADD and MAAC videos were shown to explain the consequences of driving under the influence. On appeal, the Court of Appeal reversed appellant’s second degree murder conviction, finding the trial court committed prejudicial error in admitting the MADD and MAAC videos at trial. (I) LKH.

Nelson, Laurel — In re Yamilet R., D063769 — Insufficient Evidence — Browder Willis, Judge — Opinion by Huffman, Acting P.J., with McDonald, J., O’Rourke, J. True findings of vandalism and trespass reversed for insufficient evidence. (I) MCR

Ting, Allison — People v. Inga, D063729 — Substitution of Counsel/Restitution Fine — Leo Valentine, Jr., Judge — Opinion by Aaron, J., with Nares, Acting P.J., Irion, J. Judgment is conditionally reversed and the matter remanded to the trial court with directions to exercise its discretion in considering Appellant’s request to relieve counsel and to appoint new counsel to investigate whether a new trial motion should be filed based on ineffective assistance of trial counsel. The judgment is also modified to reduce the $15,000 restitution fines under Penal Code sections 1202.4 and 1202.45 to $10,000. (I) PMI

Klein, Jill — People v. Richardson, D063541 — Pre-sentence Credits — Eugenia A. Eyherabide, Judge — Opinion by Nares, Acting P.J., with McIntyre, J., Aaron, J. Parties agreed credits were miscalculated. Remand with directions that the trial court amend the abstract of judgment to reflect correct pre-sentence custody credit. (I) BCT.

Staley, John — People v. Lewis, D063121 — Jury Instruction — Ruth Bermudez Montenegro, Judge — Opinion by Irion, J., with O’Rouke, Acting P.J., Aaron, J. Reversal of eight counts of insurance fraud in connection with worker’s compensation benefits and one count of grand theft of personal property where the trial court prejudicially erred in not giving a unanimity instruction. (I) PMI.

DiGuiseppe, Raymond — People v. Escobedo, D062918 — Fees — Runston G. Maino, Judge — Opinion by McConnell, P.J., with Huffman, J. and McIntyre, J. People conceded and Court of Appeal agreed that drug lab and program fees were unauthorized because appellant was not convicted of a drug-related offense. Judgment modified to strike these fees. (I) CBM.

April 2014

Harris, Donna — People v. Flores, E057234 — Abstract of Judgment/Minute Order — Edward D. Webster, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. Court and respondent agreed that minute order and abstract of judgment must be corrected to show that the court recommended, not ordered, defendant to participate in substance abuse counseling or a program and to strike the language in the order prohibiting defendant from possessing deadly weapons or related paraphernalia, because the oral pronouncement only described a prohibition as to possessing firearms and ammunition. (I) AMJ

Torrano, Frank — In re A.P., E059493 — Juvenile Victim Restitution — Brian D. Saunders, Judge — Opinion by Ramirez, J., with Miller, J., Codrington, J. Minor admitted residential burglary in which he entered and severely vandalized a neighbor’s house. The court granted probation and continued determination of victim restitution. In June, 2013, the court terminated probation, and then in August, 2013, the court purported to impose $43,000 in victim restitution. The Court of Appeal vacated the restitution order because Welfare and Institutions Code section 730.6, subdivision (h), authorizes imposition of victim restitution during the term of commitment or probation, but not after. The court rejected the People’s argument the minor should be estopped by the fact his trial counsel requested or agreed to the continuances that put off the determination of restitution until after probation was terminated. There was no estoppel, the court found, because the record showed minor’s counsel was unaware the court intended to terminate probation at the time the extensions were sought. (A) NFA

Ferguson, Susan — People v. Ralph Hart, E056834 — Lesser Included Offense/Penal Code Section 654 — Jules E. Fleuret, Judge — Opinion by Richli, J., with Ramirez, J., Codrington, J. Conviction for simple assault reversed because it is a lesser included offense of battery. The consecutive sentence on appellant’s conviction for of misdemeanor battery on a co-habitant should have been stayed pursuant to Penal Code section 654 as it constituted the same course of action as his making criminal threats conviction. (A) PED

Katz, Paul — In re Axel M., E058995 — Firearms Prohibition — Roger A. Luebs, Judge — Opinion by Ramirez, P.J., with McKinster, J., King, J. Respondent and Court of Appeal agreed that the trial court erred when it ordered that minor be prohibited from possessing a firearm until he is 30 years old, pursuant to Penal Code section 29820. Because the minor was not declared a ward of the court and was instead granted informal probation under Welfare and Institutions Code section 725, subdivision (a), the trial court was not authorized to impose this prohibition. The prohibition is stricken. (A) AMJ

Irza, Helen — People v. Ketchens, E058550 — Prison Prior Enhancement/Penal Code section 654 — John G. Evans, Judge — Opinion by McKinster, J., with Ramirez, P.J., King, J. Trial court granted a Penal Code section 1170.126 petition and re-sentenced appellant. In so doing, it erred in ordering a prior prison term enhancement, because no such enhancement had been alleged and proven. In addition, three of four drug possession offenses should have been stayed under Penal Code section 654, because the offenses arose out of a single transaction. Matter remanded for trial court to issue an amended abstract of judgment to reflect the modifications. (I) AMJ

Bostwick, James — People v. Sheppard, E057396 — Penal Code Section 654/Fines and Fees — John M. Tomberlin, Judge — Opinion by McKinster, J., with Hollenhorst, J., King, J. The trial court failed to orally order sentence on count 2, a misdemeanor. Invoking its authority under Penal Code section 1260, the Court of Appeal ordered a 365-day sentence and stayed the term under Penal Code section 654. The order to pay $550 in attorney’s fees is stricken, because it is not supported by substantial evidence of defendant’s ability to pay. The order to pay $1800 in victim restitution is stricken, because the court did not order victim restitution. Order is corrected to reflect the amount as a restitution fine. (I) AMJ

Macomber, Thomas — People v. Marchke, E057534 — Fines and Fees — Richard V. Peel, Judge — Opinion by Codrington, J., with Ramirez, J., Miller, J. Court of Appeal vacated awards of attorney fees and cost of probation because both authorizing statutes (Pen. Code §§ 987.8, subdivision (b), and 1203.1b, subdivision (a), respectively) require a finding of ability to pay, which the sentencing court neglected to make. Remanded for an ability to pay hearing. (A) NFA

Ulibarri, Patricia — People v. Montes, D062949 — Minute Order — Poli Flores Jr., Judge — Opinion by McIntyre, J., with Benke, J., McDonald, J. Court-appointed attorney fee stricken on minute order and abstract of judgment to reflect trial court’s oral pronouncement that defendant lacks the ability to pay. (I) PMI

Sheehy, Kevin — People v. Alvarado, G048073 — Sentencing — William R. Froegerg, Judge — Opinion by O’Leary, J., with Rylaarsdam, J., Moore J. Where appellant was convicted of shooting at an occupied vehicle and it was found true that he did so to benefit a gang, the appropriate sentence was an indeterminate term of 15-years-to-life pursuant to Penal Code section 186.22, subdivision (b)(4)(B). The trial court erred in also imposing a determinate term for the underlying offense of shooting at an occupied vehicle because the indeterminate term is a alternate sentence rather than an enhancement. The court also erred in imposing two enhancements based upon the single use of a firearm: 10 years for a gang enhancement which depended upon the firearm use (§186.22, subd. (b)(1)(C)) consecutive to a 10 year term for the personal use of a firearm (§12022.5, subd. (a)). Pursuant to People v. Rodriguez (2009) 47 Cal.4th 501 and Penal Code section 1170.1, subdivision (f) imposition of only the greatest of the applicable enhancements is allowed. Finally, appellant was awarded several additional days of pre-sentence custody credits due to trial court’s miscalculation. (I) PED

