home

recent victories

The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.

2017 | 2016 | 2015 | 2014 | 2013 | 2012 | 2011

 

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

December 2016

Tobin, Wayne C. — In re Sammy A., D069003 — Juvenile Wobbler Determination — Aaron H. Katz, Judge — Opinion by Huffman, J., with Haller, J., Prager, J. Attorney General conceded and Court of Appeal agreed that case should be remanded for juvenile court to perform its duty under Welfare and Institutions Code section 702 and determine whether wobbler offense should be designated a felony or misdemeanor. (A) APJ

Vorobyov, Gene D. — People v. Adelmann (2016) 2 Cal.App.5th 1188, E064099 — Penal Code Section 1170.18 (Prop. 47) — Edward D. Webster, Judge — Opinion by Codrington, J., with Hollenhorst, J., Miller, J. In a People’s appeal, the Court of Appeal affirmed. After respondent had been granted probation in San Diego County, the “entire jurisdiction” of the case was transferred to Riverside County under Penal Code section 1203.9. Thereafter, respondent was granted Prop. 47 relief on a petition filed in Riverside. On appeal, the People contended the petition had to be decided by the trial court in San Diego that originally sentenced defendant. Based on established principles of statutory construction and considerations of judicial resources, the Court of Appeal held that the Riverside Superior Court has entire jurisdiction over defendant’s case and can decide defendant’s petition and that defendant waived his right to have his petition decided by the San Diego court. (I) LLA/HCC

Annicchiarico, David L. — People v. Moreno-Perez, G050551 — Penal Code Section 209 Stay — Dan McNerney, Judge — Opinion by O’Leary, P.J., with Aronson, J., Fybel, J. Attorney General conceded and Court of Appeal agreed that Penal Code section 209, subdivision (d) requires appellant’s concurrent sentence of seven years to life for aggravated kidnapping (to commit a sexual offense) to be stayed because the same kidnapping provides the basis for appellant’s sentence of 25 years to life under the one-strike law. (I) APJ

Kleven, Paul /Vorobyov, Gene — People v. Huberty, et al., D069103 — Penal Code Section 1170.18 (Prop. 47) — Robert F. O’Neill, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. Appellants entered a Rite-Aid store and used a stolen credit card to purchase a small amount of goods. The Court of Appeal interpreted the term “larceny” as including all thefts, including theft by false pretenses. Thus, the lower court’s denial of appellants’ petitions to reduce the burglary convictions to shoplifting was reversed and the case remanded with directions to grant appellants’ petitions. (I) BCT

Schwartzberg, Richard — People v. Isaia, G051739 — Penal Code Section 1170.18 (Prop. 47) — Thomas A. Glazier, Judge — Opinion by Fybel, J., with O’Leary, P.J., Bedsworth, J. This case raises the same issue pending review in the California Supreme Court, People v. Jones (2016) 1 Cal.App.5th 221, review granted September 14, 2016, S235901 (briefing deferred pending decision in lead case People v. Valenzuela, S232900). The Court of Appeal disagreed with the Court of Appeal decision in Jones and concluded that a felony conviction reduced to a misdemeanor under section 1170.18 does not continue to qualify for a sentence enhancement under Penal Code section 667.5, subdivision (b), even if the reduction occurred after imposition of the prison prior enhancement. Appellant had filed a Proposition 47 petition, asking that his one-year enhancement allegation be stricken since it was based on a felony conviction that had been designated a misdemeanor under section 1170.18. The trial court denied this request. The Court of Appeal reversed, with instructions to strike the prison prior and re-sentence appellant. (I) LKH

Vallandigham, Jr., Robert V. — People v. Lewis, E064598 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Codrington, J., with Hollenhorst, J., Miller, J. In this People’s appeal Court of Appeal affirmed the Prop. 47 reduction of burglary conviction where defendant cashed an altered $700 check at Bank of America. People’s claim defendant did not meet valuation burden is forfeited as People did not contest $700 valuation in the trial court. People’s claim that the burglary is not eligible for reduction because defendant intended to commit identity theft is similarly forfeited by the People’s failure to assert the claim in the trial court. Further, there is no evidence defendant intended to commit identity theft as opposed to forgery. Finally, Court of Appeal determined a bank is a “commercial establishment” within the meaning of the new shoplifting crime. (I) CBM

Hartman, Jared M. — People v. Bradley, D068632 — Criminal Protective Orders — Carlos O. Armour, Judge — Opinion by O’Rourke, J., with Haller, J., Aaron, J. Court of Appeal remanded the matter to the trial court to clarify its intentions regarding certain terms of the criminal protective order. These terms were not orally pronounced, but the terms were checked on the criminal protective order served on appellant. As to the condition prohibiting firearm possession, the trial court may consider appellant’s claim that the term is overbroad and vague. (A) LKH

Angres, Robert L. — People v. Sweeney (2016) 4 Cal.App.5th 295, E064273 — Penal Code Section 1170.18 (Prop. 47)/Gang Enhancements — Becky Dugan, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Codrington, J. Published decision finding appellant might be entitled to Proposition 47 reduction of receiving stolen property convictions even though they were accompanied by “gang benefit” findings under Penal Code section 186.22, subdivision (b). The court found that while a misdemeanor accompanied by a gang benefit finding is punishable as felony pursuant to section 186.22, subdivision (d), such alternative punishment must be pleaded and proved; and here, the only allegation was under section 186.22, subdivision (b), which the court found did not put appellant on notice he was subject to the alternative felony treatment under subdivision (d). Accordingly, the receiving offenses might be misdemeanors and not subject to alternative felony sentencing, despite the gang findings. Remanded to provide appellant the opportunity to carry his burden of establishing value under $950. (I) NFA

Dudley, Patrick — People v. Almodovar, D069567 — Probation Conditions — Diane B. Altamirano, Judge — Opinion by Huffman, J., with Aaron, J., Irion, J. Court of Appeal remanded the matter to the trial court to modify the two challenged conditions of probation. The first condition, which prohibits entry into businesses where the main product being sold is alcohol, is unconstitutionally vague and needs to be modified to include a knowledge element. The second condition, mandatory Alcoholics Anonymous attendance, is to be modified to permit appellant to attend a secular based program. While the establishment clause issue was waived by forfeiture at the trial level, the court deemed a simple modification appropriate to avoid any constitutional issues. (A) LKH

Vallandigham, Jr., Robert V. — People v. Areias, G051751 — Penal Code Section 1170.18 (Prop. 47) — Vickie Hix, Judge — Opinion by Thompson, J., with O’Leary, P.J., Moore, J. After reducing a conviction under Prop. 47, the trial court erred in failing to apply excess custody credits to qualifying fines and fees; the judgment is modified accordingly. (I) AMJ

Bauguess, Susan S. — People v. Machado, E063575 — Penal Code Section 654 — David A. Gunn, Judge — Opinion by McKinster, J., with Codrington, J., Slough, J. Court of Appeal agreed with appellant’s argument that sentences for assault with a deadly weapon must be stayed where the assaults were the force used to obtain property and appellant was being punished already for the resulting robberies. The court rejected the Attorney General’s argument that the multiple victim exception applied because as to each robbery/assault pair there was only one victim. (I) APJ

Stubb, Jr., Paul — People v. Martin, E064641 — Late Notice of Appeal/Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Miller, J., concurring and dissenting in part. Appellant’s notice of appeal was late because he was not given notice of the trial court’s summary denial of his resentencing petition. On its own motion, the trial court ordered the notice of appeal filing time to begin from defendant’s actual notice of the court’s ruling. Giving the 60-day filing rule “liberal construction,” defendant’s notice of appeal was deemed timely when it was filed less than 60 days from actual notice. On the merits the Court of Appeal reversed and remanded with directions to re-sentence because the People’s concession that defendant was eligible for resentencing forfeited the argument that appellant failed to show the value of the property was $950 or less. The dissent disagreed that the People’s form response regarding entitlement to re-sentencing provided the necessary evidence of value to prove the “value element.” (I) PMI

Olson, Jacob I. — In re D. L., E065967 — Indian Child Welfare Act (ICWA) — Erin K. Alexander, Judge — Opinion by Codrington, J., with Hollenhorst, J., Miller, J. Reversed for failure to give proper notice under the ICWA. (I) ACS

O’Connor, Sheila — People v. Delgado, D069682 — Lesser Included Offenses — Louis R. Hanoian, Judge — Opinion by Nares, J., with Benke, J., Prager, J. Defendant was charged with battery causing serious bodily injury and assault by means of force likely to produce great bodily injury. As to the latter charge, the jury found appellant guilty of only the lesser included misdemeanor offense of simple assault. Because simple assault is a necessarily included offense of battery, defendant cannot be convicted of both and the assault conviction is reversed. (I) LKH

Bjerkhoel, Alissa — People v. Pinkney, D068862 — Penal Code Section 1170.18 (Prop. 47) — David J. Danielsen, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. In this People’s Appeal, the Court affirmed the trial court’s ruling that an on-bail enhancement imposed on a secondary offense must be stricken when the underlying primary offense (for which the defendant had been on bail when he committed the secondary offense) has been reduced to a misdemeanor. (I) LAR

Misra, Shobita — Adoption of A.W., E065679 — Indian Child Welfare Act (ICWA) — Eric V. Issac, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., Miller, J. Reversal of a termination of parental rights decision pursuant to Probate Code section 1516.5 for failure to comply with inquiry provisions of the ICWA. (I) ACS

Johndro, Ashley N. — People v. Key, D069640 — Constitutionality of Probation Condition — Michael J. Popkins, Judge — Opinion by Irion, J., with McConnell, P.J., Benke, J. Court of Appeal found the probation condition requiring appellant to submit her computers and recordable media to search at any time is unconstitutionally overbroad. The electronic search condition in this case is not narrowly tailored to the purpose of monitoring appellant’s future criminality and allows for searches of vast amounts of personal information unrelated to criminal activity. Therefore, the court struck the portion of appellant’s probation order requiring her to submit her computers and recordable media to search and remanded the case to the trial court to determine whether and how it can be more narrowly tailored. (A) LKH

Strong, Jeanine G. — People v. Vickery, E064183 — Probation Conditions — John M. Pacheco, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., Miller, J. Court of Appeal agreed that probation condition requiring probation officer’s written approval before appellant may leave the state is not narrowly tailored to the state’s interest in appellant’s reformation and rehabilitation. Court ordered condition modified to require only that appellant provide written notice to the probation officer 24 hours prior to departure. Attorney General conceded and Court of Appeal agreed that probation condition prohibiting entry into places where alcohol is a chief item of sale must be modified to add a knowledge requirement. In addition, minute order must be corrected to reflect court’s oral pronouncement that schooling or employment is required only “within the limits of [appellant’s] disability.” (I) APJ

Weinberg, Allen G. — People v. Pedroza, G049089 — Miller/Ineffective Assistance — Lance Jensen, Judge — Opinion by Moore, J., with Bedsworth, J., Fybel, J. Court found defense counsel, Steven Afghani, ineffective for failing to present any argument in the record about Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455] at this minor’s sentencing hearing. “The blame for the [trial] court’s failure to consider Miller can be placed squarely at counsel’s feet. Even when given two additional opportunities to discuss the relevant case law with the court, counsel failed to do so. He also failed to file a sentencing brief that would have assisted the court in understanding and applying this substantially changed area of the law.” While the appeal was pending, People v. Franklin (2016) 63 Cal.4th 261 was decided. The Court rejected the prosecution’s contention that Franklin foreclosed the need of a new sentencing hearing in this case. “The simple reason is that ineffective assistance of counsel was not an issue in Franklin, and therefore the court never considered it.” Trial counsel was reported to State Bar. (I) LAR

Coffey, Marissa — In re E.S., E065786 — Indian Child Welfare Act (ICWA) — Timothy F. Freer, Judge — Opinion by Miller, J., with Ramirez, P.J., McKinster, J. Child may be eligible for membership in three Native American tribes but only one of the tribes was notified. Court found it was error not to notice all the tribes named as possible sources of heritage. Reversed in part and remanded with directions. (I) LLF

Raneri, Lisa A. — In re C.A. et al., E065584 — Exit Order Visitation Termination Authority — Susanne S. Cho, Judge — Opinion by Codrington, J., with McKinster, J., Slough, J. Pursuant to Welfare and Institutions Code section 362.4, juvenile court ordered mother’s visitations rights terminated, subject to minor’s initiation and request for visitation to resume. Mother appealed from the courts order, arguing that the order erroneously delegated the court’s judicial authority to the minor, by allowing only minor to initiate visitation. The Court of Appeal agreed with mother that the juvenile court erred by delegating the authority to resume visitation to the minor. The Court affirmed the juvenile court’s judgment, but with directions to strike the language in the order delegating authority to minor to initiate visits. Further, the court noted mother is not precluded from seeking modification of the no-visitation order in the future. (I) LMF

Love, Jack A. — In re J.A., G053564 — Indian Child Welfare Act (ICWA) — Gary Bischoff, Temporary Judge — Opinion by O’Leary, P.J., with Fybel, J., Ikola, J. In a proceeding to terminate parental rights, mother claimed minor had Native American ancestry, and the trial court ordered the Social Services Agency (“SSA”) to investigate minors’s ancestry. Even though SSA provided limited information about what steps were taken to comply with the court’s order, the court found ICWA did not apply. Mother appealed arguing that SSA did not comply with ICWA notice and inquiry requirements because of SSA’s lack of inquiry into minor’s American Indian heritage. The Court of Appeal agreed with mother that SSA’s inquiry into minor’s Native American ancestry was insufficient, and remanded with instructions for SSA to comply with ICWA notice and inquiry requirements. (I) LMF

Schwartzberg, Richard — People v. Wedge, G053388 — Probation Conditions — Robert Gannon, Judge — Opinion by O’Leary, P.J., Aronson, J., Fybel, J. It was error for the trial court to include the payment of the cost of probation as a condition of probation because “the ‘reasonable costs of probation . . . are collateral and their payment cannot be made a condition of probation.’” (People v. Acosta (2014) 226 Cal.App.4th 108, 126.) The People conceded the issue. The probation order is modified to eliminate payment of probation costs as a condition of probation. (I) MCR

Bostwick, Jr., James R. — In re Hoang, G052501 (collateral to G051861) — Insufficient Evidence Gang Offense — Richard F. Toohey, Judge — Opinion by Aronson, J., with O’Leary, P.J., Thompson, J. In 2004, a jury convicted petitioner of active participation in a criminal street gang and willful, deliberate and premeditated attempted murder with a gang enhancement. Appellant was sentenced to life for the attempted murder, plus 10 years for the gang enhancement. The sentence for gang participation was stayed pursuant to Penal Code section 654. In 2015, petitioner appealed the denial of a Proposition 47 petition from which a no-issues brief resulted. However, in conjunction with the no-issues brief, a habeas was filed, contending that the petitioner acted alone in the attempted murder, and, hence, under People v. Rodriguez (2012) 55 Cal.4th 1125, the conviction for active participation should be set aside. The Court of Appeal entertained the petition (People v. Mutch (1971) 4 Cal.3d 389) and concluding that the People misconstrued the record that others could have been involved in the attempted homicide, found that petitioner acted alone and granted relief, reversing conviction of the active participation count. (I) HCC

November 2016

Gordon, Laura P. — People v. Perez, D067675 — Invalid Guilty Plea — Charles G. Rogers, Judge — Opinion by Nares, J., with McConnell, P.J., Huffman, J. While representing himself, appellant pleaded guilty to first degree murder with special circumstances and received a sentence of life without the possibility of parole. On appeal, appellant argued, and the Court of Appeal agreed, that Penal Code section 1018 plainly precluded the court from accepting a guilty plea from a pro per defendant facing a sentence of death or life without the possibility of parole. The Court of Appeal rejected the Attorney General’s argument that section 1108 violates a defendant’s constitutional right to represent himself and that the error was harmless. (I) APJ

Larson, Eric R./Nichols, Diane — People v. Garcia et al., E057519 — Financial Taking Enhancement/Victim Restitution/Parole Revocation Fine — David B. Downing, Judge — Opinion by Miller, J., with McKinster, J., Codrington, J. In this murder for financial gain case, the Court of Appeal ordered the trial court to amend the abstract of judgment to reflect that the financial taking enhancement is not attached to Count 10. The abstract conflicts with the oral pronouncement of judgment, and the trial court correctly did not attach the enhancement to count 10 because it can attach to a pattern of conduct but not to a specific count (Pen. Code, §§ 186.11, subd. (a)(3), 12022.6, subd. (a)(2)). In addition, a consecutive term for an enhancement cannot be imposed on a count with a concurrent prison term (People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311). The court also ordered the trial court to clarify its restitution order to specifically indicate who shares in the joint and several liability and to strike the $2,000 parole revocation fine (§ 1202.45) which does not apply to a sentence of life without the possibility of parole. (I) AMJ

Peabody, Jennifer/Clark, Marcia R. — People v. Rowley et al., E063254 — Penal Code Section 654 — David A. Gunn, Judge — Opinion by Slough, J., with McKinster, J., Miller, J. Court of Appeal ordered counts of kidnaping and false imprisonment stayed pursuant to Penal Code section 654 where appellant was separately punished for robbery, and where the kidnaping and false imprisonment were committed only to facilitate the robbery. (I) NFA

O'Connor, Sheila — In re Luis V., D068248 — Penal Code Section 654 — David M. Gill and Roderick W. Shelton, Judges — Opinion by McConnell, P.J., with Aaron, J., Prager, J. Court of Appeal ordered the punishment for resisting a peace officer stayed pursuant to section 654 where it was part of an indivisible course of conduct with the separately punished battery against a peace officer. (A) LKH

Nalls, Christopher — People v. Perez, G050927 — Sentencing Hearing — John Conley, Judge — Opinion by O'Leary, P.J., with Moore, J., Fybel, J. In light of People v. Franklin (2016) 63 Cal.4th 261, Court of Appeal granted appellant’s petition for rehearing and modified the opinion to remand the matter for the limited purpose of affording both parties the opportunity to make an accurate record of appellant's characteristics and circumstances at the time of the offense for the sake of eventual youth offender parole hearing. (I) HCC

Lathrop, Stephen M. — In re Acosta, D069375 — Strikes/Serious Felony; Resentencing — Alexander R. Martinez, Judge — Opinion by McDonald, J., with Haller, J., Prager, J. Petition for writ of habeas corpus granted. While appellant’s related appeal in People v. Guerrero et al. (D069072) was pending, appellate counsel learned that the offense underlying one of appellant’s two strikes had been vacated and a plea to a new, apparently non-strike offense substituted. Counsel brought a collateral petition for writ of habeas corpus and the People conceded that the matter should be remanded for re-sentencing. While the court granted the petition, the court noted the details of the recent proceedings to change petitioner's prior conviction are unknown given the limited record. Therefore, the court vacated the serious/violent felony finding, vacated the sentence, and directed the superior court to conduct further proceedings, including re-sentencing. (I) HCC

Jones, Cynthia, M. — People v. Lemus, E062798 — Pre-sentence Credit/Correction of Minute Order — Harold T. Wilson, Judge — Opinion by Miller, J., with McKinster, J., Slough, J. Court of Appeal agreed that appellant was entitled to 274 additional days of pre-sentence custody credit for time spent in Mexico awaiting extradition. In addition, sentencing minute order must be corrected to reflect that court found appellant did not have the ability to pay appointed counsel fees or for the preparation of pre-sentence report. (I) APJ

Peabody, Jennifer — People v. Gomez, E063034 — Lesser Included Offense — Patrick F. Magers, Judge — Opinion by Miller, J., with McKinster, J., Slough, J. Appellant's conviction for simple mayhem reversed as it is a lesser included offense of the aggravated mayhem of which appellant was also convicted. Trial court ordered to issue an amended abstract removing the simple mayhem conviction and its associated stayed sentence. (I) LAR

Lathrop, Stephen M./Cannon, Gregory L./Hermansen, Kurt D. — People v. Guerrero et al., D069072 — Lesser Included Offense/Sentencing Hearing/Prison and Serious Felony Enhancements/Credits — Alexander R. Martinez, Judge — Opinion by McDonald, J., with Haller, J., Prager, J. Respondent conceded and Court of Appeal agreed that each carjacking conviction must be dismissed as a lesser included offense of kidnapping during carjacking. As to appellant Guerrero, the matter was remanded to the trial court per People v. Franklin (2016) 63 Cal.4th 261 to provide the parties with the opportunity to make an accurate record of his youth-related characteristics and circumstances at the time of the offense for future youth offender parole hearing. As to Acosta: (1) serious felony enhancement based on a juvenile robbery adjudication was found to be invalid; (2) a one-year prior prison term enhancement was also found to have been improperly added to the aggregate sentence (respondent conceded); and (3) custody credits were ordered to be corrected (respondent again agreed). (I) HCC

Beckham, Sylvia W. — People v. Marshall, G051727 — Sentencing — Steven D. Bromberg, Judge — Opinion by O'Leary, P.J., with Bedsworth, J., Thompson, J. Appellant was convicted of attempted carjacking, assault, and battery. Court erred in "suspending" sentences for the assault and battery convictions. Court of Appeal agreed the convictions should be imposed then stayed pursuant to Penal Code section 654. (I) LAR

Ehlert, Allison L. — People v. Smith, E063379 — Probation Conditions — Michael R. Libutti, Judge — Opinion by Hollenhorst, J., with Miller, J., Codrington, J. Respondent conceded and Court of Appeal agreed that four gang-related probation conditions are unconstitutionally vague and/or overbroad and must be modified. In three of the conditions, “gang” is modified to define “gang” as a “criminal street gang.” Two of these conditions should include a specific knowledge requirement. Also the use of the word “frequent” as in “do not ... frequent places of known gang activity” is imprecise because it is obscure. Additionally, the condition that prohibits appellant from appearing in any court building or court parking lot, unless he is a party or subpoenaed as a witness, unduly restricts his fundamental right to access the courts. (I) PMI

