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The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.

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Cases are posted on the Recent Victories page only after the remittitur issues.

November/December 2015

Johnson, Christine E./Serobian, Liana — In re I.S., E063179 — Indian Child Welfare Act (ICWA) — Jacqueline C. Jackson, Judge — Opinion by Miller, J., with Ramirez, P.J., King, J. Termination of parental rights reversed with a limited remand to properly notice the Shawnee Tribe. Father claimed Cherokee and Shawnee heritage on his ICWA-020 form. When interviewed by the social worker, the paternal great-grandmother mentioned the possibility of only Cherokee heritage. Only the Cherokee tribes received ICWA notice. The agency argued there was a conflict in the evidence regarding possible Shawnee heritage, so the error was harmless. Court of Appeal observed there was no conflict in the evidence that father claimed both Shawnee and Cherokee heritage. Notice to the Shawnee tribe was therefore required. (A)/(I) LMF

Rollo, Sharon S./Rehm, Linda — In re K.M., E063023 — Section 388 Petition/Visitation — Jacqueline C. Jackson, Judge — Opinion by McKinster, J., with Ramirez, P.J., King, J. Parents argued and Court of Appeal agreed that trial court erred in summarily denying one of seven Welfare and Institutions Code section 388 petitions filed by the parents in pro per requesting a more specific visitation order. Court stretched “the limits of liberal construction” to find the notice of appeal included this specific 388 petition. In focusing on the trial court’s summary denial of the parents’ 388 petition, Court of Appeal held the trial court implicitly found the parents had made a prima facie showing and, without considering any evidence, the summary denial was an abuse of discretion. Reversed for a new hearing on the specific section 388 petition identified. (I) LLF

Dorian, Melanie K. — In re Paz, G051954 — Notice of Appeal — Cheri T. Pham, Judge — Opinion by O’Leary, P.J., with Aronson, J., Thompson, J. Petition seeking relief from the failure to file a timely notice of appeal from the post-judgment order regarding an ability to pay hearing is granted. The principle of constructive filing of a notice of appeal is applied where trial counsel intended to appeal the court’s post-judgment order but failed to do so, believing that the notice of appeal filed from the judgment would encompass the later hearing and order. (I) AMJ

Brines, Cindy — In re R.V., G046961 — Burden of Proof and Standard of Review Regarding Minor’s Competency — Deborah C. Servino, Judge — Opinion by Ikola, J., with Rylaarsdam, J., Thompson, J. This opinion was issued after remand from the California Supreme Court (S212346) where the Court held: (1) minor bore the burden of proving his incompetency, (2) the substantial evidence standard of review applied to the juvenile court’s determination minor was competent, and (3) “the weight and the character of the evidence of incompetency was such that the juvenile court could not reasonably reject it.” Therefore, on remand, Court of Appeal reversed the juvenile court’s judgment and remanded for further proceedings consistent with the Supreme Court’s opinion. (A) BCT

Ball, Lindsey M. — People v. Jakul, D067697 — Prison Priors — Michael A. Smith, Judge — Opinion by Huffman, J., with McConnell, P.J., McDonald, J. In its oral pronouncement of sentence, the trial court did not mention the existence of the prison priors; however, the minutes and abstract of judgment reflect consecutive sentences for those priors. Remanded for the trial court to exercise its discretion to strike or impose the prison priors. (A) MCR

October 2015

Johnson, Mark D. — People v. Nelson, E061050, (2015) 240 Cal.App.4th 488 — Insufficient Evidence Dissuading a Witness — Mark Madino, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. Court of Appeal reversed appellant’s conviction for dissuading a witness based on insufficient evidence because there was no evidence appellant tried to prevent the witness from testifying. (I) MCR

Ferguson, Susan L. — People v. Lamb, D066152 — Lesser Included Offense — John M. Thompson, Judge — Opinion by Nares, J., with McConnell, P.J., Huffman, J. Appellant was convicted of both robbery and petty theft with a prior, based on the same theft. But a defendant cannot be convicted both of robbery and petty theft with a prior, arising from the same incident, because the prior conviction is a sentencing factor, rather than an element, so petty theft with a prior is a lesser included offense of robbery. Respondent conceded error, and Court of Appeal agreed. (I) HCC

Hinkle, Stephen M. — People v. Pizano, D067265 — Proposition 47 — Donal B. Donnelly/Poli Flores, Judges — Opinion by O’Rourke, J., with McConnell, P.J., Huffman, J. Appellant petitioned to have a second degree burglary – “shoplifting” from Walmart where the undisputed value was less than $67 – reduced to a misdemeanor under Proposition 47. The district attorney opposed and the superior court denied the petition on the ground that Penal Code section 459 was not specifically listed in section 1170.18. Respondent conceded this was error and Court of Appeal agreed. (I) HCC

Bishop, Rosemary — In re Eric A., D067898 — Placement with Non-Custodial Parent — Michael J. Imhoff, Commissioner — Opinion by Huffman, J., with McDonald, J., McIntyre, J. Father argued that the trial court erred in finding detriment in placing the children with him in Kansas. Respondent agency conceded the trial court’s error and made a motion for judicial notice to show the agency had changed its position since the disposition hearing and now recommended immediate placement of the children with father. Court of Appeal accepted the concession and reversed the detriment finding. The case was remanded for further dispositional orders based on the children’s current situation. (I) LLF

Grove, Kimberly J. — People v. Daniels, D068056 — Penal Code Section 654 — Angel M. Bermudez, Judge — Opinion by Huffman, J., with McConnell, P.J., Benke, J. The judgment is modified to stay appellant’s sentences for burglary (counts 1 & 4). Because appellant was sentenced to 25 years to life based upon a Penal Code section 667.61 finding that he committed the sex offenses during a first degree burglary (Pen. Code, § 667.61, subd. (d)(4)), and the minimum number of circumstances were found true, appellant could not be separately sentenced on the burglaries. (I) LKH

White, Catherine — People v. Hernandez, D067440 — Fines — Mark A. Mandio, Judge — Opinion by Benke, J., with Huffman, J., Irion, J. The fine imposed under Penal Code section 290.3, which applies to sex offenses, as amended in 2006 ($300 for first offense; $500 for each subsequent offense), violated the ex post facto clause because the evidence did not support beyond a reasonable doubt that the offenses occurred after the 2006 amendment. The fines are reduced to $200 for the first offense and $300 for subsequent offenses. (I) AMJ

Vogelmann, Monica — In re D.S., D068131 — Indian Child Welfare Act (ICWA) — Kimberlee A. Lagotta, Judge — Opinion by McDonald, J., with McConnell, P.J., Irion, J. Juvenile court found ICWA notice was not required and terminated parental rights. The court previously held a special hearing to review the Agency’s ICWA notices and found ICWA did not apply because it had been 60 days since notice was sent to 19 tribes and all but the Cherokee nation had responded. However, the Agency had sent inaccurate information to 18 of the tribes and it received a request for more information from the Cherokee nation 11 days after it mailed its notice. Further, the Agency sent an e-mail responding to the Cherokee nation 13 days before the special hearing but did not provide notice of the hearing. Court of Appeal determined the juvenile court mistakenly assumed the Agency gave proper notice and it conditionally reversed the order terminating parental rights for compliance with the ICWA subject to reinstatement if the child is not an Indian child. (I) LMF

Parekh, Amy — People v. McDonald, E060529 — Fines/Fees/Forfeiture — Gary B. Tranbarger, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. Court of Appeal agreed with appellant that trial court imposed a booking fee of $450.34, a probation report fee not to exceed $1,095, a probation supervision fee not to exceed $3,744, and presentence incarceration costs of $996.94, without holding the required hearing regarding ability to pay and with insufficient evidence in the record to support an implied finding of ability to pay. Court of Appeal rejected respondent’s argument that the right to a hearing had been forfeited in this case where trial counsel did object to one of the fees and the trial court’s answer made it clear that it would not be holding a hearing with regard to any of the fines or fees. Further objection would have been futile. Case remanded for hearing on ability to pay the fines/fees. (A) APJ

Smith, Barbara A. — People v. Pennello, E061537 — Attorney’s Fees — William Jefferson Powell IV, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Codrington, J. Appellant moved to withdraw his guilty plea which resulted in a sentence of 25-years-to-life on the grounds that he pleaded guilty only to get away from the intolerable abuse he was suffering at the hands of a custodial deputy. As part of the motion, appellant claimed that he and other inmates had a multimillion-dollar lawsuit pending against that deputy and others. After denying the motion, the trial court imposed attorney’s fees. In response to trial counsel’s argument that appellant could not afford to pay given his long sentence, the trial court responded that such a claim was inconsistent with “the concept that he was actually abused and has a multimillion lawsuit pending.” Respondent conceded and Court of Appeal agreed that this basis for finding ability to pay was merely speculative. Fee stricken. (I) APJ

Moller, Richard Jay — People v. Rubio, D067806 — Proposition 47 — Poli Flores, Jr., Judge — Opinion by Huffman, J., with Haller, J., McIntyre, J. Trial court’s order denying appellant’s petition for resentencing under section 1170.18 is reversed. The case is remanded to the superior court with directions to reconsider the petition. The trial court denied the petition because it determined burglary was not one of the enumerated crimes. (I) LKH

Olsen, Nancy/Harris, Donna L. — People v. Montecastro/Pedrino, E060533 — Insufficient Evidence/Sentencing — Jeffrey Prevost, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Codrington, J. Court of Appeal found that there was insufficient evidence of the sale or of an offer to sell a “commodity” to support seven of the 304 counts for which appellant was found guilty. In addition, the amount of direct victim restitution needed to be corrected and the trial court also erred by ordering appellant not to own or possess a firearm, a deadly weapon, or ammunition. (I) LAR

Garfinkle, Elizabeth — People v. Tuthill, G050469 — Proposition 36/Penal Code Section 1170.126 — Richard Luesebrink, Judge — Opinion by Rylaarsdam, J., with Moore, J., Thompson, J. Court of Appeal found appellant’s conviction for nonviolent escape (Pen. Code, § 4532) was not a serious or violent felony for Penal Code section 1170.126 purposes. The sentencing court had imposed a Three Strikes life term for nonviolent escape from a peace officer. The trial court at the section 1170.126 hearing denied relief based on its finding appellant was armed with a firearm at the time of the offense. However, Court of Appeal found that appellant was not armed because he was already arrested and divested of the gun when he escaped. Remanded for a Proposition 36 hearing on “dangerousness.” (I) NFA

Shaler, Susan K. — People v. Wagner, D068061 — Instructional Error — Shahla S. Sabet, Judge — Opinion by Nares, J., with McConnell, P.J., Huffman, J. In a drive-by shooting murder, the People’s theory was that appellant was the shooter and, hence, the court did not instruct on aiding and abetting. The jury, in the midst of deliberation, sent a note to the court asking for clarification about whether “just being” (original underscoring) at the scene of the murder constituted “‘committing an act that caused the death of another person.’” Over objection of defense the court declined to answer “No.” The jury found appellant guilty of murder but found not true allegations that he personally used/discharged a firearm. The Court of Appeal found it was an abuse of discretion under Penal Code section 1138 for the court not to clear up the jury’s confusion regarding mere presence at the scene. In addition, the Court of Appeal found it was error for the court not to instruct on aiding and abetting, given that the evidence supported such an instruction. Finding that these errors were prejudicial, the Court of Appeal reversed the conviction and remanded for further proceedings. (I) HCC

Nalls, Christopher — People v. Olmedo, G049984 — Presentence Credits — Sheila F. Hanson, Judge — Opinion by Fybel, J., with Bedsworth, J., Thompson, J. Judgment modified to award appellant three additional days of presentence credit. (I) BCT

Quinlan, Sheila — People v. Mangrobang, E061223 — Credits — Michael B. Donner, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Miller, J. Respondent conceded and Court of Appeal agreed that the credits were incorrect and appellant is entitled to 461 days total credits, not 410 days. (I) AMJ

Fates, Amanda — In re D.S., D067269 — Proposition 47 — Aaron H. Katz, Judge — Opinion by Huffman, J., with McConnell, P.J., McDonald, J. Juvenile court erred in finding that Proposition 47 did not apply to juvenile delinquency proceedings. In light of Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, which holds the opposite, the Court of Appeal remanded the cause for the juvenile court to rule on the minor’s Proposition 47 petition. (A) HCC

Wass, Valerie G. — People v. Boselly, D066810 — Lab Fee/Probation Costs — Poli Flores, Jr., Judge — Opinion by Huffman, J., with McConnell, P.J., Prager, J. Probation order is modified to strike laboratory fee as unauthorized because this case is not a drug case. Condition requiring payment of supervision costs is stricken because not supported by substantial evidence of an ability to pay. (I) DKR

Weis, Lizabeth — People v. Thomas, E060738 — Penal Code Section 654 — Rodney A. Cortez, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. Respondent conceded and Court of Appeal agreed that appellant’s sentences for dissuading a witness and assault with intent to commit rape must be stayed pursuant to Penal Code section 654. The dissuading a witness conviction was based upon the same act of taking a phone as appellant’s separately punished robbery conviction and the assault conviction was based upon the same act as the attempted kidnapping conviction. Because appellant had received consecutive sentences for these convictions, sentence is reduced from 100 years-to-life to 50-years-to-life. (I) PMI

Hennessey, Jr., Patrick J. — People v. O’Connor, D066736 — Protective Order — Carlos O. Armour, Judge — Opinion by O’Rourke, J., with McIntyre, J., Aaron, J. Unauthorized protective order under Penal Code section 646.9, subdivision (a), which deals with stalking, is stricken where defendant’s conviction was for committing a lewd act upon a child under Penal Code section 288.5, subdivision (a). (I) PMI

Garfinkle, Elizabeth — People v. Soul, G050349 — Insufficient Evidence — Jonathan S. Fish, Judge — Opinion by Thompson, J., with Rylaarsdam J., Moore, J. Court of Appeal agreed the evidence was insufficient to support a pandering conviction where the prosecution failed to prove appellant caused, persuaded, or encouraged the woman to engage in prostitution by means of promises, threats, violence, or by any device or scheme. (I) AMJ

Ford, Patrick Morgan — People v. Buckley, D066227 — Stalking Multiple Convictions — Louis R. Hanoian, Judge — Opinion by O’Rourke, J., with McIntyre, J., Irion, J. Appellant was charged with three counts of stalking, arising out of one continuous criminal act of stalking beginning November 2010 and ending September 2012. Court of Appeal concluded appellant could properly be convicted of only one charge and vacated the conviction and sentence for two counts. (I) LKH

Conrad, Leslie — People v. Walker, D068683 — Insufficient Evidence of Special Circumstances — Angel M. Bermudez, Judge — Opinion by Aaron, J., with McDonald, J., O’Rourke, J. Court of Appeal found that no rational trier of fact could have found that the evidence supported true findings as to appellant on the felony-murder special-circumstances allegations because there was no evidence appellant, as a non-killer, knowingly created a grave risk of death to the victim. (I) LAR

Kington, Benjamin B. — People v. Gaytan, D066280 — Sentencing — Harry M. Elias, Judge — Opinion by McIntyre, J., with Aaron, J., Irion, J. Trial court erred in failing to properly exercise its discretion in considering a split sentence. Also, remanded for the trial court to reconcile its oral pronouncement of sentence with the minute order and abstract of judgment on the Penal Code section 654 issue. (A) LAR

Larson, Eric R. — People v. Woods, D066741, (2015) 241 Cal.App.4th 461 — Jury Instructions/Lesser Included Offense — John M. Thompson, Judge — Opinion by Aaron, J., with McConnell, P.J., McDonald, J. Trial court’s error in failing to instruct the jury on the lesser included offense of non-forcible oral copulation with a minor with respect to charges of forcible oral copulation with a minor results in reversal of nine counts. (I) PMI

Booher, Robert — People v. Quintero, G051200 — Proposition 47 — Vicki Hix, Temporary Judge — Opinion by Moore, J., with Fybel, J., Ikola, J. Court of Appeal remanded where the record is ambiguous as to how the trial court calculated the sentence after it reduced defendant’s felony conviction to a misdemeanor. Also, following the court’s prior opinion in People v. Armogeda (2015) 240 Cal.App.4th 1039, appellant’s excess credits must be applied to reduce his parole period and fines. (I) PMI

Nalls, Christopher A. — People v. Garcia, E059452, (2015) 240 Cal.App.4th 1282 — Sentencing — Ronald L. Johnson, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. Three-year enhancement under Penal Code section 12022.7, subdivision (a) (great bodily injury) must be stayed where the trial court also imposed a 25 -years-to-life enhancement under section 12022.53, subdivision (d), for intentionally discharging a firearm with great bodily injury. (I) PMI

Schwartzberg, Richard — People v. Fullbright, D067560 — Insufficient Evidence — William D. Lehman, Judge — Opinion by Huffman, J., with Haller, J., Aaron, J. Appellant was convicted of four counts of battering four correctional officers during a melee that ensued when he refused to move away from the prison library computer after his time was up. The battery conviction as to one officer is reversed for insufficient evidence because there was no evidence it was appellant who struck her or caused someone else to strike her. (I) PMI

Kopas, Marleigh A. — People v. Lamoureux, D067451 — Insufficient Evidence of Special Circumstances — Angel Bermudez, Judge — Opinion by Haller, J., with McIntyre, J., Aaron, J. Court of Appeal reversed special circumstance findings and life-without-parole sentence as to this appellant who, along with a co-appellant, was convicted of felony murder based upon her role in planning a robbery that resulted in the death of the victim. Court of Appeal found that while appellant’s role in planning the robbery was sufficient to support her felony murder conviction, the fact that she was not present for the actual robbery rendered the evidence insufficient to support the special circumstance findings that she committed the murder during a burglary and robbery. Because she stayed home during the execution of the robbery, she was neither a major participant nor did she act with reckless indifference to life. The court also struck a crime prevention fee that does not apply to appellant’s convictions and remand for the trial court to modify the restitution fine using a rational method that acknowledges the minimum fine at the time of the offense. (I) NFA

September 2015

Power, Richard — People v. George, E062403 — Sentencing — Michael B. Donner, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. This is an appeal from a resentencing that occurred as the result of a note from the Department of Corrections and Rehabilitation while appellant’s first appeal was still pending. The resentencing, which occurred without the benefit of the Court of Appeal’s opinion in the prior appeal, contained errors that were addressed in the prior appeal: 1) failure to stay sentence for active participation in a street gang pursuant to Penal Code section 654; and 2) failure to state reasons for imposing fully consecutive terms pursuant to Penal Code section 667.6, subdivision (c). Court of Appeal modified the sentence to stay the term for count 3, and remanded for resentencing on counts 1 and 2. (I) LAR

Buckley, Christian C. — People v. Rollen, D067473 — Serious Felony Prior Enhancement/Presentence Credits — Richard A. Erwood, Judge — Opinion by Aaron, J., with McDonald, J., O’Rourke, J. Attorney General conceded and Court of Appeal agreed that only three of four serious felony priors were brought and tried separately and, thus, only three five-year enhancements could be imposed. Court of Appeal stayed, rather than struck, the “fourth” serious felony prior per California Rules of Court, rule 4.447. (Then, in response to a petition for rehearing, agreed to vacate the invalid enhancement.) In addition, Court of Appeal remanded for trial court to calculate and award presentence conduct credits, which it had neglected to do. (I) APJ

Leroy, Doris M. — People v. Rodriguez, G049977 — Jury Instructions/Insufficient Evidence/Gang Participation — W. Michael Hayes, Judge — Opinion by Ikola, J., with Aronson, J., Thompson, J. Appellant’s conviction for second degree murder reversed where the court prejudicially erred by failing to instruct the jury with CALCRIM No. 3470 on self-defense. In addition, appellant’s conviction for active participation in a criminal street gang reversed for insufficient evidence where there was no evidence that appellant participated with another member of his gang in the incident. (I) PMI

White, Catherine — People v. Brown, E059735, (2015) 240 Cal.App.4th 469 — Unanimity/Insufficient Evidence/Rape — Rodney A. Cortez, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. Appellant was convicted of rape in concert of a minor, forcible rape, rape of an intoxicated person and rape of an unconscious person. There were two separate occasions of rape, an initial rape involving multiple gang members, and a subsequent rape at a nearby vacant apartment. While there was evidence of appellant’s involvement in the initial rape, the prosecution relied entirely on the second rape to support appellant’s charges. Court of Appeal found that when the prosecution makes such an election, it is bound by the election on appeal and, because insufficient evidence supports the convictions of rape in concert and forcible rape, those convictions must be reversed. In addition, because the convictions of rape of an intoxicated person and rape of an unconscious person merge into a single offense, the sentence must be reduced from 29 years to 8 years. (I) HCC

de la Sota, Richard — People v. Garcia, E061618 — Great Bodily Injury Enhancement/Vehicular Manslaughter — Bernard J. Schwartz, Judge — Opinion by Gaut, J., with Ramirez, P.J., Miller, J. Based on People v. Cook (2015) 60 Cal.4th 922, appellant contended the three great bodily injury enhancements attached to the vehicular manslaughter conviction (imposed for the death of two victims and severe injury of a third) must be reversed. Attorney General conceded the error and Court of Appeal agreed. Appellant’s sentence was reduced by nine years. (I) CBM