Jones, Cynthia — People v. Downer, D063255 — Sentencing — Kathleen Lewis, Judge — Opinion by Benke, J., with Huffman, J., McDonald, J. Because the court relied upon a substantial miscalculation in restitution when sentencing appellant, sentencing reversed and remanded to recalculate the restitution award and to re-sentence appellant. (I) MCR

Bodo, Maureen – People v. Castillolopez, D063394, (2014) 225 Cal.App.4th 638 – Insufficient Evidence – Albert T. Harutunian III, Judge - Nares, Acting P.J., with McDonald, J., Aaron, J. Conviction of carrying a concealed dirk or dagger reversed because there was insufficient evidence that the open blade of appellant’s Swiss Army knife was locked into position within the meaning of Penal Code section 16470. (I) JLP/LAR

Riggs, Brent/Pfeiffer, Richard — In re D. W., E059137 — Indian Child Welfare Act (ICWA) — Jacqueline Jackson, Judge — Opinion by Ramirez, P.J., with Richli, J., King, J. Parent claimed Cherokee heritage but ICWA notice of the dependency case was sent to only one of the three Cherokee tribes. Because ICWA noticing statutes are strictly construed, the court conditionally reversed the order terminating parental rights and directed the agency to give notice as required by ICWA. (I) LMF

Ihara, Patricia — People v. Gonzalez, E059037 — Restitution — John M. Tomberlin, Judge — Opinion by Richli, J., with Miller, J., Codrington, J. $1000 restitution fine modified to reflect a $280 fine where a minimum restitution fine was a term of defendant’s negotiated plea agreement. (S) PMI

Gambale, Erica — People v. Sanchez, G048436 — Restitution — W. Michael Hayes, Judge — Opinion by Rylaarsdam, J., with Bedsworth, J., Ikola, J. Where trial court calculated restitution under the formula provided by Penal Code section 1202.4, subdivision (b)(2), and clearly relied in its calculations upon a count that had been stayed pursuant to Penal Code section 654, the restitution fine is reduced from $4200 to $3360, because restitution fines may not be based on counts that were stayed pursuant to Penal Code section 654. (I) AMJ

Stockwell, Sarah – People v. Scholl, E056607 – Probation Conditions – Harold T. Wilson, Jr., Judge – Opinion by Richli, Acting P.J., with Miller, J., Codrington, J. Court of Appeal modified, to include a knowledge requirement, probation conditions prohibiting appellant from possessing or having access to handcuffs, restraint equipment, costumes and masks. (A) LKH

Hennessey, Patrick — People v. Hines, D063609 — Lesser Included Offense/Prison Prior Enhancement — Frederic L. Link, Judge — Opinion by Aaron, J., with Benke, J., Nares, J. Grand theft conviction is reversed because it is a lesser included offense of the robbery conviction. Court erred in imposing a one-year sentence enhancement under Penal Code section 667.5, subdivision (b), while also imposing a five-year enhancement term under Penal Code section 667, subdivision (a)(1), based on the same prior conviction. (I) AMJ.

Smith, Kyle – People v. Arevalo, G047523, (2014) 225 Cal.App.4th 612 – Sheila F. Hanson, Judge – Opinion by O’Leary, P.J. with Fybel, J., Ikola, J. The Court of Appeal reversed appellant’s conviction for commercial burglary for insufficient evidence, concluding the sole evidence linking him to the burglary – his DNA found on a rock inside the nail salon – was insufficient to support his conviction. The court reasoned, “[S]tanding alone, a defendant’s DNA on an object is insufficient evidence to support a conviction absent any facts showing the defendant’s contact with the object could only have occurred during the commission of the crime.” (A) LKH

Greifinger, David – People v. Johnson, E059102 – Katrina West, Judge – Opinion by Ramirez, P.J., with McKinster, J., King, J. Appellant’s convictions for petty theft (as lesser offenses of the robberies charged in counts 1 and 2) are reversed because he was also convicted of petty theft with a prior (count 3) and he cannot be convicted of petty theft multiple times for stealing a single pair of shoes (the object of theft in all three counts). (A) LKH

Scott, Patricia — People v. McCoy, D063775 — Abstract of Judgment — Jeffrey F. Fraser, Judge — Opinion by Huffman, J., with Nares, J., McIntyre, J. Clerical error in abstract of judgment relating to credits is ordered amended to reflect trial court’s oral pronouncement. (I) PMI

Angres, Robert — In re Andrew M., E057355 — Pre-Sentence Custody Credits — Brian Saunders, Judge — Opinion by Ramirez, P.J., with Richli, J., King, J. Trial court failed to calculate the number of days minor earned against his maximum term of confinement for time spent in custody before the disposition hearing. Minor is entitled to 330 days of custody credits. Superior Court ordered to modify the order to reflect this amount. (I) AMJ

Duxbury, Brett — People v. Vera, E056903 — Insufficient Evidence Gang Offense — Shahla Sabet, Judge — Opinion by King, J., with Ramirez, J., McKinster, J. Gang participation conviction is reversed because there is insufficient evidence appellant committed crime with another gang member. (I) DKR

Beckham, Sylvia — People v. Ortega, E058185 — Sentencing Demand — John D. Malloy, Judge — Opinion by Ramirez, J., with McKinster, J., King, J. Appellant’s probation in one case was summarily revoked when he was charged with a crime in a subsequent case. He was convicted and sentenced to prison in the subsequent case, but no sentence was imposed for the probation case. From prison he mailed a demand to be sentenced in the probation case pursuant to Penal Code section 1203.2a, which requires sentencing on demand within 30 days in any probationary case where the probationer has been committed to prison for a subsequent offense. After more than 30 days, the court imposed a consecutive term in the probation case. The Court of Appeal held that the trial court lost jurisdiction to impose sentence 30 days after it received the demand. The Court rejected respondent’s arguments that 1) appellant was not “on probation” within the meaning of section 1203.2a because he had been summarily revoked; and 2) that the 30-day jurisdictional period ran from the date of file-stamping by the clerk, rather than receipt (the clerk had delayed file-stamping the demand for 25 days after receipt). Disposition: sentence in probation case vacated and probation terminated. (I) NFA

Rudasill, Denise — People v. Mullins, D063594 — Breach of Plea Agreement – Dwayne K. Moring, Judge — Opinion by Huffman, J., with Nares, J., Aaron, J. Appellant entered a guilty plea with the understanding the trial court would consider granting probation, striking the admitted firearm use enhancement, and imposing sentence within a “lid” of six years . At sentencing, the court denied probation, determined it had no authority to strike the firearm enhancement and sentenced appellant to six years. The Court of Appeal found the trial court breached a material term of the plea agreement because it had no authority to strike the gun use enhancement despite the promise to consider doing so. Because specific performance could not be ordered, the Court remanded the case to the trial court with directions to permit appellant to withdraw his guilty plea. (I) BCT

March 2014

Brisbois, Patricia — People v. Gonzalez, Jr., D063129 — Abstract of Judgment/Restitution Fines — Christopher J. Plourd, Judge — Opinion by McDonald, J., with Aaron, J., Irion, J. Sentence indicated on the abstract of judgment improperly combined determinate and indeterminate terms and also failed to indicate that the sentence carries the possibility of parole. Where the court stated it was imposing the minimum mandatory fine, and the minimum at the time of the offenses was $200, the $240 fines must be reduced. (I) PMI

Cannon, Gregory — People v. Martinez, E056034 — Prop. 36 Sentencing — Michael B. Donner/Michele D. Levine, Judges — Opinion by McKinster, J., with Hollenhorst, J., Codrington, J. Penal Code section 667, subdivision (e)(2)(c) applies to defendants whose judgments were not yet final on the effective date of the reform act. Appellant is entitled to re-sentencing as a second striker. (I) PED