Dodd, John L. — In re A.S., E064274 — Probation Conditions — F. Paul Dickerson, III, Judge — Opinion by Ramirez, P.J., with McKinster, J., Slough, J. The juvenile court is directed to strike the probation term prohibiting minor from using or possessing tobacco products. After the disposition hearing, new legislation deleted existing penalties applicable to persons under the age of 18 for purchasing, receiving, or possessing certain tobacco products. Further, tobacco use had no relationship to minor's crime. (I) LKH

Ulibarri, Patricia J. — People v. Harrelson, D068969 — Jury Instructions — Robert J. Kearney, Judge — Opinion by Haller, J., with Huffman, J., O'Rourke, J. Judge erred by failing to instruct the jury to consider (as one of several factors) whether the defendant's movement of the victim was merely incidental to an associated crime. Judgement reversed as to kidnaping conviction. The People shall inform the superior court within 30 days of the date of the remittitur whether the People intend to retry defendant on the kidnaping count. If the People decline to retry defendant on the kidnaping count, the superior court shall resentence defendant on the carjacking conviction and any applicable enhancements. (I) LAR

Wrubel, Suzanne — People v. Cortez (2016) 3 Cal.App.5th 308, G052158 — Proposition 47 — Vickie L. Hix, Judge — Opinion by Ikola, J., with Moore, J., Aronson, J. Appellant was originally convicted of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and two drug related misdemeanors. Appellant was placed on probation, but following a violation, he was sentenced to 16 months in state prison, and concurrent six month terms for the misdemeanor offenses. Thereafter, appellant's Prop 47 petition was granted, reducing the felony to a misdemeanor. The trial court sentenced appellant to 364 days on the misdemeanor, and re-sentenced appellant on the original drug related misdemeanors to 129 days consecutive each. The Court of Appeal concluded the trial court could revisit the sentence on the misdemeanor counts after granting the Proposition 47 petition, but could not impose a harsher punishment than originally imposed. Thus, the trial court's order was modified to reduce appellant's sentence by five days, resulting in a 488 day sentence. (I) LKH

De la Sota, Richard — People v. Lucero, E063361 — Re-Sentencing — Craig G. Riemer, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Slough, J. In a second re-sentencing hearing, appellant was sentenced to a life term without the possibility of parole after being convicted as an adult for a crime he committed when he was 17 years old. On appeal, appellant argued and respondent conceded the trial court committed reversible error when it sentenced him: (1) in his absence; and (2) without regard to the standards established in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455, 183 L.Ed.2d 407]. Court of Appeal agreed and found remand required also because the presumption of a life sentence without parole under Penal Code section 190.5, which was reinforced by California case law at the time of sentencing, has since been rejected by the California Supreme Court in People v. Gutierrez (2014) 58 Cal.4th 1354. Court of Appeal directed the trial court to hold a third resentencing hearing, at which appellant has the right to be present and the trial court must consider the factors set forth in Miller, giving no presumption to the option for a sentence of life without parole. (I) HCC

Williams, Rex A. — People v. Jenkins, Jr., E064091 — Retroactive Elements of Offense — Elaine M. Kiefer, Judge — Opinion by Ramirez, P.J., with McKinster, J., Slough, J. Respondent conceded and Court of Appeal agreed reversal required is because appellant was convicted of transporting drugs without a finding that it was done for the purpose of sales, as now required under Health and Safety Code section 11379.5. Accordingly, the conviction was reversed and the People are permitted to retry appellant. (I) HCC

Ball, Lindsey M. — People v. Liggons, D068117 — Probation Conditions — Polly H. Shamoon, Judge — Opinion by O’Rourke, J., with Benke, J., Nares, J. The Court of Appeal modified the order granting probation as follows: (1) condition prohibiting appellant from knowingly purchasing or possessing a camera or photographic equipment is stricken as not reasonably related to rehabilitation; (2) condition that he not knowingly use or have in his possession “any computer or electronic device, including a mobile phone with Internet access” is stricken as an unconstitutional infringement of his First Amendment rights, and (3) condition that he not possess “toys, video games, or similar items” is stricken as unconstitutionally vague. The matter is remanded to the trial court for possible modification of the second and third conditions. (A) LKH

Crawford, James M. — People v. Warn, G051423 — Penal Code Section 1170.18 (Prop. 47) — Vickie L. Hix, Judge — Opinion by Moore, J., with Bedsworth, J., Thompson, J. Case remanded for trial court to determine whether a further period of parole is proper under Penal Code section 1170.18, subdivision (d), or if the trial court deems it appropriate to discharge defendant from parole. (I) BCT

Kent, Jill — In re D.S., E064470 — Probation Conditions — Roger A. Luebs, Judge — Opinion by Hollenhorst, J., with Miller, J., Codrington, J. The Court of Appeal struck condition of minor’s probation prohibiting him from being at his home unless accompanied by his parent or guardian. The court agreed this condition is overbroad and acts to temporarily banish minor from his home. In addition, the court modified a number of conditions (a no contact condition, possession of sexually explicit materials, and possession of weapons) to require knowledge. (I) LKH

Nelson, Laurel M. — People v. Cornelison, G051436 — Penal Code Section 1170.18 (Prop. 47) — Vickie L. Hix, Temporary Judge — Opinion by Aronson, J., with O’Leary, P.J., Bedsworth, J. This is an appeal from the granting of appellant’s Proposition 47 petition. Appellant was on post-release community supervision at the time the petition was granted and had served 609 days of actual custody before the charge was reduced to a misdemeanor. The Court of Appeal deemed the following fines satisfied by his excess days spent in custody: $280 restitution fine, $280 probation revocation fine, $50 laboratory analysis fee. (I) LKH

Hahn, Caroline R. — People v. Huerta (2016) 3 Cal.App.5th 539, E065365 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Slough, J., with Ramirez, P.J., McKinster, J. In this People’s appeal, the Court of Appeal affirmed the trial court’s grant of Proposition 47 relief relative to respondent’s second-degree burglary conviction. At the Proposition 47 hearing, respondent asserted she qualified for resentencing because she was caught in Sears with stolen perfume totaling $174. The government did not contest this valuation, but it did assert respondent did not qualify for re-sentencing because the petition was inadequate and the burglary had been based on an uncharged conspiracy. The Court of Appeal rejected these claims. (A) LLA/CBM

Dodd, John L. — People v. Owens, E063902 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Hollenhorst, J., with Miller, J., Slough, J. In denying appellant’s Proposition 47 petition to reduce two burglary convictions of Kohl’s and one burglary conviction of Sears, trial court erred by relying on a $3,159.95 restitution order to determine that the value of the property taken in each burglary exceeded $950. The Court of Appeal found the $3,159.95 lump sum order does not supply substantial evidence that any one of the three burglary convictions involved theft of property exceeding $950. It reversed and remanded to the trial court for further development of the factual record. (I) BCT

Stevenson, Theresa O. — In re J.T., G052257 — Sealing of Juvenile Records — Julian Bailey, Judge — Opinion by O'Leary, P.J., Bedsworth, J., Moore, J. Reversed and remanded. Juvenile court erred in limiting the sealing order of minor's records to records possessed by the court because Welfare and Institutions Code section 786 requires the sealing of "‘all records pertaining to [a] dismissed petition in the custody of the juvenile court, and in the custody of law enforcement agencies, the probation department, or the Department of Justice,'" and it erred in failing to deem minor's arrest never to have occurred as provided for under that statute. Under In re Estrada (1965) 63 Cal.2d 740, 744-748, minor is entitled to the benefit of the 2016 amendment to section 786, even though it became effective after the trial court order was entered. Attorney General conceded. (I) AMJ

Norman, Jan B. — People v. Verile, G051875 — Sentencing — Dan McNerney, Judge — Opinion by O’Leary, P.J., with Moore, J., Fybel, J. For a subordinate misdemeanor count, the trial court suspended imposition of sentence without granting probation. Defendant argued the court had no power to postpone imposition of sentence except incident to granting probation. Respondent conceded and the court agreed. The judgment was reversed and remanded for resentencing where Penal Code section 654 could also be considered. (I) HCC

Wrubel, Suzanne G. — People v. Booth (2016) 3 Cal.App.5th 1284, G047986/G052666 — Ineffective Assistance of Counsel — Daniel J. Didier and David A. Hoffer, Judges — Opinion by Bedsworth, J., with O'Leary, P.J., Moore, J. Writ granted, appeal dismissed as moot. Appeal filed in November 2013 in this second degree/gang murder case. Along with the reply brief, counsel filed a petition for writ of habeas corpus alleging ineffective assistance of counsel because, among other lapses, trial counsel did not file a motion for dismissal of the case against petitioner based on pre-accusation delay of 19 years and the loss of a material defense witness. The Court of Appeal stayed the appeal and issued an order to show cause on the habeas. Counsel assisted in the superior court proceedings and, after several more years, the trial court, while finding "powerful prejudice," denied the petition for writ of habeas corpus. Counsel re-filed the habeas writ in the COA. The Court found the failure of trial counsel to move to dismiss the case on the basis of pre-charging delay violated defendant's Sixth Amendment right to effective assistance of counsel. The judgment was reversed and the matter remanded for a new trial. (I) LAR

Smith, Barbara A. — People v. Moses, D068851 — Penal Code Section 1170.18 (Prop. 47)/On Bail Enhancement — David J. Danielsen, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. Respondent pleaded guilty to an offense (the primary offense) susceptible to re-sentencing under Proposition 47 and was out on bail when he committed and ultimately was convicted of a secondary offense. On the latter, he received an on-bail enhancement. Respondent petitioned for and was granted Proposition 47 relief on the primary offense. He then sought relief from the on-bail enhancement, which the superior court granted. On appeal by the People, the Court of Appeal concluded that when a defendant’s sentence for the secondary offense is enhanced under Penal Code section 12022.1, subdivision (b) based on the primary offense, and when the defendant later has the primary offense re-designated as a misdemeanor under Proposition 47, that re-designation eliminates the section 12022.1, subdivision (b) enhancement, and hence, the enhancement constituted an unauthorized sentence. (I) HCC

Power, Richard — People v. Turnbough, G051624 — Insufficient Evidence — Michael J. Cassidy, Judge — Opinion by Aronson, J., with O’Leary, P.J., Thompson, J. Appellant’s conviction for possession of metal knuckles is reversed because the object he possessed does not qualify as metal knuckles within the meaning of Penal Code section 16920. The Court of Appeal rejected the Attorney General’s argument that the device could be used as metal knuckles if held in a closed fist. The statute requires that metal knuckles be capable of being “worn,” meaning attached to the hand in some fashion. (I) LKH

Wallingford, Jerome P. — People v. Dye, D068822 — Penal Code Section 1170.18 (Prop. 47) — David J. Danielsen, Judge — Opinion by Aaron, J., with Benke, J., O’Rourke, J. Trial court erred in finding that two burglary convictions, based upon entering a hotel to pass forged checks, did not qualify for relief under Proposition 47. Matter remanded for reduction of the offenses and re-sentencing. (I) APJ

Angres, Robert L.S. — People v. Rambo, G051668 — Penal Code Section 654 — W. Michael Hayes, Judge — Opinion by Moore, J., with Fybel, J., Thompson, J. Court of Appeal agreed with appellant’s argument that concurrent sentence for brandishing a weapon must be stayed pursuant to Penal Code section 654 because the brandishing was part of the same course of conduct as the criminal threat for which appellant was already separately punished. (I) APJ

Lankford, Valerie N./Hook, William — In re Shawn R., D069688 — Presumed Father/Third Parent — Gary M. Bubis, Judge — Opinion by Nares, J., with Haller, J., Irion, J. The juvenile court erred in denying the father's request to be declared both his stepson's presumed father under Family Code section 7611, subdivision (d), as well as the child's third parent under Family Code section 7612, subdivision (c). (I) CAG

Blake, Christopher — People v. Hall, E064165 — Mentally Disordered Offenders — Lorenzo R. Balderrama, Judge — Opinion by McKinster, J., with Hollenhorst, J., Codrington, J. The trial court ordered appellant’s commitment as a mentally disordered offender (“MDO”) extended. At the extended commitment hearing, appellant was compelled to testify over his objection. On appeal, appellant argued that because persons subject to civil commitment after being found not guilt by reason of insanity (“NGI”) have a statutory right under Penal Code section 1026.5, subdivision (b)(7) not to be compelled to testify in extended commitment proceedings, so should a person facing a commitment as a MDO. After appellant filed his opening brief, the Court of Appeal held in People v. Dunley (2016) 247 Cal.App.4th 1438 that under section 1026.5, subdivision (b)(7), MDO’s and NGI’s are similarly situated with respect to testimonial privilege at civil commitment proceedings. The court also held that in equal protection claims for compelling an individual to testify at an MDO civil commitment proceedings, the People must justify disparate treatment, and overcome strict scrutiny. Because the trial court failed to apply section 1026.5, subdivision (b)(7) to appellant’s proceeding, the People did not have an opportunity to show that disparate treatment may be justified in appellant’s case. Thus, the Court of Appeal reversed the trial court’s judgment and remanded with directions to conduct an evidentiary hearing to allow the People an opportunity to show differential treatment is justified. (I) LMF

Love, Christopher — People v. Reyes, E064617 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Codrington, J., with Hollenhorst, J., Miller, J. In this People’s appeal from the grant of a Prop. 47 petition, Court of Appeal affirmed where respondent entered a bank to cash a $200 forged check and pled guilty to commercial burglary. Even if he could have been charged with and convicted of identity theft based on the same facts underlying his burglary conviction, he was not. (I) PMI

Jones, Cynthia M. — People v. Barrueta, G050121 — Dual Convictions — Kimberly Menninger, Judge — Opinion by Bedsworth, J., with Ikola, J., Thompson, J. Appellant was convicted of three counts of making a criminal threat. With respect to one of the counts, appellant was found to have personally used a deadly weapon. For each criminal threat count, appellant was sentenced to one-third the midterm, and the court imposed a full strength one-year sentence for the deadly weapon enhancement. Because two of the criminal threat convictions were for threats made during the course of a single encounter, the Court of Appeal found the convictions were dual convictions and reversed one conviction. Additionally, the trial court erred when it sentenced appellant to the full strength one-year enhancement for the deadly weapon enhancement, because the trial court imposed one-third the midterm for the criminal threat conviction for which the deadly weapon enhancement attached. The People conceded both issues. Sentence vacated and remanded for resentencing. (I) MCR

Babcock, Russell S. — Maas v. Superior Court (2016) 1 Cal.5th 962, S225109/D064639 — Peremptory Challenge of Judge — John M. Thompson, Judge — Opinion by Cantil-Sakauye, C. J., with Werdegar, J., Chin, J., Corrigan, J., Liu, J., Cuéllar, J., Kruger, J. Like a superior court judge’s resolution of a petitioner’s claims after issuance of an order to show cause, the initial assessment of a petition for writ of habeas corpus to determine whether the petitioner has stated a prima facie case for relief requires the judge to hear “a contested issue of law or fact” in a special proceeding, within the meaning of Code of Civil Procedure section 170.6. A petitioner who requests the name of the judge assigned to examine his or her habeas corpus petition is entitled to notice of that assignment and also is entitled to peremptorily challenge the assigned judge, so long as all of the procedural requirements of section 170.6 have been satisfied, including the requirement that the assigned judge not have participated in the petitioner’s underlying criminal action. (I) HCC

Keiter, Mitchell — In re E.S., E065500 — Indian Child Welfare Act (ICWA) — Christopher B. Marshall, Judge — Opinion by McKinster, J., with Ramirez, P.J., Slough, J. Termination of parental rights decision reversed for failure to properly inquire under the ICWA. (I) ACS

Lathrop, Stephen M./Weinberg, Allen G. — People v. Garcia et al., E057279 — Re-Sentencing Hearing — Angel M. Bermudez, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Upon remand from the Supreme Court, following People v. Franklin (2016) 63 Cal.4th 261,matter remanded to trial court for limited Franklin hearing to develop record regarding appellant’s characteristics and circumstances at the time of the offense for the sake of eventual youth offender parole hearing. (I) HCC

Missakian, Matthew — People v. Castillo, G051922 — Credit Correction — Richard M. King, Judge — Opinion by Aronson, J., with Bedsworth, J., Moore, J. Appellant was convicted in two separate felony cases and was serving concurrent prison sentences for both. Appellant’s conviction in one case was then reduced to a misdemeanor under Proposition 47 (Pen. Code, § 1170.18) and appellant was re-sentenced to 364 days in county jail. After re-sentencing, appellant filed a motion to apply 299 days of excess custody credit accrued in that case to his sentence in the other case, but the court denied the motion. Court of Appeal agreed the motion should have been granted since appellant had received a total of 470 days of credit in the two cases, but only 241 days had applied to the remaining felony case. The People conceded the issue. The order denying appellant’s motion to correct credits is reversed and the trial court is ordered to award appellant 299 additional days of credit. (A) MCR

October 2016

Boyer, Ronald R. — People v. Murphy, E062331 — Restitution Fine — Michael A. Sachs and Colin J. Bilash, Judges — Opinion by Codrington, J., with Miller, J., Slough, J. Court of Appeal agreed that restitution fine must be reduced from $300 to $200 because trial court expressed its intent to impose the minimum fine and $200 was the minimum fine at the time of appellant’s offense. (I) APJ

Boyer, Ronald R. — People v. Murphy, E062132 — Gang Enhancement — Michael A. Sachs and R. Glenn Yabuno, Judges — Opinion by Codrington, J., with Miller, J., Slough, J. Attorney General conceded and Court of Appeal agreed that 10-year gang enhancement on three counts must be stricken when the alternative penalty provision under Penal Code section 186.22, subdivision (b)(4)(C), has been applied. (I) APJ

Gold, Peter — People v. Bautista, G050352 — Parole Revocation Fine — William R. Froeberg, Judge — Opinion by Rylaarsdam, J., with O’Leary, P.J., Thompson, J. Error for trial court to impose parole revocation fine when sentence is life without possibility of parole, plus 25 years to life. (I) LAR

Staley, John L. — People v. Gholipour, D067177 — Victim Restitution — Charles G. Rogers, Judge — Opinion by McConnell, P.J., with Nares, J., O’Rourke, J. In this case involving worker’s compensation fraud, appellant was convicted of offenses based upon her conduct in 2012. Court of Appeal agreed with appellant’s argument that the trial court erred, therefore, in imposing direct victim restitution for losses incurred due to appellant’s conduct in 2007. Matter remanded for trial court to recalculate award based only upon damages attributable to crimes of which appellant was convicted. (I) APJ

Quinlan, Sheila — People v. Romo (2016) 248 Cal.App.4th 682, D068255 — Pre-sentence Custody Credits — Dwayne K. Moring, Judge — Opinion by Benke, J., with Nares, J., McDonald, J. Appellant is entitled to seven additional days of pre-sentence custody credit where the date of arrest was actually three days earlier than indicated in the probation officer’s report. (I) LKH

Katz, Paul J. — People v. Hamernik, E062401, (2016) 1 Cal.App.5th 412 — Lesser Included Offense — Irma Poole Asberry, Judge — Opinion by Miller, J., with Hollenhorst, J., McKinster, J. In response to a defense motion under Penal Code section 1118.1, the trial court dismissed a charge of possession of a controlled substance, but allowed the case to proceed instead on the charge of attempted possession of a controlled substance. Appellant was convicted of the latter charge. Court of Appeal agreed that attempted possession of a controlled substance is not a lesser included offense of possession of a controlled substance; therefore the court erred in allowing that charge to go to the jury. Furthermore, the Court of Appeal held appellant could not be retried on the charge of attempted possession of a controlled substance because it would violate double jeopardy principles. Judgment reversed and retrial barred under Penal Code section 654 and Kellet v. Superior Court (1966) 63 Cal.3d 822. (I) LAR

Quinlan, Sheila — People v. Ambito, D067341 — Probation Conditions — Peter I. Gallagher, Judge — Opinion by McDonald, J., with Benke, J., Aaron, J. Court of Appeal agreed that terms requiring certain interactions between appellant and the probation officer should be stricken (e.g. “Report to the P.O. as directed/within 72 hours of any release from custody, etc.) because appellant was granted informal rather than formal probation. (I) LKH

Power, Richard — People v. Shields, E063966 — Penal Code Section 1170.18 (Prop. 47) — John M. Pacheco, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. Court of Appeal agreed that appellant’s prior convictions for petty theft with a prior are eligible to be designated as misdemeanors and, therefore, reversed the denial of his petition to the extent it requested relief under Penal Code section 1170.18, subdivisions (f) and (g). But court disagreed that the designation of a prior conviction as a misdemeanor operates retroactively to negate a prior prison term sentence enhancement imposed on a felony that is not governed by Proposition 47, and, therefore, affirmed the denial of the petition to the extent defendant requested resentencing in his current felony case pursuant to section 1170.18, subdivisions (a) and (b). (I) AMJ

Khoury, Jr., Charles R. — People v. Sherow, D068668 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. Attorney General conceded and Court of Appeal agreed that the trial court erred in aggregating the value of all the counts to deny relief under Prop. 47. Therefore, appellant’s 13 convictions of receiving stolen property were ordered reduced to misdemeanors. Further, contrary to respondent’s position, the Court of Appeal ordered appellant’s 13 convictions of commercial burglary reduced to misdemeanors as well because they qualified as shoplifting under section 459.5 even though the property was taken by false pretenses, not larceny. (I) BCT

Levy, Richard A. — People v. Mendez, E064249 — Parole Revocation Fine — Mary E. Fuller, Judge — Opinion by Codrington, J., with McKinster, J., Miller, J. Parole revocation fine ordered stricken because appellant was sentenced to life without the possibility of parole. (I) PMI

Larson, Eric R. — People v. Hernandez, D069663 — Restitution — J. David Mazurek, Judge — Opinion by McDonald, J., with Irion, J., Prager, J. In a robbery, a total of $750 was taken from the victim. The trial court ordered $750 restitution from each of the two co-defendants. Though no objection was made below, the Court of Appeal modified the judgments to make clear that appellants are jointly and severally liable for $750 of direct victim restitution. (I) HCC