Klaif, Leonard J. — In re D.J., E061526 — Direct Victim Restitution — Brian Saunders, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Codrington, J. Minor injured a teacher’s arm when he pushed the teacher into the classroom door. As a result of the injuries, the teacher could no longer drive a recently-purchased motor home and had to sell the vehicle at a loss of $29,380. Juvenile court ordered minor to pay the teacher $29,380 for this loss. In making this calculation, the trial court abused its discretion. The trial court incorrectly calculated the loss of use of the motor home from the date of purchase until the date of its sale rather than from the date of injury to the date of its sale. (I) CBM

Beugen, Heather L. — People v. Pyles, E061715 — Credits — Debra Harris, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Codrington, J. Appellant was sentenced to 15 years to life for a child molestation crime. The trial court declined to award any conduct credits. Court of Appeal awarded 15 percent presentence conduct credits of 88 days. (A) PMI

Stralla, Ava R. — People v. Flores, E061388 — Lesser Included Offense/Abstract of Judgment — Jeffrey Prevost, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., Codrington, J. Attorney General conceded and Court of Appeal agreed that two counts of false imprisonment must be vacated because they are lesser offenses included within the kidnapping counts of which appellant was also convicted. Likewise, a misdemeanor false imprisonment conviction must be vacated as a lesser included offense of a felony false imprisonment. Finally, abstract of judgment of judgment must be corrected to reflect an eight-year middle term rather than an eight-year upper term. (I) APJ

Dodd, John L. — People v. Fuller, E061193 — Proposition 36 — Becky Dugan, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. The denial of appellant’s Proposition 36 petition for resentencing was reversed. Trial court had found appellant ineligible for relief even though he had been convicted of a qualifying non-serious, non-violent felony, because he had also been convicted of a violent felony which was not eligible for relief. Court of Appeal reversed in light of the opinion in People v. Johnson (2015) 61 Cal.4th 674 which requires convictions to be considered individually in determining eligibility for Proposition 36 relief. (I) LAR

Gordon, Laura P. — People v. Inman, D066916 — Proof of Prior — Harry M. Elias, Judge — Opinion by Benke, J., with Nares, J., Irion, J. Attorney General conceded and Court of Appeal agreed that evidence presented in the trial court was insufficient to show that appellant’s prior conviction for burglary in Utah qualified as a burglary in California. Utah’s burglary statute is broader than California’s in that it allows a conviction for burglary whether a defendant enters a building/room with felonious intent or simply remains in a building/room with felonious intent. Because the prosecution had failed to prove that appellant’s Utah conviction was for the narrower offense of entering with felonious intent, as California law requires, the parties agreed the prison prior finding must be reversed. With respect to remedy, Attorney General argued that the matter should be remanded for an opportunity to retry the prior. Court of Appeal, however, agreed with appellant that given the limited guilty plea record in this case, ability to prove the prior would be unlikely and the prison prior should be just be stricken and the sentence reduced accordingly. (I) APJ

Bishop, Rosemary — People v. C.D.D., E062033 — Insufficient Evidence/Involuntary Administration of Antipsychotic Medication Under Penal Code Section 1370 — Mark E. Johnson, Judge — Opinion by Hollenhorst, J., with King, J., Miller, J. Trial court had authorized appellant be involuntarily administered antipsychotic medication pursuant to Penal Code section 1370, subdivision (a)(2)(B)(i)(II). Court of Appeal reversed this order due to a lack of sufficient evidence that appellant was a danger in his current setting, one of two conjunctive standards required under the statute. Specifically, appellant’s expressions of dissatisfaction with the progress of his case did not make him a danger to staff in a secure mental health treatment facility. Although it was sufficient to reverse on that standard alone, the court noted the evidence for the first standard was dubious because it was based on speculation and a misinterpretation of Penal Code section 288. (I) LMF

Nalls, Christopher/Sheehy, Kevin D. — People v. Pintor/Valtierra, G049653 — Presentence Custody Credits — David A. Hoffer, Judge — Opinion by Thompson, J., with Moore, J., Aronson, J. The abstract of judgment is modified to reflect an additional day of presentence custody credit. The court awarded 1,388 actual days plus 208 conduct. The abstract should reflect 1,389 actual plus 208 conduct. (I) LKH

Lampkin, David P. — People v. Farley, G049516 — Sentencing Enhancements — James R. Brandlin, Judge — Opinion by Fybel, J., with O’Leary, P.J., Bedsworth, J. The trial court erroneously stayed a sentence for a Penal Code section 12022.7, subdivision (a) enhancement on count one. However, no such enhancement was alleged. Court of Appeal vacates the sentence for the enhancement under Penal Code section 12022.7, subdivision (a), and orders correction of the abstract of judgment. (I) LKH

Burz, Dacia A. — People v. McGirt, E061614 — Prison Prior Enhancement — Debra Harris/Dwight W. Moore/Raymond L. Haight III, Judges — Opinion by Miller, J., with McKinster, J., King, J. Court of Appeal strikes two prison priors because the prior convictions were also the basis for the prior serious felony terms under Penal Code section 667, subdivision (a). Appellant’s determinate term is reduced by two years. (I) LKH

DiGuiseppe, Raymond Mark — People v. Charfauros, D064666 — Sentencing/ Laboratory Fees — Kenneth K. So, Judge — Opinion by Irion, J., with Benke, J., Haller, J. For the determinate sentences on various counts, the trial court imposed full-term sentences, which it ordered to be served consecutively, but stayed pursuant to Penal Code section 654. Appellant contended that pursuant to Penal Code section 1170.1, subdivision (a), the trial court should have imposed one-third of the middle term sentence for the counts. Respondent conceded, and the court agreed ordering modification of the abstract of judgment. Appellant also contended the trial court erred in the amount of the laboratory fee that it imposed pursuant to Health and Safety Code section 11372.5, subdivision (a), because it imposed a fee of $205 instead of $100. Again, respondent conceded and the court agreed, modifying the amount to $100. (I) HCC

Williams, Rex Adam — People v. Heath, D067544 — Penal Code Section 654 — Michael J. Popkins, Judge — Opinion by Prager, J., with Benke, J., O’Rourke, J. Court of Appeal agreed with appellant’s argument that his consecutive sentence for possession ammunition must be stayed because there was no evidence he possessed the ammunition for a purpose other than to use it in the gun he was also convicted of and sentenced for possessing. (I) APJ

Matsumoto, Ellen M. — People v. Corrales, G050378 — Penal Code Section 654 — Dan McNerney, Judge — Opinion by Aronson, J., with Bedsworth, J., Moore, J. Consecutive 16 month term for reckless evasion must be stayed under Penal Code section 654 because single act of reckless driving underpins both the evasion and child endangerment convictions and therefore multiple punishment is precluded. (I) DKR

Boyer, Ron — People v. Reynolds, G048622 — Firearm Enhancement/Ex Post Facto — James S. Hawkins, Judge — Opinion by Moore, J., with O’Leary, P.J., Bedsworth, J. At the time of appellant’s offense, the three-year firearm enhancement alleged and found true by the jury under Penal Code section 12022, subdivision (d), required arming in the commission of a drug offense. Since drugs were not involved in this case, appellant argued, respondent conceded, and the court agreed the evidence was insufficient to prove a subdivision (d) violation. Court of Appeal reduced the enhancement to a simple one-year under subdivision (a). In addition, because this was a murder conviction, the trial court had awarded no conduct credits. But, because the zero conduct credit statute was enacted after the date of the offense (this was a cold case), appellant argued, respondent conceded, and the court agreed appellant was entitled to credits available at that time. (I) HCC

Matulis, Jean — People v. J.V., G049570 — Restraining Order — Jacki C. Brown, Judge — Opinion by Ikola, J., with O’Leary, P.J., Fybel, J. Trial court found appellant guilty of misdemeanor domestic battery and issued a three-year no contact restraining order pertaining to both the victim and their infant child. Court of Appeal reversed the restraining order as to the infant as the evidence did not support such an order and appellant was not provided adequate notice that a long term restraining order as to the infant was being considered. (I) BCT

August 2015

Boyer, Ron/Hill, Melissa/Capriola, William J. — People v. Fredrick/Brooks/Stafford, D067448 — Instructional Error/Penal Code Section 654 — Kelly L. Hansen, Judge — Opinion by McDonald, J., with Haller, J., Aaron, J. The gang offense convictions of all three appellants reversed because the jury was instructed with the pre-People v. Rodriguez (2012) 55 Cal.4th 1125, CALCRIM 1400 instruction, which did not require that at least two members of a gang participated in committing the felony offense. Court of Appeal found that the error was not harmless in this case. In addition, the Attorney General conceded and the Court of Appeal agreed with appellant Brooks that his sentence for conspiracy must be stayed pursuant to Penal Code section 654 because he is being separately punished for accomplishing the object of the conspiracy. Finally, the Court of Appeal agreed with respect to Brooks that the great bodily injury enhancement attached to his robbery conviction must be stayed because his personal infliction of great bodily injury could only be based upon the same act that formed the basis of his torture conviction, for which he was separately punished. (I) AMJ

Kessler, Daniel J. — People v. Knight, D067410, (2015) 239 Cal.App.4th 1 — Marsden Hearing — Gregory S. Tavill, Judge — Opinion by Benke, J., with Nares, J., McIntyre, J. Trial court erred when it advised appellant that his statements during a Marsden hearing could be used against him thereby preventing appellant from fully articulating reasons for requesting new counsel. Court of Appeal could not determine beyond a reasonable doubt that the error was harmless and remanded for a new Marsden hearing. (I) DKR

Booher, Robert — People v. Pinon, G051212, (2015) 238 Cal.App.4th 1232 — Proposition 47 Parole/Credits/Health and Safety Code Section 11590 — Vickie Hix, Temporary Judge — Opinion by Ikola, J., with Moore, J., Fybel, J. Trial court had reduced appellant’s conviction to a misdemeanor but the court did not apply his excess custody credits to reduce the ordered parole period. In a published decision, Court of Appeal remanded the case for the trial court to recalculate appellant’s maximum parole period as follows: the base period is to be no longer than the last day of his former post-release community supervision period and any excess custody credits will further reduce the maximum parole period. Also, the requirement that appellant register pursuant to Health and Safety Code section 11590 was stricken. (I) LAR

Babcock, Russell S. — People v. Wynn, D066277 — Penal Code Section 654 — David M. Rubin, Judge — Opinion by O’Rourke, J., with McIntyre, J., Aaron, J. Attorney General conceded and Court of Appeal agreed that where appellant was sentenced for possessing cocaine while armed, possessing a controlled substance, and carrying a concealed weapon in a vehicle, the sentence for the latter two should be stayed pursuant to Penal Code section 654. (I) HCC

Buckley, Christian C. — People v. Morgan, G051147 — Proposition 47 Parole/Credits/Health and Safety Code Section 11590 — Christopher J. Evans, Temporary Judge — Opinion by O’Leary, P.J., with Aronson, J., Ikola, J. Following People v. Morales (2015) 238 Cal.App.4th 42, Court of Appeal concluded excess custody credits should reduce the parole period and, further, additional excess credits may reduce fines. Respondent conceded and Court of Appeal also agreed that Health and Safety Code section 11590 registration must be stricken. (I) HCC

Larson, Eric R. — People v. Rodriguez, E061774 — Minute Order Correction/Parole Revocation Fine — Charles J. Koosed, Judge — Opinion by Codrington, J., with Ramirez, P.J., Miller, J. Respondent and Court of Appeal agreed that the trial court sentencing minute order and abstract of judgment needed to be amended to show sentences for counts one and two are to run concurrently, not consecutively. Respondent and court also agreed that the trial court erred in ordering a parole revocation fine under Penal Code section 1202.45 where appellant is currently serving a sentence of life without the possibility of parole. Fine stricken. (I) CBM

Haggerty, Edward J./Ting, Allison H.— People v. Garcia/Ayala, G049818 — Instructional Error/Sentencing — Lance Jensen, Judge — Opinion by Ikola, J., with O’Leary, P.J., Aronson, J. Court of Appeal reversed appellants’ gang offense convictions, the gang enhancements on several counts, and the firearm discharge enhancements on the robbery count, where the jury was misinstructed on the primary activities element of the gang charge and enhancement. The instruction specified the jury could find “illegal possession of firearms” was the gang’s primary activity. But, in general, “illegal possession of firearms” is not one of the offenses enumerated in Penal Code section 186.22, subdivision (e). As to one of the reversed gang enhancements, the evidence was insufficient to prove the firearm discharge was committed on or within 1,000 feet of a school, open or being used by minors for school related programs at the time—a circumstance in aggravation under Penal Code section 186.22, subdivision (b)(2). Additionally, the trial court erred when it imposed a sentence under Penal Code section 136.1, subdivision (c), instead of Penal Code section 136.1, subdivision (b). (I) PMI

Peabody, Jennifer Lynne — People v. Warren, D067416 — Insufficient Evidence/Fines — Michael J. Rushton, Judge — Opinion by Aaron, J., with McDonald, J., O’Rourke, J. Court of Appeal reversed conviction for gang participation because there was no evidence appellant committed the murder with another gang member, as is required. Also, restitution fine modified from $280 to $200 per the trial court’s stated intention to impose the lowest fine. (I) LAR

Matsumoto, Ellen M. — People v. Villalobos, G050099 — Penal Code Section 654 — Lance P. Jensen, Judge — Opinion by Ikola, J., with Moore, J., Aronson, J. Attorney General conceded and Court of Appeal accepted concession to appellant’s argument that Penal Code section 654 requires stay of appellant’s sentence for reckless evasion of a peace officer causing death or serious bodily injury because the reckless driving was part of a single course of conduct that also resulted in the separately punished murder and drunk driving with injury to two other victims. Determinate portion of sentence reduced from 12 years 8 months to 11 years. (I) APJ

Buckley, Christian C. — People v. Ureno, E060160 — Penal Code Section 654 — Rodney A. Cortez, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Attorney General conceded and Court of Appeal agreed that appellant’s concurrent sentence for vehicle theft must be stayed pursuant to Penal Code section 654 where the offense was based upon the same act as the carjacking conviction for which appellant was separately punished. (I) APJ

Turkat-Schirn, Megan — In re H.C., E062956 — Insufficient Inquiry/Notice Under Indian Child Welfare Act (ICWA) — Tamara L. Wagner, Temporary Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Juvenile court had found ICWA did not apply after verifying notice was sent to a number of Apache tribes with only the names of the maternal grandmother and great-grandmother. Appellant mother and respondent filed a joint stipulation for reversal and remand. Court of Appeal found noncompliance with the ICWA inquiry and notice requirements because the information provided was insufficient to determine the child’s direct ancestors. The order terminating parental rights was reversed as to both parents. (I) LMF

Lathrop, Stephen M. — People v. Bonadie, G050684 — Homicide/Malice/Mental Delusions/Prosecutor’s Misstatement of Law — Jon D. Ferguson, Judge — Opinion by Aronson, J., with Rylaarsdam, J., Moore, J. Court of Appeal reversed two counts of second degree murder and three counts of attempted murder of police officers where the prosecutor told jurors incorrectly that appellant’s schizophrenic delusions could be considered only as to premeditation and deliberation and not as to second degree murder or attempted murder. Under the facts of this case, the misstatement was prejudicial and defense counsel was ineffective in failing to object or correct the misstatement. (I) NFA

Lubliner, Steven S. — People v. Hill, E059595 — Protective Orders — Michael B. Donner, Judge — Opinion by Gaut, J., with Miller, J., Codrington, J. Appellant was convicted of robbing a Ben Bridge Jewelers store and sentenced to prison. Court of Appeal vacated as unauthorized the trial court’s order that appellant stay away from Ben Bridge Jewelers. Appellant’s conviction, resulting in a prison commitment, was not subject to any of the statutorily authorized stay away orders, e.g., domestic violence offenses (Pen. Code, § 1203.097), conditions of probation, or the limited protective orders during pendency of the criminal proceedings (Pen. Code, § 136.2). (I) NFA

Kraft, Rudy — People v. LaBlanc, E059589, (2015) 238 Cal.App.4th 1059 — Unconditional Release Request by Elderly Sexually Violent Predator (SVP) Not Frivolous — Steve Malone, Judge — Opinion by McKinster, J. with Ramirez, P.J., Codrington, J., dissenting. In a published decision, Court of Appeal held the trial court abused its discretion when it denied as frivolous the petition filed by appellant, an SVP, for his unconditional release under Penal Code section 6608, subdivision (a). Appellant attached a psychiatrist’s report describing appellant’s age (70 years old) and various diseases, which the Court of Appeal found provided a sufficient, colorable showing of entitlement to relief. Trial court further erred in finding appellant’s diagnosis of paraphilic coercive disorder valid without it being actually litigated. The order denying the petition was reversed and the case remanded to proceed with an evidentiary hearing. Because the Court of Appeal did not find evidence of bias in the record, it denied appellant’s request to disqualify the trial judge on remand. The dissent indicated appellant’s refusal of treatment should have been sufficient to make the request frivolous. (I) LMF

Duxbury, Brett Harding — People v. Baez, G049120 — Penal Code Section 654/Clerical Errors — Thomas M. Goethals, Judge — Opinion by Moore, J., with Bedsworth, J., Thompson, J. Court of Appeal agreed with appellant’s argument that sentence for active gang participation must be stayed pursuant to Penal Code section 654 because the conviction was based upon the same conduct as appellant’s conviction for second degree murder, for which he was separately punished. In addition, minute order must be corrected to indicate that a prior conviction was found not true, rather than found true and stricken. (I) APJ

Wells, Mary Woodward — People v. Williamson, E061450 — Credits – Alfred J. Wojcik, Judge — Opinion by Codrington, J., with Hollenhorst, J., King, J. On appeal following resentencing, Court of Appeal found the sentencing court erred by failing to calculate actual presentence credits for period between original sentencing and resentencing, instead delegating this task to the Department of Corrections and Rehabilitation. This violated People v. Buckhalter (2001) 26 Calo.4th 20. Remanded for credits recalculation. (I) NFA

Torrano, Frank J. — In re Henry J., G050180 — Probation Conditions — Cheryl L. Leininger, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Rylaarsdam, J. “The best way to prevent arbitrary law enforcement and ensure appellant knows what conduct is expected of him” is to modify (in this case) the probation condition “not to use, possess or be under the influence of alcohol, narcotics or illegal drugs” with an express knowledge requirement. (A) PMI

Babcock, Russell S. — People v. Hughes, G050878 — Prison Prior — Michael B. Donner, Judge — Opinion by Moore, J., with Rylaarsdam, J., Bedsworth, J. Attorney General conceded and Court of Appeal agreed that prison prior enhancement must be stricken when it is based upon the same conviction as a serious felony prior enhancement also imposed. (I) APJ

Lathrop, Stephen M. — People v. Delonnie, E060233 — Insufficient Evidence — John M. Tomberlin, Judge — Opinion by Ramirez, P.J., with McKinster, J., King, J. Gang offense conviction reversed. Attorney General agreed the evidence was insufficient to show that appellant was with a fellow gang member during the commission of the crime. (I) AMJ

Vento, Christine — People v. Brass, E060714 — On-Probation Enhancements — R. Glenn Yabuno, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Trial court imposed “on-probation” enhancements under Penal Code section 12022.1, subdivision (f) on counts one through three. Court of Appeal found that the enhancement under Penal Code section 12022.1 (typically called an “on-bail” enhancement) did not apply to offenses committed while the defendant is on probation because the grant of probation is not equivalent to being released on bail or on one’s own recognizance prior to the judgment becoming final. Court rejected respondent’s argument that subdivision (f) of Section 12022.1 creates a free-standing on-probation enhancement and struck the on-probation enhancements imposed on each count (two years and eight months in total). (I) BCT

Vallandigham, Jr., Robert V. — People v. Holloway, E061524 — Parole Revocation Fine — Ronald M. Christianson, Judge — Opinion by Gaut, J., with Miller, J., Codrington, J. People conceded and Court of Appeal agreed the parole revocation fine should be reduced to $200, because under Penal Code section 1202.45, it must be the same amount as the $200 restitution fine that was imposed when appellant was placed on probation in 2011. (I) BCT

Quinlan, Sheila — People v. Gomez, E060416 — Serious Felony/Prison Prior — Ingrid A. Uhler, Judge — Opinion by Gaut, J., with Miller, J., Codrington, J. People conceded and Court of Appeal agreed that under People v. Jones (1993) 5 Cal.4th 1142, the same prior conviction could not be used to enhance current sentence under both Penal Code sections 667, subdivision (a) (serious felony prior) and 667.5, subdivision (b) (prison prior). Court ordered one-year prison prior enhancement stricken. (I) CBM

Stevenson, Theresa Osterman — People v. Barton, D065634 — Fines and Reimbursement Cost — Amalia L. Meza, Judge — Opinion by McDonald, J., with O’Rourke, J., Aaron, J. Trial court erred in imposing a restitution fine exceeding the statutory maximum of $10,000 by $2,120. The fine is ordered reduced to the statutory maximum. Further, the entry indicating an order of $250,000 as reimbursement for GPS equipment if damaged or not returned is a clerical error corrected to reflect $2,500. (I) AMJ