Brandt, Nancy – People v. Samoan T., E058869 – Probation Conditions – Roger A. Luebs, Judge – Opinion by McKinster, J., with Hollenhorst, Acting P.J., Codrington, J. Court of Appeal remanded the matter to the juvenile court to modify a probation condition prohibiting “negative contact” with sister to specifically define what types of contact minor is prohibited from engaging in with her sister. In addition, the Court of Appeal, while not finding that the conditions were vague or overbroad, suggested the juvenile court, in its discretion, modify the gang conditions to name specific gangs or limit the geographic reach of the conditions. (A) LKH

Burz, Dacia — People v. Garcia, D062370 — Gang Enhancements — Peter C. Deddeh, Judge — Opinion by Nares, J., with McConnell, P.J., O’Rourke, J. Appellant argued, respondent conceded, and the court agreed the trial court erred in three particulars, reducing appellant’s sentence by 19 years: (1) the 10-year consecutive term imposed for the true finding on the count 1 gang enhancement allegation is stricken, and appellant’s count 1 sentence is modified to be an indeterminate sentence of 25 years to life with a 15-year minimum parole eligibility under section 186.22, subdivision (b)(5); (2) the 10-year consecutive term imposed for the true finding on the count 3 gang enhancement allegation is stricken, and the matter is remanded for resentencing for a discretionary determination of whether the gang enhancement punishment should be two, three, or four years pursuant to section 186.22, subdivision (b)(1)(A); (3) the 10-year consecutive term imposed for the count 4 gang enhancement allegation is modified and reduced to a five-year term pursuant to section 186.22, subdivision (b)(1)(B). (I) HCC

De La Sota, Richard/Tetreault, Nancy – People v. James Lara/David Lara, G048951 – Prop. 36 Sentencing/Penal Code Section 654 – Bernard J. Schwartz, Judge – Opinion by Thompson, J., with O’Leary, P.J., Moore, J. As to appellant James Lara, Prop. 36 became effective while appeal was pending and COA agreed the recent changes in the Three Strikes Law should apply to appellant. Remanded for resentencing. As to appellant David Lara, trial court erred in imposing punishment for both carjacking and making criminal threats which were part of the same course of conduct. The sentence for criminal threats ordered stayed pursuant to Penal Code section 654. (I) LAR

Greifinger, David — In re J.B., E058750 — Insufficient Evidence — Lawrence P. Best, Judge — Opinion by McKinster, J., with Hollenhorst, J., Codrington, J. Minor was found to have issued a terrorist threat to his teacher in school by saying he would “smoke” the teacher. The teacher was concerned but not afraid and the Court of Appeal reversed the true finding on the ground that there was no evidence of fear. (A) DKR.

Jones, Sharon — People v. Alonso, E056843 — Correction of Minute Order — Bernard Schwartz, Judge — Opinion by Hollenhorst, J., with McKinster, J., Codrington, J. Trial court directed to correct minute order to accurately reflect the jury found defendant not guilty of the greater charge and guilty of the lesser included offense. (I) PMI

Goldstein, Michael – People v. Perez, D062876 – Fines – John M. Thompson, Judge – Opinion by McDonald, J., with Haller, Acting P.J., Irion, J. The $154 criminal justice administration fee imposed under Government Code section 29550.1 is stricken and replaced with a $10 fee under Government Code section 29550, subdivision (f) because appellant was cited and released, not arrested. For the same reasons, the $25 administrative screening fee imposed under section 1463.07 is stricken and replaced by a $10 fee. In addition, the restitution fine of $960, stayed unless appellant’s parole is revoked under Penal Code section 1202.45, is stricken because appellant was placed on mandatory supervision. (A) LKH

Khoury, Charles — In re Steven F., G048087 — Search and Seizure — Nico Dourbetas, Judge — Opinion by Fybel, J., with O’Leary, J., Ikola, J. Court of Appeal reversed juvenile appellant’s true finding of possessing marijuana for sale because the juvenile court erred in denying appellant’s motion to suppress on Fourth Amendment grounds. An officer detained appellant for jaywalking and upon searching appellant found a Sharpie marker, prompting appellant’s arrest for possessing a marker for vandalism purposes under Penal Code section 594.2, subdivision (a). The officer subsequently was permitted to search the minor’s room at home, where marijuana was found. The Court of Appeal held mere possession of a marker, without more, did not supply probable cause that the marker was possessed with intent to vandalize. Accordingly, the arrest was improper, and all that flowed from it was tainted fruit and should have been suppressed. (I) NFA

Booth, Christopher — In re J.H., D064582 — Indian Child Welfare Act (ICWA) — Kenneth J. Medel, Judge — Opinion by O’Rourke, J., with McIntyre, Acting P.J., Aaron, J. Father argued and the Court of Appeal agreed the trial court erred in finding the ICWA did not apply when the required ICWA documents had not been filed with the juvenile court. Respondent requested an augment motion to provide the missing attachments. The appellate court granted the motion to augment but denied the respondent’s motion to dismiss the appeal as moot. The judgement was reversed and the case remanded with directions to comply with the ICWA notice and filing requirements. (I) LLF

Bostwick, James — People v. Scott, E058840 — Life Without Parole (Juvenile) Sentence Recall — Michael A. Smith, Judge — Opinion by McKinster, J., with Hollenhorst, J., Codrington, J. Appellant appealed the denial of his petition for resentencing under Penal Code section 1170, subdivision (d)(2). Appellant argued and respondent agreed the superior court improperly failed to exercise its discretion in considering the petition to recall the sentence, mistakenly treating the petition as one for recall of a Three Strikes sentence rather than a recall of a life-without-parole sentence for crimes committed as a juvenile. The Court of Appeal reversed and remanded with directions for a proper exercise of the superior court’s discretion. (I) HCC

Miller, Gerald – People v. Pisciotta, E058519 – Sentencing – Michael M. Dest, Judge – Opinion by Ramirez, P.J., with Richli, J., King, J. Appellant was originally given a suspended sentence, with mandatory supervision. He later admitted he violated the terms of his supervision and the trial court imposed the previously stayed sentence without obtaining a probation report. Court of Appeal determined a probation report was required prior to re-sentencing, rejecting the Attorney General’s argument that no report was necessary under the Realignment Act. Sentence reversed and case remanded for preparation of probation report, or waiver, and resentencing if appropriate. (I) LKH.

Rogers, Tracy — People v. Solis, G048019, (2014) 224 Cal.App.4th 727 — Juvenile Cruel and Unusual Punishment — Marc M. Kelly, Judge — Opinion by Bedsworth, J., with Rylaarsdam, Acting P. J., Ikola, J. Finding there is no material difference between juvenile’s 50 years to life sentence (a de facto life-without-parole [LWOP] sentence) and an LWOP sentence, and that the trial court actually determined appellant was not a hardened criminal incapable of reform, appellate court determined Eighth Amendment principles set forth in Graham v. Florida (2010) 560 U.S. 48, People v. Caballero (2012) 55 Cal.4th 262, and Miller v. Alabama (2012) __ U.S. __ [132 S.Ct. 2455] require a meaningful opportunity for release. Newly-enacted Penal Code section 3051, subdivision (a)(1) does not remedy situation because there is no guarantee it will be in effect in the future. To remedy the error, sentence modified to include a minimum parole eligibility date of 25 years. (I) CBM