Klaif, Leonard J. — People v. Garcia, G050169 — Insufficient Evidence — John L. Flynn, Judge — Opinion by Fybel, J., with Bedsworth, J., Moore, J. Appellant was convicted of two counts of misdemeanor hit and run with property damage Both convictions arose out of one accident where appellant collided with two vehicles. Because insufficient evidence supported a finding of two separate acts of hit and run with property damage, the Court of Appeal reversed one count. (I) LKH

Lathrop, Stephen M. — People v. Jennings, D069659 — Sentencing — Jeffrey Prevost, Judge — Opinion by McConnell, P.J., with Huffman, J., Nares, J. The jury convicted appellant of eight counts including multiple sex offenses, kidnapping, kidnapping for robbery, and found true personal use of a firearm. Appellant was sentenced to both determinate and indeterminate prison sentences. The Court of Appeal remanded the case for re-sentencing because the lower court made multiple errors related to the one-strike and three-strikes sentencing schemes. Re-sentencing was necessary given the quantity, scope and magnitude of the sentencing issues and the court’s discretionary sentencing choices. (I) BCT

Yockelson, Alan S. — People v. Johnson, E062822 — Victim Restitution — Eric M. Nakata, Judge — Opinion by Miller, J., with Ramirez, P.J., McKinster, J. While the record reflected the victim received mental health treatment, that did not equate with an opinion from a mental health provider that relocation was necessary for the victim’s emotional well-being. Remand was necessary for a hearing so that proof can be offered (1) by a law enforcement officer verifying the relocation was necessary for the victim’s personal safety; and/or (2) by a mental health treatment provider verifying the relocation was necessary for the victim’s emotional well-being (Pen. Code, § 1202.4, subd. (f)(3)(I)). Also, because the $2,000 in relocation expenses paid by the Victim Compensation Board could be viewed as deriving from the statutory authority in section 1202.4, subdivision (f)(3)(I), that sum should also be verified as by a law enforcement officer or mental health treatment provider as funding a necessary relocation. (I) HCC

Mazur, Janice R. — People v. Davidson, Jr., E062633 — Probation Condition — Thomas E. Kelly, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. The trial court erred when appellant’s probation was conditioned upon payment of a probation supervision fee. Probation supervision costs cannot be ordered as a condition of probation. Imposition of the fee is modified to be treated as an order entered at judgment. (I) PMI

Johnson, Mark D. — People v. Perez, E063891 — Penal Code Section 654 — Charles J. Koosed, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Miller, J. Where appellant was sentenced consecutively for forcible false imprisonment and forcible oral copulation, the Court of Appeal stayed the term for the latter under Penal Code section 654 because the false imprisonment was committed to facilitate the oral copulation. (I) NFA

Hinkle, Stephen M. — People v. Paez, E063515 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. Pursuant to Proposition 47, appellant petitioned to reduce his felony conviction of petty theft with a prior to a misdemeanor. Trial court denied appellant’s petition because petitioner failed to prove the property was $950 or less. On appeal, appellant argued that he was entitled to relief because his guilty plea to petty theft with a prior was entered after Proposition 47 so that the question of value had been conclusively adjudicated as $950 or less. The Court of Appeal agreed, reversed the trial court’s order denying the petition, and held that as a matter of law, appellant met his burden of proof as to the amount of the property when he pled guilty to the offense and the People abandoned any efforts to prove otherwise. (I) MCR

Lubliner, Steven S. — People v. Fernandez, D067551 — Sex Registration Fee/No-Contact Order — Richard R. Monroy, Judge — Opinion by McConnell, P.J., with Huffman, J., O’Rourke, J. Appellant pleaded guilty to residential burglary. The trial court properly exercised discretion when it imposed sex offender registration under terms of the plea agreement and Penal Code section 290.3. However, it was not authorized to impose a $300 sex offender registration fine because burglary is not enumerated in section 290, subdivision (c). The court was also not authorized under section 136.2, subdivision (i)(1), to impose a 10-year post-judgment no-contact order. The trial court is directed to strike the $300 sex offender fee and the no-contact order. (I) LAR

Clark, Marcia R. — People v. Marmolejo, E064120 — Credits — Jean P. Leonard, Judge — Opinion by Codrington, J., with Hollenhorst, J., Slough, J. At re-sentencing, the trial court erred when it applied appellant’s credit for time served to his misdemeanor burglary conviction sentence, because the sentence should have been stayed under Penal Code section 654. The Court of Appeal ordered appellant’s credits be applied to his felony attempted robbery conviction. (I) MCR

Cannon, Gregory L. — People v. Vega, E063398 — Lesser Included Offense — Ingrid Adamson Uhler, Judge — Opinion by Slough, J., with McInster, J., Miller, J. Court of Appeal reversed appellant’s conviction of assault with force likely to cause great bodily injury and the attached great bodily injury enhancement because the trial court prejudicially erred in failing to instruct on the lesser included offense of simple assault. Jury hung on charge of assault with a deadly weapon and could have concluded victim’s gash injury resulted from falling against a fence rather than being cut by appellant. Remanded to allow prosecution to accept lesser conviction of simple assault or retry appellant with correct instructions. (I) NFA

Zehner, Michelle C. — People v. Schott, G051331 — Probation Conditions/Restitution Fine — Craig E. Robison, Judge — Opinion by O’Leary, P.J., with Aronson, J., Fybel, J. Trial court was ordered to modify nine specific parole conditions to include a “knowledge” requirement and to modify the parole restitution fine to the original amount of $280. Two parole conditions were stricken as unconstitutionally vague. (A) BCT

Ballantine, Jean — In re J.S., G052498 — Correction of Minute Order — Lewis W. Clappp, Judge — Opinion by Aronson, J., with Ikola, J., Thompson, J. At disposition, the court imposed a probation condition prohibiting use or possession of an item for the purposes of vandalism (“You cannot use or possess any item for the purpose of vandalism”), that differed slightly from the condition agreed to in minor’s disposition agreement. (“Not use/possess any item for the purpose of defacing any property (including spray paint, felt tip pens, inscribing device).”) The clerk recorded yet another version of this probation condition: “Minor not to use or possess any incendiary devices/any aerosol container/felt tip marker, or any other implement that is capable of defacing property.” This written condition is arguably vague (see People v. Freitas (2009) 179 Cal.App.4th 747, 750) and overbroad. (In re E.O. (2010) 188 Cal.App.4th 1149, 1154.) The parties agreed the oral pronouncement controls over the clerk’s minutes. Court of Appeal ordered superior court to correct the minutes to reflect the trial court’s oral pronouncement of the probation term and the consistent but more specific term agreed to in the disposition agreement. (I) CBM

Greenhalgh, Thea — People v. Dilworth, G051552 — Penal Code Section 1170.18 (Prop. 47) — Christopher Evans, Temporary Judge — Fybel, J., with Bedsworth, J., Aronson, J. Trial court erred in ordering appellant to serve a one-year parole period after reducing felony conviction to a misdemeanor pursuant to Penal Code section 1170.18. Appellant had completed his sentence the day he filed his Proposition 47 petition and trial court had no authority to impose a one-year parole term. (I) LAR

Dodd, John L. — People v. Velasco, G051686 — Firearm Enhancement — Patrick Donahue, Judge — Opinion by Fybel, J., with O’Leary, P.J., Bedsworth, J. Appellant contended, respondent conceded, and Court of Appeal agreed the trial court erred in imposing sentence on both the gang enhancement and the firearm enhancement, which constituted an improper dual use of facts. (People v. Rodriguez (2009) 47 Cal.4th 501, 509.) (I) HCC

Angres, Robert L.S. — People v. Smith, E064413 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Slough, J., with Ramirez, P.J., Hollenhorst, J. Proposition 47 summary denial reversed and remanded for further proceedings. The superior court’s denial was based on a factual finding - that the offense was based upon appellant’s breaking into a closed dentist office - but the record is silent and there is no evidence in the record for the Court of Appeal to review. Thus, the trial court’s finding was not supported by substantial evidence. Further, the Court of Appeal could not affirm on the alternative ground that the petition was deficient for failing to establish appellant’s eligibility for relief because (1) the People had agreed below that appellant was eligible for relief, and (2) the trial court reached the merits of the petition. (I) PMI

Ferguson, Susan L. — People v. Mendez, G051667 — Parole Revocation — William Lee Evans, Judge — Opinion by Fybel, J., with Bedsworth, J., Moore, J. The trial court erred in revoking appellant’s parole where it determined appellant’s failure to charge the GPS battery was due to “negligence” and “a relatively minor oversight.” The Court of Appeal noted that negligence was not sufficient to establish willfulness and rejected the Attorney General’s argument that the appeal was moot since the client had been released, citing People v. Osorio (2015) 235 Cal.App.4th 1408, 1412 [“[s]hould defendant suffer a further criminal conviction, the parole revocation may be used as part of his sentencing determination.”]. The order finding appellant in violation of parole was reversed. (A) LKH

Kraus, Paul R. — In re G.A., E064938 — Wobbler Designation — Jean P. Leonard, Judge — Opinion by Miller, J., with Hollenhorst, J., Codrington, J. Reversed and remanded with directions for the juvenile court to clarify whether the second degree burglary offense is a felony or a misdemeanor as required by In re Manzy W. (1997) 14 Cal.4th 1199 and to adjust the disposition if necessary. (A) BCT

Angres, Robert L.S. — People v. Garcia, E064336 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. The trial court granted appellant’s petition to reduce his felony second degree burglary conviction to a misdemeanor pursuant to Proposition 47, and the People appealed. The Court of Appeal affirmed the trial court’s order, following its published decision in People v. Abarca (2016) 2 Cal.App.5th 475, review granted October 19, 2016, S237106. In doing so, the court found (1) the People forfeited their right to challenge the sufficiency of appellant’s petition since it was raised for the first time on appeal, (2) a bank is a commercial establishment, and (3) the conviction was eligible for reduction despite the People’s argument he entered to commit identity theft. The court declined to look beyond the actual convictions to find an uncharged crime that would render appellant ineligible. (I) LKH

Strong, Jeanine G. — People v. Vasquez, G051674 — Penal Code Section 1170.18 (Prop. 47) — Christopher Evans, Temporary Judge — Opinion by Aronson, J., with Fybel, J., Thompson, J. Originally, the Court of Appeal affirmed the trial court's decision to impose parole after recalling the defendant's sentence under Proposition 47, but reversed the sentence and remanded for re-sentencing because it found the trial court failed to apply excess custody credits to the parole period and eligible fines. Petition for review filed and granted. Supreme Court transferred the matter back to the Court of Appeal to reconsider in light of People v. Morales (2016) 63 Cal.4th 399. In the new opinion, the Court affirmed the trial court's decision to impose a period of parole after recalling defendant's sentence under Proposition 47 and re-sentencing him under section 1170.18, subdivisions (a) and (d). But the Court reversed the sentence and remanded for re-sentencing because the court failed to apply to defendant's non-restitution fees or fines the excess custody credits he earned under his felony sentence. In re-sentencing defendant, the trial court must ensure any parole period it imposes does not result in a total term exceeding defendant's original sentence. (I) PMI

Fates, Amanda - In re M. J., D068125 — Probation Condition — Roderick W. Shelton and Aaron H. Katz, Judges — Opinion by McDonald, J., with Aaron, J., Irion, J. The minor contested four probation conditions: (1) that he cannot use a computer unless supervised by a responsible adult over the age of 21 who is aware that he is on probation and is aware of the charges (the supervision condition, condition 43); (2) that he not use a computer for any purpose other than school-related assignments and that he is always supervised when using a computer in a common area (the use restriction condition, condition 44); (3) that he may not use a password on any file or computer he uses (the password condition, condition 45); and (4) that his waiver of his Fourth Amendment rights extends to any computer he uses or can access (the search condition, condition 46). He also argued the term "computers" is impermissibly vague and, in the alternative, that the probation conditions must have an explicit knowledge requirement. Court of Appeal held that the probation conditions are invalid, unconstitutionally over-broad and impermissibly vague, and ordered them stricken. (A) PMI

Klaif, Leonard J. — People v. Arias, G051750 — Penal Code Section 1170.18 (Prop. 47) — Vickie Hix, Temporary Judge — Opinion by O’Leary, P.J., with Fybel, J., Ikola, J. Following a grant of a Proposition 47 petition, whereby the trial court reduced a drug possession offense to a misdemeanor, the court erred in ordering him sentenced to county jail for 500 days with credit of 500 days served. The maximum term of confinement in a county jail for a misdemeanor is one year; hence, the matter is remanded for re-sentencing to 364 days. (I) AMJ

Wells, Mary W. — People v. Pimentel, G052240 — Evidentiary Error — Larrie R. Brainard, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Aronson, J. Appellant’s offer of proof that Jane Doe #2 had previously lied about being molested by another person was sufficient to warrant a hearing under Evidence Code section 782. The evidence had some probative value and the trial court’s failure to hold a hearing and exercise its informed discretion was sufficiently prejudicial to warrant reversal of three convictions against Jane Doe #2 and a 10-year reduction of appellant’s sentence. Appellate attorney filed a petition for rehearing because the reversal of all counts related to Jane Doe #2 required not only a reduction of 10 years, but also re-sentencing on one count related to Jane Doe #1 based on multiple victims finding. Rehearing denied, but Court of Appeal modified the opinion to remand the case for re-sentencing. (I) BCT

Siegel, Joshua L. — People v. Bowe, D068404 — Hearsay Evidence/Prison Prior Enhancement — Joseph Brannigan, Judge — Opinion by Aaron, J., with Haller, J., McDonald, J. Appellant was convicted of taking and driving a vehicle based on evidence he kept a rental vehicle past the contract’s return date. The trial had court excluded on hearsay grounds defense evidence appellant had emailed Avis seeking to extend the rental agreement. The Court of Appeal reversed finding the e-mail communications were relevant to appellant’s intent and were not hearsay because they were not offered for their truth. The court found the error was exacerbated when the prosecution argued to jurors that appellant had not tried to contact Avis, knowing this to be untrue. The court also vacated a prior prison term enhancement because the prosecution failed to establish appellant did not remain free for five years prior to the current offense. (A) NFA

September 2016

Burz, Dacia A. — People v. Brown (2016) 247 Cal.App.4th 211, G049867 — Instructional Error/Chiu — Lance Jensen, Judge — Opinion by Moore, J., with O’Leary, P.J., Fybel, J. Court of Appeal reversed appellant’s conviction for first degree murder where the court improperly instructed the jury he could be liable under the natural and probable consequence of aider and abetter liability. (People v. Chiu (2014) 59 Cal.4th 155.) (I) LKH

Crooks, Gary V. — People v. Gomez, D067057 — Prison Priors — Peter C. Deddeh, Judge — Opinion by Nares, J., with McDonald, J., Prager, J. Attorney General conceded and Court of Appeal agreed that case must be remanded for trial on or admission of prison priors because appellant was not advised of their consequence before admitting them. (I) APJ

Jones, Sharon M. — People v. Kahn, G050574 — Insufficient Evidence — W. Michael Hayes, Judge — Opinion by Rylaarsdam, J., with Bedsworth, J., Aronson, J. Appellant’s conviction for aggravated kidnapping reversed with directions to resentence appellant on the remaining counts. Court of Appeal agreed movement of the victim from the front desk to the adjacent hallway did not constitute sufficient movement to qualify as asportation for purposes of a kidnapping charge. (I) LKH

Burz, Dacia A./Vento, Christine — People v. Carson et al., G052129 — Penal Code Section 654 — John M. Tomberlin, Judge — Opinion by Thompson, J., with Bedsworth, J., Fybel, J. Where convictions for robbery and carjacking of a single victim were part of a single course of conduct comprising an indivisible transaction, the sentence for carjacking must be stayed per Penal Code section 654. (I) PMI

Weis, Lizabeth — People v. Turner, E062549 — Sentencing — Eric M. Nakata, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Slough, J. Respondent conceded and Court of Appeal agreed the trial court erred when it imposed the gang enhancement under Penal Code section 186.22, subdivision (b) in addition to the 25-year-to-life firearm enhancement under Penal Code section 12022.53, subdivisions (d) and (e). Additionally, insufficient evidence supported a prior serious felony enhancement. 160 years to life sentence is reduced to 82 years to life. (I) PMI

Brisbois, Patricia L. — People v. Hamilton, E064030 — Penal Code Section 1170.18 (Proposition 47) — Becky Dugan, Judge — Opinion by McKinster, J., with Ramirez, P.J., Codrington, J. Denial of Proposition 47 petition is reversed because second degree burglary committed by using a stolen credit card to purchase goods from a store is shoplifting within the meaning of Proposition 47. Case is remanded to determine the value of the illegally purchased goods and whether appellant poses an unreasonable risk to safety. Trial court is directed not to impose the felony bail enhancement if the conviction is reduced to a misdemeanor. (I) DKR

Booher, Robert — People v. Saia, D068375 — Probation Condition — Sim von Kalinowski, Judge — Opinion by McConnell, P.J., with Nares, J., Prager, J. Attorney General conceded and Court of Appeal agreed that appellant’s electronic search condition of probation is overbroad. Matter remanded for trial court to consider fashioning an alternative condition that is not overbroad. (I) APJ

Stanton, Marta I. — People v. Lowe, E064294 — Penal Code Section 1170.18 (Proposition 47) — Becky Dugan, Judge — Opinion by McKinster, J., with Ramirez, P. J., Codrington, J. The trial court erred in concluding appellant’s felony convictions for second degree burglary of a gas station and unlawfully acquiring or retaining access card account information (Pen. Code, § 484e, subd. (d)) did not qualify for re-sentencing under Proposition 47. Case is remanded for the trial court to make a determination of the value of property taken and to determine if defendant poses an unreasonable risk of danger to public safety. (I) AMJ

Cohen, Howard C. — People v. Chung, E064713 — Penal Code Section 1170.18 (Proposition 47) — Becky Dugan, Judge — Opinion by Miller, J., with Hollenhorst, J., Slough, J. Court of Appeal agreed that passing or possession of counterfeit currency (Pen. Code, § 476) is punishable under Penal Code section 473 and, hence, is eligible for relief under Proposition 47. Because the preliminary hearing transcript established a value of $240, the matter was remanded for a determination of dangerousness. (S) HCC

Kessler, Daniel J. — People v. Valenzuela, E062651 — Serious Felony Prior Enhancement/Parole Revocation Fine/Abstract of Judgment — Dean Benjamini, Judge — Opinion by Miller, J., with Hollenhorst, J., Codrington, J.Attorney General conceded and Court of Appeal agreed that the trial court erred by imposing three separate serious felony prior enhancements instead of just one when all three priors arose from a single case and, thus, were not “brought and tried separately.” In addition, the parole revocation fine should be modified to match the restitution fine. Finally, the trial court must correct clerical errors in the abstract of judgment. (I) HCC

Johnson, Mark D. — People v. Hayden, E064327 — Penal Code Section 1170.18 (Proposition 47) — Becky Dugan, Judge — Opinion by Miller, J., with Codrington, J., Slough, J. People appealed the granting of Proposition 47 relief where burglary conviction was based on entry into a Wells Fargo bank to cash a check belonging to another person made out for a value under $950. Court of Appeal affirmed concluding that “larceny” within Penal Code section 459.5 embraces theft by false pretenses and that a bank is a commercial establishment. (I) HCC

Harris, Donna L. — People v. Mutter (2016) 1 Cal.App.5th 429, E064355 — Penal Code Section 1170.18 (Proposition 47) — Becky Dugan, Judge — Opinion by Miller, J., with Hollenhorst, J., Slough, J. Court of Appeal agreed that appellant’s conviction under Penal Code section 475, based upon his possession of seven counterfeit $100 bills, qualified for relief under Proposition 47. At issue was whether counterfeit currency qualifies as a “bank bill” under Penal Code section 470, subdivision (d), the forgery statute. The Court of Appeal found that it does qualify. The Court of Appeal also found that appellant’s petition was proper even though he was convicted and sentenced after the effective date of Proposition 47 because the statute provides for petitions by those who would have been guilty of a misdemeanor had the law been in effect at the time of the offense and appellant’s offense was committed before the effective date. (I) APJ

Bitar, Andrea S. — People v. Knapp, D068520 — Protective Order — Michael J. Popkins, Judge — Opinion by Nares, J., with McDonald, J., O’Rourke, J. The Court of Appeal agreed that trial court erred by failing to engage in a meaningful factual analysis of the factors set out in Penal Code section 136.2, subdivision (i)(1) in determining the duration of a protective order and, thus, the matter should be remanded for a full analysis. 10-year duration provision of t he protective order reversed. (A) AMJ

Strong, Jeanine G. — People v. Wilson, E063844 — Penal Code Section 1170.18 (Proposition 47) — Becky Dugan, Judge — Opinion by McKinster, J., with Ramirez, P.J., Miller, J. Court of Appeal found that where appellant pleaded guilty to a single count of burglary with a Harvey waiver (People v. Harvey (1979) 25 Cal.3d 754) as to restitution, eligibility for relief under Proposition 47 could not be based upon the value of property taken in offenses not admitted. Since the value of the property taken in the offense of conviction was less than $950, matter remanded so trial court could exercise its discretion to determine whether appellant poses an unreasonable risk of danger to public safety. (I) CBM

Rogers, Tracy A. — People v. Simpson, E063049 — Penal Code Section 654 — Rodney A. Cortez, Judge — Opinion by Miller, J., with McKinster, J., Codrington, J. The Court of Appeal ordered appellant’s concurrent sentence for making a terrorist threat stayed pursuant to Penal Code section 654 because the threat was made during the same course of conduct as the dissuading of a witness, for which appellant was separately punished. (I) LKH

Mahler, Edward — People v. Fusting (2016) 1 Cal.App.5th 404, D069050 — Penal Code Section 1170.18 (Proposition 47) — David J. Danielsen, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. Denial of Proposition 47 petition reversed because theft by false pretenses (selling a stolen surfboard) is deemed to be theft by larceny and thus a commercial burglary with intent to do the same qualifies as shoplifting within the meaning of Penal Code section 459.5, subdivision (a). (I) DKR