Boyce, Robert E. — People v. Podgurski, D064114 — Statute of Limitations — Howard H. Shore, Judge — Opinion by Benke, J., with Huffman, J., McIntyre, J. Based upon the record before the Court of Appeal, it was unable to determine whether three counts were time-barred based on the applicable statute of limitations. The convictions on those counts were reversed and case remanded for the trial court to determine (1) when prosecution of the three counts commenced and, depending on the outcome of that issue, (2) whether the counts were in fact time-barred by the applicable limitation period. (I) LAR

Hennessey, Jr., Patrick J. — People v. Briant, E060328 — Duplicative Counts — Albert J. Wojcik, Judge — Opinion by Hollenhorst, J., with Miller, J., Codrington, J. One of appellant’s convictions for receiving stolen property is reversed, reducing appellant’s aggregate sentence by eight months. Appellant was improperly convicted of two counts of receiving stolen property, where the items were stolen at the same time (by someone other than appellant) and found in his possession on the same date. (I) LKH

Angres, Robert L.S. — People v. Cardenas, E059820, (2015) 239 Cal.App.4th 220 — Sentencing/Penal Code Section 654 — Christian F. Thierbach, Judge — Opinion by Ramirez, P.J., with McKinster, J., King, J. Appellant’s sentence for residential burglary is stayed pursuant to Penal Code section 654 because he was separately punished for the object of the burglary: robbing the victim in her home. (I) MCR

Ballantine, Jean — People v. Pennington, D065694 — Restitution — Robert O’Neill, Judge — Opinion by McIntyre, J., with McConnell, P.J., Huffman, J. $1,398,422 restitution award reversed where the evidence was insufficient to support the trial court’s conclusion that appellant was 100 percent at fault for the car/bicycle accident which caused the victim’s injuries. Moreover, the trial court improperly ignored the victim’s role in the accident. Remanded for a new restitution hearing. (I) MCR

DeVito, Cara — People v. Gonzalez, G049382 — Jury Instruction — William R. Froeberg, Judge — Opinion by Aronson, J., with O’Leary, P.J., and Ikola, J. First degree murder conviction reversed under People v. Chiu (2014) 59 Cal.4th 155. The parties agreed that the error in instructing the jury it might convict appellant of first degree murder based upon the natural and probable consequences theory (i.e. a finding that appellant aided or abetted an assault or disturbing the peace, the natural and probable consequences of which was first degree murder) was prejudicial in this case because it could not be determined that the jury did not rely on this legally incorrect theory. (I) PMI

Booher, Robert — People v. Pickett, E060682 — Sentencing/Ineffective Assistance of Counsel — Angel M. Bermudez, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller J. Where trial court had discretion to impose concurrent sentences but imposed 48 years to life in consecutive sentences without stating reasons for sentencing decision other than citing to all the aggravating factors to justify an upper term, defense counsel provided ineffective assistance of counsel by submitting to the sentencing decision without arguing for concurrent sentences. (I) DKR

Brody, Steven A. — People v. Jackson, D066137 — Illegal Detention — Joseph P. Brannigan and Melinda J. Lasater, Judges — Opinion by O’Rourke, J., with McDonald, J., McIntyre, J. Court of Appeal agreed with appellant that police conduct in this case amounted to an illegal detention, rather than a consensual encounter, when two officers in a patrol car pulled up perpendicular to appellant’s vehicle and illuminated it with headlights and two spot lights and then, after an interval of five to eight seconds, both approached the vehicle in full uniform with badges and guns. Court of Appeal found that even though the patrol car did not block appellant’s vehicle, a reasonable person would not have felt free to disregard the police and leave. Court found that admission of the evidence illegally seized was clearly prejudicial error and reversed the judgment. (Mod-A) APJ

Miller, Gerald J. — People v. Rogers, E061185 — Proposition 36 — Becky Dugan, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. Appellant, serving multiple three strike sentences, is not ineligible for relief under Proposition 36 just because one of his sentences is ineligible. Following People v. Johnson (2015) 61 Cal.4th 674, the Court of Appeal remanded the case for a hearing on appellant’s eligibility for relief with respect to his nonserious and nonviolent convictions. (I) PMI

Hennessey, Jr., Patrick J. — People v. Mora, D067203 — Proposition 36 — David J. Danielsen, Judge — Opinion by Aaron, J., with McDonald, J., McIntyre, J. Trial court erred in denying the Proposition 36 petition because the court’s finding that appellant was armed with a weapon during the commission of his third strike, possession of a weapon while confined in jail, was incorrect. The record from appellant’s jury trial showed that he was in a location outside his cell having no immediate access to the weapon; hence, he was not physically armed with the weapon. Case remanded for a determination of appellant’s eligibility for relief. (I) AMJ

Hinkle, Stephen M. — People v. Horton, E061560 — Pitchess Motion — Mac R. Fisher, Judge — Opinion by Ramirez, P.J. with Hollenhorst, J., Codrington, J. Court of Appeal agreed with appellant’s argument that the showing of good cause required to justify review of police personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, could be based upon information beyond what was contained in the declaration supplied by counsel in support of the motion. In this case, much of the information justifying review was contained in the memorandum of points and authorities rather than in counsel’s declaration. Court of Appeal found showing sufficient for review and ordered limited remand for trial court’s in camera review of personnel records. (I) APJ

Schuck, John F. — People v. Speck, E061228 — Unauthorized Sentence/Fines — Albert J. Wojcik, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Codrington, J. The trial court is ordered to resentence appellant on the misdemeanor simple assault conviction to 180 days, rather than the 365 days imposed. In addition, the trial court must correct the minute order to reflect the oral pronouncement where the trial court waived the presentence incarceration fee. (I) LKH

Rehm, Joanna — People v. Andrino, E060793 — Sentencing — Timothy F. Freer, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., Miller, J. On a remand for resentencing from appellant’s previous appeal, the trial court failed to consider, or improperly considered, the criteria set forth in rule 4.414, subdivisions (a) and (b) when determining whether appellant was eligible for probation under Penal Code section 1203.066, subdivision (d)(1). Reversed and remanded for resentencing. (I) MCR

Dain, Anthony J. — People v. Cervantez, E061571 — Duplicate Enhancements/Fines/Abstract of Judgment — Katrina West, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Codrington, J. Attorney General conceded and Court of Appeal agreed with all sentencing arguments raised in this case: enhancement for great bodily injury must be stayed where gang enhancement for violent felony was also imposed and only basis for felony being violent was the great bodily injury; restitution fine must be reduced to the minimum at the time of the offense where court stated its intent to impose the minimum fine; abstract of judgment must be corrected to reflect one serious felony prior and four prison priors rather than two serious felony priors and three prison priors. (I) APJ

Edwards, John E. — People v. Cruz, E060552 — Transportation of Controlled Substance — Jon D. Ferguson, Judge — Opinion by Gaut, J., with Miller, J., Codrington, J. Under In re Estrada (1965) 63 Cal.2d 740, appellant benefits from the change to Health and Safety Code section 11379, which came into effect after appellant was convicted of transportation but before he was sentenced. This change added the requirement that the transportation of drugs be for purposes of sale. Because the jury never made a finding that appellant’s transportation was for purposes of sale, the court reversed the conviction and remanded the case for retrial. Because the evidentiary deficiency resulted from a change in the law, retrial is permitted. (People v. Figueroa (1993) 20 Cal.App.4th 65, 71-72, fn. 2.) Court did note, however, that under Kellett v. Superior Court (1966) 63 Cal.2d 822, 827, the prosecution could not add a simple possession charged if it chose to retry appellant. (I) CBM

Miller, Gerald J./Webb, Reed — People v. Jones/Bezada, E060667 — Conduct Credits — John M. Tomberlin, Judge — Opinion by Codrington, J., with McKinster, J., King, J. Appellants were convicted of conspiracy to commit robbery and attempted robbery, neither of which is a violent felony. Appellants argued, respondent conceded, and Court of Appeal agreed the trial court erred in limiting conduct credits to 15% under Penal Code section 2933.1. Appellants were entitled to 158 days of conduct credit instead of the 48 days awarded. (I) HCC

Erickson, Kristin A. — People v. Hardy, E060163 — Jury Instructions — Albert J. Wojcik, Judge — Opinion by Miller, J., with Ramirez, P.J., and McKinster, J. Trial court prejudicially erred by failing to instruct that a defendant could not be convicted of both stealing and receiving the same property. Court of Appeal reversed two convictions for receiving stolen property. (I) PMI

Bitar, Andrea S. — People v. Behlke, G051398 — Proposition 47 Parole/Credits — Vickie L. Hix, Commissioner — Opinion by Thompson, J., with Aronson, J., Ikola, J. Following its decision in People v. Morales (2015) 238 Cal.App.4th 42, the Court of Appeal agreed that after appellant’s conviction was reduced to a misdemeanor and a jail sentence of 365 days imposed, appellant’s excess custody credits (611 days earned) must be applied to reduce the one year parole period. Also, following its decision in People v. Pinon (2015) 238 Cal.App.4th 1232, the Court of Appeal agreed that appellant’s one year parole period could not exceed the date when her post-release community supervision period would have expired had she not obtained Proposition 47 relief. Case remanded for the relevant calculations. (A) CBM

Klein, Jill M. — People v. Baird, E060751 — Penal Code Section 290.3 Fines — Bernard Schwartz, Judge — Opinion by Miller, J., with McKinster, J., and King, J. The minute order imposing Penal Code section 290.3 fines on stayed counts must be modified to strike the fines; abstract of judgment must be corrected. (I) PMI

Cella, Michele Anne — In re N.B., E062753 — Indian Child Welfare Act (ICWA) Notice — Lawrence P. Best, Judge — Opinion by McKinster, J., with King, J., Miller, J. Remand for compliance with ICWA notice provisions. (I) ACS

July 2015

Johnson, Mark D. — In re U.P., G050589 — Gang Charge and Enhancement — Deborah C. Servino, Judge — Opinion by O’Leary, P.J., with Moore, J., and Fybel, J. Court of Appeal agreed with appellant that the true finding on the street terrorism count and the gang enhancement must be reversed because there was insufficient evidence in the record that B.I.S. satisfied the required criteria to be called a “criminal street gang” and insufficient evidence that appellant had knowledge of B.I.S.’s pattern of criminal gang activity, which was also a required finding. Court also agreed there was insufficient evidence that appellant aided and abetted the commission of a firearm assault. (I) LAR

Brody, Steven A. — In re Brian N., G049573 — Probation Conditions — Cheryl
L. Leininger, Judge — Opinion by Bedsworth, J., with Rylaarsdam, J., Moore, J. Court of Appeal adhered to its standard practice of modifying the subject conditions to contain an express knowledge requirement. Court modified the condition of appellant’s probation regarding weaponry to state that, “except when justified by the laws of self-defense, appellant shall not knowingly possess any weapon, ammunition or weapon replica; participate in any activity in which he knows weapons are used; or remain in any vehicle if he knows a person therein has a weapon, ammunition or a weapon replica,” and modified the probation condition regarding wireless devices to state, “appellant shall not knowingly possess a beeper, pager, cellular phone or any other cordless or wireless communication device.” (A) HCC

Sargoy, Kenneth J. — People v. Febbo, G049788 — Criminal Protective Order — Gary S. Paer, Judge — Opinion by O’Leary, P.J., with Aronson, J., Ikola, J. Criminal protective order issued under Penal Code section 646.9, subdivision (a) was unauthorized because, as respondent concedes, appellant was not convicted of stalking. Although the protective order might be authorized by a different statute, Court of Appeal declined to let the order stand (see e.g., Pen. Code, § 3000.08, subd. (f)(1)) and remanded the matter to allow court to exercise its discretion whether to enter a similar order pursuant to different authority. (A) CBM

Peabody, Jennifer — People v. Long, D066968 — Possession of Child Porn — Thomas Kelly, Judge — Opinion by McConnell, P.J., with Nares, J., and O’Rourke, J. Possession of multiple images of child porn in one location, which were found on one date, constitutes only one violation of Penal Code section 311.11, even though the images were found on different media devices. Counts eight and nine reversed. (I) LAR

Peabody, Jennifer — People v. Hanley, D068050 — Victim Restitution — Timothy F. Freer, Judge — Opinion by Huffman, J., with Nares, J., Haller, J. Victim restitution order of $10,000 vacated as there was no evidence presented of any victim’s economic losses. (I) BCT

Nelson, Laurel M. — People v. Jacobson, G050915 — Unanimity Instruction — Victor R. Stull, Judge — Opinion by Rylaarsdam, J., with O’Leary, P.J., Bedsworth, J. During the course of his employment as a pilot, appellant took various itmes from his employer. Ultimately, the government filed a single embezzlement count. At trial, it was unclear which of the stolen items was the basis of embezzlement and which ones were introduced under Evidence Code section 1101, subdivision (b). Closing argument did not clarify the confusion: the prosecution argued the case was about all the items and the defense argued it was about one item. Although the Attorney General argued there was a continuous course of conduct, the Court of Appeal found there was more than one discrete act that might constitute the crime and appellant offered different defenses to the various takings. Given the circumstances of this case, failure to give unanimity instruction prejudicial error. (I) CBM

Ford, Patrick M./Hong, Esther K./Quinlan, Sheila — People v. Butts/Brown/Kennison, D065066 — Penal Code Section 654/Restitution and Parole Revocation Fines — Albert T. Harutunian, Judge — Opinion by McConnell, P. J. with Benke, J., McIntyre, J. Sentence for battery ordered stayed pursuant to Penal Code section 654 when the beating was part of the force used to commit robbery, for which appellants were separately punished. Restitution and parole revocation fines reduced to the extent they were could not be imposed for stayed counts. Finally, with respect to Butts only, the trial court erred when it imposed a new restitution fine in appellant’s probation revocation case. The original fine survives; probation revocation fine also reduced to that original amount. (I) CBM

Scott, Patricia A. — People v. Albarran, D067418 — Natural and Probable Consequences (Chiu)/Aider-Abettor Instructional Error/Evidence Code Section 352/ Prosecutorial Misconduct/Cumulative Error — Victoria E. Cameron, Judge — Opinion by Huffman, J., with McConnell, P.J., McIntyre, J. In this case where appellant was tried as an aider/abettor and found guilty of first degree murder, Court of Appeal found it was prejudicial error to instruct under a natural and probable consequences theory of aiding and abetting under People v. Chiu (2014) 59 Cal.4th 155. Reversal also based upon cumulative error where the Court of Appeal also found: it was error to instruct the jury with that version of CALCRIM No. 400 which includes language that an aider and abettor is “equally guilty “ of the crime committed by the perpetrator; it was an abuse of discretion under Evidence Code 352 to admit appellant’s prior conviction as a predicate act given the large number of other priors offered; and the prosecutor committed misconduct by his general conduct and demeanor in addition to intentionally eliciting inadmissible evidence. Given the jury’s question about an aider and abettor’s intent and the multiple ways in which errors were committed during trial, the Court of Appeal found that this was “one of those rare cases where too much went wrong, undermining our confidence that Albarran received a fair trial.” (I) HCC

Burz, Dacia A. — People v. Tapia, G048757 — Prior Prison Term Enhancement — W. Michael Hayes, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Moore, J. Appellant admitted four prison prior allegations. The trial court struck one of the priors and imposed a one-year enhancement for each of the remaining three. Appellant argued, respondent conceded, and Court of Appeal agreed that appellant actually had only three valid prison priors because two of the alleged priors were based upon a single prison commitment and were not separately served. Court of Appeal remanded for resentencing, finding it could not determine what the court would have done had it known only three valid priors. (I) HCC

Gordon, Laura P. — People v. Carreon, D065896 — One-Strike Sentencing — Lorna A. Alksne, Judge — Opinion by McDonald, J., with Haller, J., McIntyre, J. Appellant was convicted of 16 counts of lewd act on a child occurring in 2001 or 2002. The offenses occurred on only three occasions. Appellant was sentenced to sixteen consecutive terms of 15 years to life under the One Strike law, former Penal Code section 667.61. Court of Appeal held the One Strike law as it existed at the time of the offenses permitted only a single life term for each occasion, even if multiple offenses were committed on that occasion. Remanded for resentencing. (I) NFA

Duxbury, Brett Harding — People v. Morales, D067411, (2015) 238 Cal.App.4th 814 — Miranda Custodial Interrogation — Stephen A. Mapes, Judge — Opinion by Benke, J., with McConnell, P.J., Nares, J. Published decision reversing murder conviction for Miranda violation. Court of Appeal found consensual station-house interview became custodial when officers had appellant take a polygraph exam, told him he failed, and then questioned him aggressively and obtained admissions. The officers then gave a Miranda warning and obtained additional incriminating statements, but the court found those statement too should have been excluded as the fruit of the Miranda violation. Finally, the court held appellant’s statement to police four days later at the courthouse should have been excluded because police did not Mirandize appellant at that time, and the prior Miranda admonishment was ineffective. (I) NFA

Gambale, Erica — People v. Hernandez, E060830 — Attorney’s Fees — Stanford E. Reichert, Judge — Opinion by Cunnison, J., with Ramirez, P.J., Codrington, J. Court of Appeal agreed that matter must be remanded to determine appellant’s ability to pay attorney’s fees and that the issue had not been forfeited by counsel’s failure to object below because such a requirement might raise a conflict of interest. (A) APJ

Swiller, Paul A. — In re Natalie P., D067689 — Improper Notice; Inquiry Under Indian Child Welfare Act (ICWA) — Gary M. Bubis, Judge — Opinion by McDonald, J., with Benke, J., Huffman, J. Court of Appeal held it was reversible error for the juvenile court to find substantial compliance with ICWA and that ICWA did not apply in light of the following errors: in the notice sent to the Bureau of Indian Affairs and U.S. Secretary of the Interior, the Agency misspelled the maternal grandmother’s surname; Agency also indicated neither mother nor maternal grandmother named a tribe, even though both parties had informed the Agency of possible Cherokee heritage; further, there was no record ICWA inquiry was ever conducted with relatives of the deceased father. Court of Appeal remanded with directions to order the Agency conduct a proper ICWA inquiry, provide notice to any tribes the inquiry identifies, and file all required documentation. (A) LMF

Ferguson, Susan L. — People v. Neal, E059220 — Ineffective Assistance of Counsel/Prosecutorial Error — Edward D. Webster, Judge — Opinion by Ramirez, P.J., with McKinster, J., King, J. Appellant’s defense was voluntary intoxication. During rebuttal closing argument, the prosecutor misstated the law when it told the jury voluntary intoxication was not a defense unless it caused defendant to operate under a mistake of fact. Court of Appeal found that appellant was deprived of the effective assistance of counsel when counsel failed to object to the misstatement and reversed appellant’s burglary conviction. (A) PMI

Johnson, Mark D. — People v. Franco, E061412 — Attorney’s and Probation Supervision Fees — Gerald S. Brown, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. Court of Appeal found counsel provided ineffective assistance for failing to object to the imposition of probation supervision fees where an objection would have yielded an ability to pay hearing. Court also found appellant did not forfeit his challenge to attorney’s fees where counsel was appointed and an objection requirement would create a potential conflict of interest. Appellant is entitled to a hearing on his ability to pay. (I) PMI

Romero, Lynda A. — People v. Salinas, D066329 — Sentencing — Peter C. Deddeh, Judge — Opinion by Benke, J., with Nares, J., Haller, J. Consecutive sentence for threatening a witness is stayed where the offense is based on the same act underlying appellant’s conviction for dissuading a witness by force for which he was separately punished. (I) PMI

Davidson, Suzanne — In re D.R., D067669 — Indian Child Welfare Act (ICWA) — Michael J. Imhoff, Commissioner — Opinion by McIntyre, J., with Benke, J., Nares, J. Reversed in part for failure to give adequate ICWA notice. (I) ACS

Buckley, Christian C. — People v. Hernandez, G051160 — Sentencing After Proposition 47 Reduction — Christopher Evans, Temporary Judge — Opinion by Aronson, J., with O’Leary, P.J., Ikola, J. Case remanded for trial court to correctly calculate appellant’s credits and apply them to his parole period and fines. In addition, the felony methamphetamine possession registration requirement is stricken because it is not authorized for the misdemeanor offense of which appellant now stands convicted under Proposition 47. (I) LAR

Quinlan, Sheila — People v. Abraham, E060887 — Sentencing — Rafael A. Arreola, Judge — Opinion by King, J., with McKinster, J., and Miller, J. Court of Appeal found the trial court erred when it applied a five-year gang enhancement under Penal Code section 186.22, subdivision (b)(1)(B), instead of a 2-3-4 year enhancement under subdivision (b)(1)(A) because assault with force likely to cause great bodily injury is not a serious or violent felony. In addition, the Court of Appeal agreed with the Attorney General, that the trial court may have misunderstood its discretion to choose a term to impose at one-third for a hate crime enhancement on a consecutive term (the court seemed to think it must impose one-third the midterm). Finally, the trial court failed to impose and then stay execution of two sentences under section 654. Errors in the abstract of judgment include: an 8-month enhancement for a hate crime enhancement the jury found not true; a checked box indicating the assault by means of force likely to cause great bodily injury is a violent felony; and a sentence on one subordinate count at full term consecutive instead of one-third the midterm. (I) PMI