Bishop, Rosemary/Alexander, Elizabeth — In re Gino C., D064336, (2014) 224 Cal.App.4th 959 — Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) — David B. Oberholtzer/Laura J. Birkmeyer, Judges — Opinion by McConnell, P.J., with Nares, J., Irion, J. Parents and children lived in Mexico. While en route to Nevada, mother and children were detained at a California border checkpoint and dependency petitions were later filed. Juvenile court did not contact court in Mexico to determine if it would assert jurisdiction. Juvenile court also asserted its temporary jurisdiction ripened into permanent jurisdiction. In its published decision, the Court of Appeal found the juvenile court erred and must contact the court in Mexico. The juvenile court’s reliance on In re Angel L. (2008) 159 Cal.App.4th 1127 for the notion that temporary jurisdiction can ripen into permanent jurisdiction was incorrect; permanent jurisdiction arises only if the home state court rejects jurisdiction. (I) LMF

Grimm, Cynthia — In re Jake R., D063933 — Lesser Included Offense/Probation Condition – Carlos O. Armour, Judge — Opinion by McIntyre, J., with Huffman, J., Aaron, J. Minor argued, Attorney General conceded, and Court of Appeal agreed that one count of possessing marijuana was a necessarily included offense of another count of possessing the same marijuana for sale, and the court ordered the conviction of the lesser vacated. A probation condition that the minor not use or possess alcohol, a controlled substance, etc., was deemed unconstitutionally vague without a knowledge requirement, and the condition was modified by the addition of “knowingly.” (A) HCC

Auwarter, Neil — People v. Donnell, D064377 — Presentence Conduct Credits — Robert J. Trentacosta, Judge — Penal Code Section 1237.1 Trial Court Motion. Appellant was sentenced to county jail under Realignment for a felony committed prior to October 1, 2011, the effective date of Realignment. Under the presentence credit statutes in effect at the time of the offense (SB 76), a defendant was entitled to day-for-day conduct credits if sentenced to prison, but only 2-for-4 conduct credits if sentenced to jail. At the initial sentencing, the court awarded only 2-for-4 credits because appellant was sentenced to jail. But on the credits motion, the trial court agreed this was an ex post facto violation because it was only by virtue of Realignment, enacted after the commission of appellant’s offense, that he was sentenced to jail rather than prison. (S) NFA

Bronson, Phillip/Auwarter, Neil — People v. Ceja, G044737 — Prior Serious Felony Enhancement — Richard W. Stanford, Judge – Post-Remittitur Unauthorized Sentence Correction. Previously on appeal, the Court of Appeal reversed appellant’s conviction of active gang participation (Pen. Code, § 186.22, subd. (a)). However, neither counsel nor the court recognized that the reversed count was defendant’s only “serious” felony, and with its reversal he was no longer subject to the five-year prior serious felony enhancement imposed under section 667, subdivision (a). Defendant did recognize this after the appeal was final and made an unsuccessful motion for the trial court to correct the error. ADI then wrote the trial court an informal request for correction of this unauthorized sentence. In response, the court struck the enhancement, reducing the sentence from 9 years to 4 years. (I)/(S) NFA

Ferrentino, Correen — People v. Weeks, E057282, (2014) 224 Cal.App.4th 1045 — Prison Prior — Gary B. Tranbarger, Judge — Opinion by Miller, J., with Richli, J., King, J. One-year prison prior enhancement pursuant to Penal Code section 667.5, subdivision (b) reversed because appellant committed his new offense in prison while serving sentence for the prior conviction. (I) DKR

Hennessey, Patrick J., Jr. – People v. Burleson, D063898 – Instructional Error/Self-Defense – Richard E. Mills, Judge – Opinion by Nares, J., with McConnell, P.J., Irion, J. The trial court’s refusal to instruct on self-defense was erroneous because the record shows the instruction was supported by substantial evidence. Reversal required because it is reasonably probable that a properly instructed jury would have found from the evidence that appellant actually and reasonably believed the process server, who had been banging on the front door in the later evening hours, posed an imminent threat to himself and to his family and that appellant exhibited his shotgun in self-defense. (I) LAR

Jones, Cynthia — In re Danny P., G048428 — Minute Order Correction — Kimberly Menninger, Judge — Opinion by Aronson, J., with O’Leary, P.J., Thompson, J. Though the appeal was dismissed because minor-appellant who had been adjudicated an habitual truant had reached maturity, the Court of Appeal nevertheless ordered correction of an erroneous minute order. Minor argued and Attorney General conceded the court’s oral pronouncement with respect to the condition prohibiting possession of a firearm did not state that the prohibition would apply until appellant turns 30 years old; thus the minute order was incorrect in this regard and the oral pronouncement should control. Penal Code section 29820 did not apply to minor. To eliminate any confusion, the appellate directed the juvenile court to correct its minutes to conform to its oral pronouncement at disposition and to take appropriate action to correct any erroneous reporting to the Department of Justice under Penal Code section 29820. (I) HCC

Capriola, William — People v. Lewis, E056322 — Instructional Error/Provocative Act Murder — Douglas M. Elwell, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., McKinster, J. Appellant and two cohorts attempted to rob an individual who turned out to be armed. In the course of the attempted robbery, there was a scuffle during which the armed individual shot one of the cohorts. As a result of the cohort’s death, appellant was tried and convicted of provocative murder, first degree. In instructing the jury, the trial court, in defining provocative act, added: “When the underlying offense is robbery, a physical assault on the victim is not an element of the offense, but is an act beyond what is necessary to accomplish the robbery.” The prosecutor capitalized on this instruction in closing argument. The Court of Appeal concluded that whether a physical assault committed during a robbery constitutes a provocative act is a question of fact to be resolved by the jury and the erroneous instruction was not cured by any other instruction. The error was not harmless under any standard and the murder conviction was reversed. (I) HCC

Garfinkle, Elizabeth – People v. B., D063509 – Confrontation Clause – Carlos O. Armour, Judge – Opinion by Huffman, Acting P.J., with McDonald, J., McIntyre, J. True finding on the petition is reversed where the trial court prejudicially erred in considering a probation report from a prior conviction as proof of sexual propensity under Evidence Code sections 1101 and 1108. (I) LKH

Stralla, Ava — In re B.M., G048353 — Pitchess motion — Jane Shade, Judge — Opinion by Moore, J., with O’Leary, J., Rylaarsdam, J. Court of Appeal concluded minor was entitled to four documents which were not produced when requested under a Pitchess motion. Conditional reversal so the juvenile court can provide trial counsel with the information requested in the Pitchess motion. (I) MCR

LeRoy, Doris — People v. Avalos, G049101 — Insufficient Evidence — Timothy Freer, Judge — Opinion by Fybel, J., with Rylaarsdam, J., Ikola, J. Insufficient evidence of transporting a controlled substance, where the prosecution failed to produce any evidence that the marijuana found in this case had been transported any distance. (I) MCR

Staley, John — People v. Salcido, E057457 — Penal Code section 654 — Ingrid Adamson Uhler, Judge — Opinion by McKinster, J., with Ramirez, P. J., Hollenhorst, J. Attorney General conceded and Court of Appeal agreed that punishment for appellant’s Penal Code section 273.5 conviction must be stayed under Penal Code section 654, where the infliction of corporal injury on appellant’s wife happened while he was attempting to drive her away in a car (the conduct underlying attempted kidnapping conviction). (I) JLP/CBM

Shetty, Siri — People v. Johnson, D063149 — Discharge of Juror/Right to Counsel — Richard S. Whitney, Judge — Opinion by Huffman, J., with O’Rourke, J., Aaron, J. In this appeal involving three superior court cases, the Court of Appeal agreed, with respect to one case, that the trial court abused its discretion in excusing a juror because the record did not establish “as a demonstrable reality” that she refused to deliberate or failed to adhere to the court’s instructions or orders. Instead, the record suggested that while she felt the environment was hostile, the juror was willing to continue deliberations. The Court of Appeal also noted that the fact the juror might have made up her mind based upon evidence presented, did not constitute juror misconduct and the dismissal was prejudicial because the juror was clearly a holdout for acquittal. With respect to a separate case, the trial court abused its discretion in denying appellant’s request to substitute in retained counsel who would need a one-day continuance. Since the court ultimately trailed the matter for a day due to its own schedule, the substitution would not have caused a disruption and the request should have been granted. (I) HCC