Haggerty, Edward J. — Davis v. Superior Court (2016) 1 Cal.App.5th 881, E063943 — Post-conviction Discovery — Dale R. Wells, Judge — Opinion by McKinster, J., with Ramirez, P.J., Codrington, J. Court of Appeal issued a peremptory writ of mandate, directing the Superior Court of Riverside County to vacate the order denying petitioner’s request for post-conviction discovery under Penal Code section 1054.9. Petitioner’s request for police reports, the “Murder book,” information about suspects questioned, and all witness statements was sufficiently specific and tailored to the facts of the case, and therefore, petitioner met his threshold burden of demonstrating a reasonable belief the documents exist. Because the reason for the trial court’s denial was unclear, the matter is remanded to the trial court so it can exercise its discretion regarding what specific items of discovery petitioner is entitled to receive. In addition, the opinion suggests that the Legislature provide for the right to counsel to prepare motions for post-conviction discovery. Appointment of counsel would facilitate the filing of such motions and serve as a convenience to the courts and parties alike. (I) LKH

Schwartzberg, Richard — People v. Miller, G051663 — Equal Protection/Mentally Disordered Offender (MDO) Commitment — Michael J. Cassidy, Judge — Opinion by Ikola, J., Bedsworth, J., Aronson, J. Court of Appeal found that because the Fifth Amendment protection against self-incrimination does not apply to mental health proceedings, an MDO facing extension of his commitment is not protected against self-incrimination by the Fifth Amendment. However, the court also found that an MDO is similarly situated to a person found not guilty by reason of insanity (NGI) to whom the Fifth Amendment protection does extend. The Court of Appeal relied on the California Supreme Court case of Hudec v. Superior Court (2015) 60 Cal.4th 815, 819 (confirming than an NGI may refuse to testify at a hearing to extend his commitment) and the Court of Appeal case of People v. Curlee (2015) 237 Cal.App.4th 709 (extending the same protection to a sexually violent predator on equal protection grounds). The Court found that, given the liberty interest involved, the “harmless beyond a reasonable doubt” standard of prejudice applied and, in this case, appellant was prejudiced because his testimony provided the prosecution with the foundation for its case. The Court reversed the judgment and remanded for an evidentiary hearing at which the prosecution could try to prove that disparate treatment was justified. (I) LMF

Dudley, Patrick — People v. Long, D068310 — Restitution/Abstract of Judgment — Michael J. Popkins, Judge — Opinion by McConnell, P.J., with Nares, J., O’Rourke, J. Attorney General conceded and Court of Appeal agreed that the $50,000 direct victim restitution award as to two victims was based upon a clerical error in the probation officer’s report and that the amount of the award should actually be $25,000. In addition, abstract of judgment must be corrected to reflect that the residential burglary offense was not violent because it was neither pleaded nor proved that a person was present in the residence at the time of the burglary. (A) APJ

Bishop, Rosemary/Blake, Christopher — In re N.G. Sr., et al., D069597 — Denial of Continuance — Michael J. Imhoff, Commissioner — Opinion by Nares, J. with Huffman, J., Aaron, J. Court of Appeal reversed the juvenile court’s order denying a continuance of the Welfare and Institutions Code section 366.26 hearing. The child in this case was living with his grandmother, and did not want to be adopted by anybody except grandmother. But grandmother had a criminal and child welfare history, and it was uncertain whether her home could be approved for adoption. Mother asked the juvenile court to continue the section 366.26 hearing in order to ascertain whether grandmother’s home would be approved, before terminating parental rights. Father joined in mother’s argument. The juvenile court recognized the possibility that grandmother’s home would not be approved for adoption, but denied the continuance. It found the child was likely to be adopted and terminated parental rights. The Court of Appeal reversed, saying the juvenile court erred by denying the continuance. It said the juvenile court’s decision placed the child at risk of legal orphanage. The Court also said that Family Code section 8602 would constitute a legal impediment to the child’s being adopted by anybody other than the grandmother, because the child would not consent to the adoption. (I) LMF

Vasil, Stephen M. — People v. Stonebreaker, D069260 — Probation Conditions — Michael J. Popkins, Judge — Opinion by Huffman, J., with McConnell, P.J., Aaron, J. Probation conditions requiring Probation Officer to approve appellant’s residence and employment are stricken because no reasons given by court for imposing them and there is nothing in the record to support such restrictions on appellant’s lawful activity. (A) DKR

Stevenson, Theresa Osterman — People v. Matthews, D068033 — Sentencing — Sharon B. Majors-Lewis, Judge — Opinion by O’Rourke, J., with Benke, J., Prager, J. Trial court erred in this drug case by not applying the amended sentencing statute for possession and by applying the status enhancements under Health and Safety Code section 11370.2 twice in calculating appellant’s total sentence. Further, appllant suffered ineffective assistance when his trial counsel failed to object to the $10,000 restitution fine in the drug case. (I) LAR

Zehner, Michelle C. — People v. Jordan, E063488 — Polygraph Probation Condition — Bridgid M. McCann, Judge — Opinion by Hollenhorst, J., with Codrington, J., Slough, J. Various probation conditions modified to include knowledge requirement and polygraph condition modified to limit questions to those relating to successful completion of sex offender treatment program and crime of conviction. (A) DKR

Hinkle, Steven M. — People v. Celaya, G051193 — Proposition 47 — Christopher Evans, Temporary Judge — Opinion by Thompson, J., with Bedsworth, J., Fybel, J. Appellant was on post release community supervision (PRCS) when his Proposition 47 petition was granted. But, the trial court ordered appellant to serve the one year parole term, based on its finding appellant was still serving his original sentence. The Court of Appeal ordered the one-year parole period reversed and remanded for the trial court to fix a parole period which ends no later than the last day of appellant’s former PRCS period. The trial court is also ordered to calculate and apply excess custody credits to unpaid fines and fees, and strike the controlled substance offender registration requirement. (I) LKH

Buckley, Christian C. — People v. Buenrrostro, D067985 — One Strike Law — Robert F. O'Neill, Judge — Opinion by Aaron, J., with Huffman, J., Irion, J. Appellant contended the trial court could not impose sentences of 15-years-to-life on two particular counts under former Penal Code section 667.61, subdivision (g), because the offenses were committed on a “single occasion” as that term was interpreted in People v. Jones (2001) 25 Cal.4th 98. The People conceded that because the counts arguably were committed on a single occasion, former section 667.61, subdivision (g), may have authorized only one indeterminate term of 15 years to life. The Court of Appeal remanded the case to the trial court to determine whether or not the counts occurred on a single occasion. (I) HCC


August 2016

Cella, Michele Anne — People v. Dunley (2016) 247 Cal.App.4th 1438, E062656 — Testimonial Privilege — Lorenzo R. Balderrama, Judge — Opinion by McKinster, J., with Ramirez, P.J., Hollenhorst, J. Appellant argued that the statutory right not to be compelled to testify in commitment extension proceedings of defendants found not guilty by reason of insanity (NGI) has been extended to commitment proceedings for sexually violent predators (SVP), and should also extend to defendants facing commitment as a mentally disordered offender (MDO). Court of Appeal held that MDO’s, SVP’s, and NGI’s are all similarly situated with respect to the testimonial privilege provided in for Penal Code section 1026.5, subdivision (b)(7). Court also found that under the strict scrutiny test, respondent failed to identify a compelling state interest nor to address any possible reason that distinguishing between NGI’s and MDO’s with respect to the testimonial privilege is necessary to achieve any goal. Court, however, dismissed the appeal as moot because the trial court denied a subsequent petition for recommitment based on the finding that appellant no longer met the criteria for commitment as a MDO. (I) LMF

Yockelson, Alan S. — People v. Quezada, Sr., D069446 — Insufficient Evidence Gang Enhancement — John M. Tomberlin, Judge — Opinion by Benke, J., with Huffman, J., Prager, J. Gang enhancements alleged with respect to a charge of murder and a charge of being a felon in possession of a firearm. The charges stem from a shooting that occurred as the result of a private dispute. The jury hung on the enhancement attached to the murder count but found true the enhancement attached to the possession count. Court of Appeal agreed with appellant’s argument that the very little evidence of appellant’s gang membership was not sufficient to support the finding that appellant possessed the gun to benefit his gang in this case.(I) APJ

Staley, John L. — People v. McClinton, D069285 — Jeffrey J. Prevost, Judge — Bailey Doctrine — Opinion by McDonald, J., with McConnell, P.J., Huffman, J. Attorney General conceded and Court of Appeal agreed that the Bailey doctrine (People v. Bailey (1961) 55 Cal.2 514) required four of appellant’s attempted theft and theft convictions be consolidated into a single count because they were committed pursuant to a single intention, impulse, and plan. (I) APJ

Buckley, Christian C. — People v. Dalton, D069278 — Sentencing — Edward D. Webster, Judge — Opinion by Benke, J., with Nares, J., McIntyre, J. Court of Appeal remanded for correction of sentencing errors. Trial court incorrectly imposed a one-strike sentence under Penal Code section 667.61, subdivision (d), for violation of section 288.5, which was not a one-strike triggering offense at the time of commission. In addition, on several counts the trial court concluded, incorrectly, that the Three Strikes law mandated consecutive terms; remand required for a proper exercise of discretion. (I) NFA

Weinberg, Allen G. — People v. Rainey, D069431 — Abstract of Judgment — Bernard J. Schwartz, Judge — Opinion by McConnell, P.J., with McDonald, J., McIntyre, J. Court of Appeal ordered the abstract of judgment amended to conform to the oral pronouncement. The following corrections were ordered: (1) the offense should be attempted murder (instead of 1st attempted murder); (2) the victim restitution should be deleted; and (3) the sentence should reflect a minimum parole eligibility of seven years. (I) LKH

Power, Richard/Bjerkhoel, Alissa — People v. Jackson, et. al., D069654 — Penal Code Section 654 — Angel M. Bermudez, Judge — Opinion by Haller, J., with Benke, J., Aaron, J. Trial court violated Penal Code section 654's proscription against duplicative punishments by not staying the sentences on the felon-in-possession and vehicle-taking convictions as being duplicative of the sentences on the robbery convictions. Judgment modified staying the sentences on those convictions. (I) AMJ

Grove, Kimberly J. — People v. Estrada, D069294 — Chiu Error — J. David Mazurek, Judge — Opinion by McConnell, P.J., with Benke, J., Huffman, J. Jury instructions improperly allowed jury to convict appellant of aiding and abetting a first degree murder based on the natural and probable consequences doctrine. Error under People v. Chiu (2014) 59 Cal.4th 155. Because the People did not pursue direct aiding and abetting liability on this count, error is not harmless. Court reversed conviction of second first degree murder count and allowed People to retry the offense under the direct aiding and abetting theory or accept reduction of the conviction to second degree murder. (I) CBM

Shetty, Siri — People v. Lowary, D068115 — Prison Prior — Richard R. Monroy, Judge — Opinion by Nares, J., with Huffman, J., McIntyre, J. Prison prior ordered stricken because it was based on same conviction as serious felony prior. (I) DKR

Capriola, William J. — People v. Barnes, Jr., E061176 — Aggravated Kidnaping, Asportation — Jeffrey J. Prevost and Becky L. Dugan, Judges — Opinion by Ramirez, P.J., with Codrington, J., Slough, J. Court of Appeal reversed count of kidnaping for robbery where evidence appellant took victim from room to room in victim’s house during a robbery was insufficient to establish the heightened asportation element of aggravated kidnaping, i.e., that the movement was not merely incidental to the underlying crime and increased the risk to the victim. The court reduced the offense to the lesser included offense of false imprisonment, noting that the People had conceded there was insufficient evidence of even the asportation required for the lesser offense of simple kidnaping. The court also directed that on remand the sentencing court refrain from re-issuing an unauthorized order to stay away from the victim. (I) NFA

Yockelson, Alan S. — People v. Green, G052131 — Insufficient Evidence Out-of-State Conviction Constitutes Strike Prior — Stephan G. Saleson, Judge — Opinion by Fybel, J., with Rylaarsdam, J., Moore, J. Appellant’s 1995 Arkansas robbery conviction does not contain all the elements of a California robbery offense under Penal Code section 211 because, to prove robbery in Arkansas, the prosecution is not required to show that a theft was actually accomplished. Because the government in this case provided nothing but proof of the conviction, without any factual basis to show that an actual theft occurred, the evidence was insufficient to prove the strike prior allegation. Court of Appeal reversed the finding and remanded for retrial on this allegation. (I) CBM

Strong, Jeanine G. — People v. Grigsby, G051664 — Proposition 47 Parole — Christopher Evans, Temporary Judge — Opinion by Aronson, J., with O’Leary, P.J., Thompson, J. Where defendant was re-sentenced under Proposition 47 while on post-release community supervision (PRCS), court upheld imposition of parole pursuant to Penal Code section 1170.18, subdivision (d), but found defendant was entitled to have his excess prison custody and PRCS time credited against his parole to comply with the requirement of section 1170.18, subdivision (e), that the new sentence not exceed the original. The court noted that the California Supreme Court is currently reviewing both issues: 1) whether a defendant on PCRS has completed his or her sentence within the meaning of Proposition 47's parole provision; and 2) where Proposition 47 one-year parole is imposed, is the defendant entitled to credit for excess prison custody against PRCS time? (I) NFA

Rudasill, Denise M. — People v. McFarland, D068650 — Narcotics Offender Registration/Lab Fee — Diane B. Altamirano, Judge — Opinion by Huffman, J., with McConnell, P.J., Aaron, J. Attorney General conceded and Court of Appeal agreed that requirements appellant register as a narcotics offender and pay a drug conviction lab fee were not authorized because the drug charge against appellant had been dismissed as part of a plea agreement. (I) APJ

Staley, John L. — People v. Raines, E064448 — Proposition 47 — Becky Dugan, Judge — Opinion by Slough, J., with Hollenhorst, J., Miller, J. In a Proposition 47 petition, appellant sought reduction of six felony convictions of 2nd degree burglary. As to four of the convictions, it was undisputed that the amount taken during the burglary was under $950 in value. Nevertheless, the trial court denied the petition as to those counts on the basis that appellant’s conduct in going to the same exact store within a short period of time to steal essentially the same items demonstrated an intent to commit grand theft. On appeal, the Attorney General conceded and Court of Appeal agreed that it was error to aggregate the counts to determine the value of stolen property for Proposition 47 purposes. Matter remanded for re-sentencing unless court finds that to do so would “pose an unreasonable risk of danger to public safety” per Penal Code section 1170.18, subdivision (b). (I) AMJ

Vento, Christine — People v. Reyes, E063250 — Statute of Limitations — John M. Tomberlin, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J. Attorney General conceded and Court of Appeal agreed that three convictions of unlawful sexual intercourse with a minor three years younger were barred by the statute of limitations as there was no provision for tolling the limitations period for those offenses. Appellant’s sentence reduced by two years. (I) APJ

Lubliner, Steven S. — People v. Crevelle, E061958 — Credits/Abstract of Judgment — Gerard S. Brown, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., Slough, J. Appellant was entitled to additional days of pre-sentence custody credit and sentencing minute order needed to be corrected to reflect that the court found a motor vehicle was not used in the commission of the offense. (I) LAR

LeRoy, Doris M. — People v. McNulty, D068554 — Proposition 47 — Eugenia A. Eyherabide, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. Court of Appeal found that appellant’s entry into a Target store and purchase of approximately $500 worth of merchandise using a stolen credit card qualified as shoplifting under Penal Code section 459.5 and that the trial court erred in denying appellant’s petition for a reduction of his burglary conviction based upon that conduct. Matter remanded for reduction of the conviction and re-sentencing as appropriate. (I) LLA

Missakian, Matthew — People v. Gonzalez, E064128 — Proposition 47 Dangerousness Finding — Becky Dugan, Judge — Opinion by Slough, J., with Ramirez, P.J., Hollenhorst, J. Appeal from the denial of Proposition 47 relief due to the court finding that appellant posed an unreasonable risk of danger to public safety. Court of Appeal agreed with appellant’s argument that the trial court abused its discretion in finding appellant was dangerous based on unsworn attorney statements and a police report from 1996. The Court of Appeal also agreed that the trial court abused its discretion in finding appellant was dangerous based on the likelihood that he would commit a sexual offense within the meaning of Penal Code section 290, subdivision (c), but declined to reverse on that basis. Matter remanded for re-sentencing or a new hearing regarding dangerousness. (A) LLA

Melcher, William Paul — People v. Andrade, E063762 — Probation Conditions — Michael M. Dest, Judge — Opinion by Codrington, J., with Ramirez, P.J., McKinster, J. Probation condition requiring defendant to waive his privilege against self-incrimination is over-broad. Although defendant’s compelled statements can be used in a probation revocation proceeding because it is not a criminal proceeding, defendant cannot be forced to waive his constitutional right against self-incrimination for any crime other than the crime for which he is on probation. A condition compelling defendant to submit to polygraph testing is constitutional, if it is narrowly tailored to limit questions to those relating to the successful completion of probation and the crime to which defendant was convicted. Probation conditions prohibiting defendant from contact with other persons, accessing social media, and frequenting specified places must contain a scienter requirement and be modified to prohibit only knowing conduct. Three conditions which include a requirement to pay costs and fees must be modified to strike the payment requirement. (A) PMI

Brody, Steven A. — People v. Singleton, E063053 — Sentencing — Jeffrey J. Prevost, Judge — Opinion by Ramirez, P.J., with Miller, J., Slough, J. Parties agreed that the trial court erred in staying, and not striking, the one year prison prior enhancement. (I) BCT

Stevenson, Theresa Osterman — People v. Silva, D068855 — Credits — Blaine K. Bowman, Judge — Opinion by Huffman, J., with Nares, J., Irion, J. Because attempted first degree residential burglary, even with a non-accomplice being present, is not a violent felony within the meaning of Penal Code section 667.5, subdivision (c)(21), the conduct credit limitation of section 2933.1 did not apply and the trial court erred when it limited appellant’s pre-sentence conduct credits. (I) DKR

Gambale, Erica L. — People v. Tate (2016) 248 Cal.App.4th 332, D068309 — Credits Waiver — Eugenia A. Eyherabide, Judge — Opinion by Aaron, J., with Benke, J., McDonald, J. Court of Appeal agreed with appellant that waiver of conduct credits entered on a previous date, for the sake of revoking and reinstating probation, constituted a waiver only of conduct credits earned up until the time of the waiver. Appellant is entitled to conduct credits earned after the waiver. Matter remanded for calculation. (A) APJ

Crawford, James M. — People v. Gonzales, E063783 — Restitution Fine — Becky Dugan, Judge — Opinion by Hollenhorst, J., with Miller, J., Slough, J. Attorney General conceded and Court of Appeal agreed that restitution must be reduced to $280 where court expressed its intent to impose minimum fine and $280 was the minimum at the time the offenses were committed. (I) APJ

Barry, Leslie A. — In re P.B., E065020 — Indian Child Welfare Act (ICWA) — Timothy F. Freer, Judge — Opinion by Slough, J., with Hollenhorst, J., Miller, J. Appellant argued and Court of Appeal agreed that the agency’s failure to include the name and identifying information about the ancestor with claimed Indian heritage was prejudicial error resulting in a limited remand for compliance with the ICWA. (I) LLF

Annicchiarico, David L. — People v. Saunders, E064964 — Clerical Error — Raymond L. Haight III, Judge — Opinion by Miller, J., with McKinster, J., Codrington, J. Minutes ordered corrected where they erroneously state appellant admitted a prior strike conviction that was never charged in the information nor admitted. (I) CBM

Peabody, Jennifer — People v. Merin, G051881 — Proposition 47 — Thomas A. Glazier, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Fybel, J. Second degree burglary for using a stolen credit card to rent a motel room for less than $950 qualifies as shoplifting within the meaning of Proposition 47 and the court erred when it found it did not. (I) DKR

Strong, Jeanine G. — People v. Elmore, E062972 — Proposition 47 — Becky Dugan, Judge — Opinion by Ramirez, P.J., with Codrington, J., Slough, J. The trial court denied appellant’s re-sentencing petition on the grounds that passing counterfeit currency in violation of Penal Code section 476 is not a qualifying felony under Proposition 47 because the term “bill” used in Penal Code section 476 is distinct from the “bank bill” language inserted into Penal Code section 473 by Proposition 47. The Court of Appeal ruled that both statutory and case law use the terms “bill,” “bank bill,” and “bank note” interchangeably. Moreover, applying Proposition 47 to Penal Code section 476 is consistent with the purposes of the Act. Therefore, the order denying appellant’s petition is reversed. (I) LKH

Angres, Robert L.S. — People v. Anderson, D069220 — Lesser Included Offenses/Prison Prior Convictions — Jon D. Ferguson, Judge — Opinion by Benke, J., with O’Rourke, J., Prager, J. Appellant was convicted of both grand theft and robbery based on theft of a laptop. Although the information alleged the crimes were perpetrated against different victims, the grand theft victim was actually an agent of the robbery victim (the true owner of the computer). The Court of Appeal reversed the conviction for grand theft, concluding it is a lesser included offense of robbery and that both convictions were based on the same conduct. In addition, the Court of Appeal orders one prison prior stricken. The trial court had found two prison priors true, but appellant served a concurrent term for the two convictions and, therefore, appellant suffered only one prison prior. (I) LKH

Rudasill, Denise M. — People v. Alegria, D067706 — Proposition 47 — Raymundo A. Cota, Judge — Opinion by Irion, J., with McDonald, J., Aaron, J. Appellant was found in possession of a stolen debit card and convicted of receiving stolen property. The prosecution conceded the value of the card was less than $950 but argued the value of the card for Proposition 47 purposes should be based on the ability to use the card to remove funds from the victim’s checking account. The trial court denied appellant’s petition to have his felony conviction reduced to a misdemeanor finding he did not meet his burden of establishing the card’s value was less than $950. The Court of Appeal reversed based on the concession below that the value of the card was less than $950. (I) PMI