Staley, John L. — People v. Almendarez, D066996 — Sex Offender Registration — Kenneth K. So, Judge — Opinion by Benke, J., with McDonald, J., Aaron, J. Court of Appeal did not reach the question of whether trial court abused its discretion when it imposed lifetime sex offender registration, but remanded for trial court to state reasons and to respond to defense counsel’s objection that there were no reasons to support registration. (I) DKR

Hermansen, Kurt David — People v. Saleh, D065924 — Prior Serious Felony Enhancements/Three Strikes — Patricia K. Cookson, Judge — Opinion by Haller, J., with Nares, J., Aaron, J. Sentencing court erred in using a single prior serious felony to impose separate five-year prior serious felony enhancements (Pen. Code, § 667, subd. (a)), for each determinate second strike term. While such separate enhancements must be imposed on indeterminate Three Strikes terms, determinate Second Strike terms are subject to the general rule that a prior serious felony enhancement may be imposed only once in an aggregate sentence. (People v. Sasser (2015) 61 Cal.4th 1.) Accordingly, appellant’s sentence was reduced from 22 years to 17 years. (I) NFA

Stevenson, Theresa Osterman — People v. Henning, D065950 — Fines — William D. Lehman, Judge — Opinion by McIntyre, J., with Benke, J., and Irion, J. Restitution fine and parole revocation fine each ordered reduced from $300 to $280, under the version of Penal Code sections 1202.4, subdivision (b)(1) and 1202.45 in effect at the time defendant committed the charged crimes. (I) LAR

Tillman, Beatrice C. — People v. Lewis, E060430 — Proposition 36 — Michael A. Smith, Judge — Opinion by McKinster, J., with Ramirez, P.J., Codrington, J. Trial court mistakenly believed appellant was ineligible for Proposition 36 relief because he was currently serving a sentence for two counts of second degree murder. However, because the murder convictions had been earlier reversed on appeal, appellant was currently serving a third-strike sentence for convictions of only non-serious and non-violent felonies. Respondent argued that although appellant was technically eligible for discretionary resentencing, the denial of Proposition 36 relief should be affirmed because there was no realistic probability that the trial court would have exercised its discretion to reduce appellant’s sentence. Court of Appeal reversed and remanded for the trial court to exercise its discretion on the issue of whether reduction of appellant’s sentence would pose an unreasonable risk of danger to public safety. (S) BCT

Fabian, Carl — People v. Belcher, D067428 — Insufficient Evidence/Gang Participation — Gary B. Tranbarger, Judge — Opinion by Nares, J., with Haller, J., Aaron, J. Appellant’s conviction for active participation in a criminal street gang reversed for insufficient evidence where the only criminal conduct appellant furthered or promoted was not inherently felonious (the presumptively misdemeanor conduct of carrying a concealed weapon). In addition, appellant’s conviction for carrying a concealed weapon was erroneously elevated to a felony based on gang participation because the only evidence of gang participation was the very same carrying of a concealed weapon which would normally be misdemeanor conduct and was not independent felonious conduct. Finally, the trial court erroneously imposed a sentence of seven-years-to-life for dissuading a witness under the gang statute because such a sentence is only authorized when the use of an implied or express threat is alleged per Penal Code section 136.1, subdivision (c)(1). Here, appellant was convicted under Penal Code section 136.1, subdivision (b)(1). (I) LAR

Stralla, Ava R. — People v. Jewell, E062185 — Compassionate Release — Dwight W. Moore, Judge — Opinion by McKinster, J., with Hollenhorst, J., King, J. The order denying compassionate release is reversed for the second time. Trial court applied too stringent a standard under the compassionate release statute (Pen. Code, § 1170, subd. (e)(2)(B)), when it denied release based on its finding the “possibility that [appellant] could get out and get behind the wheel of a car” was sufficient to conclude he posed a risk to public safety. On remand, the trial court is directed to consider whether it is “probable” the conditions of appellant’s release and treatment would pose a risk to public safety. (I) LKH

Buckley, Christian C. — People v. Romero, D067208 — Proposition 47 — Poli Flores, Judge — Opinion by Benke, J., with Haller, J., Irion, J. Attorney General conceded and Court of Appeal agreed the Imperial County Superior Court erred when it ruled appellant’s two second-degree burglaries could not be resentenced under the new shoplifting statute (Pen. Code, § 459.5), because they occurred before the new statute was enacted. Appellant’s two crimes involved the taking of merchandise valued under $950 from a retail store. Matter remanded for trial court to determine whether appellant has any disqualifying prior convictions. (I) CBM

June 2015

Quinlan, Sheila — People v. Coyle, D066674 — Fines — David M.
Szumowski, Judge — Opinion by McDonald, J., with Huffman, J., Haller, J. Attorney General conceded and Court of Appeal agreed that probation revocation and restitution fines must be reduced from $720 each to $200 each because the court was bound by the amounts ordered at the time probation was granted. In addition, $720 parole revocation fine ordered stricken because fine was not authorized for local jail sentences back in 2010 when crime was committed. (I) HCC

Rexrode, Robert — People v. Slaughter, D067246 — Health and Safety Code Section 11351.5 Amendment — Eugenia A. Eyherabide, Judge — Opinion by Aaron, J., with Benke, J., Irion, J. Appellant’s sentence for Health and Safety Code section 11351.5 is reversed where he was sentenced under the old scheme of three, four, or five years. Court of Appeal remanded the matter for resentencing under the amended version of section 11351.5, providing for a term of two, three, or four years. (A) LKH

Vasil, Stephen — People v. Taylor, D065427 — Unlawful Detention — Frederick Maguire, Judge — Opinion by Huffman, J., with Aaron, J., Irion, J. Court of Appeal agreed with appellant that a police contact with him and a group of companions amounted to a detention without reasonable suspicion and that his subsequent arrest for public intoxication and the search incident to that arrest, resulting in PCP found in his pocket, were therefore a violation of the Fourth Amendment. Although the government argued that the encounter was consensual, Court of Appeal was satisfied the circumstances of the police contact in this case, including the overwhelming police presence, the patrol cars parked askew with emergency lights activated, and the manner in which the contact was conducted, would cause a reasonable person to believe he was not free to leave. (A) HCC

Williams, Rex — People v. Adams, D065680 — Insufficient Evidence Animal Cruelty — Michael J. Popkins, Judge — Opinion by Aaron, J., with McConnell, P.J., McDonald, J. Five counts of animal cruelty under Penal Code section 597, subdivision (b), reversed for insufficient evidence. Evidence of skin, ear, and eye infections in five of 27 dogs on appellant’s property was insufficient to establish criminal negligence, i.e., subjecting the dogs to high risk of death or great bodily injury, particularly where there was no evidence whether the dogs were in better, worse or the same condition than when they were rescued by appellant. (I) NFA

Mazur, Janice — People v. Boot, D065933 — Correcting Unauthorized Sentence — Laura H. Parsky, Judge — Opinion by Huffman, J., with Nares, J., Aaron, J. When appellant was originally sentenced, trial court failed to impose the mandatory five-year enhancement for a serious felony prior. In its motion for correction of the unauthorized sentence, the prosecution erroneously referenced California Rules of Court, rule 4.452(3), which prohibits a subsequent sentencing judge from changing any discretionary choice made by a previous judge and does not apply to the correction of unauthorized sentences. The defense did not correct the erroneous reference and did not invite the court to exercise its discretion to refashion the sentence in light of the mandatory five-year enhancement. Given this record, Court of Appeal inferred that the trial court did not understand the scope of its sentencing discretion when it did nothing but impose the mandatory five-year enhancement. Matter remanded for a new sentencing hearing. (I) APJ

Lubliner, Steven — People v. Guerrero, D064860 — Penal Code Section 654 — Laura H. Parsky, Judge — Opinion by McDonald, J., with Huffman, J., Irion, J. Appellant’s sentence for misdemeanor vandalism is ordered stayed pursuant to Penal Code section 654 because the offense was committed with the same intent and objective as appellant’s felony evasion of an officer with reckless driving. (I) LKH

DiGuiseppe, Raymond — People v. Villesca, D066700 — Ineffective Assistance of Counsel — William Jefferson Powell IV, Judge — Opinion by Benke, J., with McDonald, J., Irion, J. Court of Appeal agreed with appellant’s argument that he was improperly bound over on a fourth charge of oral copulation because the evidence presented at his preliminary hearing only supported three such charges and his attorney was ineffective in failing to object to the information charging him with four counts. Court of Appeal found the error was prejudicial and reversed conviction on all four oral copulation counts. Case remanded for trial court to determine which of the four counts to dismiss and to re-sentence on the remaining counts. (I) HCC

Wells, Mary/Ulibarri, Patricia/Boyce, Robert — People v. Craig/Scott/Roberson, D063070 — Natural and Probable Consequences/Sentencing/Abstract of Judgment — Charles G. Rogers, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Nares, J. First degree murder convictions reversed for all three appellants based upon the opinion in People v. Chui (2014) 59 Cal.4th 155, because jury might have impermissibly relied upon the natural and probable consequences theory in determining guilt. With respect to appellants Craig and Roberson, the government on remand may either accept convictions of second degree murder or retry appellants for first degree murder. With respect to appellant Scott, the conviction is reduced to second degree murder without opportunity to retry because there was no evidence to support a conviction for first degree murder under any theory other than the natural and probable consequences theory.

10-year gun enhancement as to Scott, is reversed as unauthorized. Five-year gang enhancement as to Roberson is deleted and replaced with the 15-year minimum parole eligibility requirement. Finally, abstracts of judgment ordered corrected to reflect order of court that appellants are jointly liable for restitution. (I) AMJ

Martin, Arthur — People v. Ricardez, D064561 — De Facto Life Without Possibility of Parole (LWOP) — Kimberlee A. Lagotta, Judge — Opinion by Benke, J., with Nares, J., O’Rourke, J. Appellant argued his sentence violated the Eighth Amendment because it is cruel and unusual to sentence a juvenile offender to a term that is functionally equivalent to LWOP. He further argued that enactment of Penal Code section 3051 did not remedy this defect. Court of Appeal agreed a 75-year sentence imposed on a juvenile may, in the absence of an appropriate trial court record, be cruel and unusual. Court also agreed that enactment of section 3051 did not remedy the defect in appellant’s sentence. Court of Appeal remanded the matter for resentencing. (I) AMJ

Smith, Barbara — People v. J.S., E062416 — Correction of Minute Order — Lorenzo R. Balderrama, Judge — Opinion by Hollenhorst, J., with McKinster, J., Codrington, J. The minute order from the hearing where the trial court authorized the involuntary administration of antipsychotic medication to appellant incorrectly indicated appellant was found “to be a serious danger to others.” Court of Appeal modified the order to reflect the trial court’s oral pronouncement that appellant was “incompetent or incapable of making decisions about her medical treatment.” (I) LMF

Schwartzberg, Richard — People v. Velasco, D066582 — Involuntary Administration of Medication — Joseph P. Brannigan, Judge — Opinion by McConnell, P.J., with McIntyre, J., Irion, J. Appellant was found incompetent to stand trial. Trial court ordered that appellant be committed and authorized involuntary administration of medication under Penal Code section 1370. Court of Appeal agreed with appellant’s argument that no evidence supported the authorization of involuntary medication. The psychologist’s report did not address whether appellant lacked the capacity to make medication decisions, required medication to treat his mental disorder, would be physically or mentally harmed without medication, or any other medication issue. Court of Appeal concluded that even if the psychologist recommended medication, Business and Professions Code section 2904 prohibits psychologists from prescribing medication. Court of Appeal reversed and remanded the authorization for lack of substantial evidence. (I) LMF

Saucier, Patricia K. — In re A.G., D066869 — Dispositional Order — Kenneth J. Medel, Judge — Opinion by McDonald, J., with Aaron, J., Irion, J. Juvenile court’s dispositional order was not supported by clear and convincing evidence that no reasonable means other than removal existed to protect a small infant minor with a serious medical condition. Court of Appeal explained circumstances were not urgent at the time of the hearing so the juvenile court should have considered less drastic alternatives, such as strict supervision over mother’s custody. Court of Appeal reversed and remanded the matter for a new dispositional hearing. (I) LMF

Smith, Barbara A. — People v. J.S., E060897 — Mootness of Challenge to Renewed Commitment As Mentally Disordered Offender (MDO) — Lorenzo R. Balderrama, Judge — Opinion by Hollenhorst, J., with McKinster, J., Codrington, J. Trial court erroneously found appellant’s challenge of the renewal of her involuntary commitment as an MDO was moot because it was not heard before the renewed term expired. Court of Appeal held where the People seek to continue treatment, an offender’s challenge of the validity of the prior determination cannot be moot. Court reasoned that recertification is contingent on the validity of the prior determination, expanding on its prior decision on initial challenges in People v. J.S. (2014) 229 Cal.App.4th 163. Court of Appeal reversed and directed the trial court to hear the case on the merits. (I) LMF

Bishop, Rosemary — In re H.H., D066690 — Termination of Parental Rights Before Section 387 Hearing on Relative Placement — Joe O. Littlejohn/Kenneth J. Medel, Judges — Opinion by O’Rourke, J., with Benke, J., Nares, J. Juvenile court improperly continued the relative placement hearing without also continuing the section 366.26 hearing. As a result, mother’s rights were prematurely terminated before the placement hearing, depriving mother of her opportunity to be heard and violating Welfare and Institutions Code section 361.3, which requires the juvenile court to consider the parents’ wishes when determining whether relative placement is appropriate. Court of Appeal reversed the order terminating parental rights for failure to comport with both statutory and due process rights. (I) LMF

Staley, John L. — People v. Jeffries, D066293 — Penal Code Section 654 — Sim Von Kalinowski, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. Attorney General conceded that the false imprisonment and robbery in this case involved a single objective. Court of Appeal agreed with the concession and stayed the false imprisonment sentence. (I) PMI

Haggerty, Edward J. — People v. Mammoth, G050924 — Fines — Eric G. Helgesen, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Aronson, J. Appellant’s $70 fine imposed under Penal Code section 264, subdivision (b) was reversed. The $8,800 fine imposed under section 290.3, subdivision (a) was reduced to $6,500. Court of Appeal remanded the matter for the trial court to determine whether appellant has the financial ability to pay the remaining fines. (I) LKH

Harris, Donna L. — People v. Jackson, D065403 — On-Bail Enhancement — Amalia L. Meza, Judge — Opinion by Huffman, J., with Benke, J., Nares, J. Attorney General conceded and Court of Appeal agreed one of appellant’s two on-bail enhancements must be stayed because it was based upon appellant’s on-bail release in a case that had not resulted in a conviction. (I) APJ

Stevenson, Theresa — People v. White, D060969, (2015) 237 Cal.App.4th 1087 — Dual Conviction — Frank A. Brown, Judge — Opinion by Huffman, J., with McDonald, J., Benke, J., concurring and dissenting. Court of Appeal originally held that appellant could not stand convicted of both rape of an intoxicated person and rape of an unconscious person based upon the same act of intercourse. The California Supreme Court granted review and then remanded the case for reconsideration after it decided, in People v. Gonzalez (2014) 60 Cal.4th 533, that a defendant could stand convicted of both oral copulation of an intoxicated person and oral copulation of an unconscious person based upon the same act. On remand, Court of Appeal noted that the Supreme Court, in finding that two convictions of oral copulation was proper in Gonzalez, distinguished the oral copulation statute at issue in that case from the rape statute at issue in an earlier case People v. Craig (1941) 17 Cal.2d 453. The court reasoned that in so doing, the Supreme Court reaffirmed its holding in Craig that convictions for rape by force and statutory rape based upon the same act is improper. Court of Appeal held that the current rape statute is similar enough to the former statute at issue in Craig and that the same result was required. Judgment modified to strike the second rape count. (I) APJ

Torres, Steven A. — People v. Saucedo, E059903 — Lesser Included Offenses/Abstract of Judgment — James S. Hawkins, Judge — Opinion by Ramirez P.J., with McKinster, J., King, J. Court of Appeal accepted the Attorney General’s concession that convictions for driving under the influence and causing great bodily injury and driving with blood alcohol over of 0.08 or more and causing great bodily injury must be stricken as offenses necessarily included within the crime of gross vehicular manslaughter while intoxicated. In addition attendant enhancements and fines must be stricken and abstract of judgment must be corrected to indicate that appellant was not sentenced as a second striker. (I) HCC

Jones, Cynthia M. — People v. Forrest, D065056, (2015) 237 Cal.App.4th 1074 — Probation Condition/Credits — Ana L. Espana, Judge — Opinion by Nares, J., with McConnell, P.J., Haller, J. Probation condition concerning the restriction against being in the presence of weapons was modified due to unconstitutional overbreadth. In addition, Court of Appeal remanded the matter with directions to correct the minute order and probation order to reflect the court’s oral pronouncement of sentence that appellant serve 365 days in local custody, not 372 days, as a condition of probation. (I) AMJ

Power, Richard — People v. Martinez, G050207 — Credits/Abstract of Judgment — John Conley, Judge — Opinion by Rylaarsdam, J., with Ikola, J., Thompson, J. Trial court erred in the award of credits and in the recording of the abstract of judgment which is ordered corrected. (I) AMJ

Lemon, Clare — In re D.W., D066910 — Presumed Father Not Required to Request Reunification Services via Section 388 Petition — Kimberlee Lagotta, Judge — Opinion by McConnell, P.J., with Nares, J., Haller, J. Juvenile court erroneously required presumed father to file a Welfare and Institutions Code section 388 petition to request reunification services although a section 366.26 hearing had not been set. Where the delay in confirming his presumed father status was not because of father’s own doing, Court of Appeal held section 361.5 governed the request. Court of Appeal reversed, finding the was error prejudicial because services previously granted for a different child were not sufficiently tailored to the child at issue. (A) LMF

Clark, Marcia R. — People v. Silva, D068068 — Evidentiary Error — Stanford E. Reichert, Judge — Opinion by Huffman, J., with McDonald, J., Irion, J. Pursuant to Evidence Code section 1103, which allows evidence of a defendant’s character for violence after defense has offered evidence of the victim’s character for violence, trial court agreed to allow evidence related to an uncharged assault by appellant against his girlfriend and evidence that appellant had been twice tried for an attempted murder with both trials resulting in hung juries. In the end, none of the evidence actually adduced at trial reflected on appellant’s character for violence. Instead, the evidence related to the attempted murder charge implied that somebody thought appellant had committed a shooting. Court of Appeal found that admission of the evidence was erroneous and prejudicial in light of the jury’s questions about appellant’s criminal history, including his two “murder trials,” and the trial court’s failure to take any action to clarify the jury’s misunderstanding. (I) MCR

Multhaup, Eric/Levy, Richard — People v. Abad/Solis, D067449 — Instructional and Evidentiary Error/Accomplice — Eric M. Nakata, Judge — Opinion by O’Rourke, J., with Haller, J., Irion, J. Where co-appellant Solis’s status as an accomplice was disputed, Court of Appeal held the trial court prejudicially erred when it instructed the jury with CALCRIM No. 335 (Accomplice Testimony: No Dispute Whether Witness Is Accomplice), which provided,“If the crime of murder was committed, then defendant is an accomplice to that crime.” The court held that the language created an erroneous mandatory presumption and was prejudicial as to Solis who was tried on a theory of aiding and abetting. Convictions for robbery-murder and the prior-murder-conviction special circumstance reversed. Court of Appeal also held the trial court prejudicially erred when, in an attempt to protect Solis from the prejudicial impact of his prior murder conviction, excluded details of the prior murder that would have been helpful to Abad. Court of Appeal found the exclusion prejudicial and reversed appellant Abad’s conviction for murder and robbery-murder special circumstance. (I) MCR

De la Sota, Richard — People v. Venegas, G049569 — Juror Misconduct — M. Marc Kelly, Judge — Opinion by Thompson, J., with Moore, J., Ikola, J. Court of Appeal found the trial court erred in denying appellant’s motion for new trial based upon juror misconduct. This was a ‘he said/she said’ rape case and at least two, and maybe more, jurors stated they would have liked appellant to testify at trial and wondered why he did not. (I) LAR

Brisbois, Patricia — People v. Peterson, D067439 — Presentence Credits — Stephan G. Saleson, Judge — Opinion by Aaron, J., with Nares, J., McDonald, J. In this cold case, the murder occurred in 1994, but was not prosecuted until 2012 when appellant was matched to fingerprints left at the murder scene. Court of Appeal found appellant may be entitled to additional credits for time he spent incarcerated in Florida prior to extradition to California. Court also found appellant was entitled to presentence conduct credit pursuant to Penal Code section 2933.1 because section 2933.2, which precludes conduct credit for those convicted of murder, did not take effect until 1996. Court of Appeal remanded the case to the trial court to ascertain the correct date of arrest and incarceration for purposes of calculating presentence credits. (I) BCT