Marshall, Marilee – People v. Richards, G048289 – Restitution Fines – Jonathan S. Fish, Judge – Opinion by Ikola, J., with O’Leary, P.J., Thompson, J. The judgment is modified to reduce appellant’s restitution fine and matching parole revocation fine from $280 to $200 where the trial court intended to impose the minimum fine but was misinformed as to the statutory minimum amount which had been amended between the time of appellant’s offenses and his sentence. (I) LKH

Stevenson, Theresa – In re J.T., E059626 – Petition Amendment – Brian Saunders, Judge – Opinion by Ramirez, P.J., with Richli, J., Miller, J. Juvenile Court violated minor’s due process rights when it unilaterally amended the petition at the conclusion of the jurisdictional hearing because the charge of being an accessory is the not a lesser included offense of receiving a stolen vehicle and minor did not consent to the substituted allegation. (I) LAR

Gardner, Cliff/Kelly, David — People v. Dubose/Whitmore, E054926, (2014) 224 Cal.App.4th 1416 — Juvenile Life Without Parole (LWOP) Sentencing/Penal Code Section 654 — Duke D. Rouse, Judge — Opinion by Miller, J., with Richli, J., King, J. With respect to Dubose, the Court of Appeal found that an LWOP sentence was not mandatory and the case must be remanded for re-sentencing so that trial court can consider factors under Miller v. Alabama (2012) U.S. , 132 S.Ct. 2455, 183 L.Ed.2d 407, which had not been decided at the time of the original sentencing, in determining whether appellant should receive a sentence of 25-life or life without parole. As to Whitmore, the jury was given three options as to the felony that might constitute the basis for the felony murder conviction and there was no requirement that the jury make a finding as to which specific felony it chose. Because application of Penal Code section 654 depends upon whether any of the separately charged felonies were also the basis for the felony murder, the Court of Appeal held that the case must be remanded for the trial court to determine which felony forms the basis of the felony murder and then apply Penal Code section 654 as appropriate. (I) HCC

Rich, Renee — People v. Smith, G047479 — Abstract of Judgment — Dan McNerney, Judge — Opinion by Bedsworth, J., with Ikola, J., Thompson, J. Abstract of judgment modified to reflect the trial court ordered restitution and parole revocation fines in the amount of $200 each. (I) PMI

Lee, Konrad — In re J.C., E058133— Indian Child Welfare Act (ICWA) — Tamara L. Wagner, Judge — Opinion by Ramirez, P.J., with Richli, J., Miller, J. Attorney argued and Court of Appeal agreed the agency and juvenile court failed to comply with the notice provisions of the ICWA. The appellate court reversed finding the agency had access to paternal relatives and did not include relevant information about the paternal great grandfather, the alleged source of Indian heritage, as required. The case was conditionally reversed to comply with further inquiry and proper notice. (I) LLF

Lubliner, Steven — People v. Reid, G049219 — Sentencing — Dennis McConaghy, Judge — Opinion by Rylaarsdam, J., with O’Leary, J., Moore, J. Appellant was convicted of theft, reckless evasion and child endangerment based on evidence he committed the theft and then fled police by car while his four-year-old son was in the back seat. The sentencing court imposed consecutive terms for all three counts. The Court of Appeal ordered the term for reckless evasion stayed pursuant to Penal Code section 654 because the evasion and child endangerment shared a single criminal intent. The court also struck an order forbidding appellant from contacting the victim, finding the court lacked authority for such an order where the defendant is committed to prison rather than placed on probation. (I) NFA

Smith, Kevin — People v. Watson, G047650 — Sentencing — James A. Stotler, Judge — Opinion by Ikola, J., with Rylaarsdam, Acting P. J., and Bedsworth, J. The court committed legal error in its interpretation of People v. Howard (1997) 16 Cal.4th 1081, by improperly concluding that, after finding defendant had violated his probation, it had no discretion with regard to executing the suspended sentence. Even where execution of sentence had earlier been suspended, when the trial court finds defendant in violation of probation, it has discretion to reinstate probation or to execute the earlier imposed prison sentence. Two-year sentence reversed and case remanded for resentencing. (A) CBM

Lampkin, David —People v. Craddock, G047347 — Double Jeopardy — Lance Jensen, Judge — Opinion by Thompson, J., with O’Leary, J., Fybel, J. In first trial, jury convicted defendant of lewd acts in counts 2 through 5, and hung on remaining counts. The second jury convicted him of all remaining counts. Convictions for two of those counts, counts 6 and 7, reversed because they violated the constitutional protections against double jeopardy. Because the prosecution failed to specifically direct the jury to a precise set of facts underlying counts 6 and 7, as it had during the first trial, the second jury could have used the same facts to find defendant guilty of those counts as the first jury had used to find him guilty of counts 2 to 5. (I) AMJ

Schwartzberg, Richard — Torres v. Superior Court, D064672 — Juvenile File Inspection — Richard R. Monroy, Judge — Opinion by Haller, J., with Nares, J., McDonald, J. Petitioner filed a post-verdict petition under Welfare and Institutions Code section 827, seeking disclosure of Brady impeachment and exculpatory evidence in the juvenile delinquency records of the two homicide victims. A first judge conducted an in camera hearing and disclosed some information. Petitioner then filed a subsequent section 827 pleading, requesting reconsideration and additional records. A different judge, denied the request, ruling petitioner had to submit his request to the district attorney’s office. The Court of Appeal granted a writ of mandate, ordering the superior court tp consider petitioner’s pleadings on the merits. (J.E. v. Superior Court (2014) 223 Cal.App.4th 1329.) (I) HCC

February 2014

Rudasill, Denise — People v. Hurlbert, D062575 — Prison Prios — Herbert Exarhos, Judge — Opinion by Benke, J., with Aaron, J., Irion, J., One-year Penal Code section 667.5, subdivision (b) prison prior stricken because a five year serious felony enhancement was imposed based upon the same conviction. (I) MCR

Nelson, Laurel — People v. Lauri, A., G049100 — Probation Conditions — J. David Mazurek , Judge — Opinion by Aronson, J., with Rylaarsdam, J., Fybel, J. Various conditions of probation were modified to avoid vagueness and/or overbreadth (i.e. 24-hour notice to probation officer as to move modified to allow notice as soon as probationer becomes aware of the move if less than 24 hours before move; condition accommodating home searches modified; condition modified to allow paraphernalia for prescribed drugs; condition modified to prohibit possession of items designed for use as weapons; condition modified to prohibit knowingly entering a place for the purpose of consuming alcohol; and association condition modified to allow association with appellant’s husband (co-defendant and a felon). (I) HCC

Khoury, Charles – People v. Lambert, G047913 – Plea Bargains – Christopher, J. Evans, Judge – Opinion by Rylaarsdam, J. with Bedsworth, Acting P.J., Ikola, J. The order denying appellant’s motion to withdraw the guilty plea under section 1203.4 is reversed and the case remanded for the court to conduct an evidentiary hearing to determine whether the parties to the plea bargain affirmatively agreed or implicitly understood the consequences of the plea would be fixed despite changes in the law. At the time the client pled guilty to six counts of lewd and lascivious acts upon a child under the age of 14 years old (Pen. Code, § 288), Penal Code section 1203.4 relief was available to a person who successfully completed probation. But, after the client successfully completed probation, Penal Code section 1203.4 was amended, excluding Penal Code section 288 offenders from relief. (I) LKH