Ordóñez, Sarita — People v. Wallace, E063760 — Proposition 47 — Becky Dugan, Judge — Opinion by McKinster, J., with Miller, J., Codrington, J. In ruling on appellant’s Proposition 47 petition to reduce her receiving stolen property conviction, trial court erred by aggregating total value of property involved in entire case based on appellant’s Harvey waiver. (People v. Harvey (1979) 25 Cal.3d 754.) The court was required to limit its inquiry into the value of property involved in the offense of which appellant was convicted. The Court of Appeal also found the People were not entitled to withdraw from the plea bargain and reinstate the charges if the superior court re-sentences defendant. (A) CBM

Turner-Bond, Jasmine J. — In re M.H., E065016 — Indian Child Welfare Act (ICWA) — Lynn M. Poncin, Judge — Opinion by McKinster, J., with Miller, J., Codrington, J. In this appeal from the termination of parental rights, mother argued there was insufficient inquiry into minor’s ICWA eligibility. Under Welfare and Institutions Code section 243, subdivision (c), a social worker who knows or has reason to know the child is Indian is required to make further inquiry. In this case, Father had alleged possible Indian ancestry and provided some information regarding his Indian ancestry to The San Bernardino County Children and Family Services (CFS). Thereafter, CFS failed to investigate this information and failed to include this information in the notice to the Indian tribes. Because CFS thus failed in its duty to inquire into father’s Indian ancestry, the judgment terminating parental rights is reversed and the matter is remanded for CFS to comply with ICWA’s inquiry and notice requirements. (A) LMF

Buckley, Christian C. — People v. Endsley, E063931 — Penal Code Section 1026.2 Restoration of Sanity Requirements — Lorenzo R. Balderrama, Judge — Opinion by Slough, J., with Miller, J., Codrington, J. After trial court summarily denied appellant’s petition for conditional release to an outpatient program, appellant appealed arguing entitlement to a hearing. Respondent agreed that appellant was entitled to a hearing, but argued the petition was deficient on its face for appellant’s failure to include a written recommendation of the person in charge of the appellant’s treatment pursuant to Penal Code section 1026.2, subdivision (l). The Court of Appeal agreed with appellant’s argument that, based on the Legislature’s intent and other provisions in Penal Code section 1026.2, it is the trial court’s burden to request and obtain the recommendation. Matter remanded for the trial court to request a recommendation and hold a hearing to determine appellant’s eligibility for conditional release to an outpatient program. (I) LMF

Covin, Randi — In re Badillo, G051994 — Petition for Writ of Habeas Corpus/Ineffective Assistance of Counsel — Albert J. Wojcik, Judge — Opinion by Aronson, J., with Ikola, J., Thompson, J. Appellant was not charged with a gang offense or enhancement, but the trial court admitted evidence of defendant’s gang affiliation for the limited purpose of showing an alleged group bias towards African-Americans. Where the prosecutor far exceeded the court’s pretrial ruling and defense counsel did not object to the excessive prejudicial gang evidence at trial, defense counsel was ineffective. Conviction and sentence are vacated. (I) PMI

Love, Christopher — People v. Lopez, E061511 — Sentencing — Bridgid M. McCann, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., Slough, J. Where plea agreement called for striking an admitted gang enhancement, Court of Appeal found trial court erred in staying rather than striking the enhancement because court was bound by the terms of the plea agreement. (I) APJ

Carroll, Steven J. — People v. Garcia, E061907 — Penal Code Section 1214.1 Civil Assessments — Dennis A. McConaghy, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Under Penal Code section 1214.1, subdivision (a), the court may impose a civil assessment for failure to appear or pay a fine; however, the court must vacate the assessment if defendant complies with subdivision (b). In response to a defense request that the court vacate appellant’s civil assessments pursuant to subdivision (b), the court erroneously held it did not have the discretion to hear such a request and denied it. Because the trial court misunderstood its discretion, the Court of Appeal reversed the judgment and remanded for the trial court to exercise its discretion. (I) MCR

Toole, Merrill Lee — In re S.F., G052753 — Indian Child Welfare Act (ICWA) — Gary G. Bischoff, Judge — Opinion by Aronson, J., with Bedsworth, J., Fybel, J. Reversed for failure to adequately inquire of paternal relatives as to ICWA. (I) ACS

Strong, Jeanine G. — People v. Vasquez, G051674 — Proposition 47 Parole/Excess Credits— Christopher Evans, Temporary Judge — Opinion by Aronson, J., with Fybel, J., Thompson, J. Court of Appeal affirmed the trial court’s decision to impose a period of parole after recalling defendant’s sentence under Proposition 47 and re-sentencing him under section 1170.18, subdivisions (a) and (d). But the Court reversed the sentence and remanded for re-sentencing because the court failed to apply to defendant’s non-restitution fees or fines the excess custody credits he earned under his felony sentence. In re-sentencing defendant, the trial court must ensure any parole period it imposes does not result in a total term exceeding defendant’s original sentence. (I) PMI

July 2016

Olsen, Nancy — People v. Rivas, D069238 — Sentencing Error — Shahla S. Sabet, Judge — Opinion by McIntyre, J., with Benke, J., Prager, J. Appellant argued and the Court of Appeal agreed the trial court erred by imposing separate life sentences on each of the three counts of committing lewd and lascivious acts against Jane Doe. Because the three counts occurred on one occasion against one victim, appellant must be sentenced to only one life term for the three counts. Court remanded the matter for resentencing. (I) HSI

McPartland, Michael B./Shetty, Siri — People v. Legaspi/Lara/Salazar, D068710 — Instructional Error (Chiu) and Sentencing — Annemarie G. Pace, Judge — Opinion by Benke, J., with McIntyre, J., Aaron, J. Convictions of first degree murder as to Lara and Salazar reversed pursuant to People v. Chiu (2014) 59 Cal.4th 155, where jury was instructed it could convict based upon a natural and probable consequences theory and the error was prejudicial. Remanded for the People to accept the reduction to second degree murder or elect to retry appellants. Where the trial court erroneously imposed seven-year-to-life sentences for three counts of attempted premeditated murder, the sentence is modified to reflect terms of life with the possibility of parole. (I) PMI

Fields, Lori A. — In re I.G., E065231 — Indian Child Welfare Act (ICWA) Notice — Jean P. Leonard, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Termination of parental rights reversed for both parents, although only mother appealed. Father was the party claiming Indian heritage. Riverside County Counsel stipulated to the reversal. (I) CAG

Rich, Renee — People v. Olivas, E061974 — Pre-Sentence Custody Credits — Steven A. Mapes, Judge — Opinion by Codrington, J., with Hollenhorst, J., Miller, J. Court of Appeal ordered the trial court to award appellant 240 days of pre-sentence conduct credit. The trial court erred in thinking appellant was not entitled to pre-sentence conduct credit under the Three Strikes Law. (I) LKH

Hinkle, Stephen M. — People v. Rinke, E063656 — Sentencing — William Jefferson Powell, IV, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., McKinster, J. Trial court erred by imposing a one year sentence for the prison prior term enhancement that was based on the same conviction as the five-year sentence for the prior serious felony enhancement. (I) LAR

Robertson, Thomas E. — People v. Rivera, G051375 — Penal Code Section 654 — Michael J. Cassidy, Judge — Opinion by Aronson, J., with O’Leary, P.J., Moore, J. Sentence on criminal threats conviction must be stayed because evidence demonstrates appellant committed it and kidnaping pursuant to the single intent of enforcing his victim’s silence. (I) DKR

Khoury, Charles R. — People v. Randolph, G051201 — Excess Credits After Proposition 47 Reduction — Vickie Hix, Commissioner — Opinion by Thompson, J., with Bedsworth, J., Ikola, J. Defendants obtaining re-sentencing under Proposition 47 entitled to have any excess custody credits applied to their parole period and eligible fines. (I) CBM

Kreit, Alex — People v. Medrano, D068486 — Drug Testing Fee/Probation Condition — Raymond A. Cota, Judge — Opinion by Prager, J., with Benke, J., Irion, J. Court of Appeal modified the judgment to strike the drug testing fee because appellant was not convicted of a drug-related crime. The Court also modified probation condition restricting appellant from entering a liquor store to add a knowledge requirement. (A) BCT

Macomber, Thomas K. — People v. Heath, E063143 — Proposition 47 Reduction — Becky Dugan, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Court of Appeal agreed that trial court erred when it denied Prop. 47 relief for convictions of burglary of an L.A. Fitness gym and unauthorized possession of a credit card. With respect to the L.A. Fitness, the Court of Appeal found that the business constitutes a commercial establishment and the record of conviction failed to show that the burglary was actually of a locker room within the business, as the government contended. With respect to the unauthorized possession of an access card, the Court of Appeal found that the offense constituted petty theft because the restitution ordered in this case was for under $950. Case remanded for resentencing. (I) APJ

Nichols, Diane — People v. Herrera, E062322 — Sentencing — Angel M. Bermudez, Judge — Opinion by Slough, J., with Hollenhorst, J., Miller, J. Error in the jury verdicts results in having the use of deadly weapon findings in five counts be reduced to being armed with a deadly weapon. Also, clerical error results in striking the imposition of a seven-year sentence for count 4. (I) LAR

Angres, Robert L.S. — People v. Mayfield, D069657 — Sentencing — Gerard S. Brown, Judge — Opinion by McDonald, J., with Benke, J., Irion, J. Trial court ordered to modify appellant’s sentence as follows: (1) strike the “prison prior” imposed based on a recent conviction where appellant had not yet begun serving a sentence; (2) modify condition of probation to require appellant not to “possess nor have under your control any deadly weapons or explosive devices or explosive materials” (as opposed to “material to make explosive devices”) (3) modify conditions to include a definition of the term “gang;” and (4) strike the requirement to pay costs related to three obligations imposed by conditions of mandatory supervision. (I) LAR

Levy, Richard A. — People v. Dragna, G049756 — Suppression Motion — James A. Stotler, Judge — Aronson, J.,with Ikola, J., Thompson, J. Appellant argued and, at oral argument, the Attorney General conceded that appellant’s statements were required to be suppressed because they were the result of questioning by police after he had invoked the right to an attorney. Contrary to the Attorney General’s argument that the error was harmless, the Court of Appeal found that appellant’s statements to police were a centerpiece of the prosecution’s case; they even led the prosecutor to describe appellant as his “star witness.” Judgment of life without the possibility of parole reversed and matter remanded for retrial. (I) LAR

Beckham, Sylvia W. — People v. Jackson, G051832 — Penal Code Section 1170.18 (Prop. 47) — Thomas A. Glazier, Judge — Thompson, J., with Aronson, J., Ikola, J. Attorney General conceded and Court of Appeal agreed that trial court erred in finding that theft of a firearm in violation of section 487, subdivision (d)(2), could not qualify for re-sentencing under Prop. 47 due to the nature of the property. The matter is remanded for a further hearing as to the value of the firearm. (I) LAR

Jones, Cynthia M. — In re A.R., G052401 — Welfare and Institutions Code 786 — Lewis W. Clapp, Judge — Opinion by Moore, J., with Aronson, J., Thompson, J. Reversed and remanded for trial court to deem minor’s arrest not to have occurred under Welfare and Institutions Code section 786. Attorney General conceded minor is entitled to relief. (I) AMJ

Harguindeguy, Marianne — People v. Foster, E062795 — Penal Code Section 654 – Colin J. Bilash, Judge — Opinion by Miller, J., with Codrington, J., Slough, J. Court of Appeal agreed with appellant’s argument that consecutive eight-month sentence for failing to register in a new city must be stayed because appellant was also sentenced for failing to inform the police department in his previous city that he had moved. Under Penal Code section 654, appellant could not be punished for both because they shared the same general intent to conceal is residence from law enforcement. Because the date alleged for each violation was the same, the Court rejected the Attorney General’s argument that Penal Code section 654 did not apply because appellant violated the same provision on different occasions. (I) APJ

Ehlert, Allison L. — People v. Flores, G051133 — Sentencing After Post Release Community Supervision (PRCS) Violation — Sheila F. Hanson, Judge — Opinion by Thompson, J., with Rylaarsdam, J., Bedsworth, J. Appellant violated the terms of his PRCS by possessing methamphetamine. Following the court’s previous decision in People v. Armogeda (2015) 233 Cal.App.4th 428, under Penal Code section 3063.1, the trial court was required to order drug treatment, not jail time under section 3455. Additionally, insufficient evidence supported a “danger to the safety of others” exception which authorizes incarceration instead of drug treatment. (A) PMI

Carroll, Steven J. — People v. Mugica, G051237 — Penal Code Section 1170.18 (Prop. 47) — Vickie L. Hix, Temporary Judge — Opinion by Rylaarsdam, J., with O'Leary, P.J., Aronson, J. Court of Appeal found that appellant’s period of parole, imposed after his petition for Prop. 47 relief was granted, could not extend beyond the period he was serving on post-release community supervision. Matter remanded for recalculation of parole period and to strike drug registration requirement which no longer applies. (I) AMJ

Dain, Anthony J. — People v. Blankenship, D068850— Penal Code Section 1170.18 (Prop. 47) — David J. Danielsen, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. Where appellant entered a Target store and used a stolen credit card to withdraw $350 from an ATM, Court of Appeal found the resulting burglary conviction must be reduced to a misdemeanor under Prop. 47. Court of Appeal rejected the Attorney General’s argument that the offense did not qualify as shoplifting and that relief was not required because appellant entered with an intent to commit identity theft. (I) LLA

Smith, Kyle D. — People v. Banos, G050542 — Insufficient Evidence/Probation Condition/Correction of Minute Order — John Conley, Judge — Opinion by Bedsworth, J., with Fybel, J., Ikola, J. Reversed and remanded. Evidence was insufficient to support the gang enhancement; a probation condition is modified to exclude the clause “otherwise disapproved by probation” as it constitutes an impermissible delegation of judicial authority to appellant’s probation officer; and the judgment is modified to ensure appellant does not have to pay duplicative fines and fees. In finding the evidence insufficient to support the enhancement, the court stated: “appellant was alone when the police stopped him, and there was no evidence he was planning to use his knife to commit a crime on his gang’s behalf. Appellant was in rival gang territory at the time of his arrest. However, that’s where he lived. In fact, he was only about half a block away from his home when he was stopped by the police. Under these circumstances, it is not particularly probative of appellant’s intent that he happened to be in gang territory when the present offense occurred.” (A) AMJ

Vorobyov, Gene D. — People v. Franklin, E061445 — Supervised Release Condition — Irma Poole Asberry, Judge — Opinion by Hollenhorst, J., with Ramirez, P.J., Miller, J. Supervised release condition: “...reside at a residence approved by the probation officer ... and do not move without the approval of the probation officer” is unconstitutionally overbroad because it does not impose any limits on the probation officer’s discretion. The condition is modified to: “Keep the probation officer informed of your place of residence” and give 24-hour written notice prior to a change in residence. (I) PMI

Sheehy, Kevin D. — People v. Andrews, G051067 — Insufficient Evidence Prior Conviction — Steven D. Bromberg, Judge — Opinion by O’Leary, P.J., with Bedsworth, J., Aronson, J. The evidence presented was insufficient to prove that the prior conviction, a 2005 federal bank robbery conviction, qualified as a serious felony and strike under California law. The Attorney General conceded the issue. Case reversed and remanded for the trial court to vacate its true findings and to permit the prosecution to retry the allegations, if it so elects, by presenting additional evidence within the record of conviction. (I) AMJ

Schuck, John F. — People v. Juarez, G049037 — Penal Code Section 1387 Dismissal — Gregg Prickett, Judge — Opinion by Ikola, J., with O’Leary, P.J., Rylaarsdam, J. After charges of attempted murder had been twice dismissed, the People filed charges of conspiracy to commit murder. The trial court found this was the “same offense” for purposes of Penal Code section 1387 and dismissed the complaint. The Court of Appeal reversed the dismissal based on People v. Traylor (2009) 46 Cal.4th 1205, which held that two charged offenses are the same offense only if they include identical elements. The California Supreme Court reversed and remanded (People v. Juarez (2016) 62 Cal.4th 1164), holding that while examining the statutory elements is one way of determining whether two offenses are the same offense, courts may also apply the accusatory pleading test in this context. Under the accusatory pleading test, if the facts actually alleged in the greater charge include all the elements of the lesser charge, the latter is necessarily included in the former. On remand, the Court of Appeal applied the accusatory pleading test and found that the conspiracies as charged included both an intent to kill and a direct act toward accomplishing the killing (the actual shooting of each intended victim was one of the alleged overt acts). Therefore, as pleaded, the conspiracy charges included all of the elements of the previous attempted murder charges and were thus the same offense for the purposes of Penal Code section 1387. (I) HCC

Staley, John L. — People v. Gomez, G050992 — Probation Conditions — James Edward Rogan and Sheila F. Hanson, Judges — Opinion by Thompson, J., with Fybel, J., Ikola, J. Appellant was placed on probation, and ordered not to “associate with persons . . . otherwise disapproved of by probation or mandatory supervision.” (Italics added.) Appellant argued the language was overbroad and should be stricken. The Court of Appeal agreed. The matter is remanded for the trial court to strike the italicized portion of the probation condition. (I) LKH

DiGuiseppe, Raymond Mark — People v. Castillolopez (2016) 63 Cal.4th 322, S218861 — Albert T. Harutunian III, Judge — Opinion by Kruger, J., unanimous. The California Supreme Court agreed with the Court of Appeal that there was no substantial evidence the open blade of appellant’s Swiss Army knife was “locked into position” within the meaning of Penal Code section 16470 because the knife could be closed simply by folding the blade back into the handle. Appellant’s conviction reversed. (I) LAR

Cioffi, Eric — People v. Hernandez, G050866 — Confrontation Clause Violation — Kimberly Menninger, Judge — Opinion by Ikola, J., with Moore, J., Fybel, J. Attorney General conceded and Court of Appeal agreed that the lower court violated appellant’s Sixth Amendment right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 by admitting the victim’s testimonial out-of-court statements in a prosecution for domestic battery resulting in corporal injury. Here the statements were given to police after appellant had already been detained and there was no on-going emergency. Because the statements were the only evidence that appellant and victim were in a dating relationship, the violation was prejudicial. Court of Appeal declined respondent’s invitation to remand for retrial or reduction to the lesser offense of battery, finding that Penal Code sections 1260 and 1181(6) must be narrowly interpreted to allow such a reduction by the reviewing court only to correct a jury’s error and not to correct an evidentiary error such as occurred in this case. Matter remanded with directions to retry appellant for either the same offense or a lesser included offense. (A) MCR

Dodd, John — People v. Sanchez (2016) 63 Cal.4th 665, S216681 — Gang Expert Testimony/Confrontation Clause Violation — Steven D. Bromberg, Judge — Opinion by Corrigan, J., unanimous. California Supreme Court held that some of the statements related by the gang expert in this case were testimonial hearsay and admitted in violation of appellant’s right to confrontation under Crawford v. Washington (2004) 541 U.S. 36. The prosecution’s gang expert was allowed to recount hearsay statements by police officers regarding STEP notice encounters with appellant as a basis for his expert opinion that appellant was a gang member and that appellant’s narcotics offense was committed to benefit the gang. The court held that while the Confrontation Clause permits an experts to rely on hearsay general knowledge in their field of expertise, it does not permit them to recount case-specific hearsay, such as out–of-court statements of police regarding their interactions with appellant. Further, where the expert’s opinion depends on the truth of testimonial hearsay statements, the error is not avoided by instructing jurors, irreconcilably, that such statements are not admissible for their truth. The court found the police statements in the STEP reports, e.g., stating appellant had admitted gang activity, were testimonial and prejudicial, requiring reversal of the gang enhancements. (I) NFA

June 2016

McPartland, Michael B. — People v. Love, D069447 — Ineffective Assistance of Counsel/Sentencing — Eric M. Nakata, Judge — Opinion by Huffman, J., with McDonald, J., Aaron, J. Court of Appeal agreed with appellant’s argument that trial counsel was ineffective for failing to request dismissal of a strike prior in this case. Counsel had expressed his intention to do so and there could have been no tactical reason for the failure to follow through. Additionally, the Court of Appeal was not able to say with certainty that had such a request been made there is no reasonable probability that the trial court would not have granted it. Matter remanded for a new sentencing hearing. (I) APJ

Seaman, Jr., R. C./Peterson, Michelle M./Wrubel, Sharon G. — People v. Johnson/Tran/Nguyen, G047335/G048760/G048909 — Sentencing — Patrick H. Donahue, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Ikola, J. Where the murder occurred in 1995, before Penal Code section 186.22, subdivision (b)(1)(C) was enacted, ex post facto principles preclude imposition of the 10-year consecutive gang enhancement. And in any case, the 15-year minimum parole eligibility term applies in a case such as this where the underlying felonies are punishable by life in prison. As to Tran, who was 17 years old at the time of the murder, under People v. Gutierrez (2014) 58 Cal.4th 1354 and Miller v. Alabama (2012) 567 U.S. __, he is entitled to re-sentencing on his sentence of life without the possibility of parole. (I) PMI

Lubliner, Steven S. — People v. Goolsby (2016) 244 Cal.App.4th 1220, 1223, E052297 — Double Jeopardy — Bryan Foster, Judge — Opinion by McKinster, J., with Ramirez, P.J., Codrington, J. Defendant was convicted of arson of an inhabited structure based on evidence he set fire to an inhabited trailer. In its first opinion the Court of Appeal reversed for insufficient evidence because the trailer was not a "structure" within the meaning of the statute. The court also held that Penal Code section 654 precluded retrial on the lesser related offense of arson of property. On review, the Supreme Court held section 654 did not preclude retrial on the lesser related offense of arson of property because jurors had been instructed on that lesser offense; however, the court remanded for the Court of Appeal to determine whether double jeopardy precluded retrial on the lesser related offense. On remand, the Court of Appeal held double jeopardy precluded retrial on the lesser related offense. The court found the trial court should have instructed jurors to return verdicts on both arson of an inhabited structure and arson of property, which would have averted the double jeopardy problem. (I) NFA