O’Connor, Sheila/Johnson, Mark — People v. Gabrielson, G049572 — Penal Code Section 654 — Gary S. Paer, Judge — Opinion by Rylaarsdam, J., with O’Leary, P.J., Thompson, J. Concurrent sentence for false imprisonment ordered stayed pursuant to Penal Code section 654 where false imprisonment was based upon the same intent and objective that supported both appellants’ convictions and sentences for robbery. (I/A) PMI

Weinberg, Allen/Brisbois, Patricia/Bauguess, Susan — People v. Morales, et al., D067486 — Visitation — John M. Tomberlin, Judge — Opinion by Huffman, J., with Haller, J., Aaron, J. Trial court imposed an order prohibiting visitation between imprisoned defendants and child-victims under Penal Code section 1202.05. Because none of the convictions were enumerated under section 1202.05, Court of Appeal struck the visitation prohibition order. (I) HCC

DiGuiseppe, Raymond — People v. Sanchez, G049577 — Dual Convictions/Custody Credits — M. Marc Kelly, Judge — Opinion by Rylaarsdam, J., with Bedsworth, J., Moore, J. Appellant argued and Court of Appeal agreed the conviction on one count must be vacated because it involved substantial sexual conduct “based upon an act that allegedly occurred within the same time period as the conduct that served as the basis for the charge” of continuous sexual abuse in another count. Court of Appeal’s remedy was to vacate conviction of the continuous sex abuse offense with its lesser sentence, because the lengthier sentence for the sexual penetration of a minor was more commensurate with defendant’s culpability. Court also concluded that contrary to respondent’s assertion, there was no forfeiture for lack of a demurrer to the error. Presentence credits also ordered corrected due to miscalculation. (I) HCC

Schiavoni, Johanna — In re Kiley B., D065405 — Misdemeanor/Felony Designation — Gibson Lee/Robert J. Trentacosta, Judges — Opinion by Haller, J., with McConnell, P.J., Benke, J. Case remanded for the trial court to make express finding whether to treat the Penal Code section 69 obstruction count as a felony or a misdemeanor as required by Welfare and Institutions Code section 702. (A) AMJ

Owen, Kristen — In re Serena N., G050824 — Withdrawal of Admission After Successful Completion of Probation — Deborah C. Servino, Judge — Opinion by Aronson, J., with Rylaarsdam, J., Ikola, J. Minor entered an agreement whereby she would admit committing misdemeanor battery and be placed on probation. It was also agreed that after a year she could return and request plea withdrawal “subject to the Court’s discretion.” After a year, minor had successfully fulfilled the terms of her probation; however, a restitution obligation was still outstanding. Juvenile court denied the minor’s request to withdraw the plea finding that the failure to pay was not due to financial hardship that might cause the court to exercise its discretion. Court of Appeal agreed with minor that the juvenile court abused its discretion and remanded with orders to allow minor to withdraw her admission. (A) APJ

 

May 2015

Booher, Robert — People v. McCaulley, D065530 — Ineffective Assistance of Counsel — Howard H. Shore, Judge — Opinion by Aaron, J., with McConnell, P.J., McIntyre, J. Court of Appeal agreed with appellant that trial counsel was ineffective for not attempting to impeach the prosecution’s main witness with a prior burglary conviction. Prior to trial, when the prosecution sought to exclude the prior for impeachment purposes, trial counsel failed to challenge it because he determined the credibility of the witness was not really at issue. At trial, however, the witness added information to her statement that had not been previously supplied to police. The information materially altered the case against appellant and credibility of that witness became the central issue in the case. Therefore, counsel was deficient and, given the weakness of other evidence, prejudicially ineffective in failing to impeach the witness with her prior burglary conviction. (I) APJ

Stevenson, Theresa — People v. Herrera, D064988 — Dual Use of Prior Convictions — Jeffrey B. Jones, Judge — Opinion by McDonald, J., with Nares, J., Aaron, J. Sentence reversed and case remanded for resentencing because the trial court erred by declining to strike the strike prior conviction allegations and then imposing sentence enhancements for those prior convictions while also using those prior convictions in sentencing appellant on her transportation conviction and the enhancement for being personally armed in committing that offense. (I) MCR

Moller, Richard J. — People v. Leon, E059624 — Fines — Jerry E. Johnson, Judge — Opinion by Ramirez, P.J., with McKinster, J., King, J. Court of Appeal directed the trial court to strike the $300 fine (Pen. Code, § 290.3) from the clerk’s minutes and abstract of judgment because the fine was not orally pronounced. (I) LKH

Morse, David — People v. Diaz, G049281 — Credits — Steven D. Bromberg, Judge — Opinion by Aronson, J., with O’Leary, P.J., Moore, J. Attorney General and Court of Appeal agreed that appellant, who was sentenced to 15- years-to-life terms, was entitled to pre-sentence conduct credits. (I) AMJ

Ansari, Loleena/DuNah, Patrick — People v. Ojeda, G049758 — Attorney Fees — Robert R. Fitzgerald, Judge — Opinion by Moore, J., with O’Leary, P.J., Thompson, J. Attorney General and Court of Appeal agreed that trial court violated the provisions of Penal Code section 987.8, subdivision (b). The court reversed judgment as to $200 attorney fee and ordered the trial court to hold a noticed hearing pursuant to statute. (S) LLA/PED

Tobin, Wayne — In re Henry V., G049722 — Corpus Delicti — Cheryl L. Leininger, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Aronson, J. Court of Appeal reversed the true findings for rape by use of drugs and oral copulation by controlled substance where the prosecution failed to satisfy the corpus delicti rule. Court of Appeal found that, but for the minor’s statements, the prosecution presented no evidence to establish criminal wrongdoing. (A) MCR

Farber, William — People v. Gomez, E061234 — Credit Calculation When New Judgment Imposed — William Jefferson Powell IV, Judge — Opinion by Codrington, J., with Hollenhorst, J., Miller, J. After federal habeas writ proceedings, appellant’s initial murder conviction was reversed. He later pleaded guilty to voluntary manslaughter and, as part of the plea, agreed to specific credits. In response to a CDCR letter noting incorrect custody credits had been awarded, the court ordered only actual days and did not include any conduct credits. Court of Appeal found appellant was not entitled to the credit award as outlined in the plea agreement. But appellant affirmed in the appeal that he did not want to withdraw his plea. So, the Court of Appeal ordered conduct credits as set forth in People v. Donan (2004) 117 Cal.App.4th 784 for the period before the initial judgment was imposed and the period after the initial judgment was reversed, but before the second judgment was imposed. (I) CBM

Ting, Allison — People v. Rojas, G050421 — Insufficient Evidence Premeditation/Deliberation — Charles J. Koosed, Judge — Opinion by Aronson, J., with O’Leary P.J., Concurrence and Dissent by Fybel, J. Court of Appeal held insufficient evidence to support jury finding of premeditation and deliberation requires reduction of first degree murder conviction to second degree and sentence from 25 years to life to 15 years to life. (I) DKR

Kaiser, Donna — In re M.C., E062648 — Indian Child Welfare Act (ICWA) — Christopher B. Marshall, Cheryl C. Kersey, and A. Rex Victor, Judges — Opinion by McKinster, J., with King, J., Codrington, J. Reversed for failure to give notice under the Indian Child Welfare Act. Counsel filed a Code of Civil Procedure section 909 motion with a declaration by father concerning his Indian heritage. (I) CAG

Auwarter, Neil — People v. McKinney, D065937 — Three-Strikes Sentencing — Leo Valentine, Jr., Judge — Opinion by Huffman, J. with O’Rourke, J., Irion, J. Court of Appeal reduced sentence by 10 years by modifying three 5-year prior serious felony (§ 667, subd. (a)) enhancements from consecutive to concurrent. Defendant was convicted of three counts of attempted robbery with three strike priors, and one prior serious felony. The sentencing court imposed three indeterminate Three Strikes terms concurrently, but ran the three 5-year prior serious felony enhancements mandated by section 667, subdivision (e)(2)(B), consecutively, adding 15 determinate years to the sentence. Court of Appeal found that under People v. Williams (2004) 34 Cal.4th 397, the manner in which the Three Strikes terms are imposed governs the manner in which any prior serious felony enhancement mandated by subdivision (e)(2)(B) must be imposed. Accordingly, since the sentencing court ran each indeterminate Strikes term concurrently, the three 5-year prior serious felony enhancements were also required to be concurrent to each other. (S) NFA

Keller, Roni — In re J.G., E061587 — Transfer Order — Christopher B. Marshall, Judge — Opinion by McKinster, J., with Ramirez, P.J., Codrington, J. Court of Appeal agreed with father that the San Bernardino juvenile court erred in accepting the case from Orange County and then immediately transferring the case back to Orange County. Court of Appeal relied on the fact the children were residing with mother in San Bernardino County and the children’s best interest and their need to be monitored by a local social worker. (I) LLF

Bishop, Rosemary — In re Madeline C., D066800 — Jurisdiction — Michael J. Martindill, Referee — Opinion by Aaron, J., with Huffman, J., McIntyre, J. Court of Appeal agreed with mother that, given the facts of the case, jurisdiction under Welfare and Institutions Code section 300, subdivision (a), was improper and vacated the trial court’s order. Jurisdiction was affirmed but the subdivision (a) finding was to be vacated and replaced with a section 300, subdivision (b) finding. The court held that given domestic violence cases not involving an injury to the child are included in subdivision (b), the finding of jurisdiction under subdivision (a) was improper. (I) LLF

Klippi, Elizabeth — In re L.C., E061963 — Indian Child Welfare Act (ICWA) — Tamara L. Wagner, Temporary Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Court of Appeal agreed with father that the trial court and the Riverside County Department of Public Social Services erred in failing to provide notice to an Indian tribe identified later in the case. (A) LLF

White, Catherine — People v. Branch, et al., D067450 — Involuntary Confession — Bernard J. Schwartz, Judge — Opinion by Huffman, J., with McConnell, P.J., O’Rourke, J. Court of Appeal reversed co-appellant Jeremy Walker’s convictions for two counts of attempted murder and one count of active participation in a criminal street gang concluding the trial court erroneously admitted Walker’s confession. The appellate court determined Walker’s confession was involuntarily coerced by law enforcement promises of leniency and admission of the confession was prejudicial error. However, because Walker was tried separately and his confession was not admitted at the trial of co-appellants Branch and Henderson, their convictions were affirmed. (I) LKH

DiGuiseppe, Raymond — People v. Smith, D064925 — Gang Enhancement — Patricia K. Cookson, Judge — Opinion by O’Rourke, J., with Benke, J., Huffman, J. Court of Appeal found 10-year gang enhancement attached to conviction for battery with serious bodily injury conviction unauthorized because that enhancement only applies to violent felonies. Court of Appeal reduced the enhancement to five years which is authorized for the offense as a serious felony. The enhancement was stayed along with sentence for that conviction under Penal Code section 654. (I) AMJ

Missakian, Matthew — People v. Rushing, E060382 — Mandatory Supervision Conditions — Jon D. Ferguson, Judge — Opinion by Ramirez, P.J., with McKinster, J., King, J. Mandatory supervision condition forbidding appellant from interfering with enforcement of search condition was modified to forbid appellant from knowingly interfering. (A) NFA

Dain, Anthony — People v. Rogel, G049102 — Gang Enhancement — Carla Singer, Judge — Opinion by Thompson, J., with Bedsworth, J., Moore, J. Court of Appeal reversed gang enhancements attached to attempted murder and aggravated assault convictions because no substantial evidence proved appellant committed the offenses to benefit or promote the Underhill street gang or that he acted with the specific intent to benefit Underhill. (I) DKR

King, Nancy — People v. Godwin, D064909 — Sex-Offense Sentencing — Christopher J. Plourd, Judge — Opinion by Haller, J., with McDonald, J., Irion, J. Habitual sex offender life sentences under Penal Code section 667.71 must be dismissed, rather than stayed, where appellant received life sentences under the One Strike provisions of section 667.61 for the same offenses. (I) NFA

Johnson, Lauren — In re R.P., E062303 — Indian Child Welfare Act (ICWA) — Jacqueline C. Jackson, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. After the Chickasaw Nation informed the Riverside County Department of Public Social Services the child, R.P., was eligible for membership if certain steps were followed, it was error for the juvenile court to find ICWA did not apply. California Rules of Court, rules 5.482(c) and 5.484(c), required the court to instead proceed as if R.P. was an Indian child and required the Department provide active efforts to secure the child’s tribal membership. Although the father had not yet enrolled with the tribe pursuant to court order, there was insufficient evidence the Department provided active efforts. Court of Appeal upheld a stipulated reversal to allow for a final resolution of the case on the merits. The court added it would benefit the child’s interests not to delay the present case for the California Supreme Court decision in a case addressing the validity of the rules pertaining to active efforts. (I) LMF

April 2015

Kaiser, Donna B./Gabrielidis, Cristina — In re J.R.., D063639 — Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) — Garry G. Haehnle, Judge — Opinion by McConnell, P.J., with McDonald, J., McIntyre, J. Court of Appeal reversed the disposition order and remanded with instructions for the juvenile court to complete a full jurisdictional analysis under the UCCJEA. In the jurisdiction/disposition report, the San Diego County Health and Human Services Agency (Agency) raised the potential application of the UCCJEA because the family lived in Mexico for at least nine months before the event leading to the petition. However, the juvenile court erroneously found the UCCJEA did not apply, based solely upon the part of the report indicating no family court or custody proceeding had been filed in Mexico. The appellate court explained such finding was incomplete without contacting the home state and conducting an evidentiary hearing. (I) ACS

Lemon, Clare — In re Matthew D., D064027 — Indian Child Welfare Act (ICWA) Notices — Gary M. Bubis, Judge — Opinion by Benke, J., with McConnell, P.J., McDonald, J. Court of Appeal reversed the judgment terminating parental rights and remanded to juvenile court with directions to order the San Diego County Health and Human Services Agency (Agency) to provide proper ICWA notice and file all required documentation in conformity with the ICWA. The Agency had sent the ICWA notices to tribes identified by the father, but did not mention the paternal family’s roll number. The notices also excluded most family member names and other known information regarding Indian medical and dental services which the family qualified for and used. (A) ACS

Shaler, Susan — People v. Jordan, D064998 — Sentencing — Charles G. Rogers, Judge — Opinion by Haller, J., with Huffman, J., O’Rourke, J. Remand for resentencing where trial court erroneously imposed two enhancements for appellant’s firearm use: (1) an enhancement under Penal Code section 12022.5, subdivision (a) [personal firearm use]; and (2) an enhancement under Penal Code section 186.22, subdivision (b)(1)(B) based on the serious felony of assault with a deadly weapon. Under Penal Code section 1170.1, subdivision (f), only the greatest of those enhancements shall be imposed. (I) PMI

Shudde, Athena — People v. Pearley, D065068 — Sentencing/Abstract of Judgment — Amalia L. Meza, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Haller, J. Sentence on two counts violated ex post facto principles where the punishment was greater than that prescribed when the offenses occurred. Additionally, the abstract of judgment is ordered corrected to reflect the trial court’s oral pronouncement on the characterization of three consecutive terms and the number of credits. (I) PMI

Hermansen, Kurt — People v. Torres, D065126 — Trial Court Response to Jury Question — Kenneth Kai-Young So, Judge — Opinion by Nares, J., with McDonald, J., McIntyre, J. Court of Appeal reversed two of four counts of lewd acts on a child where the trial court’s answer to a jury question during deliberations incorrectly suggested two acts could form the basis for four counts of conviction. (I) NFA

Ordonez, Sarita — People v. Rojas, D065601 — Probation Conditions — Stephanie Sontag, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Irion, J. Where appellant was convicted of residential burglary, Court of Appeal vacated probation condition giving probation officer authority to approve appellant’s place of residence. Court held this was an overbroad impingement on the constitutional rights to travel and free association. (A) NFA

Coleman, Jared G. — People v. Wiese, D065614 — Fines/Fees After Revocation of Probation — Desiree Bruce-Lyle, Judge — Opinion by Irion, J., with Huffman, J., Aaron, J. After revocation of probation, the trial court improperly increased defendant’s original restitution fine. It further erred by imposing a drug program fee when the court specifically chose not to impose it when his sentence was executed and suspended. (A) PMI

Bishop, Rosemary — In re Joseph B., D065833 — Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) — Laura J. Birkmeyer, Judge — Opinion by Haller, J., with O’Rourke, J., Irion, J. The Court of Appeal found the juvenile court asserted proper temporary emergency jurisdiction but did not provide sufficient notice to minor’s home state pursuant to the UCCJEA before making permanent orders. A call to a Nevada court law clerk was insufficient to satisfy the duty to contact Nevada authorities and inquire whether that state wished to assert its home state jurisdiction. The juvenile court’s placement order was conditionally reversed with directions to reinstate if Nevada does not exercise jurisdiction. (I) ACS

Zehner, Michelle — In re Paige W., D066037 — Probation Conditions — Aaron H. Katz, Judge — Opinion by Huffman, J., with Nares, J., McDonald, J. Court of Appeal modified four conditions of juvenile probation where minor was found to have committed an assault. Two standard conditions were modified to include “knowingly” requirements. A third condition purporting to prohibit defendant from having “negative contact” with the victim or her family was modified to specify what conduct was prohibited. A fourth condition requiring “satisfactory citizenship” in school was found unconstitutionally vague and the trial court was ordered to clarify this condition. (A) NFA

Olsen, Nancy — People v. Johnson, D066151 — Motion to Suppress Evidence — Albert T. Harutunian III/Leo Valentine, Jr., Judges — Opinion by McIntyre, J., with Nares, J., O’Rourke, J. There was no reasonable suspicion to detain appellant and suppression motion should have been granted where the only articulable facts the officer relied upon to detain appellant were that appellant was driving a rental car in the vicinity of where a residential burglary had taken place 10 minutes earlier. The Attorney General conceded the issue. (I) MCR

Shetty, Siri — People v. Hill, D066201 — Sentencing — Amalia L. Meza, Judge — Opinion by McDonald, J., with Haller, J., McIntyre, J. Where the one-year prison prior enhancement (Pen. Code, § 667.5) and the five-year serious felony enhancement (Pen. Code, § 667, subd. (a)) is based on the same prior conviction, under People v. Jones (1993) 5 Cal.4th 1142, 1150, the one-year prior prison enhancement must be stricken. (I) PMI

Katz, Paul — People v. Brown, D066269 — Fine — Laura H. Parsky, Judge — Opinion by Huffman, J., with McDonald, J., McIntyre, J. Sex offender fine of $500 imposed pursuant to Penal Code section 290.3 stricken because the fine was not authorized for the offense of which appellant was convicted. (A) LAR

Coleman, Jared — People v. Baltsas, D066348 — Penal Code Section 654 — Michael T. Smyth, Judge — Huffman, J., with McConnell, P.J., Irion, J. Court agreed that grand theft was the object of the burglary both committed by appellant; therefore the sentence for grand theft should have been stayed pursuant to Penal Code section 654. (I) LAR

Jones, Sharon — People v. Salazar, D066882 — Erroneous Discharge of Juror — Victor R. Stull, Judge — Opinion by O’Rourke, J., with McDonald, J.; Benke, J., separately concurring. Judgment reversed where the trial court abused its discretion by dismissing a juror for failing to deliberate, as the record did not support the court’s finding that the juror was refusing to deliberate. (I) MCR

Peabody, Jennifer — People v. Durnin, D066961 — Abstract of Judgment — Gary B. Tranbarger, Judge — Opinion by Benke, J., with Huffman, J., O’Rourke, J. Abstract to be corrected to reflect the midterm sentence on count 5 was stayed under Penal Code section 654. (I) LAR

Edwards, John — People v. Lakey, Jr., D066967 — Sentencing — Michael J. Rushton, Judge — Opinion by McConnell, P.J., with Nares, J., Aaron, J. The trial court erred when it imposed the full term for a gang enhancement instead of one-third the full term when attached to a consecutive sentence. (I) PMI

Duxbury, Brett — People v. Velasco, D066979, (2015) 235 Cal.App.4th 66 — Gang Offense Sufficiency When Different Gangs — Eric M. Nakata, Judge — Opinion by Huffman, J., with Haller, J., O’Rourke, J. Court of Appeal agreed with appellant’s argument that the gang offense (Pen. Code, § 186.22, subd. (a)) requires the promotion of felonious conduct by a member of the defendant’s own gang and not by the member of another gang. In this case, there was no evidence that the gang member whom appellant assisted was in appellant’s gang so the conviction is reversed. (I) APJ

Tavano, Joseph — In re Jason W., D067040 — Adoptability — Laura J. Birkmeyer, Judge — Opinion by Nares, J., with Haller, J., O’Rourke, J. While the court found two of mother’s children were adoptable, it reversed as to a third child, who had a rare genetic disorder, mild cerebral palsy, mild intellectual disability and hyperthyroidism. She was medicated to reduce aggression and help her sleep, and required growth hormone therapy. She was 12 years old but functioned at the level of a five or six year old. Her behaviors included tantrums, physical aggression, noncompliance and lying. Two foster placements had failed because of her behaviors. In her current foster home, her behaviors caused the caregiver to lock herself and her children in a bedroom when the child had a tantrum. (I) ACS