Power, Richard — People v. Roberts, E058777 — Crime Prevention Fine — Debra Harris, Judge — Opinion by McKinster, J., with Hollenhorst, J., & Codrington, J. Receiving a stolen motor vehicle is not subject to the Penal Code section 1202.5 crime prevention fine and penalty assessments. Judgment reversed to strike $41 fine. (I) PMI

Gabrielidis, Cristina/Riopelle, Sahyeh — In re A.M., D064420— UCCJEA Violation — Garry G. Haehnle, Judge — Opinion by Huffman, J., with Nares, J., McDonald, J. Juvenile court’s failure to contact Mexico court was error under the UCCJEA. Jurisdiction and disposition orders affirmed because the court was able to assert emergency jurisdiction. The juvenile court was directed to contact the court in Mexico. If the Mexico court assumes jurisdiction and commences proceedings in conformity with the UCCJEA, then the jurisdiction and disposition orders should be voided. If the Mexico court does not take any action after contact, the jurisdiction and disposition orders remain in effect. (I) LMF

Booher, Robert — People v. Gutierrez, E057817 — Unauthorized Sentence/Abstract of Judgment — Helios (Joe) Hernandez, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Court of Appeal agreed with appellant’s argument that trial court imposed an unauthorized sentence when it re-fashioned and increased the sentence on a probation case at the time of sentencing for a new offense. Because a sentence had already been pronounced, though suspended, in the probation case, the court was without authority to do anything but keep the sentence as it was or impose the terms at one-third the mid-term if consecutive to sentence imposed in the new case. In addition, abstract of judgment ordered corrected to reflect a conviction for assault by means of force likely to cause great bodily injury, rather than assault with a deadly weapon. (I) APJ

Coleman, Jared — People v. Tessman, D062372, (2014) 223 Cal.App.4th 1293 — Clerical Error — Harry Mark Elias, Judge — Opinion by Benke, Acting P.J., with Nares, J., Irion, J. concurring and dissenting. The Attorney General conceded and the Court of Appeal agreed that probation condition prohibiting entering a pawn shop must be modified to reflect trial court’s oral modification (allowed if approved by probation officer). The majority rejected, but dissent agreed with, appellant’s argument that reversal is required when trial court stated an untenable legal theory at the time it found appellant guilty of burglary. (A) APJ

Tobin, Amy — In re G.L, D064521 — Grant of Reunification Services Affirmed — Michael J. Imhoff, Comm. — Opinion by Benke, J., with Nares, J., McDonald, J. Counsel represented the respondent mother in this minor’s appeal that challenged the decision to grant mother reunification services. Mother had a lengthy history of drug and alcohol use, and failed to reunify with her other children. The juvenile court found mother made recent efforts at treatment, she had a strengthening bond with the two-year-old minor, and the father was receiving services. These circumstances provided clear and convincing evidence it was in the minor’s best interests that services be offered to mother. The appellate court agreed there was sufficient evidence to support these findings and affirmed. (I) LMF

Robertson, Thomas — In re Karah B., D063200 — Insufficiency of Evidence — Browder A. Willis, III, Judge — Opinion by Aaron, J., with McConnell, P.J., Nares, J. Court of Appeal reversed true finding that minor made a false statement of identity to a police officer during detention (Pen. Code, § 148.9, subd. (a)) because there was insufficient evidence minor was detained at the time of the statement. Court of Appeal also found that motion for acquittal, at the close of the prosecution’s case, should have been granted with respect to the allegation of possessing tobacco, because the prosecution presented no evidence that the minor possessed tobacco. The Attorney General argued forfeiture claiming that the motion for acquittal was limited to the false statement count, but the Court of Appeal disagreed that the motion was so limited. (A) HCC

Wrubel, Sharon — People v. Barbarin, E055565, — Sentencing Discretion — Michele D. Levine, Judge — Opinion by King, J., with McKinster, J., Richli, J. Matter remanded for re-sentencing where trial court sentenced appellant to consecutive terms of 30 years to life on four attempted murder convictions being unaware it had the discretion to sentence defendant concurrently on these counts. Two other clerical errors ordered corrected in the abstract of judgment. (I) PED

Babcock, Russell S. – People v. Garrett, D062969 – Prison Prior – Gale E. Kaneshiro, Judge – Haller, J., with Nares, Acting P.J., McDonald, J. Court erred in using the same 1990 prior robbery conviction to sentence appellant to both a one-year term for a prior prison term enhancement and a five-year term for a prior serious felony conviction enhancement. One-year prior enhancement stricken. (I) LAR

Schuck, John F. — People v. Arnold, G048110 — Abstract of Judgment — Sheila F. Hanson, Judge — Opinion by Bedsworth, J., with Rylaarsdam, J., Aronson, J. Abstract of judgment modified to reflect pandering sentence was stayed under Penal Code section 654. (I) PMI

Bjerkhoel, Alissa — People v. Morris, D062443 — Motion to Suppress Evidence — Frederick Maguire, Judge — Opinion by McIntyre, J., with McConnell, P.J., Haller, J. Judgment reversed. After appellant was unable to produce a valid driver’s license during a traffic stop, the officer decided to impound the car and began to inventory the contents of the car in anticipation that the car would be impounded. During the inventory search, the officer found a small digital scale and a closed eyeglasses case that he opened revealing a plastic bag containing what appeared to be methamphetamine. Ultimately, because the car was legally parked and defendant had been arrested and was cooperative, the officer decided not to impound the car. The Court of Appeal found that the People failed to satisfy their burden of establishing the search of appellant’s car was conducted pursuant to a standardized inventory procedure. The People did not present evidence of any policy regarding the opening of closed containers during an inventory search. Thus, the search was unlawful. (A) BCT

Harris, Donna — People v. Smith, E057663 — Plea and Sentencing — Becky Dugan, Judge — Opinion by McKinster, J., with Hollenhorst, J., Codrington, J. Appellant was charged with numerous offenses by multiple informations. After an apparent agreement was reached, pleas were taken to multiple offenses from the various informations in a single proceeding. Because the oral pleas did not match the pleas on the plea form or to the charges in the various informations, and the sentencing did not match up with the admitted counts, both parties and the court agreed that remand was necessary. (I) HCC

Wrubel, Sharon/Martin, Arthur — People v. Replogle/Bustamente, E053711 — Fines/Fees — David B. Downing, Judge — Opinion by Miller, J., with McKinster, J., Richli, J. Abstract of judgment ordered amended to reflect the trial court’s striking of the booking fee based on inability to pay as to Replogle. As to both appellants, the following modifications ordered: reduce the restitution fine by $200, the court facility fee by $30, and the court security fee by $40, because the defendants were convicted of nine, not ten, counts. (I) AMJ

January 2014

Mazur, Janice — People v. Mosley, D062033 — Insufficient Evidence — Dale R. Wells, Judge — Opinion by Huffman, J., with Benke, Acting P.J., McDonald, J. Appellant argued that his convictions of 10 counts of robbery were not supported by substantial evidence. Court of Appeal agreed at least with respect to eight of the counts in this case where appellant was shown to be connected with the most recent of the robberies and his involvement in prior robberies was entirely dependent upon speculation based upon similar modus operandi. Case remanded for re-sentencing and sentence of 33 years should be reduced by at least half. (I) APJ