Yockelson, Alan S. — People v. Gutierrez, E062209 — Clerical Correction — Rafael A. Arreola, Judge — Opinion by Hollenhorst, J., with Miller, J., Codrington, J. The minute order and abstract of judgment are ordered to reflect the oral pronouncement of the court that the sentence on count 3 is to be served concurrent, not consecutive, to the sentence on count 1. (I) PMI

Shaler, Susan K./Klarich, Stephen D. (Retained) — People v. Kozee-Stoltz et al., D069073 — Instructional Error — Albert J. Wojcik, Judge — Opinion by McIntyre, J., with Nares, J., O’Rourke, J. Attorney General conceded and Court of Appeal agreed that trial court erred when it included “grossly negligent discharge of a firearm” in the list of two offenses that might qualify to show a pattern of gang activity in this case. Contrary to the Attorney General’s contention that the error was harmless, the Court of Appeal found the instructional error was prejudicial when it could not be determined that the jury rejected the improper legal theory in its findings of guilt on the gang participation charges and true findings on the gang enhancement allegations. Charges and enhancements reversed and matter remanded for re-sentencing. (I) APJ

Ting, Allison H. — People v. Williams, D069088 — One-Strike Law — Michael J. Rushton, Judge — Opinion by Aaron, J., with McConnell, P.J., Prager, J. Attorney General conceded and Court of Appeal agreed that trial court mistakenly applied current one-strike sentencing law and imposed consecutive sentences on counts 7 and 8 because it thought consecutive sentences were mandatory. Case remanded so that trial court can exercise its discretion in determining whether to impose concurrent or consecutive sentences. In addition, on remand, the court must determine whether the offenses occurred on a “single occasion” such that only one of the two offenses could be sentenced under the one-strike law. (I) AMJ

LeRoy, Doris M. — People v. Limon, D067001 — Unexpected Testimony/Mistrial — Howard H. Shore, Judge — Opinion by Irion, J., with Nares, J., McDonald, J. Court of Appeal agreed that trial court erred in denying appellant’s motion for a mistrial after the minor victim’s brother unexpectedly testified that appellant had also tried to molest him. Court of Appeal found that this is not the type of revelation that the jury can be expected to disregard in a molestation case such as this one, where the entire case hinged on a credibility determination and where other very prejudicial evidence was admitted that would have the effect of maligning appellant’s character. Court of Appeal also agreed that trial court’s exclusion of evidence that might have impeached the brother compounded the prejudice. Judgment and sentence of 41 years, plus 140 to life, reversed and matter remanded for retrial. (I) APJ

Christiansen, Mark L. — People v. Lopez, D069279 — Discovery — Harold T. Wilson, Jr., Judge — Opinion by Huffman, J., with Haller, J., McDonald, J. The superior court erred in failing to hold a hearing regarding appellant’s request for additional discovery from the prosecution. Appellant had questioned whether the CalGang statewide database available to law enforcement contained information regarding the main prosecution witnesses. Where the primary defense theory was misidentification and the credibility of the key prosecution witness was at issue, the possibility that the prosecution possessed information that the witness was a gang member and did not provide that information to the defense, despite requests to do so, required remand to the superior court to conduct a hearing as to the subject evidence requested by defense counsel. If the superior court determines the subject evidence exists and is material, the judgment will be reversed and the subject evidence will be provided to appellant. If the evidence does not exist or is not material, the judgment will be affirmed. (I) BCT

Brines, Cindy — In re M.M., G052059 — Sealing of Juvenile Petition — Cheryl L. Leininger, Judge — Opinion by Rylaarsdam, J., with Aronson, J., Ikola, J. The juvenile court’s order sealing only part of the juvenile delinquency petition is reversed. Under the newly amended Welfare and Institutions Code section 786, the court is required to seal all records pertaining to a dismissed juvenile delinquency petition, even those pertaining to minor’s arrest not in the possession of the court. The minor in this case is entitled to the benefit of the new law under In re Estrada (1965) 63 Cal.3d 740. (I) PMI

Staley, John L. — People v. Moore, D067559 — Lesser Included Offense — Dwayne K. Moring, Judge — Opinion by Aaron, J., with Huffman, J., Haller, J. Attorney General conceded and Court of Appeal agreed that defendants’s conviction for driving under the influence of drugs causing injury should be reversed (and the enhancement to the count stricken as well) because it is a lesser included offense of gross vehicular manslaughter while intoxicated, and a defendant may not be convicted of both a greater and lesser included offense. Also, court operations and court facility assessments were decreased accordingly. (I) HCC

lsen, Nancy — People v. Zanetti, D069069 — Dual Robbery Convictions — Jon D. Ferguson, Judge — Opinion by O’Rourke, J., with Benke, J., McDonald, J. One of appellant’s six robbery convictions must be reversed because appellant cannot be convicted of robbing the same victim twice in the same incident. (I) LKH

Larson, Eric R. — In re Lopez (2016) 246 Cal.App.4th 350, 353, G051238 — Chiu Retroactivity — Richard M. King, Judge — Opinion by Fybel, J., with Rylaarsdam, J., Thompson, J. The Court of Appeal concluded that the holding in People v. Chiu (2014) 59 Cal.4th 155 is retroactive to convictions, such as petitioner’s, that were final on appeal when Chiu was decided. The court also concluded petitioner was entitled to relief because the record showed his conviction of first degree murder was based on the natural and probable consequences doctrine which is impermissible under Chiu. The court granted relief and vacated the conviction for first degree murder. On remand, the People may accept a reduction of the conviction to second degree murder or elect to retry the greater offense. (I) HCC

Harris, Donna L./Smith, Barbara A. — People v. Foreman/Hollins, D066405 — Vicarious Gang Firearm Use Enhancement — David M. Gill, Judge — Opinion by Nares, J., with Haller, J., McDonald, J. The People conceded and Court of Appeal agreed that 10-year enhancements for vicarious firearm use (Pen. Code §12022.53, subd. (e)(1)) must be stricken because the statute requires a true finding that the underlying offense was committed for the benefit of the gang under Penal Code section 186.22, subdivision (b) and here the jury found that allegation not true. (I) LKH

Peabody, Jennifer — People v. Baines, E062415 — Penal Code Section 654 — John M. Tomberlin, Judge — Opinion by Ramirez, P.J., with Codrington, J., Slough, J. Three sentences for robbery must be stayed under Penal Code section 654 because appellant was also sentenced on three counts of kidnap to commit robbery based upon the same objective. (I) PMI

Tavano, Joseph T. — People v. Salas, E063227 — Probation Condition — Anthony R. Villalobos, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Court modified the residence-restriction probation condition to delete requirement that residence be approved by the probation officer. Instead, defendant must keep probation officer informed of his residence and give written notice if he changes residence. (I) BCT

Siroka, Matthew A. — People v. Lafranchi, G051296 — Proposition 47/Controlled Substance Offenders’ Registration Requirement — Christopher Evans, Temporary Judge — Opinion by Fybel, J., with Rylaarsdam, J., Moore, J. Attorney General conceded and Court of Appeal agree that where trial court had previously granted appellant’s Proposition 47 petition for re-sentencing of a Health and Safety code section 11377, subdivision (a) offense, the controlled substance offender registration requirement under Health and Safety Code section 11590, subdivision (a) must be stricken as no longer applicable. (I) LLA

Kraft, Rudy — People v. Fekadu, D067686 — Not Guilty by Reason of Insanity Commitment — Melinda J. Lasater, Judge — Opinion by Huffman, J., with O’Rourke, J., Irion, J. Waiver of jury trial rights by trial counsel was taken without the court ascertaining whether appellant, who was present, made a knowing and voluntary waiver of his rights. Case conditionally reversed to determine, in accordance with People v. Tran (2015) 61 Cal.4th 1160, whether at the time of the waiver, defendant made a knowing and voluntary waiver, or lacked the capacity to make such a waiver. If neither showing can be made, the court should provide a new hearing and disposition that comply with Tran. (I) LMF

Stralla, Ava R. — People v. Rush, E063784 — Proposition 47 — Becky Dugan, Judge — Opinion by Codrington, J., with Miller, J., Slough, J. Attorney General conceded the trial court erred in denying appellant’s re-sentencing petition as to one count—simple possession of drugs. The Court of Appeal reversed and remanded to the trial court to conduct a new hearing on the petition. (I) BCT

Capriola, William J. — People v. Collins, E062223 — Sentencing — Gregory S. Tavill, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Trial court erred in failing to award pre-sentence conduct credit because nothing in the Three Strike law precluded or limited entitlement to pre-sentence conduct credit. In addition, the judgment must be further modified to strike the prison priors which the trial court has stayed because they were based upon the same convictions as appellant’s strikes. And, finally, the abstract of judgment must be amended to show that the two 5-year enhancements were imposed pursuant to Penal Code section 667, subdivision (a)(1), not Penal Code section 667.5, subdivision (b). (I) LAR

Angres, Robert L.S. — People v. Tapia, E062495 — Probation Condition — Harold T. Wilson, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Court of Appeal agreed that scienter requirement was needed to make probation condition constitutional. Thus, probation condition modified to read: “Neither knowingly posses, nor knowingly have under your control, any dangerous or deadly weapons or explosive devices or materials to make explosive devices, where the materials are possessed with the intent to make explosive devices.” (I) APJ

Stevenson, Theresa O. — People v. Heaton, D068631 — Proposition 47 — Daniel B. Goldstein, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. Court of Appeal reversed and remanded to the trial court with directions to grant appellant’s Proposition 47 petition because appellant’s entry into a bank and obtaining $700 via use of a forged check constituted shoplifting. Consistent with its opinion in People v. Root (2016) 245 Cal.App.4th 353, the court held that the language of Penal Code section 459.5 does not restrict shoplifting to entries with intent to commit larceny. (I) BCT

Buckley, Christian C. — People v. Price, D068238 — Sentencing — Peter C. Deddeh, Judge — Opinion by Prager, J., with Nares, J., Aaron, J. Trial court erred in imposing a five-year serious felony prior enhancement on the aggregate indeterminate term, when it had already imposed it as to each count. (I) LAR

Bitar, Andrea S. — People v. Veliz, D068526 — Protective Order — Raymond A. Cota, Judge — Opinion by Huffman, J., with McConnell, P.J., O’Rourke, J. Trial court lacked jurisdiction to impose criminal protective order beyond entry of judgment where there was no statutory or inherent authority for the order to be issued. (A) MCR

Hinkle, Stephen M. — People v. Medina, E063511 — Involuntary Medication Order Reversed — Mark E. Johnson, Judge — Opinion by McKinster, J., with Ramirez, P.J., Hollenhorst, J. Appellant was found incompetent to stand trial and evaluated for purposes of authorizing the involuntary administration of medication. The evaluator concluded the defendant met the criteria and the court made the involuntary medication order under section 1370, subdivisions (a)(2)(B)(i)(I) and (II). After examining the expert’s testimony, the appellate court concluded the expert’s testimony did not establish the necessary criteria under either provision and reversed the medication order. The defendant had not been receiving any medication in jail and the expert was unaware whether he had been violent. He conceded the defendant’s condition may improve with other treatment options. And he testified to no facts which demonstrated the defendant posed a current threat of harm based on his mental illness. In short, the expert’s opinions appeared to rely solely on the fact the defendant continued to suffer from mental illness. (I) LMF

Matulis, Jean — People v. Herrera, E062184 — Probation Conditions, Polygraphs, Right to Silence — Judith C. Clark, Judge — Opinion by Codrington, J., with Hollenhorst, J., Miller, J. Court of Appeal modified probation conditions imposed on sex offender-probationer pursuant to Penal Code section 1203.067, subdivision (b), requiring appellant to submit to polygraph examinations and waive his Fifth Amendment right against self-incrimination. Court upheld the part of the condition requiring submission to polygraph examinations, but vacated the waiver of appellant’s right against self-incrimination. Accordingly, although probationer may be required to submit to polygraph examinations, the resulting statements may not be used to charge him with a new offense. (I) NFA

O’Conner, Sheila L. — People v. Johnson, D068400 — Credits — Kenneth K. So, Eugenia A. Eyherabide, David M. Szumowski, Judges — Opinion by Aaron, J., with Haller, J., Irion, J. Court of Appeal found there was nothing in either the plea agreement or the plea colloquy that indicated appellant waived section 4019 credits that he might earn after the date of the guilty plea. Under these circumstances, a limited remand to the trial court for a
redetermination of section 4019 conduct credits was found to be appropriate. (I) BCT

Jones, Cynthia M. — People v. Guerra, D068200 — Penal Code Section 459.5 Larceny — Robert F. O'Neill, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. The term “larceny” in Penal Code section 459.5 must be interpreted, as it is in section 459, to include persons who enter commercial establishments with the intent to commit theft, whether by larceny or by other recognized forms. The court reversed the order denying defendant’s petition and remanded with directions to grant the petition and to re-sentence accordingly. (I) HCC

Rose, Leslie A. — People v. Dembrowski, E064127 — Proposition 47 — Becky Dugan, Judge — Opinion by Slough, J., with Miller, J., Codrington, J. The trial court was not allowed to aggregate the amounts in the five separate commercial burglary counts and therefore appellant is eligible for re-sentencing. Moreover, the Court further concluded that the People are not entitled to withdraw from the plea agreement and amend their complaint. (S) LAR

Melcher, William P. — People v. Santos-Garcia, G050941 — Reasonable Suspicion to Detain Vehicle — Sheila F. Hanson, Judge — Opinion by Ikola, J., with Aronson, J., Thompson, J. Border Patrol agent Sandoval observed appellant driving along Interstate 5. He detained appellant based on three factors: (1) Sandoval thought appellant was nervous when appellant saw the agent; (2) smugglers frequently use Interstate 5 to smuggle drugs into the United States; and (3) the car had previously been stopped and searched at the border – nothing had been found during that search, although the driver (not appellant) did have some form of drug possession on his record. The Court of Appeal ruled these factors did not supply reasonable suspicion for the detention. Nervous behavior, by itself, does not furnish a reasonable basis for a detention. There was no evidence that Interstate 5 near San Clemente is a high crime area. And, finally, the fact the car had recently, and legally, crossed the border tends to negate reasonable suspicion instead of support it. Judgement reversed. (A) CBM

Marshall, Marilee — People v. Graham, D069280 — Sentencing — Albert J. Wojcik, Judge — Opinion by McConnell, P.J., with Huffman, J., Aaron, J. Attorney General conceded and Court of Appeal agreed that enhancement for inflicting great bodily injury must be stricken because the enhancement was neither proved nor admitted. (I) APJ

Kraft, Rudy — People v. Landau (2016) 246 Cal.App.4th 850, 855, as modified on denial of reh'g (May 5, 2016), G049785 — Welfare and Institutions Code Section 6608 Petition for Release — Richard M. King, Judge — Opinion by Moore, J., with O’Leary P. J., Bedsworth, J. “Sexually Violent Predator” (SVP) patient petitioned for unconditional release under section Welfare and Institutions Code 6608 after a favorable annual evaluation. At his jury trial, the government’s expert was allowed to testify to hearsay material found in hospital records, but the records themselves were not introduced. The court concluded admission of this hearsay evidence was prejudicial and remanded the case for another trial on the petition. The case was also reversed on equal protection grounds because the patient was improperly compelled to testify for the government; he is similarly situated to persons found not guilty by reason of insanity (NGI) who cannot be compelled to testify. Finally, the trial court erred in denying the patient the right to have the jury consider his petition as one for both conditional and unconditional release. This error was prejudicial. Because the trial court had already found probable cause to believe the patient would not be a threat to the public if unconditionally released (no supervision), there was likewise probable cause to believe he would not pose a threat if conditionally released with supervision. (I) LMF

Caldwell, William D./Serobian, Liana/ Moran, Jamie A. — In re I. G. (2016) 246 Cal.App.4th 708, 713, as modified on denial of reh'g (Apr. 18, 2016), D068718 — Relative Placement Preference — Kenneth J. Medel, Judge — Opinion by O’Rourke, J., with Nares, J., Irion, J. Father and paternal grandparents argued the trial court erred in denying the grandparents’ Welfare and Institutions section 388 petition requesting placement of the child on the eve of the section 366.26 hearing. The Court of Appeal found the agency unnecessarily delayed assessment of the grandparents’ home despite repeated requests starting prior to the disposition hearing. The opinion announced when a relative requests placement prior to the disposition hearing the relative is entitled to a hearing under section 361.3 without need to file a 388 petition. Based on the agency’s inaction and late approval of the grandparents’ home, the appellate court reversed the order denying the section 388 petition and remanded with orders for a new hearing where the trial court was to consider the factors provided in section 361.3. (I) LLF

Lubliner, Steven S. — People v. Schwartz, D067817 — Fine/Protective Order — Louis R. Hanoian, Judge — Opinion by Aaron, J., with Benke, J., Huffman, J. Attorney General conceded and Court of Appeal agreed that because the court ordered a county jail sentence and did not impose any parole period, it erred when it imposed a parole revocation fine under Penal Code section 1202.45. Fine stricken. Attorney General also conceded and Court of Appeal agreed that because appellant was not convicted of domestic violence offenses or crimes requiring sex offender registration, referenced in section 136.2, subdivision (i), post-judgement protective order was unauthorized. Order stricken. (I) CBM

May 2016

Smith, Kevin — People v. Vargas, E063110 — Guilty Pleas — Elaine M. Kiefer, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Where a mistake on the plea form resulted in a total sentence of 52 months, but the parties all agreed that a 44-month sentence was intended, the Court of Appeal found that the trial court clearly intended to impose a sentence of 44 months and ordered sentencing minutes and abstract of judgment be corrected to reflect the sentence agreed to under plea and intended by the court. (A) NFA

Dorian, Melanie K. — In re Mora, E061823 — Gang Participation — Harold W. Hopp, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. On habeas corpus, related to a direct appeal, Court of Appeal reversed petitioner’s 2012 conviction for gang participation in violation of Penal Code section 186.22, subdivision (a), where the record of the prior case established he acted alone (People v. Rodriguez (2012) 55 Cal.4th 1125); the court also vacated the judgment in petitioner’s current case and ordered re-sentencing, because his now-vacated gang participation conviction can no longer be used as a strike and serious felony prior. (I) NFA

Irza, Helen S. — People v. Ayala, E061947 — Booking Fee — David A. Gunn, Judge — Opinion by McKinster, J., with Hollenhorst, J., Codrington, J. Court of Appeal found that the mandatory booking fee under Government Code sections 29550.1 and 29550, subdivision (d)(2) did not apply to appellant’s case because he did not receive probation; rather, he was sentenced to a term of imprisonment in county jail and to a term of mandatory supervision under Penal Code section 1170, subdivision (h). Moreover, because the record on appeal did not clearly indicate what agency executed the arrest and booking of appellant, the court declined to find the booking fee was mandatory under sections 29550.1 or 29550, subdivision (c), or discretionary under section 29550, subdivisions (a) and (d)(1). Court reversed the order imposing the booking fee. (S) HSI

Moller, Richard J. — People v. Rodriguez, D069435 — Instructional Error/ Parole Revocation Fine — Graham A. Cribbs, Judge — Opinion by Aaron, J., with Huffman, J., O’Rourke, J. The Court of Appeal reversed appellant conviction for assault by means of force likely to cause great bodily injury on a peace officer due to the prejudicial failure to instruct on lesser included offense of simple assault. In addition, the Court of Appeal struck a $10,000 parole revocation restitution fine as an unauthorized sentence because the trial court did not impose a restitution fine under Penal Code section 1202.4, subdivision (b). (I) LKH

Wilkerson, Forest M. — In re Jorge D., G051403, (2016) 246 Cal.App.4th 363 — Insufficient Evidence — Richard Y. Lee, Judge — Opinion by O’Leary, P.J., with Moore, J., Fybel, J. Court of Appeal reversed, for insufficient evidence, findings that minor was publicly intoxicated and in possession of tobacco. With respect to the public intoxication, the prosecution failed to rebut minor’s defense that the peace officer did not comply with section (g) of the applicable Penal Code section 647. That section requires the officer to place the detainee in civil protective custody if he or she is reasonably able to do so. That section also provides that the detainee will thereafter be subject to no criminal or juvenile court proceeding based on the public intoxication. In this case, officer admitted he was not aware of the requirement. With respect to the possession of tobacco, the finding was based upon minor’s possession of a lighter. A lighter is not listed among the items enumerated in Penal Code section 308 and the Court of Appeal agreed with appellant’s argument that a lighter does not qualify as an instrument that “is designed for the smoking of tobacco.” (A) APJ

Ferguson, Susan — People v. Ball, D065795 — Inadequate Record for Review/Enforcement of Material Part of Plea Agreement — Gary G. Haehnle, Judge — Opinion by Benke, J., with Huffman, J., McDonald, J. Judgment of conviction reversed and remanded where a term of appellant’s guilty plea was that she would be screened for Behavioral Health Court (“BHC”) eligibility. While appellant was evaluated by BHC and not accepted into its program, there was no record of the reasons she was not accepted. The parties were unable to settle the record because the parties did not have a recollection as to why appellant was not accepted into the program. Matter remanded with directions that appellant once again be considered for BHC. (A) MCR

Crawford, James M. — People v. Erro, G051430 — Penal Code Section 1170.18 (Prop. 47)/Parole Calculation — Christopher Evans, Commissioner — Opinion by Thompson, J., with Moore, J., Aronson, J. Appellant’s Proposition 47 motion was granted and trial court placed appellant on one year of parole supervision under Penal Code section 1170.18, subdivision (d). Trial court erred when it failed to ensure the parole period did not exceed appellant’s original post-release community supervision period and failed to apply his excess custody credits to the parole period and any eligible fines. (I) MCR