Love, Jack — In re S.C., et al., E057648 — Indian Child Welfare Act (ICWA) — John M. Monterosso, Judge — Opinion by Codrington, J., with Ramirez, P.J., Miller, J. Court of Appeal reversed the order terminating parental rights and remanded with directions to comply with the ICWA. Mother indicated Indian ancestry but the juvenile court assumed ICWA did not apply based on a past case. Without current ICWA notice in the record, the Court of Appeal was unable to verify notice was proper. Mother later indicated Shoshone ancestry, yet the tribe was never notified. A third child was born but the juvenile court erroneously assumed ICWA did not apply to him because he was not removed. The appellate court said the potential for removal made ICWA apply. The Court of Appeal directed juvenile court to comply with the ICWA notice requirements, including providing proper notice of proceeding to Shoshone tribes, for all three children. (A) ACS

Thue, Matthew/Turkat-Schirn, Megan — In re L.P., et al., E057864 — Indian Child Welfare Act (ICWA) — Cheryl C. Kersey, Judge — Opinion by King, J., with Ramirez, P.J., Hollenhorst, J. San Bernardino County Children and Family Services (CFS) sent ICWA notices to the Bureau of Indian Affairs (BIA) excluding relevant information concerning paternal relatives which CFS either knew or had available at the time the notices were sent. The Court of Appeal conditionally reversed the disposition order with a limited remand for juvenile court to direct CFS to make further inquiries regarding the minors’ Indian ancestry and, if the minors are found to be Indian children, to conduct further proceedings in compliance with the ICWA or, otherwise, to reinstate the disposition. (I) ACS

Shargel, Johanna — In re E.N., et al., E058029 — Indian Child Welfare Act (ICWA) — Cheryl C. Kersey, Judge — Opinion by Richli, J., with McKinster, J., King, J. Court of Appeal conditionally reversed the order terminating parental rights because the juvenile court failed to ensure compliance with the ICWA requirements. Although mother indicated her maternal grandmother had Indian ancestry, San Bernardino County Children and Family Services (the Department) omitted reference to and information about the mother’s maternal grandmother from the notice to the Bureau of Indian Affairs (BIA). The appellate court remanded, directing the juvenile court to order the Department to contact the mother’s mother and give notice in compliance with the ICWA. (A) ACS

Duxbury, Brett — People v. Rodriguez, E058377 — Sentencing — William Jefferson Powell, IV, Judge — Opinion by Ramirez, P.J., with McKinster, J., King, J. Contrary to Penal Code section 1170.1, subdivision (g), the trial court imposed a three-year great bodily injury enhancement on an aggravated assault conviction. The three-year term is stricken where the same fact was used to enhance the sentence under Penal Code section 186.22, subdivision (b)(1)(B). (I) PMI

Rehm, Linda/Williams, Nicole — In re M.R.., et al., E058433 — Indian Child Welfare Act (ICWA) — Gregory S. Tavill, Judge — Opinion by Miller, J., with McKinster, J., Richli, J. Order terminating parental rights was conditionally reversed based on incomplete ICWA notice and lack of notice as to one of the minors. Case remanded to juvenile court with directions ordering San Bernardino County Children and Family Services to give notice in compliance with the ICWA and related laws, including correct birth dates and complete family information as required by law. (I) ACS

King, Nancy — People v. Moore, E058917 — Sentencing — R. Glenn Yabuno, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., McKinster, J. Remand required because the trial court erred in imposing the firearm enhancements under Penal Code section 12022, subdivision (d) (three years), instead of Penal Code section 12022, subdivision (a)(1) (one year); in addition, court failed to recognize its discretion to sentence defendant concurrently on four counts. (I) PMI

Angres, Robert — People v. Young, Jr., E059687 — Probation Condition/Clerical Error — Thomas Glasser, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J. Court of Appeal found probation condition requiring appellant to have his residence approved by his probation officer was unconstitutionally overbroad and impinged on appellant’s rights to travel. Trial court ordered to modify condition to read: “Keep the probation officer informed of your place of residence and give written notice to the probation officer twenty-four (24) hours priors to a change in residence.” Court also ordered trial court clerk to prepare an amended sentencing minute order reflecting the proper probation revocation fine. (I) LAR

Angres, Robert — People v. Hernandez, E060305 — Credits,/Fines/Abstract of Judgment — Gary B. Tranbarger, Judge — Opinion by King, J., with Miller, J., Codrington, J. On remand where a appellant’s felony sentence was modified, under People v. Buckhalter (2001) 26 Cal.4th 20, appellant was entitled to credit for all actual time served; recalculation results in 856 additional days of credit. Restitution and parole revocation fines increased on resentencing are reduced to the fines imposed in the original judgment. Statutory court assessments in the abstract of judgment must also be reduced to reflect two counts of conviction, not four. (I) PMI

Leftwich, Maria — In re D.G., E060342 — Probation Conditions/Credits — Philip K. Mautino, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J. Two unconstitutionally overbroad and/or vague probation conditions modified. Remand as to another condition: “no negative contact” with minor’s boyfriend, to narrowly define what types of contact should be prohibited. Custody credits for the time minor spent in custody prior to her transfer to San Bernardino County awarded. (A) PMI

Misra, Shobita — In re P.M. II, E060721 — Indian Child Welfare Act (ICWA) — Lawrence P. Best, Temporary Judge — Opinion by Richli, J., with McKinster, J., Miller, J. Juvenile court failed to notify Cherokee tribes before terminating parents’ rights although mother indicated Cherokee ancestry in the adoption assessment. Court of Appeal reversed and remanded, but did not allow reinstatement of the order terminating parental rights because minor would reach 18 years of age before the remittitur would issue. The juvenile court was ordered to decide whether or not to terminate its jurisdiction immediately and, if not, to direct the Department to give notice of proceedings according to state law extending the applicability of ICWA to a dependent aged 18 to 20. (A) ACS

Siroka, Matthew — People v. Jenkins, E060810 — Penal Code Section 654 — Cara D. Hutson, Judge — Opinion by Codrington, J. with Ramirez, P.J., McKinster, J. Appellant was convicted of residential burglary, and assault, the felony object of the burglary. Court of Appeal ordered the trial court to modify the sentence on the assault to reflect a stay pursuant to Penal Code section 654. (I) LKH

Siroka, Matthew — People v. Monroe, E061051 — Mandatory Suprevision Condition —William S. Lebov, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J.
Appellant argued that the mandatory supervision condition requiring appellant to have his residence approved by his probation officer is unconstitutionally vague and/or overbroad and impinged on his constitutional rights to travel and freedom of association. The court distinguished the case from People v. Schaeffer (2012) 208 Cal.App.4th 1, which is presently pending in the California Supreme Court, and found that here, the appellant’s residence would have no foreseeable effect on his rehabilitation from unlawfully passing a check with the intent to defraud. The court found that respondent failed to show a nexus between appellant’s living situation and future criminality and therefore the challenged condition was modified to read as follows: “Defendant shall keep the probation officer informed of his place of residence and give written notice to the probation officer twenty-four (24) hours prior to a change in residence.” (I) CBM

Dodd, John — People v. Garcia, E061231 — Penal Code Section 654/Multiple Acts — Jean P. Leonard, Judge — Opinion by McKinster, J., with Ramirez, P.J., King, J. Court of Appeal agreed with appellant, and distinguished cases relied upon by the Attorney General, in finding that appellant could not be punished separately for both possession of ammunition and possession of a firearm which held ammunition, even though the jury’s verdict could also have been based upon appellant’s act in possessing ammunition separately in a shed. (I) APJ

Barry, Leslie — In re Ozzy B., E062162 — Right to Counsel — Otis Sterling III, Judge — Opinion by Ramirez, J., with Hollenhorst, J., McKinster, J. Respondent stepfather stipulated with biological father to reverse the case because counsel was not offered or appointed for the biological father in an action to terminate his parental rights. (I) CAG

Garfinkle, Elizabeth — People v. Osorio, G048876, (2015) 235 Cal.App.4th 1408 — Parole Revocation — Gregg L. Prickett, Judge — Opinion by Fybel, J., with O’Leary, P.J., Bedsworth, J. Court of Appeal reversed the trial court’s decision to overrule appellant’s demurrer to the petition to revoke parole. Appellant’s act of talking with two gang members for 10 minutes was conceded as a parole violation. However, the parole agent’s selection of the most intensive B level sanction which permits revocation of parole was error. Penal Code section 3000.08, subdivision (f) and California Rules of Court, rule 4.541(e) make clear that less restrictive sanctions must be considered before revocation of parole is sought. Accordingly, the trial court should have sustained the demurrer to the petition for revocation. (I) BCT

Beckham, Sylvia — People v. Barnhart, G049082 — Probation Costs — Lance F. Jensen, Judge — Opinion by Aronson, J., with Bedsworth, J., Thompson, J. Court of Appeal found record was ambiguous regarding whether trial court found appellant had the ability to pay the cost of probation supervision pursuant to Penal Code section 1203.1b even though the minute order shows that the cost was imposed. Remanded for a hearing on ability to pay. (I) NFA

Klein, Jill — People v. Lloyd, G049197, (2015) 236 Cal.App.4th 49 — Prosecutorial Error/Yurko Error — Donald F. Gaffney, Judge — Opinion by Moore, J., with Rylaarsdam, J., Aronson, J. Where the primary defense to assault with a deadly weapon charge was self-defense, the prosecutor argued to the jury: “If you find there is self-defense, you are saying his actions, the defendant’s conduct was absolutely acceptable.” The Court of Appeal concluded this was a misstatement of the law. Rather, the defendant need only point to evidence creating a reasonable doubt as to whether he acted in self-defense or in defense of another. The court found that the above misstatement was exacerbated by the prosecutor’s further argument: “Well, what does not guilty mean? It means you didn’t commit a crime.” This, too, was a misstatement of the law, because a not guilty verdict simply means the prosecution did not prove the defendant’s guilt beyond a reasonable doubt. Instructions to the jury did not cure these errors because the trial court overruled defense objections to the statements thereby signaling to the jury that the prosecutor’s interpretation of the law was correct. In a close case such as this, the errors were prejudicial. In addition, appellant’s admission of five prison priors was found to be not voluntary and intelligent where he was asked only to waive jury trial and then, seven months later, admitted the priors without additional advisements. The Court of Appeal, distinguished this case from cases in which admissions have been found to be voluntary and intelligent “just” after trial. (I) HCC

Norman, Jan — People v. Berry, G049483, (2015) 235 Cal.App.4th 1417 — Proposition 36 (Pen. Code, § 1170.126) Resentencing — Gary S. Paer, Judge — Opinion by Rylaarsdam, J., with O’Leary, P.J., Aronson, J. Published decision reversing trial court’s denial of appellant’s Penal Code section 1170.126 petition for resentencing. Appellant was charged with offenses arising from a single incident: possessing a fraudulent check, possessing a forged driver’s license, and unlawful possession of a firearm. He pleaded guilty to the forgery counts in exchange for the dismissal of the firearm count. In the Penal Code section 1170.126 proceeding, the court relied on the facts underlying the dismissed firearm count to find appellant was personally armed with a firearm when he committed the forgery offenses, disqualifying him from resentencing pursuant to Penal Code section 1170.126, subdivision (e)(2). The Court of Appeal held that under the terms of subdivision (e)(2), the current disqualifying offense must be one for which sentence was “imposed.” Here, sentence was “imposed” for fraud offenses, not weapon possession, particularly where the trial court was barred from considering the dismissed count in sentencing on the admitted counts. (People v. Harvey (1979) 25 Cal.3d 754, 758.) Remanded for the trial court to conduct a public safety hearing under Penal Code section 1170.126, subdivision (f), where the Court of Appeal noted the trial court could consider the conduct underlying the dismissed firearm count. (I) NFA

Rogers, Tracy — People v. Delacerda, G049574, (2015) __ Cal.App.4th __ [2015 WL 1910694] — Kidnaping Instructional Error — James Edward Rogan, Judge — Opinion by Thompson, J., with Aronson, J., Ikola, J. Because evidence was sufficient for the kidnaping and the domestic violence battery to meet the associated crime test set out in People v. Bell (2009) 179 Cal.App.4th 428, 438-439, the trial court erred when it did not instruct the jury to consider whether the movement of the victim was merely incidental to the commission of the domestic violence battery. Kidnaping conviction is reversed because the instructional error was not harmless beyond a reasonable doubt. (I) DKR

Adraktas, Stephanie — People v. Arana, G049609 — Parole Condition — Craig E. Robison, Judge — Opinion by Aronson, J., with Moore, J., Ikola, J. Parole condition prohibiting appellant’s entry without prior approval into motels and private residences unreasonable in that it does not account for circumstances that may arise in which preapproval for temporary entry into a residence or motel (such as to use a restroom or obtain shelter in inclement weather) cannot quickly be obtained. Condition modified to include language: “If the parole agent is unavailable to authorize entry, you may enter the residence or motel/hotel if you have left a message for the agent explaining the reason for the visit and no minors are present.” (A) CBM

LeRoy, Doris M. — People v. Gonzales, G049919 — Amendment of Information/Prison Priors — J. David Mazurek, Judge — Opinion by Moore, J., with O’Leary, P.J., Bedsworth, J. Court of Appeal agreed with appellant that gang allegation could not be added to a murder charge in the information when no evidence to support the allegation was offered at the preliminary hearing. Because this is a 25-to-life sentence case, the true finding on the allegation added nothing to appellant’s sentence (penalty for the gang allegation is a minimum parole period of 15 years, so less than appellant’s penalty for the offense standing alone). One prison prior stricken because it was based upon a prison sentence that was served concurrently with the sentence for which a separate prison prior was imposed. (I) APJ

Beckham, Sylvia — In re Anthony P., G050470 — Clerical Errors - Jacki C. Brown, Judge - Moore, J., with O’Leary, P.J., Thompson, J. Clerical error in minute order stricken, and record corrected to reflect an extra day of custody credit. (I) LAR

Missakian, Matthew — People v. Tyler, G050868 — Suppression Hearings/ Sentencing — David. A. Gunn/Charles J. Koosed, Judges — Opinion by Aronson, J., with Moore, J., Fybel, J. Court of Appeal reversed and remanded for a new suppression hearing where the defense had moved to quash a search warrant on the ground the sealed warrant did not establish probable cause and where the trial court failed to review the warrant for probable cause. The court also stayed pursuant to Penal Code section 654 a consecutive term for a felon with a firearm count where the same firearm possession was the basis of a section 12022.1 enhancement on another count. The court also awarded 30 additional days of presentence custody conduct credit. (A) NFA


March 2015

Boyce, Robert E. — People v. Anderson, D063648, (2015) 235 Cal.App.4th 93 — Penal Code Section 654 — Francis M. Devaney, Judge — Opinion by Aaron, J., with McConnell, P.J., Irion, J. Concurrent sentence for burglary and the firearm enhancement on that count ordered stayed pursuant to Penal Code section 654 where the burglary was based upon the same intent to steal that supported appellant’s conviction and sentence for robbery. (I) PMI

Ulibarri, Patricia/Romero, Lynda/Scott, Patricia — People v. Jordan/Jones/Abernathy, D064010, (2015) 235 Cal.App.4th 198 — Credits/Clerical Error — Kerry Wells, Judge — Opinion by Irion, J., with Huffman, J., Haller, J. For Jordan and Abernathy, judgment modified to include an additional day of credit. For Jones, abstract of judgment corrected to reflect stayed sentence on count 4. (I) PMI

Ulibarri, Patricia — People v. Beltran, D064469 — Insufficient Evidence Kidnaping for Extortion — Edward P. Allard, III, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Aaron, J. Court of Appeal reversed appellant’s conviction of kidnaping for ransom, reward or extortion (Pen. Code, § 209, subd. (a)) for insufficient evidence. The evidence was that appellant kidnaped appellant to extract from her information about a common acquaintance who owed appellant money. The court held kidnaping appellant to obtain information about a third person debtor did not amount to extortion. (I) NFA

King, Nancy — People v. Macias, D064624 — Penal Code Section 654 — Peter C. Deddeh, Judge — Opinion by Nares, J., with McConnell, P.J., Huffman, J. Appellant argued, Attorney General conceded, and Court of Appeal agreed that appellant’s consecutive sentence for attempted murder and related enhancements must be stayed pursuant to Penal Code section 654 when the crime shared the same objective as appellant’s conspiracy to commit murder for which he was separately punished. (I) HCC

Rudasill, Denise — People v. Bailey, D064758 — Conduct Credits — Christopher J. Plourd, Judge — Opinion by McConnell, P.J., with Huffman, J., McIntyre, J. Appellant contended, Attorney General conceded, and Court pf Appeal agreed that defendant was entitled to one-for-one day pre-sentence conduct credit because he was not convicted of any crime that would warrant limited credits. (I) HCC

Brisbois, Patricia — People v. Polina, D064796 — Sentencing/Penal Code Section 654 — Peter C. Deddeh, Judge — Opinion by Nares, J., with McConnell, P.J., Huffman, J. Appellant contended, Attorney General conceded, and Court of Appeal agreed the 10-year sentence imposed for a gang enhancement on conviction of assault with a deadly weapon by a prisoner should be reduced to five years under Penal Code section 186.22, subdivision (b)(1)(B), because that assault offense, while a serious felony, is not a violent felony within the meaning of sections 667.5, subdivision (c), and 186.22, subdivision (b)(1)(C). Appellant also contended that given the conviction of and punishment for conspiracy to commit murder, both the consecutive sentences imposed for his convictions of attempted murder and assault with a deadly weapon by a prisoner and the related gang enhancement must be stayed pursuant to Penal Code section 654 because the three offenses were part of a single course of conduct aimed at harming the only named victim in the pleadings. Respondent conceded as to the former offense, but not as to the latter. The Court of Appeal agreed with appellant as to both. (I) HCC

Khoury, Charles — In re Madrid, on Habeas Corpus, D064845 — Ineffective Assistance of Counsel — Peter C. Deddeh, Judge — Opinion by Huffman, J., with Benke, J., Arron, J. A Wende brief was originally filed in this case, with appellant filing his own pro per supplemental opening brief alleging various instances of ineffectiveness of his trial counsel. The Court of Appeal did not find any appellate issues and affirmed the judgment. However, although the court rejected the issues raised in appellant’s pro per brief, they deemed the brief a petition for writ of habeas corpus, issued an order to show cause and appointed counsel. After the parties filed their briefs, the Court then referred the matter to the presiding judge of the San Diego Superior Court to select a special master to hold an evidentiary hearing to answer 13 specific questions. The special master found, inter alia, that trial counsel was unprepared but not prejudicially ineffective. The Court here found that the special master’s factual findings were supported by substantial evidence, but nevertheless independently determined that appellant was prejudiced by his trial attorney’s inadequate representation at sentencing because there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The sentence was vacated and remanded for resentencing. (I) LAR

Mazur, Janice — In re Salinas, D065052 — CDCR Prisoner Classification/Right to Confrontation — Christopher J. Plourd, Judge — Opinion by McDonald, J., with Haller, J., Aaron, J. Habeas corpus relief granted. Petitioner inmate was found by CDCR to be a validated gang member, placed in a secured housing unit (SHU), and denied custody credits while in the SHU pursuant to Penal Code section 2933.6, subdivision (a). On habeas corpus the Court of Appeal found CDCR’s blanket policy barring the inmate from calling or confronting witnesses violated petitioner’s right to due process under Wolff v. McDonnell (1974) 418 U.S. 539. The court ordered that petitioner’s gang classification be expunged and that he be housed and awarded custody credits accordingly. (I) NFA

Dwyer, John P. — People v. Davis, D065409 — Abstract of Judgment — Poli Flores, Jr., Judge — Opinion by McDonald, J., with Nares, J., Aaron J. Abstract of judgment corrected to show one extra day of custody credit and to delete the firearm enhancements associated with the conspiracy conviction. (I) PMI

Ford, Patrick — People v. Trujillo, D065438 — Penal Code Section 654 — Lorna Alksne, Judge — Opinion by McConnell, P. J., with Huffman, J., McIntyre, J. In a robbery, the victim was assaulted with a hammer and the trial court imposed a consecutive term for assault with a deadly weapon. Appellant argued the term should have been stayed under Penal Code section 654 and respondent contended multiple punishments were appropriate because the assault constituted excessive or gratuitous violence that was not necessary to complete the robbery. The Court of Appeal concluded there was no evidence of an objective behind the assault other than to facilitate the robbery and the force used was not as great as in those cases were gratuitous violence was found. The victim had continued to resist after being struck by the hammer and never lost consciousness. Accordingly, the court could not conclude the assault was gratuitous and found, therefore, that Penal Code section 654 applies. (I) HCC