Peabody, Jennifer — People v. Nathan, D063283 — Fines — Desiree Bruce-Lyle, Judge — Opinion by McDonald, J., with McConnell, P.J., Haller, J. Trial court erred in imposing a $600 restitution fine and $600 parole revocation fine after probation was revoked and prison ordered, because the initial order for the fines was $200 each. The fines were stricken and replaced by the lower amounts. Upon a claim that the trial court failed to provide a breakdown of the laboratory fee ($190) and drug program fee ($570), the Court of Appeal corrected the amounts, upon concession of the parties, to $145 and $435, respectively. (I) AMJ

De La Sota, Richard — People v. Patton, G047488 — Credits — James A. Stotler, Judge — Opinion by O’Leary, J., with Aronson, J., Fybel, J. Trial court erred in ordering actual days of credit in that defendant was entitled to two more days for a total of 1,237 days. It erred in failing to order any conduct credits. Court of Appeal ordered 185 days conduct credits under Penal Code section 2933.1 for a grand total of 1,422 days. (I) AMJ

Kreit, Alex — People v. Burgan, D064075 — Lesser Included Offense — Kathleen M. Lewis, Judge — Opinion by Haller, J., with Benke, Acting P.J., Irion, J. Petty theft conviction stricken because it is an offense necessarily included within the offense of robbery and convictions of both offenses in this case were based upon the same taking. (A) APJ

Stralla, Ava – People v. Murguia, E055598 – Penal Code Section 654 – Elisabeth Sichel, Judge – Opinion by Miller, J., with Ramirez, P.J. and Hollenhorst, J. Court of Appeal ordered appellant’s sentence for possessing marijuana for sale (Health & Saf. Code, § 11359) stayed pursuant to Penal Code section 654 because appellant was punished for possession of marijuana in prison (Pen. Code, § 4573.6) based upon the same conduct. The modification occurred after a petition for rehearing. In the original opinion, the Court of Appeal rejected the 654 argument, concluding appellant could be punished for both offenses because he had different intents when possessing the marijuana. (I) LKH

Olsen, Nancy — People v. Hall, E056037 — Penal Code Section 654 — Honorable Gary B. Tranbarger, Judge — Opinion by Ramirez, P. J., with Hollenhorst, J., Codrington, J. Despite having explicitly stated an intent to stay sentence on 15 counts of being a felon in possession of a firearm, trial court imposed concurrent sentences. Case remanded for court to make a determination as to whether Penal Code section 654 applies. Also, trial court ordered to correct the abstract of judgment and minute order to reflect court’s oral pronouncement of judgment with respect to 4 counts. (I) CBM

Coleman, Jared — People v. Crocker, D063692 — No Contact Order — Edward P. Allard, III, Judge — Opinion by Huffman, J., with McIntyre, J., Irion, J. In a case where appellant was convicted of counterfeiting offenses and possessing child pornography, the trial court sentenced appellant to seven years in prison and ordered that he have no contact with his grandneice, whom the court found to be a potential victim of appellant’s “perverse interest in young girls.” Court of Appeal found that more was needed justify trial court’s no contact order where appellant’s grandneice was not a victim in this case and there was no evidence appellant posed a threat or had the intent or means to contact her during his seven years of imprisonment. (A) HCC

Irza, Helen — People v. Roberts, E054912 — Sufficiency of Evidence — Mark E. Petersen, Judge — Opinion by McKinster, J., with Richli, J., Miller, J. Conviction of intimidating a witness reversed because no crime had been committed when alleged threats were made. (I) DKR

Lubliner, Steven – People v. Bruner, E056154 – Sentencing – Rodney A. Cortez, Judge – Opinion by Richli, J. with McKinster, Acting P.J., Miller, J. The trial court erred in imposing two prison prior enhancements where the prison terms were served concurrently. One prison prior enhancement ordered stricken. In addition, the matter is remanded to the trial court to correct the pre-sentence custody credits as follows: (1) the actual number of days should be 91 days, not 85 days; (2) appellant was entitled to pre-sentence conduct credit calculated from the date of his re-arrest (January 14, 2012, not February 27, 2012); (3) appellant is entitled to post-sentence conduct credit at a rate of one-for-one in accordance with Penal Code section 2933, subdivision (b) (rather than two for four days). (I) LKH

Seaman, Clayton — People v. Ibrahim, D062647 — Insufficient Evidence Out-of-State Strike — Amalia L. Meza, Judge — Opinion by Benke, Acting P. J., with Nares, J., Irion, J. Attorney General conceded and Court of Appeal agreed that the record provided insufficient evidence appellant’s prior Minnesota first-degree burglary conviction was equivalent to a California serious or violent felony. The evidence in the admitted Minnesota complaint showed only that appellant had entered a home in Minnesota to commit an assault. It did not prove the target crime constituted a felony assault in California; the target crime could have been a misdemeanor. Because the record did not show the Minnesota crime constituted a serious or violent felony in California, appellant’s sentence was vacated and the strike and serious felony prior findings were reversed. Cause remanded to allow government to retry the allegations. (I) CBM

Cannon, Gregory — People v. Davis, E056171 — Insufficient Evidence — Kyle S Brodie, Judge — Opinion by Richli, J., with King, J., Miller J. One of appellant’s two convictions for concealing stolen property reversed where prosecution failed to prove that the checks subject to those counts were concealed by appellant on two separate occasions. (I) MCR

Paradis, Renee — People v. Emery, G047524 — Sentencing After Revocation of Probation — Nicholas S. Thompson, Judge — Opinion by Fybel, J., with O’Leary, J., Moore, J. Court of Appeal agreed with appellant’s argument that case must be remanded for re-sentencing where record showed trial court did not understand it had discretion to reinstate probation after revocation, even in a case where sentence had been imposed but suspended at the time probation was granted. (A) APJ

Norman, Jan — People v. Ambriz, G047906 — Victim Restitution — Daniel Barrett McNerney, Judge — Opinion by Aronson, J., with O’Leary, J., Bedsworth, J. Trial court imposed direct victim restitution for mental health services rendered to the family of appellant’s molestation victims, and also for services rendered to someone named Rutkevicius. Court of Appeal reversed portion of victim restitution award for services to Rutkevicius because the prosecution failed to carry its burden of establishing Rutkevicius had any connection to the victim or the family.
(I) NFA.

Booher, Robert — People v. Harris, D062783 — Abstract of Judgment — George W. Clarke, Judge — Opinion by McIntyre, J., with McConnell, J., & Huffman, J. Abstract of Judgment modified by reducing fine from $33,660 to $3,360 to reflect the trial court’s oral pronouncement. (I) PMI

Irza, Helen — People v. Rodriguez, E056642 — Fines — Elisabeth Sichel, Judge — Opinion by McKinster, Acting P.J., with Richli, J., and Miller, J. (1) Because the trial court expressly declined to impose the criminal conviction fee under Government Code section 70373, inclusion of this fee on the abstract of judgment is a mistake; entry ordered stricken. (2) Because the court intended to impose the minimum restitution fine, that fine is reduced from $240 to $200, the minimum fine under the code section in effect at the time appellant committed his offense. (I) CBM

Staley, John – People v. Stewart, E057199 – Penal Code Section 654 – Gary B. Tranbarger, Judge – Opinion by Hollenhorst, J. with Ramirez, P.J., Codrington, J. Sentences for active participation in a gang and false imprisonment stayed where the active participation conviction was based on appellant’s involvement in the false imprisonment and robbery offenses, and the false imprisonment offenses were committed to facilitate the robbery offenses. (I) LKH

Pirko, Johanna/Farber, William – People v. Thomas/Draper, E055952, Insufficient Evidence/Sentencing – Bryan Foster, Judge – Opinion by Richli, J. with Ramirez, P.J., Codrington, J. Draper’s conviction for active participation in a criminal street gang is reversed because there was no evidence Thomas was a member of the BSC gang, and no other participants with gang affiliation were implicated in the crime. (People v. Rodriguez (2012) 55 Cal.4th 1125.) Thomas and Draper’s convictions for felony transportation of marijuana are reduced to misdemeanors because they did not transport more than 28.5 grams of marijuana. In addition, Thomas’s three year sentence for the Health and Safety Code section 11370.2 enhancement is reversed since he was found not guilty of a qualifying crime. And, because Thomas’ sentence has been reduced, the restitution fine must be recalculated accordingly. (I) LKH