Holzer, William G. — In re L.D., G052615 — Sealing Juvenile Records — Caryl Lee, Judge — Opinion by Rylaarsdam, J., with Aronson, J., Ikola, J. Under Welfare and Institutions Code section 786, minor is entitled to have sealed all records pertaining to a dismissed juvenile delinquency petition, even those not in the possession of the court. The appealed order is reversed insofar as it did not order sealed all records pertaining to the petition that are in the custody of law enforcement agencies, the probation department, and the Department of Justice. The matter is remanded to the juvenile court to enter a new and different order consistent with Welfare and Institutions Code section 786 as amended. (I) AMJ

Kent, Jill — People v. Forrest, D067314 — Credits/Fines — Melinda J. Lasater, Judge — Opinion by Irion, J., with Nares, J., Prager, J. Appellant’s appeal flows from judgment after revocation of probation in three separate cases. During probationary terms, appellant spent time in and out of both jail and drug treatment centers. Counsel calculated the dates in custody and, by letter to the trial court, secured significant additional days of credit to which appellant was entitled. In two of appellant’s cases, the Attorney General conceded and the Court of Appeal agreed the trial court improperly imposed duplicate fines, fees and assessments when it reimposed the amounts at sentencing that had already been imposed at the time probation was granted. Finally, while the Court of Appeal agreed with the Attorney General that the stay of several fines and fees must be lifted in light of the revocation of probation, the court denied the request with regard to an $800 fine because the basis of the fine was unclear and, thus, it was not clearly unauthorized for the court to continue to stay it. (A) CBM

Farber, William D. — People v. Marquez, E063208 — Penal Code Section 1203.4 — Eric M. Nakata, Judge — Opinion by McKinster, J., with Hollenhorst, J., Miller, J. Trial court erroneously denied appellant’s motion to withdraw her plea and dismiss her conviction under Penal Code section 1203.4 because, having successfully complied with the terms of probation for the entire probationary period, appellant was entitled as a matter of right to the relief sought and the dismissal of her conviction was mandatory under the statute. Court of Appeal reversed and remanded the matter. (I) MCR

Miller, Gerald J. — People v. Bush, E062790, (2016) 245 Cal.App.4th 992 — Penal Code Section 1170.18 (Prop. 47) — Michael A. Smith, Judge — Opinion by Codrington, J., with Hollenhorst, J., McKinster, J. Trial court improperly denied appellant’s Proposition 47 petition to reduce felony convictions to misdemeanors for receiving stolen property, where the record on appeal did not support a finding that the property received, consisting of a single identification card as to each count, exceeded $950. Court of Appeal reversed and remanded for reconsideration of appellant’s petition. (I) MCR

Brisbois, Patricia L. — People v. Ortis, D069289 — Great Bodily Injury Enhancement — Victor Roy Stull, Judge — Opinion by Haller, J., with McConnell, P.J., Prager, J. The trial court erred when it imposed a three-year great bodily injury enhancement on one count of murder because the enhancement cannot apply to a conviction for murder. The court also erred when it sentenced appellant to seven years to life on one count of attempted murder instead of to life with the possibility of parole. Court of Appeal struck the great bodily injury enhancement on the murder count, and remanded the matter for the trial court to modify the sentence on the attempted murder count. (I) MCR

Ordonez, Sarita — In re Daniel D., G050559 — Insufficient Evidence Robbery — Deborah C. Servino, Judge — Opinion by Fybel, J., with O’Leary, P.J., Moore, J. The evidence was insufficient to support a finding that minor used force or fear to maintain possession of property when the evidence showed minor’s actions simply constituted a defensive response to the aggressive behavior of the store security guard. (A) AMJ

Capriola, William J. — People v. Sanchez, G050481, (2016) 245 Cal.App.4th 1409 — Sentencing on Remand — John J. Ryan, Judge — Opinion by Moore, J., with Rylaarsdam, J., Bedsworth, J. In a published decision, the Court of Appeal found several errors occurred at resentencing on remand after a federal court vacated one of multiple counts: (1) the defendant was deprived of his right to be personally present at re-sentencing on remand following the reversal of one count where the court on remand modified the sentence by changing a previously concurrent term to consecutive in order to achieve the original aggregate sentence; (2) the sentencing court violated Penal Code section 654, as construed in People v. Mesa (2012) 54 Cal.4th 191, by imposing separate terms for the offense of gang participation and for the felony offense underlying that count; and (3) he sentencing court failed to calculate custody credits for the period between the original sentencing and the re-sentencing. These errors required re-sentencing in appellant's presence. As to appellant's claim that his 63-years-to-life sentence was cruel and unusual given that he was 16 when the crimes were committed, the court found this claim was not forfeited by the lack of a defense objection at the resentencing; however, the court deferred deciding this claim, preferring that the claim be addressed in the first instance by the sentencing court at re-sentencing. (I) NFA

Matulis, Jean — In re A.B., G051283 — Insufficient Evidence Aggravated Assault — Julian W. Bailey, Judge — Opinion by Aronson, J., with O’Leary, P.J., Thompson, J. Court of Appeal found that while minor’s conduct in exhibiting a knife in a threatening manner constituted the offense of brandishing a knife, it was insufficient to support a finding of aggravated assault. Although minor’s mother got cut by the knife as she intervened in an argument between minor and her boyfriend, there was no evidence that minor was waving or gesturing or striking with the knife in such a way that a battery was likely to result. (I) HSI

Dodd, John L. — People v. Alsaedi, D068114 — Sentencing — David M. Gill, Judge — Opinion by Haller, J., with Nares, J., O’Rourke, J. Health and Safety Code section 11370.2 enhancements for prior specified drug-related convictions are added only one time to determine the defendant’s aggregate sentence for all counts. The duplicative enhancements must be stricken, not stayed. (I) PMI

Lubliner, Steven S. — People v. Grewal, D068470 — Credits — Blaine K. Bowman, Judge — Opinion by Huffman, J., with McConnell, P.J., Benke, J. Although the finding that a non-accomplice was present during the commission of a residential burglary renders the offense violent under Penal Code section 667.5, subdivision (c)(21), the same is not true for the offense of attempted residential burglary, the conviction suffered in this case. Therefore, the trial court erred when it limited appellant’s presentencing credits to 15 percent under Penal Code section 2933.1. (I) DKR

Harris, Donna L. — People v. McCall, D068251 — Penal Code Section 1170.18 (Prop. 47) — Timothy R. Walsh, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. Proposition 47 applies, and trial court’s denial of petition for re-sentencing reversed where defendant attempted to pay for goods at a Whole Foods with a forged check for $385.44. (I) LKH

Stevenson, Theresa Osterman — People v. Turner, G051422 — Penal Code Section 1170.18 (Prop. 47)/Custody Credits/Narcotics Registration — Christopher Evans, Commissioner — Opinion by Bedsworth, J., with O’Leary, P.J., Moore, J. Since Proposition 47 explicitly states that anyone who is re-sentenced under its provisions “shall be given credit for time served” and that nothing in the law “is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant,” appellant was entitled to excess custody credits toward post-release parole, with any remaining credit to be applied to his fines on a proportional basis. Also, respondent conceded and court agreed that the trial court erred in requiring appellant to register as a narcotics offender, because he was no longer convicted of an offense to which the registration requirement applies. (I) HCC

Robertson, Thomas E. — People v. Armstrong, D068264 — Penal Code Section 1170.18 (Prop. 47) — Kathleen M. Lewis, Judge — Opinion by Huffman, J., with Haller, J., Aaron, J. Proposition 47 applies and trial court’s denial of petition for re-sentencing reversed where defendant entered an Advance Pay Day Plus and cashed a fraudulent check in the amount of $236.51. (I) HCC

Kessler, Daniel J. — People v. Valenzuela, E063342 — Withdrawal of Plea/Serious Felony Enhancement — Ronald L. Johnson, Judge — Opinion by Miller, J., with Hollenhorst, J., Codrington, J. Trial court erred in summarily denying appellant’s request to withdraw his plea. Because the request was timely, before pronouncement of judgment, appellant should have been given an opportunity to present his grounds for plea withdrawal.Court of Appeal conditionally reversed the judgment and remanded for the limited purpose of permitting appellant to make a motion to withdraw his guilty plea. In addition, two serious felony enhancements ordered stricken where all three priors resulted from a single case. (I) HCC

Jones, Jason L. — People v. Sandil, D068355 — Sentencing — Ronald F. Frazier, Judge — Opinion by Benke, J., with McConnell, P.J., Haller, J. Order granting probation is modified to reflect the oral pronouncement of the court striking several conditions. In addition, the $39 fine imposed pursuant to Penal Code section 1202.5 ordered stricken because it does not apply to the crimes for which appellant was convicted. (I) LAR

Williams, Rex A. — People v. Alvarado, G050621 — Unanimity Instruction — William R. Froeberg, Judge — Opinion by Bedsworth, J., with Moore, J., Fybel, J. Criminal threats conviction reversed because there were two separate threats that could have been the basis of the charge and prosecutor did not elect nor did judge give a unanimity instruction. (I) DKR

Strong, Jeanine G. — In re C.G., G050572 — Probation Conditions — Lewis W. Clapp, Judge — Opinion by Fybel, J., with Bedsworth, J., Ikola, J. Attorney General conceded and Court of Appeal agreed that a “knowledge” requirement should be inserted into probation conditions that limit minor’s possession of or access to sexually explicit or pornographic materials. (I) APJ

Hinkle, Stephen M. — People v. Arredondo, E062964 — Parole Revocation Fine — Jean P. Leonard, Judge — Opinion by Codrington, J., with Hollenhorst, J., Miller, J. Attorney General conceded and Court of Appeal agreed that although the minute order and abstract of judgment showed the appropriate parole revocation fine of $300, to match the restitution fine, the trial court erred in orally imposing a parole revocation fine in the amount of $4,480. Trial court’s oral pronouncement of judgement corrected to state proper amount of $300 for the parole revocation fine. (I) CBM

Ulibarri, Patricia J. — People v. Hernandez, D067138 — Insufficient Evidence/Instructional Error — Jeffrey B. Jones, Judge — Opinion by Huffman, J., with Haller, J., McDonald, J. Court of Appeal agreed that insufficient evidence supported great bodily injury enhancement where the government failed to show that victim’s injuries resulted from appellant’s act. In addition, appellant’s conviction of first degree burglary reversed because it is a lesser included offense of crimes found to have been committed during the commission of a burglary under the One Strike law. Finally, conviction of assault with intent to commit sexual penetration by foreign object by force, fear or threats must be reversed because trial court prejudicially erred by instructing the jury on that offense as a lesser included offense of the originally charged crime of sexual penetration by a foreign object after that charge had been dismissed for insufficient evidence. (I) LAR

Wenzell, Lewis A. — People v. Saucedo, E063590 — Penal Code Section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by Codrington, J., with Ramirez, P.J., Slough, J. Court of Appeal disagreed with the government and concluded the gang enhancement attached to appellant’s theft conviction did not disqualify the felony theft conviction from re-sentencing. There is no gang enhancement exception to re-sentencing on a qualifying felony. However, because appellant presented no facts proving the theft involved property under $950, he did not meet his burden and establish eligibility for re-sentencing. Reviewing court affirmed lower court’s denial of the petition, without prejudice to subsequent consideration of a properly filed petition which includes evidence of the value of the stolen property. (I) CBM

Fabian, Carl — People v. Garcia, Jr., G052149 — Late Amendment of Information/Clerical Errors — Mac R. Fisher, Judge — Opinion by Aronson, J., with Ikola, J., Thompson, J. The trial court violated defendant’s right to due process when it allowed the prosecution to amend the information to increase the sentencing range by two years to conform to the victim/witness’s trial testimony after the close of evidence. The late amendment denied defendant a meaningful opportunity to investigate the charges and prepare his defense. In addition, respondent conceded there are two sentencing errors in the minute order and abstract of judgment, but because appellant must be re-sentenced, the issue is mooted. (I) PMI

Coleman, Jared G. — People v. Marquez, D067444 — Attorney Fees — Raymond A. Cota, Judge — Opinion by Haller, J., with McConnell, P.J., Aaron J. The Attorney General and Court of Appeal agreed that the court erred in ordering appellant to pay $200 for reimbursement of attorney services. It was undisputed that defendant had no financial resources at the time of the hearing and there is a statutory presumption he did not have a future ability to pay because he was sentenced to state prison. The prosecutor did not present any facts or unusual circumstances rebutting this presumption. (I) AMJ

Nalls, Christopher — People v. Knox, E062329 — Credits — Harold T. Wilson, Jr., Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. The Attorney General agreed with appellant that the trial court erred in calculating credits based, apparently, upon a mistake about the year in which appellant was taken into custody. Court of Appeal agreed with appellant’s calculation that he is entitled to 1,200 days of custody credits rather than the Attorney General’s calculation of 1,197 days. (I) AMJ

Matsumoto, Ellen M. — People v. Castro, E061984 — Sentencing — Charles Everett Stafford, Jr., Judge — Opinion by Codrington, J., with Hollenhorst, J., Miller, J. The Court of Appeal ordered the judgment modified to stay the sentence for street terrorism in accordance with People v. Mesa (2012) 54 Cal.4th 191. The trial court is also directed to modify the minute order and abstract of judgment to conform to the oral pronouncement at sentencing with respect to the sentence on two counts (four years each, not eight) and a $1,000 fine. (I) LKH

Christiansen, Mark L./Morse, David McNeil — People v. Rosas/Varela, D068483 — Penal Code Section 654 — Shahla S. Sabet, Judge — Opinion by Nares, J., with McDonald, J., Irion, J.
Court of Appeal modified the judgments to stay under Penal Code section 654 the sentence imposed for kidnapping as to both appellants because felony murder was the sole theory of murder under which this case was prosecuted and the kidnapping was the predicate offense. In addition, the great bodily injury enhancement attached to the offense as to Varela must also be stayed. (I) MCR

Boyce, Robert E. — People v. Rosson III, D069305 — Insufficient Evidence/Penal Code Section 667.6 — Dale R. Wells, Judge — Opinion by McDonald, J., with Benke, J., McIntyre, J. Court of Appeal reversed one count of exhibiting harmful material to a minor due to insufficient evidence. Court also remanded the case for re-sentencing because the trial court erroneously concluded it had no discretion but to impose consecutive terms for the crimes implicated by Penal Code section 667.6, subdivision (d), without a corresponding finding that each crime occurred on separate occasions. (I) MCR

McKim, Joanna/Hill, Melissa — People v. Cage/Dunn, D068513 — Sentencing — Eric M. Nakata, Judge — Opinion by Huffman, J., with Nares, J., McIntyre, J. The trial court sentenced appellants on count 2 to an alternative term of 15 years to life for the attempted, premeditated murder conviction pursuant to the jury finding that the crime was committed in furtherance of a street gang as set forth under Penal Code section 186.22, subdivision (b)(5). The trial court also imposed a term of 25 years to life for the jury’s finding that a principal personally and intentionally discharged a firearm causing death under Penal Code section 12022.53, subdivisions (d) and (e)(1). The trial court erred by imposing both the gang alternative penalty under Penal Code section 186.22, subdivision (b)(5), and imposing the firearm use enhancement on count 2 because there was no jury finding that either Cage or Dunn personally used or discharged a firearm. (I) BCT

Brandt, Nancy S. — People v. Root, D068235, (2016) 245 Cal.App.4th 353 [199 Cal.Rptr.3d 516], as modified (Mar. 10, 2016), review granted and opinion superseded, S233546 — Penal Code Section 1170.18 (Prop. 47) — David J. Danielsen, Judge — Opinion by Huffman, J., with Benke, J., Haller, J. Court of Appeal reversed a denial of Penal Code section 1170.18 petition. Appellant had entered a bank to cash a forged check, i.e., theft by false pretenses. The People conceded a bank was a commercial establishment. Respondent argued that appellant’s intent was to commit forgery, but the appellate court looked to the accusatory pleading which had pleaded an intent to commit theft. The reviewing court then looked to Penal Code section 490a for guidance as to the meaning of theft and larceny. The court also reviewed People v. Williams (2013) 57 Cal.4th 776, but found it distinguishable as involving the common law definition of robbery, not larceny. The court concluded that section 459.5's reference to larceny, like that in section 459, includes theft by false pretenses. (A) HCC

April 2016

King, Nancy – People v. Garcia, S218233/D062659 – Multiple Burglary Convictions – Daniel B. Goldstein, Judge – Opinion by Cuellar, J., with Cantil-Sakauye, C.J., Werdegar, J., Chin, J., Corrigan, J. concurring, Kruger, J., Lieu, J., separately concurring. Appellant was convicted of two counts of burglary, amongst other crimes, based upon his entering a store with the intent to commit robbery (1st burglary), and then later moving the victim to the bathroom in the back of the store where he raped her (2nd burglary). The Court of Appeal affirmed both convictions. The Supreme Court reversed one conviction of burglary. Multiple burglary convictions for entry into one structure, and subsequent entry into a room within that structure, will be upheld only if “the subsequently entered room provides a separate and objectively reasonable expectation of protection from intrusion relative to the larger structure.” Because there was no substantial evidence to support this finding as to the second burglary conviction, the Supreme Court reversed. (I) LKH

Kessler, Daniel J. — People v. Motsenbocker, D064877 — Sentencing — Jeffrey F. Fraser, Judge — Opinion by McDonald, J., with McConnell, P.J., Huffman, J. People conceded and Court of Appeal agreed that trial court erred by imposing and then staying Penal Code section 667.5, subdivision (b) enhancement rather than striking it. Court modified judgment to strike the enhancement. (I) CBM

Bacall, Michael/Buckley, Christian C. — People v. Edwards/Mautofu, D066007 — Gang Enhancement — Kathleen M. Lewis, Judge — Opinion by Benke, J., with O’Rourke, J., Irion, J. Case remanded for re-sentencing. Trial court erred in imposing 10-year gang enhancements per Penal Code section 186.22, subdivision (b)(1)(C) because the offense of assault with a semiautomatic weapon is a “serious” and not a “violent” felony. Therefore, five-year gang enhancements should have been imposed under subdivision (b)(1)(B). (I) BCT

Staley, John — People v. Goff, D066662 — Unanimity Instruction — Charles Gill and Amalia Meza, Judges — Opinion by O’Rourke, J., with Benke, J., Irion, J. Government conceded and Court of Appeal agreed that convictions for fraudulent appropriation of property by an employee and use of personal identifying information of another must be reversed because the court failed to give a unanimity instruction. The People alleged appellant had committed several different acts of fraudulent appropriation and personal use of identifying information of another. Appellant mounted different defenses to the various charges. Without the unanimity instruction, the jurors could have convicted appellant of the different crimes without agreeing on which wrongful acts she had committed. (I) CBM

Rudasill, Denise — People v. Chamberlain, D066706 — Instructional Error — Laura H. Parsky, Judge — Opinion by Aaron, J., with Huffman, J., McDonald, J. In a white collar crime prosecution, alleging grand theft and embezzlement, the prosecution also charged forgery based on false entries into a QuickBooks accounting program. Because there is no model CALCRIM instruction, over objection, the trial court accepted the prosecution’s tendered instruction based on “forging” a check. Respondent conceded and Court of Appeal agreed that the elements were not consonant and reversed the conviction as well as the dependent enhancement. (I) HCC

Yeager, Daniel — People v. Antonio, D066753 — Sentencing — Michael J. Popkins, Judge — Opinion by Huffman, J., with Nares, J., Prager, J. The trial court erred in failing to determine whether the state sentence should be served concurrently with or consecutively to the federal sentence. Case remanded with directions to conduct a new sentencing hearing. (A) AMJ

Fabian, Carl — People v. Sheehan, D066770 — Prison Prior – Dwayne, K. Moring, Judge — Opinion by McDonald, J., with Huffman, J., Aaron, J. separately concurring. Court of Appeal ordered appellant’s prison prior stricken because the same prior was used by the trial court to impose a section 667, subdivision (a), five year term (People v. Jones (1993) 5 Cal.4th 1142.) (I) LKH

Romero, Lynda — People v. Castro, D066989 — Prison Prior — Amalia L. Meza, Judge — Opinion by Irion, J., with Nares, J., and Aaron, J. Respondent conceded and Court of Appeal agreed that the one-year prison prior enhancement must be stricken because the federal crime of alien smuggling does not include all the elements of a crime defined under California law. As a general matter, the power to regulate immigration is exclusively federal and there is no comparable California law to the federal offense of alien smuggling. (I) PMI

Schraer, George L. — People v. Sphabmixay, D067329 — Parole Revocation Fine — Louis R. Hanoian, Judge — Opinion by Nares, J., with McIntyre, J., Aaron, J. Parole revocation fine ordered stricken where appellant was sentenced to life without the possibility of parole. (I) APJ

Carroll, Steven J. — People v. Hernandez, D067543 — Credits — Poli Flores, Judge — Opinion by Arron, J., with McConnell, P.J., Prager, J. Appellant appealed the trial court's order denying pre-sentence custody credit under Penal Code section 2900.51 in one of two cases for a period of time during which defendant was in custody on both cases. Court of Appeal held the case turns on whether defendant was concurrently in custody in both matters for the same conduct, in which case he would be entitled to pre-sentence custody credit in both. (People v. Bruner (1995) 9 Cal.4th 1178, 1194-1195.) Based on the particular facts presented, the Court of Appeal concluded that he was. (I) LAR

Schuck, John — People v. Pineda, D067731 — Abstract of Judgment — Stephanie Sontag, Judge — Opinion by Benke, J., with Huffman, J., Aaron, J. Court of Appeal ordered that the abstract of judgment be corrected to reflect that appellant was sentenced to a concurrent, middle term on count 2. The abstract incorrectly reflected that appellant was sentenced to a full, consecutive term of 16 months. (I) LKH