Vogelmann, Monica/Gold, Neale/Hook, William — In re Alberto F., D065597 — Welfare and Institutions Code Section 388 Petition Not Required to Argue Improper Notice Under Hague Service Convention — Laura Birkmeyer, Judge — Opinion by Haller, J., with Benke, J., Nares, J. Court of Appeal reversed the juvenile court order requiring father to file a Welfare and Institutions Code section 388 petition to challenge alleged notice errors under statutory law and the Hague Service Convention. Father contended that jurisdiction and disposition hearings were void for lack of personal jurisdiction because the Agency was not compliant with the Hague Service Convention. Father originally filed a motion to vacate jurisdictional findings for lack of notice. The juvenile court required him to file a section 388 petition before it would consider whether he received adequate notice. In a footnote, the appellate court assumed, without deciding, a notice violation under the Hague Service Convention would violate due process. Despite the reversal of the order regarding Welfare and Institutions Code section 388, the appellate court affirmed the judgment, finding that the Hague Service Convention did not apply to this case, the Agency conducted a reasonable search to locate the father, and the Agency’s inquiry as to father’s whereabouts was made in good faith. The stay of termination hearing is vacated. (I) ACS

Jones, Jason — People v. Chamu, D065710 — Probation Conditions — Daniel B. Goldstein, Judge — Opinion by Haller, J., with Nares, J., McIntyre, J. Two conditions of probation modified to address problems with overbreadth. Condition prohibiting appellant from appearing at a courthouse, unless as a party or witness, is modified to serve the purpose of prohibiting gang intimidation. Condition prohibiting appellant from being in any building where firearms or deadly weapons exits, modified to limit presence in buildings where weapons illegally exist. (A) APJ

Dain, Anthony — People v. Taylor, D066125 — Restitution Fine —Donal B. Donnelly, Judge — Opinion by Irion, J., with Haller, J., Aaron, J. Attorney General conceded and Court of Appeal agreed that restitution fine and parole revocation fine should be reduced from $300 to $240, the minimum fine at the time the offense was committed. (I) BCT

Haggerty, Edward J. — People v. Gutierrez, D066167 — Sentencing — Patrick F. Magers, Judge — Opinion by Nares, J., with Haller, J., McDonald, J. In appellant’s first appeal, the Court of Appeal reversed the indeterminate term of seven-years-to-life for intimidating a witness and remanded for resentencing. In this appeal, the Court of Appeal reversed the new sentence, finding the trial court erred in imposing both the Penal Code section 12022.5 firearm enhancement and the 10-year gang enhancement under section 186.22, (b)(1)(C). (I) LAR

Ting, Allison — People v. Sanchez, D066685 — Dual Convictions — Ingrid A. Uhler, Judge — Opinion by McDonald, J., with Haller, J., McIntyre, J. Penal Code section 288.5 [continuous sexual abuse of a child] conviction and sentence reversed where the alleged time period of the crime overlapped by one day with the alleged time period of specific sexual crimes under section 288. Respondent initially conceded error under the authority of People v. Johnson (2002) 28 Cal.4th 240, but withdrew the concession based on a new case, People v. Goldman (2014) 225 Cal.App.4th 950, where the court concluded the issue was forfeited by failing to demur to the information. This court disagreed with Goldman and concluded that the rule in Johnson prohibiting dual convictions in this context is a substantive rule that cannot be forfeited. (I) PMI

Wrubel, Suzanne — People v. Starkey, D066853 — Evidence Code Section 1109 — Gary B. Tranbarger, Judge — Opinion by Aaron, J., with Huffman, J., O’Rourke, J. Appellant was charged with murder, stemming from his shooting of his girlfriend. Over objection, the trial court admitted evidence that he punched a former girlfriend in the face 14 years prior to the killing, for the purpose of proving his propensity to commit domestic violence. Appellant’s defense against the murder charge was that the shooting was an accident. The trial court instructed the jury on the lesser included offense of involuntary manslaughter on the ground that there was substantial evidence from which the jury could find that the killing resulted from the criminally negligent discharge of a firearm. The jury acquitted of first degree murder, but convicted of second degree murder. On appeal, appellant contended that the trial court erred in admitting evidence of his commission of the prior act of domestic violence because the record did not reflect that the trial court properly applied the presumption of inadmissibility adopted in Evidence Code section 1109, subdivision (e) and the uncharged offense bore little similarity to the charged offense. The Court of Appeal concluded the trial court abused its discretion in admitting the evidence. Appellant’s punching a former girlfriend in the face 14 years prior to the shooting is remote in time and is dissimilar to the charged offense, and there is nothing in the record demonstrating that the trial court properly applied the presumption of inadmissibility in section 1109, subdivision (e) in admitting the evidence. The error required reversal because it was reasonably probable that appellant might have obtained a more favorable result absent admission of the evidence, given the substantial evidence supporting the accident defense. The judgment was reversed and remanded for new trial. (I) HCC

Peabody, Jennifer — People v. Dominguez, D066978 — Sufficiency of Evidence/ “One-Strike” Sentencing — Eric G. Helgesen, Judge — Opinion by Huffman, J., with O’Rourke, J., Aaron, J. Defendant was convicted of lewd acts and sentenced to consecutive terms under the One-Strike law, Penal Code section 667.61. Court of Appeal reduced one count of forcible lewd act to non-forcible because there was insufficient evidence of force. The court also found the sentencing court had erred in concluding consecutive terms were mandated by the One-Strike law, requiring remanded for resentencing. (I-M) NFA

Min, Elena — In re Andy M.., D067007 — Indian Child Welfare Act (ICWA) Notice — Daniel Lamborn, Judge — Opinion by O’Rourke, J., with McDonald, J., Irion, J. The record contained information that an ICWA finding had been made but nothing about whether an inquiry had been made or notice given. Court reversed and remanded for required ICWA inquiry and notice. (A) ACS

Auwarter, Neil — In re Wilson, Habeas Corpus, E061447 (related appeal E059824) — Ineffective Assistance of Counsel/Proceedings After Order to Show Cause — Gerard S. Brown, Judge. After a petition for writ of habeas corpus was filed in the Court of Appeal, an order to show cause was issued on October 3, 2014. On February 6, 2015, proceedings in the trial court resulted in a reduced sentence for petitioner and release on parole. Petitioner had 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 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 pled guilty had he been properly advised he faced only one possible strike. At order to show cause hearing, trial court vacated the plea, and defendant entered a new 10-year plea resulting in immediate release on parole. (S) NFA

Lampkin, David — People v. Arevalo, E059854 — Ministerial Corrections — Ingrid A. Uhler, Judge — Opinion by Codrington, J., with King, J., Miller, J. Minute order corrected to reflect that the jury found appellant not guilty on count 3. Minute order and corresponding abstract of judgment corrected to reflect that defendant was not convicted or sentenced on count 3. Abstracts of judgment also corrected to reflect the correct year in which the offenses were committed. (I) PMI

Harris, Donna — People v. Wiley, E059881 — Substance Abuse Counseling/Anger Management/Clerical Errors -- Christian F. Thierbach, Judge — Opinion by McKinster, J. with Ramirez, P.J., Hollenhorst, J. The judgment is modified to reflect that substance abuse counseling pursuant to Penal Code section 1203.096 is recommended, not ordered, because trial court is without authority to order such counseling. Order to attend anger management classes stricken because no authority supports such an order. In addition, the minute order and abstract of judgment are ordered amended to reflect these changes, as well as fixing other clerical errors. (I) LKH

Greifinger, David — People v. Dunlap, E059899 — Probation Condition — Dale Wells , Judge — Opinion by McKinster , J., with Ramirez, P.J., Hollenhorst, J. Probation condition which prohibited appellant from possessing a firearm “for life” is overbroad, and modified to prohibit possession of a firearm for the duration of the probation period. (A) MCR

Dorian, Melanie — People v. Lopez, E059963 — Instructional Error — Charles J. Koosed, Judge — Opinion by McKinster, J., with Ramirez, P.J., Hollenhorst, J. Trial court had eliminated the element of section 273a, subdivision (a) that the trier of fact must determine that the child abuse was committed under conditions and circumstances likely to produce great bodily injury or death. The Court held the error required reversal because it was not harmless beyond a reasonable doubt. (I) LAR

Thue, Matthew— In re A.M., E061006 —Welfare and Institutions Code Section 388 Petition — John M. Monterosso, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., McKinster, J. The court found the prospective adoptive parent was entitled to a hearing on a Welfare and Institutions Code section 388 petition requesting the order be changed which removed the child from her home. (I) CAG

Love, Jack/Vogel, Linda — In re J.K., E061737 — Indian Child Welfare Act (ICWA) Notice — Cheryl C. Kersey, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. Father argued and the Court of Appeal agreed that the agency and juvenile court failed to make the proper inquiry of father’s family according to the ICWA requirements. Opinion conditionally reversed the termination of parental rights to allow the agency to properly inquire and provide complete ICWA notice to the named tribe. The appellate court reversed even though father later denied Indian heritage after his initial claim. (I) LLF

Jones, Cynthia — People v. Loeza, G048660 — Lesser Included Offense/Pre-sentence Conduct Credit — Thomas M. Goethals, Judge — Opinion by Fybel, J., with Ikola, J., Thompson, J. Where appellant’s convictions of sexual battery by restraint and its lesser included offense of simple assault were based upon overlapping conduct, as evident from the prosecutor’s closing argument (see generally People v. Carapeli (1988) 201 Cal.App.3d 589), appellant’s conviction for simple assault must be reversed. In addition, where appellant was not convicted of a violent felony listed in Penal Code section 667.5, subdivision (c), trial court erred in limiting presentence conduct credits under Penal Code section 2933.1. Calculation of conduct credits should be made under Penal Code section 4019. (I) AMJ/CBM

Hinkle, Stephen — People v. Navarro, G049442 — Restitution Fine — John Conley, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Fybel, J. In a case where trial court expressed intent to impose minimum restitution fine, but believed that the date of conviction controlled what the minimum should be, appellant argued that the resulting minimum of $280 was unauthorized and violated ex post facto principles. The Attorney General argued that the amount was within the range available at the time the crime was committed; thus, court was within its discretion to impose it. Court of Appeal agreed that there was no ex post facto violation and that the fine was authorized. Court nevertheless reduced the fine to $200 given the trial court’s stated intention to impose the minimum and given the court’s error about the controlling law. (I) APJ

Buckley, Christian — People v. Luna, G050272 — Sentencing — Colin J. Bilash, Judge — Opinion by Moore, J., with, O’Leary, J., Bedsworth, J. Court of Appeal remanded for resentencing where the record was unclear whether the trial court intended to impose or strike the four one-year prior prison term enhancements which appear on the abstract of judgment. (I) NFA

Gordon, Laura — People v. Robinson, G050398 — Victim Restitution — Ingrid Uhler, Judge — Opinion by Ikola, J., with Fybel, J., Thompson, J. Where the jury acquitted appellant of robbery against one victim (count 1) and where the court ordered appellant to serve a prison term, the trial court erred when it ordered appellant to pay victim restitution for that victim’s loss. Victim restitution in this situation is not authorized under Penal Code section 1202.4, subdivision (a)(1). Attorney General conceded error; $220 victim restitution order stricken. (I) CBM

Caldwell, William — In re Michael M., G050261 — Reversal of Disposition — Manssourian, Judge — Opinion by Bedsworth, J., with O’Leary, J., Moore, J. Mother argued jurisdiction and removal of her children was not support by substantial evidence. The Court of Appeal affirmed jurisdiction but held the removal of the teenaged sons was not proper and reversed. The court held that other means were available to prevent the children from consuming alcohol short of removal from mother. The case was remanded to the juvenile court with further instructions. (I) LLF

DiGuiseppe, Raymond — People v. Loper, S211840, (2015) 60 Cal.4th 1155 — Right to Appeal — Laura Parsky, Judge — Opinion by Werdergar, J., with Cantil-Sakauye, C.J., Chin, Corrigan, Liu, Cuellar, Kruger, JJ. Penal Code section 1170, subdivision (e) authorizes certain prison authorities to recommend that the superior court recall a previously imposed sentence because the prisoner is now terminally ill or medically incapacitated, permitting the resentencing of the prisoner to serve a new sentence outside the prison walls. When such a proceeding is properly initiated by prison or parole authorities as required by law, the trial court’s decision produces an appealable order that may be appealed by the prisoner. (I) LAR

Macomber, Thomas — People v. Cook, S215927, (2015) 60 Cal.4th 922 — Great Bodily Injury Enhancement/Manslaughter Conviction — Dennis A. McConaghy, Judge — Opinion by Chin, J., with Cantil-Sakauye, C.J., Werdegar, Corrigan, Liu, Cuellar, Kruger, JJ. California Supreme Court agreed with appellant’s argument that a great bodily injury enhancement cannot attach to a manslaughter conviction ever. This opinion disapproves of People v. Julian (2011) 198 Cal.App.4th 1524, which held that a great bodily injury enhancement can apply to a manslaughter conviction if the victim of great bodily injury is not the victim named in the manslaughter charge (even if the great bodily injury victim is the victim of manslaughter named in a separate charge). More broadly, this opinion disapproves of People v. Verlinde (2002) 100 Cal.App.4th 1146, which allowed a great bodily injury enhancement to attach to a manslaughter conviction so long as the victim of the great bodily injury was somebody other than the victim of the charged manslaughter. (A) APJ

February 2015

LeRoy, Doris — People v. Dragasits, D064288 — Presentence Credits — Charles R. Gill, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Aaron, J. Court of Appeal corrected error in abstract of judgment to add 122 days of presentence credits. (I) NFA

Bauguess, Susan — People v. Pradd, D065046 — Penal Code Section 654 — Jeffrey F. Fraser, Judge — Opinion by McConnell, P.J., with Huffman, J., Irion, J. Appellant convicted of and sentenced for possessing methamphetamine while armed with a loaded, operative firearm must have sentences for possession of firearm by a felon and possession of a controlled substance, based upon the same conduct, stayed pursuant to Penal Code section 654. (I) LAR

Smith, Kyle — People v. Poirier, D065707 — Probation Condition — Lantz Lewis, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. Probation condition requiring appellant to obtain the probation officer’s approval for both employment and residence is overbroad. Case remanded to the trial court to either strike the condition or more narrowly tailor it to accomplish the goal of preventing future criminality. (I) LAR

Dwyer, John/Polsky, David (Gamez) — People v. Jimenez/Gamez, D066212 — Penal Code Section 654 — Rodney A. Cortez, Judge — Opinion by O’Rourke, J., with Benke, J., Irion, J. Sentences for street terrorism are ordered stayed in accordance with People v. Mesa (2012) 54 Cal.4th 191. (I) LKH

Scott, Patricia — People v. McClane, et al., E055088 — Penal Code Section 654/Prison Priors — Stephan G. Saleson, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J. Court of Appeal ordered sentences for burglary and attempted robbery in concert stayed pursuant to section 654 where appellant was already sentenced for felony murder based on same conduct. In addition, one of appellant’s two prison priors was stricken because the terms were originally served together. (I) LKH

Matulis, Jean — People v. Barr, E058083 — Credits — Brian Lamb, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. Attorney General conceded and Court of Appeal agreed appellant is entitled to pre-sentence custody credits and trial court erred in thinking that the credits were earned only as to a stayed misdemeanor sentence. (I) APJ

Lathrop, Stephen — People v. Arredondo, Jr., E059610 — Correction of Clerical Errors — John D. Ferguson, Judge — Opinion by McKinster, J., with Ramirez, P.J., Richli, J. Clerical errors in the sentencing minute order and abstract of judgment ordered fixed so that appellant’s sentence of 78-years-to-life reflected rather than 91-years-to-life. (I) APJ

Nelson, Laurel — P. v. J.R.N., E059888 — Involuntary Medication — Irma Poole Asberry, Judge — Opinion by McKinster, J., with Ramirez, P. J., Richli, J. Appellant was found incompetent to stand trial. After hearing, the court made an order for the administration of involuntary medication under section Penal Code section 1370. The appellate court concluded the order was not supported by sufficient evidence and reversed the order. The court also concluded the issue was not rendered moot by appellant’s subsequent restoration to competency. The court observed the public interest exception to mootness applied because, “[t]o dismiss for mootness in cases such as this would allow the state to commit serious violations of fundamental rights with impunity. It is to reach precisely such injustices that the public interest exception exists.” (I) LMF

Cannon, Gregory — People v. Cisneros, E060165 — Sentencing — William Jefferson Powell IV, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., McKinster, J. Attorney General conceded and Court of Appeal agreed the trial court erred when it imposed: (1) 10-year gang enhancements under Penal Code section 186.22, subdivision (b)(1)(C), on two counts when the underlying crimes already carried life sentences, (2) a 25-year-to life term under section 12022.53, subdivision (d), on one count since the jury did not find that appellant used and discharged a firearm, causing death or great bodily injury (modified to a 20 year enhancement under section 12022.53, subdivision (c) based on jury findings), and (3) a one-third the mid-term sentence for criminal threat with a 10-year gang enhancement under section 186.22, subdivision (b)(1)(C) where the offense carries the only determinate sentence (remanded for trial court to select a full term sentence and impose a five-year gang enhancement under section 186.22, subdivision (b)(1)(B)). (I) HCC

Yockelson, Alan — People v. Lucero, E060275 — Motion for New Trial — Irma Asberry, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Defense counsel’s motion for new trial made at sentencing was timely because it was made before judgment and there was no showing the trial court had exercised its inherent power to set an earlier deadline for making a new trial motion. Trial counsel rendered ineffective assistance when he conceded the motion was not timely. Case remanded for reconsideration of motion for new trial with directions to reinstate the judgement if the motion is denied. (I) CBM

Carroll, Steven — People v. Session, E060544 — Insufficient Evidence — Mark A. Mandio, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Receiving stolen property convictions reversed for insufficient evidence. During a search, two guns were discovered on top of clothes in a laundry hamper that was located inside a closed closet in a bedroom that appeared to be occupied only by adults. The guns were determined to have been stolen, but there was no evidence presented that appellant knew the guns were stolen. (I) BCT

Love, Christopher — In re J.C., E061403 — Probation Conditions — Roger Leubs, Judge — Opinion by Miller, J., with Ramirez, P.J., McKinster, J. Probation conditions that minor “not possess sexually explicit materials” and not have “contact with any male or female under the age of 14 unless accompanied by a responsible adult approved by Probation Officer” modified to include a knowledge requirement. (A) MCR

Davidson, Suzanne — In re J.T., E061642 — Indian Child Welfare Act (ICWA) — Jacqueline C. Jackson, Judge — Opinion by Codrington, J., with Hollenhorst, J., King, J. Order terminating parental rights reversed with orders that CPS make active efforts to secure tribal membership for the children in the Chickasaw Tribe. The Tribe was noticed of the dependency proceedings, advised CPS the children were eligible for enrollment in the Tribe, and requested some documentation. CPS made no apparent effort to enroll the children or send the requested documentation. The court concluded this inaction violated the “active efforts” provisions of rules 5.482(c) and 5.484(c) of the California Rules of Court. (I) LMF

Pfeiffer, Richard — In re Jacob K., E061966— ICWA — Lily L. Sinfield, Judge — Opinion by McKinster, J., with Ramirez, P.J., Hollenhorst, J. Reversal for failure to comply with the notice requirements of ICWA. (I) CAG

Buck, Toni — In re J.G., E062125 — ICWA — Lily L. Sinfield, Judge — Opinion by Codrington, J., with Hollenhorst, J., King, J. Father argued and the Court of Appeal agreed the agency and the juvenile court failed to ensure proper noticing to the correct Indian tribe. Father and then paternal grandmother named a specific tribe and, although notice was sent to another tribe, the named tribe did not receive notice. The appellate court reversed and remanded with instructions to notice the proper tribe. (A) LLF

Wrubel, Sharon — People v. Valerio, G047217 — Insufficient Evidence Special Circumstance/Sentencing Discretion — Thomas M. Goethals, Judge — Opinion by Thompson, J., with Aronson, J., Ikola, J. Court of Appeal reversed street gang murder special circumstance for insufficient evidence. The court also remanded for resentencing regarding the remaining robbery murder special circumstance because trial court’s belief it was constrained from striking a special circumstance by Penal Code section 1385.1 prevented the court from fully exercising its discretion. (I) NFA

Gardner, Cliff — People v. Kelly, G047217 — Sentencing — Thomas M. Goethals, Judge — Opinion by Thompson, J., with Aronson, J., Ikola, J. Court of Appeal stayed sentence for a gang offense pursuant to Penal Code section 654 in accordance with People v. Mesa (2012) 54 Cal.4th 191, struck one of two LWOP terms imposed on another count, and struck one of two section 12022.53 enhancements. (I) NFA

Vento, Christine — People v. Salazar, G048144 — Instructional Error — Thomas M. Goethals, Judge — Opinion by Moore, J., with Ikola, J., Thompson, J. First degree murder conviction reversed based on People v. Chiu (2014) 59 Cal.4th 155 where the natural and probable consequences theory was one of three theories presented to the jury. Gang participation conviction reversed because a jury instruction permitted the jury to convict for active participation occurring on one day based on crimes that were not committed by defendant or another gang member on that day. (I) DKR

Christiansen, Mark — People v. Espinosa, G048522 — Instructional Error — John Conley, Judge — Opinion by Moore, J., with O’Leary, P.J., and Bedsworth, J. Trial court gave modified version of CALCRIM No. 376 regarding possession of recently stolen property as evidence of crime. Appellant argued the modified version amounted to prejudicial error because it created an inference defendant was guilty of felony murder stemming from his possession of stolen property. Court of Appeal agreed and reversed where it was not possible to determine whether the appellant was convicted under a legally valid. (I) LAR