Ballantine, Jean — People v. Gatison, E057097 — Credits — Gerard S. Brown, Judge — Opinion by Hollenhorst, J., with Ramirez, J., Codrington, J. Where appellant’s in-prison offense resulted in both an extension of the parole custody he had been serving at the time of the offense and also a new sentence for the new offense, appellant was entitled to credit against his new sentence for the time served on the extension of his parole because he would have been free from custody in the parole case were it not for the new offense. (I) AMJ

Bases, Arielle — In re B.L., E059107 — Maximum Term of Confinement/ Presentence Custody Credits — Walter H. Kubelun, Judge — Opinion by Codrington, J., with Ramirez, P. J., Hollenhorst, J. After ordering minor be placed at an out-of-state facility, trial court incorrectly calculated the maximum term of confinement at six years, two months. Correct maximum term should be six years: five years for the robbery, eight months for the second-degree burglary, and four months for the attempt criminal threat conviction. Trial court erred when it also failed to update minor’s presentence custody credits. Court of Appeal agreed with counsel’s calculation that these credits should be 73 days. (A) CBM

Wells, Mary — People v. Williamson, E055227 — Insufficient Evidence — Alfred J. Wojcik, Judge — Opinion by Codrington, J., with Hollenhorst, King, J. Court of Appeal reversed one count of forced oral copulation of a child where there was insufficient evidence of force or fear; count was reduced to the included offense of non-forcible oral copulation of a child. (I) NFA

Lubliner, Steven — People v. Goolsby, E052297, (2014) 222 Cal.App.4th 1323 — Insufficient Evidence Arson of Inhabited Structure — Bryan Foster, Judge — Opinion by McKinster, J., with Codrington, J., Richli, concurring and dissenting. Published decision reversing conviction for arson of an inhabited structure (Pen. Code, § 451, subd. (b)) because the motor home appellant set ablaze was not a “structure.” The court found it could not reduce the judgment to arson of property (§ 451, subd. (d)) because, due to that offense’s express inapplicability to structures, it is not a lesser included offense within arson of a structure. Further, the court declined to permit a retrial on the previously uncharged, related, offense of arson of property because this would violate the Kellett proscription against splitting causes of action. (Kellett v. Superior Court (1966) 63 Cal.2d 822.) As a result, appellant’s 25-year-to-life Three Strikes judgment was reversed with an order to dismiss. (I) NFA

Babcock, Russell — People v. Holmes, D062866 — Abstract of Judgment — Frederick L. Link, Judge — Opinion by McDonald, J., with Aaron, J., Irion, J. Although the trial judge imposed the California prison sentence concurrently to another state prison sentence, the abstract of judgment recorded the sentence as consecutive. The Court of Appeal ordered the abstract to be amended to conform with the oral pronouncement. (I) HCC

Dodd, John — People v. Sanchez, G047666, (2014) 223 Cal.App.4th 1 — Insufficient Evidence Gang Offense — Steven D. Bromberg, Judge — Opinion by Moore, J., with Ikola, J., Thompson, J. Following People v. Rodriguez (2012) 55 Cal.4th 1125, the Court of Appeal reversed count of being an active gang participant where the evidence was that appellant committed the underlying offense alone. The court published the decision because elsewhere in the opinion it rejected various defense challenges to the admission of gang STEP notices to prove appellant’s gang membership. (I) NFA

Fitzer, Richard — People v. Yarborough, E059036 — Restitution — Victoria E. Cameron, Judge — Opinion by McKinster, J., with Hollenhorst, Acting P.J., King, J. Court of Appeal agreed that restitution order should be joint and several with appellant’s co-defendant, her husband. (I) APJ

Torres, Tonja — People v. DeSales, E055220 — Penal Code Section 654 — Helios Hernandez, Judge — Opinion by McKinster, J., with Richli, J., Miller, J. Sentence for gang participation ordered stayed pursuant to Penal Code section 654 where the defendant’s murder conviction was the sole basis for the felonious conduct element of the gang count. Case remanded for re-sentencing. (I) PED

Katz, Paul — People v. Ismail, D063517 — Attorney Fees — Frederick Maguire /Leo Valentine, Jr., Judges — Opinion by Irion, J., with Huffman, J., O’Rourke, J. Trial court erred by ordering attorney fees because it did so without first conducting a hearing on ability to pay. It was also error to condition probation on payment of those fees, because such condition is not legally permitted. Case is remanded for a hearing and the order making payment a condition of probation is reversed. (A) AMJ

Bookout, Randall — People v. Garay, G047554 — Credits — Thomas M. Goethals, Judge — Opinion by Bedsworth, J., with Moore, J., Fybel, J. The judgment is modified to award appellant 226 days of presentence conduct credit for a total of 1,735 days (1,509 actual + 226 conduct). The trial court erred when it failed to award any presentence conduct credits. (I) PMI

Hermansen, Kurt – In re Heard, D063181, (2014) 223 Cal.App.4th 115, Cruel and Unusual Punishment under Caballero – Opinion by Huffman, J. with Benke, Acting P.J. and Haller, J. Petitioner’s sentence of 23 years for manslaughter, plus 80 years to life for two counts of attempted murder is reversed and the matter remanded for re-sentencing. Petitioner was 15 years old when he committed the attempted murders, and 16 years old when he committed the voluntary manslaughter. In the habeas proceeding, petitioner argued his sentence was equivalent to a sentence of life without the possibility of parole, in violation of People v. Caballero (2012) 55 Cal.4th 262. The Attorney General’s office argued Caballero did not apply because petitioner pled guilty to voluntary manslaughter, a homicide offense. The Court of Appeal rejected this argument and also determined the recently enacted Senate Bill No. 260 did not render the petition moot. (I) LKH

Brody, Steven — People v. Casica, G048097, (2014) 223 Cal.App.4th 320 — Penal Code Section 654 — Michael J. Cassidy, Judge — Opinion by Moore, J., with O’Leary, P.J., Ikola, J. Court of Appeal agreed with appellant’s argument that Penal Code section 654 prohibited double punishment for burglaries and target forgery offenses. In doing so, the court rejected the Attorney General’s “tortured logic” in arguing that on the date of the check forging appellant entertained an intent to take money from the owner’s account and on the date of the check cashing she entertained a separate intent to deceive the bank employees. (A) APJ

Hinkle, Stephen — People v. Carter, D062981 — Self-Representation/Plea Withdrawal — John M. Thompson, Judge — Opinion by Huffman, J., with McConnell, P.J., Aaron, J. Court of Appeal has remanded the case “to allow further appropriate proceedings” after determining that the trial court erroneously denied appellant’s request to represent himself for sentencing (after guilty plea with indicated sentence) and his right to move to withdraw the plea (either through counsel or in propria persona). (I) APJ

Evans, Suzanne — In re Victor R., D064442 — Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) — Garry G. Haehnle, Judge — Opinion by O’Rourke, J., with McConnell, J., Benke, J. Reversal of the jurisdictional and dispositional findings and orders where the trial court lacked UCCJEA jurisdiction. Case remanded for proceedings under the UCCJEA. The San Diego Health and Human Services Agency and the minor conceded the issue. The Court of Appeal also denied San Diego Health and Human Services Agency’s request to augment the record with postjudgment items opposed by the appellant as not relevant. (I) CAG

 

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