Edwards, John — People v. Wilson, G048755, (2015) 234 Cal.App.4th 193 — Multiple Convictions Criminal Threat — Gary S. Paer, Judge — Opinion by Ikola, J., with Fybel, J., Thompson, J. Court of Appeal held that even when a defendant makes more than one threatening statement over the course of an encounter and he threatens harm to more than one individual, he can be convicted of only one count of criminal threat if there is only a single named victim/recipient of the threat and a single period of sustained fear. In this case, appellant had been convicted of two counts based upon statements he made to a single victim, one statement threatened harm to the victim’s children and was made in the victim’s driveway and the other statement threatened harm to the victim himself and was made at the victim’s door. Court of Appeal found this to be a single encounter causing a single period of sustained fear and reversed one of the two counts. (I) APJ

Tobin, Wayne — People v. Armogeda, G048761, (2015) 233 Cal.App.4th 428 — Realignment, Revocation of Community Release — Christopher J. Evans, Judge — Opinion by Ikola, J., with Rylaarsdam, J., Aronson, J. In a published decision, the court invalidated the provision of Realignment permitting revocation of supervised community release upon the commission of a non-violent drug possession crime (Pen. Code, § 3455) as inconsistent with the provision enacted by voter initiative in 2000 in Proposition 36 precluding revocation of parole for such crimes (Pen. Code, § 3063.1). The California Constitution precludes the Legislature from amending a voter initiative unless the initiative grants the Legislature such power, which Proposition 36 did not. Accordingly, the revocation of appellant’s supervised community release due to his commission of a non-violent drug possession crime was reversed. (A) NFA

O’Connor, Sheila — People v. Perez, G049041, (2015) 233 Cal.App.4th 736 — Immigration Consequences of Guilty Plea — Daniel Didier, Judge — Opinion by Moore, J., with Aronson, J., Thompson, J. Order of superior court denying appellant’s motion to withdraw his guilty plea reversed where trial counsel was prejudicially ineffective for misadvising him regarding the immigration consequences of his guilty plea. (A) MCR

Tobin, Wayne — In re Noah R., G049514 — Juvenile Suppression Motion — Cheryl L. Leininger, Judge — Opinion by Fybel, J., with O’Leary, P.J., Rylaarsdam, J. Court of Appeal agreed with minor’s argument that his consent to be searched was ineffective because it was the result of an illegal detention. The juvenile court had found the contact to be consensual. In determining that the contact was a detention, the Court of Appeal applied the reasoning of a Fifth Amendment case, J.D.B. v. North Carolina (2011) 564 U.S.__[131 S.Ct. 2394], and took the minor’s youth into account. Then, under the totality of the circumstances the court found insufficient evidence to support a reasonable suspicion to detain the minor. Disposition reversed. (A) APJ

Staley, John L. — In re Daniel V., G049853 — Maximum Term — Jacki C. Brown, Judge — Opinion by Bedsworth, J., with Moore, J., Aronson, J. Juvenile court lacked authority to set a maximum term on minor’s confinement since minor was not removed from the custody of his parents. Order stricken. (I) LAR

Conrad, Leslie/Multhaup, Eric — People v. Ramirez, G049935, (2015) 233 Cal.App.4th 940 — Instructional Error — Christian F. Thierbach, Judge — Opinion by Aronson, J., with Thompson, J., Fybel, J., dissenting. First degree murder convictions for two brothers with gang and gun enhancements reversed where the instruction on self-defense, CALCRIM No. 3472, misstated the law when it told the jury a person does not have any right to self-defense if he provokes a fight with the intent to create an excuse to use force. The instruction made no allowance for an intent to use only non-deadly force and an adversary’s sudden escalation to deadly violence. (I) PMI

January 2015

King, Nancy/Kessler, Daniel — People v. Contreras/Rodriguez, D063428 — Cruel and Unusual Punishment — Peter C. Deddeh, Judge — Opinion by McConnell, P.J., with McDonald, J., O’Rourke, J. Appellant Contreras was sentenced to a prison term of 50 years to life, plus 8 years, and appellant Rodriguez was sentenced to a prison term of 50 years to life for multiple sex offenses and kidnapping. Appellants argued on appeal that their sentences constituted cruel and unusual punishment because they were juveniles when they committed the crimes and their sentences did not provide them with a meaningful opportunity for parole in their lifetimes. Court concluded the sentences did constitute cruel and unusual punishment because they did not comply with the requirements set forth in Graham v. Florida (2010) 560 U.S. 48. (I) LAR

Kraft, Rudy — People v. Hubbs, D063955 — Cumulative Error — Steve C. Malone, Judge — Opinion by Huffman, J., with Nares, J., McDonald, J. The Court of Appeal reversed judgment committing appellant as a SVP due to the prejudicial effect of cumulative trial court errors. Specifically, trial court failed to conduct a proper hearing on appellant’s Marsden motion, and incorrectly informed appellant twice that California law prohibited him from representing himself. The trial court also erred by allowing appellant’s trial attorney to waive appellant’s right to a jury trial without his consent. Taken together, these errors undermined appellant’s right to a proper proceeding. (I) LMF

Booher, Robert — People v. Hupp, D064053 — Dual Conviction — Margaret A.Powers, Judge — Opinion by Haller, J., with McConnell, P. J., McIntyre, J. Simple stalking conviction reversed because it is based on same conduct as conviction of of stalking in violation of a court order and is a lesser included offense. (I) DKR

Kreit, Alex — People v. Orlosky (2015) 233 Cal.App.4th 257 — Failure to Instruct on Marijuana Collective Cultivation Defense — Deddeh and Harutunian, Judges — Opinion by Haller, J., with O’Rourke J., Aaron, J. The trial court had rejected appellant’s request to instruct on the collective cultivation defense because appellant and his roommate, who were growing marijuana together, had not formed a marijuana collective with some indicia of formality. Court of Appeal found that while indicia of a formally-organized collective is relevant as an evidentiary factor for the jury to evaluate, it is not a mandatory requirement that precludes application of this defense. “[W]hen there is substantial evidence to support that two qualified patients are engaging in an informal cultivation arrangement to grow and share marijuana only among themselves for medical purposes with no distribution to outsiders, the absence of business formality does not preclude submitting the defense to the jury for its consideration.” Failure to instruct on the defense constituted prejudicial error. (A) CBM

Grimm, Cynthia — People v. Sais, D064683 — Insufficient Evidence — Evan P. Kirvin, Judge — Opinion by McConnell, P.J., with O’Rourke, J., Aaron, J. Court of Appeal agreed with appellant’s argument that insufficient evidence supported conviction of receiving stolen property where the only evidence of possession was appellant’s DNA found on a cigarette butt within the stolen vehicle, which was found several miles from appellant’s home. (M-A) APJ

Shetty, Siri — People v. Sawyer, D064752 — Penal Code Section 654/ Staying/Striking Enhancement — Richard E. Mills, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Haller, J. Consecutive sentence for criminal threat ordered stayed pursuant to Penal Code section 654 where the threat was the same conduct offered to support appellant’s conviction and sentence for false imprisonment by violence or menace. In addition, erroneously stayed prison prior enhancement ordered stricken. (I) (HCC)

Ansari, Loleena — People v. Williams, D064768 — Probation Conditions/Discretionary Lifetime Sex Offender Registration — Dwayne K. Moring, Judge — Opinion by McIntyre, J., with McConnell, P.J., Haller, J. Court of Appeal modified the probation order by striking the condition that required appellant to obtain approval of his residence from his probation officer. The court also reversed the discretionary sex offender registration requirement and remanded for a new hearing to determine whether appellant should be required to register as a sex offender. The court found that the trial court abused its discretion in imposing registration because it heavily relied on facts that were not supported by the record, it inappropriately considered the specific impact of the crimes on the victims when ordering registration and, although the court referenced the existence of a psychological report, it did not indicate whether it read and considered the report in making its findings. For the new hearing, the court gave specific instructions for the trial court to consider any available psychological reports and the entire factual background of the case, including the probation report. The court also said appellant’s behavior since he was sentenced should be taken into consideration. (S) LLA

Ulibarri, Patricia — People v. Blaylock, D065019 — Correction of Minute Order — Lantz Lewis, Judge — Opinion by McIntyre, J., with Huffman, J., Haller, J. Minute order corrected to reflect a no-visitation order under Penal Code section 1202.05 instead of a no contact order under Penal Code section 646.9, subdivision (k). (I) PMI

Brisbois, Patricia — People v. Henderson, D065238 — Penal Code Section 654/Fines — Joan P. Weber, Judge — Opinion by Nares, J., with McIntyre, J., Irion, J. Court of Appeal ordered the judgment modified to stay the sentence on an assault conviction pursuant to Penal Code section 654 because the trial court had found it was based upon the same course of conduct as a separately punished sexual assault. In addition, $400 domestic violence fee imposed pursuant to Penal Code section 1202.097 ordered stricken as the fee applies only when probation is granted. Respondent conceded both issues. (I) BCT

Coleman, Jared — People v. Ortiz, D065326 — Out-of-State Prior — Dwayne K. Morning, Judge — Opinion by Huffman, J., with O’Rourke, J., Aaron, J. The Attorney General conceded that the record does not include sufficient evidence to support a finding that appellant’s New York robbery conviction qualifies as a strike under California law, but argued that the issue was waived as part of appellant’s appeal waiver and was moot because appellant had been released from custody and resolution of the issue would change only the location of custody. The Court of Appeal rejected the arguments of waiver and mootness and remanded the case to allow the government to prove that the facts of the prior were sufficient to qualify it as a strike. (M-A) APJ

Ansari, Loleena/Pott, Earl — People v. Ulloa, D065341 — Motion to Suppress Evidence — Lawrence P. Best, Judge — Opinion by McDonald, J., with McIntyre, J., Arron J. concurring and dissenting. Majority held that the detectives had probable cause to believe there was contraband in the home they were surveying but that was not enough to allow them to enter the home without a warrant or consent. Furthermore, exigent circumstances did not exist to justify the entry nor was there reasonable suspicion of danger to the occupants to justify a protective sweep. Accordingly, the court reversed the order denying to motion to suppress evidence and the matter was remanded to the trial court to set aside the plea. Justice Aaron concurred with the majority’s conclusion that the officers had probable cause to believe there was contraband in the home and dissented with the majority on the issue of whether exigent circumstances justified the warrantless entry and search of the home. (S) LLA

Siroka, Matthew — People v. Smith, D065782 — Gang Offense –- R. Glenn Yabuno, Judge — Opinion by McIntyre, J., with Haller, J., Irion, J. Court of Appeal reversed appellant’s conviction for active gang participation under People v. Rodriguez (2012) 55 Cal.4th 1125 where the evidence was he acted alone while illegally possessing a firearm. The court also reversed the gang enhancement attaching to the illegal firearm possession count because there was insufficient evidence appellant possessed the gun to promote the gang. (I) NFA

Auwarter, Neil — People v. Jimenez, D066189 — Non-Visitation Orders — Theodore M. Weathers, Judge — Opinion by Haller, J., with McConnell, P.J., O’Rourke, J. Defendant pled guilty to lewd acts with a minor. At sentencing the court ordered appellant to have no contact with the victim or the victim’s family, citing Penal Code section 1202.05. The Court of Appeal found that section 1202.05, subdivision (a), prohibits only “visitation,” not all contact, with the victim of certain sex offenses, and that the section had no application to contact with the victim’s family. Accordingly, the court modified the order to delete the reference to the victim’s family and to prohibit “visitation” rather than “contact.” (S) NFA

Kelly, David — People v. Alvarado, D066501 — Failure to Instruct on Imperfect Self-defense — Powell, Judge — Opinion by Irion, J., with Huffman, J., O’Rourke, J. First degree murder conviction reversed where it was prejudicial error for the trial court to refuse to instruct the jury on voluntary manslaughter under the theory of imperfect self-defense (even though the trial court agreed to instruct on perfect self-defense). In this case, there was substantial evidence to support the instruction because appellant testified that he shot at a vehicle because he was in fear of being shot himself when he saw an occupant hold a gun. Court of Appeal found that this evidence could support either a reasonable or unreasonable belief in the need to defend with deadly force. (I) MCR

Schorr, Steven — People v. Campbell, et al. (Fort) (2015) 233 Cal.App.4th 148 — Instructional Error — W. Charles Morgan, Judge — Opinion by King, J., with Hollenhorst, J., McKinster, J. Appellant Fort and co-appellant Campbell were convicted of first degree felony murder with a robbery special-circumstance, and two counts of robbery. Although appellants had been charged with malice murder with deliberation and premeditation, they were instructed only on the theory of first degree felony murder. As to Fort who was convicted only the basis of aiding and abetting, the trial court failed in its sua sponte duty to instruct on second degree murder and voluntary manslaughter, which are lesser included offenses of malice murder with deliberation and premeditation. While the prosecutor was free to try the case on a theory of felony murder, Fort was entitled to jury instructions on the lesser included offenses of the charged offense and there was substantial evidence, mainly from the prior statements and testimony of Fort, from which a reasonable jury could conclude that a lesser offense, but not the greater, was committed. Because the error was not harmless, Fort’s murder conviction is reversed. Because this instructional error may have led the jury to convict Fort of the robbery counts, the robbery counts are also reversed. (I) AMJ

Schuck, John F. — People v. Rios, E058331 — Sentencing — Gary B. Tranbarger, Judge — Opinion by Codrington, J., with Hollenhorst, sJ., and King, J. Appellant argued and the Attorney General agreed that appellant could only be convicted of one count of pimping per prostitute because prostitution is a continuous offense. Nine pimping convictions reversed. (I) LAR

Johnson, Mark — People v. Toure (2015) 232 Cal.App.4th 1096 — Unauthorized Sentence/Correction of Abstract of Judgment — John M. Tomberlin, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J. Appellant argued the trial court imposed an unauthorized four-year sentence term for a felony Vehicle Code section 23153, subdivision (a), where the maximum term for such a violation, accompanied by an allegation of refusal to submit to a chemical test for blood-alcohol, with a single prior conviction is three years. Respondent conceded and the court agreed, because the appellant’s prior convictions for driving under the influence were neither pled nor proven. In addition, although the trial court stayed the imposition of sentence for the conviction of the section 23152, subdivision (b) offense, the abstract of judgment noted it as consecutive and stayed. The Court of Appeal ordered the abstract corrected to eliminate any indication of consecutive sentence. (I) (HCC)

Torres, Steven — People v. Hebert, E058996 — Ex Post Facto/Correction of Abstract of Judgment — Mac R. Fisher, Judge — Opinion by Codrington, J., with McKinster, J., Miller, J. During the sentencing hearing, the trial court stated that it would impose the minimum amount allowable for the restitution fine and parole revocation restitution fine. The prosecutor and defense counsel believed the minimum amount was $280, which the trial court accordingly imposed, though at the time of the offense, the minimum was $200. Appellant argued, respondent conceded, and the court agreed the fines should each be reduced to $200. Also, abstract of judgment ordered corrected in certain particulars. (I) (HCC)

Matsumoto, Ellen — People v. Amaya, E059609 — Failure to Stay or Strike Allegation — Jeffrey J. Prevost, Judge — Opinion by Gaut, J., with Ramirez, P.J., King. J. Attorney General conceded and the Court of Appeal agreed that the trial court erred when it failed to pronounce judgment on the arming enhancement under section 12022, subdivision (d). Although the abstract of judgment and minute order each reflect a one-year consecutive term, the trial court did not orally pronounce judgment on the arming enhancement at the sentencing hearing. The trial court is required to either impose or strike the allegation (§ 12022, subds. (d) & (f)). Given the court’s omission, the sentence on the arming enhancement is unauthorized and subject to correction for the first time on appeal. (People v. Bradley (1998) 64 Cal.App.4th 386, 391.) Remand for correction is the appropriate remedy. (People v. Neeley (2009) 176 Cal.App.4th 787, 799.). (I) CBM

Bases, Arielle — People v. Hernandez, E059726 — Appointed Counsel Fee — Ronald M. Christianson, Judge — Opinion by Gaut, J., with Ramirez, P.J., Miller, J. Imposition of $250 counsel fee is reversed where substantial evidence does not support the order. The matter is remanded for a properly noticed hearing on defendant’s ability to pay. (A) PMI

Matsumoto, Ellen — People v. Carter, E059906 — Prison Prior — Dan Detienne, Judge — Opinion by Gaut, J., with Ramirez, P.J., Miller, J. Attorney General conceded and Court of Appeal agreed that a one-year prior prison term enhancement must be stricken because a five-year prior serious felony enhancement had been imposed based upon the same conviction; in addition, the abstract of judgment must be corrected to reflect that another one-year prison prior term enhancement must be stricken because it was never orally imposed. (I) APJ

Ansari, Loleena— In re A.M, E060029— Juvenile Wobbler Issue— Lawrence P. Best, Judge — Opinion by Ramirez, P.J., with Richli, J., Miller, J. Court of Appeal held that there was nothing in the record indicating that the juvenile court considered whether to deem the wobbler offense, Penal Code section 487, subdivision (c), a felony or a misdemeanor or that it was even aware it had the discretion to do so under Welfare and Institutions Code section 702. Case remanded to allow the juvenile court to clarify whether the two grand theft violations are a felonies or misdemeanors and to adjust the disposition if necessary. (S) LLA

Miller, Gerald — People v. Aguilar, E060129 — Gang Offense — John M. Tomberlin, Judge — Opinion by Gaut, J., with Ramirez, P. J., King, J. Gang participation conviction reversed because there was no evidence appellant committed the crime with another gang member. (I) DKR

Macomber, Thomas — People v. Martinez, E060377 — Ability to Pay Fines — Christian F. Thierbach, Judge — Opinion by Gaut, J., with Ramirez, P.J., King, J. Court of Appeal struck the $600 drug program fee imposed under Health and Safety Code section 11372.7 where the trial court expressly found appellant had no ability to pay the fine, but still ordered appellant to pay it. (A) LKH

Crawford, James — People v. Butterfield, E060509 — Clerical Error — Irma Poole Asberry, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., and King, J. Abstract of judgment ordered corrected to reflect that the sentencing court imposed a concurrent eight-month term and not one-third the midterm of two years. (I) PMI

Auwarter, Neil — People v. Luxsamana, E060672 — Restitution Fines — John M. Tomberlin, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., King, J. Trial court stated its intent to impose the minimum restitution and parole restitution fines under Penal Code sections 1202.4, subdivision (b), and 1202.45, respectively. The court then purported to calculate the minimum as $200 times 8 (since appellant received an 8-year sentence) for fines of $1600. The Court of Appeal reversed the fines and remanded for a proper exercise of sentencing discretion because the statutory minimum is the amount stated in the statute, not that amount multiplied by the number of years sentence. (S) NFA

Sheehy, Kevin D. — People v. Marquez, G048762 — Credits — Gregg L. Prickett, Judge — Opinion by Moore, J., with O’Leary, P.J., and Bedsworth, J. Judgment modified to award defendant the proper amount of credits - 1,906 instead of 1,602. (I) LAR

Sheehy, Kevin D. — In re Dominguez, G048840 — Ineffective Assistance of Counsel — Carla M. Singer, Judge — Opinion by Thompson, J., with Rylaarsdam, J., Ikola, J. Order to show cause issued. Attorney General concedes counsel was ineffective where counsel failed to advise defendant a six-year plea offer would expire after the preliminary hearing or of the possibility he would face a potential life term if he did not take the offer. Petition states a prima facie case that counsel was unaware of and failed to communicate the limited nature of a plea offer. (I) PMI

Brisbois, Patricia — People v. Hernandez — G048869 — Re-Sentencing Failure to State Reasons — Carla Singer, Judge — Opinion by Moore, J., with O’Leary, P.J., Bedsworth, J. This is the second appeal for this case. At the original sentencing, the trial court ordered a current sentence on the sodomy count, stating it was continuous conduct and the defendant did not have sufficient time to reflect. The judgment was affirmed, but remanded to the trial court to correct sentencing errors. At the second sentencing hearing, the trial court made the necessary corrections, but, without increasing the overall sentence, ordered the sodomy count consecutive. No reasons were provided for the change. Court of Appeal rejected claim that counsel was ineffective for failing to object, but remanded the matter to the trial court to sentence the client in accordance with the original determination, or state reasons for the change to a consecutive sentence. (I) LKH

Hong, Esther K. — In re Israel G., G049030 — Probation Conditions — Richard Y. Lee, Judge — Opinion by Moore, J., with O’Leary, P.J., Bedsworth, J. Four probation conditions, a residence condition, a violence provision, an employment condition, and a school attendance provision are modified to avoid vagueness and/or overbreadth. (A) PMI

Wass, Valerie — People v. Vidana (2105) 233 Cal.App.4th 666 — Dual Convictions — Edward Webster, Judge — Opinion by Ikola, J., with Fybel, J., Thompson, J. Conviction for grand theft stricken because it is not a separate offense from theft by embezzlement. (I) MCR

 

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