Olsen, Nancy/Vento, Christine/LeRoy, Doris M. — People v. Basler/Black/Fung, D068047 — Instructional Error — Angel M. Bermudez, Judge — Opinion by O’Rourke, J., with Benke, J., Prager, J. All three appellants’ first degree murder convictions are reversed with the People’s option to accept a reduction to second degree murder or retry appellants on the greater offense. Attorney General agreed that the trial court prejudicially erred under People v. Chiu (2014) 59 Cal.4th 155 by instructing the jury on the natural and probable consequences theory of aiding and abetting first degree murder because liability must be based on direct aiding and abetting principles. It also conceded the error was prejudicial as to appellant Black. Court of Appeal agreed but also found prejudicial error as to appellants Basler and Fung because the verdicts did not show that the jury necessarily found them guilty on a proper theory. (I) AMJ

Jones, Rebecca/Dain, Anthony J. — People v. Thomas/DeGraw, et.al., D068052 — Insufficient Evidence/Sentencing — John M. Tomberlin, Judge — Opinion by Benke, J., with McConnell, P.J., Mc Donald, J. Court of Appeal found the evidence insufficient to prove appellant Michael DeGraw’s prior conviction of assault under Penal Code section 245, subdivision (a)(1) was a strike because there was no evidence the prior was an assault with a deadly weapon rather than a non-strike assault by means of force likely to cause great bodily injury. In addition, the Court of Appeal agreed that sentences for substantive gang offenses committed by both appellants Thomas and Michael DeGraw should have been stayed under Penal Code section 654. Finally, the trial court erred in failing to grant pre-sentence conduct credit to which appellants were entitled under Penal Code section 2933.1. (I) LAR

Chucas, Terence M. [mother]/Dikes, Patti [father] — In re Donovan L., Jr., D068304, (2016) 244 Cal.App.4th 1075 — Presumed Father Status — Gary M. Bubis, Judge — Opinion by Irion, J., with McDonald, J., O’Rourke, J. Mother, presumed father-husband, and child argued the trial court erred in finding the biological father qualified as a second presumed father and that the 4-year-old child would suffer detriment if his relationship with his biological father were ended. Opinion reversed disposition order that biological father is a presumed father entitled to visitation and services. Court held the new statute under Family Code section 7612, subdivision (c), allowing for a child to have more than two parents, does not apply unless the putative third parent has an existing relationship with the child. In this case, the biological father did not have a parental relationship with his son. (I) LLF

Wrubel, Sharon G. — People v. Taylor, D068487 — Penal Code Section 654/Parole Revocation Fine — John M. Tomberlin, Judge — Opinion by McIntyre, J., with Huffman, J., Aaron, J. Because appellant was sentenced for a murder which formed the underlying basis for his street terrorism conviction, punishment for the latter offense must be stayed. Also, under People v. Elizalde (2015) 61 Cal.4th 523, Court of Appeal found the admission of a gang card was error, but that the error was harmless. (I) PMI

Weinberg, Allen — People v. Fuentez, D069062 — Sentencing/Restitution/Abstract of Judgment — Mary E. Fuller, Judge — Opinion by McDonald, J., with Benke, J., O’Rourke, J. The sentence is vacated and the matter remanded to the trial court to order the enhancements for use of a firearm as to two counts stayed under Penal Code section 1170.1, subdivision (f) because gang enhancements were imposed based upon the same conduct. In addition, the trial court is ordered to re-determine the amount of direct victim restitution because the trial court did not have authority under Penal Code section 1202.4 to order restitution to the medical provider that provided treatment. Since the matter is being remanded for the restitution order, the trial court is also ordered to revisit the attorney fee assessment. Finally, the abstract of judgment must also be amended to reflect the trial court’s order that the sentence for count 2 be stayed pursuant to Penal Code section 654. (I) LKH

Lubliner, Steven — People v. Mendoza, E059613, (2015) 241 Cal.App.4th 674 – Penal Code Section 1203.2a — Anthony R. Villalobos, Judge — Opinion by McKinster, J., with Ramirez, P.J., Hollenhorst, J. Appellant, who was on probation in a Riverside case, filed a request to terminate that probation and be sentenced in absentia pursuant to Penal Code section 1203.2a after she was convicted of another offense in a different county and sentenced to 16 months in jail under Penal Code section 1170, subdivision (h) (the Realignment Act). The trial court failed to act on the demand and later, after appellant had served her sentence in the other county, she admitted a violation of probation in the Riverside case. On appeal, the Court of Appeal agreed that Penal Code section 1203.2a applies to demands made while a person is confined in county jail under the Realignment Act. The Court of Appeal also found that appellant had substantially complied with the requirements of Penal Code section 1203.2a and that, therefore, the trial court had lost jurisdiction to sentence appellant on the probation case after it failed to act on her demand within the required 30 or 60 days. Matter remanded for termination of probation. (I) NFA

Boyce, Robert — People v. Amaya, E061545 — Penal Code Section 654/Fines — Michael B. Donner, Judge — Opinion by Ramirez, P.J., with McKinster, J., Codrington, J. Court of Appeal ordered the sentence for witness intimidation stayed pursuant to Penal Code section 654 because the witness intimidation and the robbery, for which appellant was separately punished, were part of an indivisible course of conduct. In addition, the court found a violation of ex post facto when the trial court expressed an intent to impose the minimum fine but then imposed a higher fine than existed at the time the crime was committed. Restitution fine and parole revocation fine reduced to $200, the statutory minimum at the time the crime was committed. (I) LKH

Angers, Robert — People v. Juarez, E062145 — Fine — Irma Asberry, Judge — Opinion by Ramirez, P.J., with McKinster, J., Miller, J. The trial court imposed an unauthorized fine under Penal Code section 294, subdivision (a), because defendant was not convicted of a qualifying offense. (I) AMJ

Dodd, John L. — People v. Merritt, E062540 — Instructional Error — Debra Harris, Judge — Opinion by Miller, J., with McKinster, J., King, J. Trial court committed reversible error when it failed to instruct on the charged offenses – robbery. Following People v. Cummings (1993) 4 Cal.4th 1223, 1311-1312, Court of Appeal rejected the Attorney General’s argument the instructional omission was subject to harmless error analysis. Because the error withdrew from the jury’s consideration substantially all the elements of the offense, the error was reversible per se. (I) CBM

Beckham, Sylvia W. — People v. Martinez, E063107 — Penal Code Section 654 — Becky Dugan, Judge — Opinion by McKinster, J., with Hollenhorst, J., Miller J. After reducing appellant’s conviction for possessing methamphetamine to a misdemeanor under Proposition 47, the trial court mistakenly imposed a concurrent term where the original sentence had been stayed. People conceded the sentence must be stayed as it originally had been under Penal Code section 654. (I) AMJ

Dodd, John L. — People v. Lee, E063165 — Credits — R. Glenn Yabuno, Judge — Opinion by King, J., with Hollenhorst, J., Miller, J. Remand ordered to correct abstract of judgment so that it reflects the 518 days of pre-sentence custody credits actually ordered rather than the 259 days currently reflected. (I) APJ

Norman, Jan — People v. Allen, E063474 — Penal Code section 1170.18 (Prop. 47) — Becky Dugan, Judge — Opinion by McKinster, J., with Ramirez, P. J., Miller, J. Attorney General conceded and Court of Appeal agreed that the trial court erred when it denied appellant’s Proposition 47 petition based on a finding that appellant’s burglary of a recycling center did not qualify as a shoplifting under the new Penal Code section 459.5. Because the conviction at issue was for receiving stolen property and not burglary, Proposition 47 applies. Case remanded for valuation and dangerousness determinations. (I) CBM

Haggerty, Edward — Jensen v. Superior Court (People), E063774 — Writ of Mandate/Postconviction Discovery — Mac R. Fisher, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. In response to a letter from petitioner, requesting postconviction discovery under Penal Code section 1054.9, the district attorney’s office agreed that part of the postconviction discovery documents petitioner requested were discoverable, but refused to supply any documents without prepayment of copying costs. The trial court flatly denied petitioner’s discovery motion. The Court of Appeal reversed and remanded for the trial court to exercise discretion on which specific items of discovery petitioner is entitled to receive. Penal Code section 1054.9 does not require petitioner to pay in advance and leaves it to the trial court to address the payment of costs. (I) PMI

Brandes, Elisa — People v. Corr, G049408 — Lesser Included Offenses — Carla Singer, Judge — Opinion by Aronson, J., with Moore, J., Ikola, J. Court of Appeal reversed appellant’s kidnaping conviction because he was also convicted of the greater offenses of kidnaping during commission of carjacking and kidnaping a child under the age of 14 based upon the same conduct. (I) LKH

Jones, Cynthia M. — People v. Carrillo, G049634 — Sentencing — Richard M. King, Judge — Opinion by Ikola, J., with Moore, J., Aronson, J. After making a mistake in sentencing appellant twice for a gang enhancement (once to elevate a misdemeanor to a felony and again to add three years to the sentence), the trial court met with attorneys in chambers to correct the error. This meeting was unreported and appellant was not present. At the meeting, per the minute order, trial court corrected the unauthorized sentence without changing the total sentence of 12 years. This time, however, court erred in stating it was imposing the “middle term” of three years, when the middle term for the offense is actually two years (three years is the upper term). In addition, court erred by staying the sentence on two counts without pronouncing the stayed terms. Case remanded for trial court to allow appellant an opportunity to be present and to correct sentencing errors. (I) APJ

Nalls, Christopher — People v. Quang, G049784 — Sentencing — Steven D. Bromberg, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Rylaarsdam, J. Trial court erroneously believed it lacked authority to dismiss a sentence enhancement. Reversed and remanded for re-sentencing. (I) LAR

Lathrop, Stephen — People v. Arredondo, G049966 — Gang and Vicarious Firearm Enhancements — Gary S. Paer, Judge — Opinion by Fybel, J., with Moore, J., Aronson, J. Following People v. Brookfield (2009) 47 Cal.4th 583, 593-594, where the jury found true both a gang enhancement and a firearm use enhancement, but where appellant suffered the firearm enhancement under an accomplice theory – where another principal personally used or discharged the firearm, the court can impose only one additional punishment under either section 12022.53 or 186.22 but not both. Because appellant here suffered the firearm enhancement only under an accomplice theory, Court of Appeal modified appellant’s sentence to stay the firearm enhancement. (I) CBM

Schwartzberg, Richard — People v. Small, G050103 — Right Not to Testify in Mentally Disordered Offender Proceeding — Lance Jensen, Judge — Opinion by Rylaarsdam, J., with O’Leary, P.J., Aronson, J. Appellant argued, and Court of Appeal agreed, the trial court violated his constitutional right to equal protection, when it compelled him to testify at the hearing to determine whether he qualified as a mentally disordered offender (MDO). Court found that for purposes of asserting a right to testify, persons found not guilty of a crime by reason of insanity (NGI) and persons subject to MDO proceedings are similarly situated. Court reversed the judgment and remanded the case for an evidentiary hearing to allow the prosecutor an opportunity to justify the differential treatment between persons found NGI and persons facing extended commitment as MDOs when it comes to the right to refuse testimony at a hearing to extend their commitment. (I) LMF

Robertson, Thomas — People v. DeLeon-Mendez, G050105 — Sentencing — M. Marc Kelly, Judge — Opinion by Aronson, J., with O’Leary, P.J., Thompson, J. Court of Appeal made several modifications to the judgment: 1) sentence of seven years to life imposed for assault with intent to rape during burglary modified to the correct sentence of life with possibility of parole; 2) the sentence for robbery was reduced from six years to four years according to sentence pronounced; 3) count of burglary was stricken as an LIO of assault with intent to rape during burglary; and 4) order for AIDS testing stricken because appellant was not convicted of a sex crime enumerated in Penal Code section 1202.1, subdivision (e). (I) NFA

Kraft, Rudy — People v. Asher, G050231 — Sexually Violent Predator/Right Against Self-Incrimination — James M. Dorr, Judge — Opinion by Bedsworth, J., with Moore, J., Thompson, J. Appellant argued the Sexually Violent Predators Act (SVPA) violates equal protection because, unlike the commitment scheme for persons who are found not guilty by reason of insanity (NGI’s), it does not afford prospective SVP committees all of the rights that are guaranteed in criminal trials. Although NGI’s have the right not to testify when the state seeks to have them committed, SVP’s do not have a statutory right against self-incrimination. Court of Appeal agreed with appellant that the disparity in treatment between SVP’s and NGI’s may run afoul of equal protection principles. Court remanded the matter for an evidentiary hearing to allow the state the opportunity to justify the differential treatment SVP’s receive under the law when it comes to the right against self-incrimination. (I) LMF

Adraktas, Stephanie M. — People v. Madrid, G050789 — Penal Code Section 654/Penal Code Section 1170.18 (Prop. 47)/Excess Credits — M. Marc Kelly, Judge — Opinion by Bedsworth, J., with Aronson, J., Thompson, J. Court of Appeal found petitioning for reduction is the only way to obtain relief under Prop. 47 where appellant has already been sentenced. However, because, in this case, the trial court improperly implemented Penal Code section 654 by staying sentence for the offense at issue (commercial burglary) without pronouncing a sentence, matter remanded for proper sentencing at which time trial court may also entertain request for relief under Prop. 47. In addition, court must consider proper application of excess credits to fines/fees. (A) APJ

Dorian, Melanie K. — People v. Velasquez, G050800 — Penal Code Section 1170.126 (Prop. 36) — Gary S. Paer, Judge — Opinion by Rylaarsdam, J., with Moore, J., Thompson, J. Trial court erroneously determined appellant was not eligible for re-sentencing under Prop. 36 on his conviction for drug possession because he is also in prison for two non-eligible offenses. Case remanded in accordance with the California Supreme Court’s decision in People v. Johnson (2015) 61 Cal.4th 674, which requires eligibility to be determined on a count-by-count bases. (I) APJ

Torrano, Frank — In re J. M., G050877 — Probation Condition — Lewis W. Clapp, Judge — Opinion by Ikola, J., with Rylaarsdam, J., Moore, J. Court found the probation condition: “Minor not to be on any school campus where not enrolled without permission of the school administration” to be unreasonable. It failed the People v. Lent test because minor’s crime (resisting arrest) had nothing to do with being on school campuses, nor is being on a school campus after school criminal conduct and there was nothing to suggest that minor was likely to commit crimes on other school campuses after school hours. The matter was remanded to consider whether minor was still on probation subject to this condition and, if so, to reconsider the condition and if there are no new circumstances warranting the condition, to strike it. (A) BCT

Vorobyov, Gene — People v. Navarro, G050974 — Parole Condition — Dan McNerney, Judge — Opinion by O’Leary, P.J., with Fybel, J., Thompson, J. Court of Appeal found that appellant’s special condition of parole, Special Condition No. 89, which restricted his use of the internet, was unconstitutionally vague because it failed to provide fair warning as to what conduct is prohibited. The court noted that although appellant’s parole expired, the issue was still one of public importance and likely to recur. (I) LLA

Johnson, Mark D. — People v. Tracy, G051107 — Corpus Delicti — Michael J. Cassidy, Judge — Opinion by Moore, J., with O’Leary, P.J., Bedsworth, J. Two counts of oral copulation and two counts of lewd acts on a child reversed because the corpus delicti of those offenses was not established independent of appellant’s statements. (I) MCR

Buckley, Christian C. — People v. Morales, G051142 — Excess Custody Credits/Parole — Christopher Evans, Temporary Judge — Opinion by Ikola, J., with O’Leary, P.J., Aronson, J. Appellant’s conviction of possession of a controlled substance was reduced to a misdemeanor pursuant to Proposition 47 petition. Trial court imposed a jail sentence of time served and one year of parole. Appellant argued and Court of Appeal agreed that he was entitled to credit his excess custody time against his parole and his fines. Court of Appeal remanded the matter for a recalculation of appellant’s parole period and fines. (I) HSI

Schwartzberg, Richard — People v. Bucher, G051194 — Penal Code Section 1170.18 (Prop. 47) — Vickie L. Hix, Judge — Opinion by Rylaarsdam, J., with Moore, J., Thompson, J. After appellant had served a prison sentence, the trial court reclassified appellant’s crime to a misdemeanor and ordered appellant to serve one year on parole. But it awarded only 365 days of credit. Court of Appeal agreed with appellant that his earned excess custody credits must be applied to offset the term of parole. Case remanded for applicable credit calculation. (I) CBM

Carroll, Steven J. — People v. Armogeda, G051197, (2015) 240 Cal.App.4th 1039 — Penal Code Section 1170.18 (Prop. 47)/Parole/Excess Credits — Vickie L. Hix, Judge — Opinion by Ikola, J., with Rylaarsdam, J., Aronson, J. In a published decision, Court of Appeal held that where defendant obtains Proposition 47 relief and has served more than his new, reduced, sentence, the excess custody credits are applied against his 1-year parole under section 1170.18, subdivision (d). Review granted to hold pending decision on same issue in People v. Morales (S228030), formerly 238 Cal.App.4th 42. (I) NFA

Dodd, John — People v. Rose, G051293 — Penal Code Section 1170.18 (Prop. 47) — Christopher Evans, Commissioner — Opinion by Bedsworth, J., with O’Leary, P.J., Aronson, J. The trial court reduced appellant felony drug possession and possessing drug paraphernalia offenses to misdemeanors pursuant to Proposition 47. The court applied appellant’s custody credits toward his new misdemeanor sentence but not toward the term of parole. While the appeal was pending, the trial court attempted to remedy the problem by modifying appellant’s sentence to comport with People v. Morales (2015) 238 Cal.App.4th 42. The Court of Appeal found that the trial court lacked jurisdiction for this action and voided the modification. Still, the court adhered to the holding in Morales, and found that defendants who are resentenced under Proposition 47 are entitled to have the length of their parole, and their any eligible fines, reduced by their excess custody credits. (I) LLA

Coleman, Jared— People v. Herbold, G051344 —Penal Code section 1170.18 (Prop 47) — Jonathan S. Fish, Judge — Opinion by Aronson, J., with Ikola, J., Thompson, J. Under Prop 47, the Court of Appeal agreed that appellant’s conviction for receiving stolen property could be eligible to be reduced to a misdemeanor. The court stated that the prosecutor opposed two of the three counts appellant petitioned to have reduced, and because the people did not oppose appellant’s motion to reduce the section 496 offense, the claim that the value of the property exceeded $950 was forfeited. The court reversed and remanded to determine whether appellant poses an unreasonable risk of danger to public safety. (I) LLA

Katz, Paul J. — People v. Diaz, G051435 — Penal Code Section 1170.18 (Prop. 47) — Kazuharu Makino, Judge — Opinion by Thompson, J., with Aronson, J., Ikola, J. The trial court erroneously denied appellant’s Proposition 47 petition, based on a mistaken belief that his underlying conviction was for burglarizing a vehicle rather than a commercial building. Court found the mistake material, because commercial burglary of property worth $950 or less is an enumerated felony that may be redesignated and resentenced as misdemeanor shoplifting under Proposition 47, while vehicle burglary is not. Court reversed and remanded the matter for a new hearing under Penal Code section 1170.18, subdivision (f). (I) MCR

Dodd, John L. — People v. Moore, G051505 — Penal Code Section 1170.18 (Prop. 47) — Christopher Evans, Commissioner — Opinion by Bedsworth, J., with Fybel, J., Ikola, J. Court of Appeal found the trial court erred when it failed to reduce appellant’s parole period by applying excess custody credits after it granted appellant’s Proposition 47 petition and placed him on parole for one year. Matter remanded for re-sentencing. (I) MCR

Haggerty, Edward J./Nordin, Kenneth H. — People v. Ramirez/Villarreal, G052144, (2016) 244 Cal.App.4th 800 — Penal Code Section 995 Motion to Dismiss/Gang Evidence — John M. Tomberlin, Judge — Opinion by Thompson, J., with Bedsworth, J., Moore, J. Published reversal. Relying on People v. Prunty (2015) 62 Cal.4th 59, the Court of Appeal found the trial court erred in denying defendants’ Penal Code section 995 motion because the preliminary hearing evidence was insufficient to support the gang participation charges and the gang enhancement allegations. Further, the Court held the erroneously admitted gang evidence at trial resulted in a miscarriage of justice and violated both defendants’ state and federal constitutional due process rights to a fundamentally fair trial. The attempted murder and assault charges were reversed and the matter remanded for a new trial or other disposition of the attempted murder and assault charges and the firearm and great bodily injury enhancement allegations. (I) BCT

March 2016

Norman, Jan B. — People v. Miccio, E062804 — Restitution — Gregory S. Tavil, Judge — Opinion by McKinster, J., with Ramirez, P.J., Hollenhorst, J. Appellant argued that restitution order directing appellant to pay $1,322.23 to the City of Rancho Cucamonga was unauthorized because the fire district was not a direct victim of appellant’s crimes under Penal Code section 1202.4. Attorney General conceded. Court of Appeal agreed and ordered that the restitution order be stricken. (I) LLA

Nalls, Christopher — People v. Smith, E061598 — Serious Felony Prior Enhancement — Richard Todd Fields, Judge — Opinion by Miller, J., with Hollenhorst, J., King, J. Trial court erred in imposing more than one serious felony prior enhancement because the convictions were not brought and tried separately. Case remanded for the trial court to impose only one five-year prior; on remand, it can reconsider its discretionary sentencing choices, but it is precluded from undoing its grant of the Romero motion. (I) AMJ

Halka, Waldemar — People v. Perez, D068690, (2016) 243 Cal.App.4th 863 — Involuntary Statement/Insufficient Evidence of Special Circumstance — Richard A. Erwood, Judge — Opinion by Aaron, J., with Nares, J., McIntyre, J. Appellant’s first degree murder conviction and felony/murder special circumstance finding are reversed. Trial court prejudicially erred when it denied appellant’s motion to suppress where his statements to the police, obtained pursuant to a promise of leniency, were involuntary. Additionally, insufficient evidence supports the robbery-murder special-circumstance finding where appellant was the getaway driver. In the event of a retrial, the trial court also violated appellant’s right to confrontation in permitting the prosecutor to pose leading questions to a witness in front of the jury about the witness’s prior statements to the police when the prosecutor knew the witness would refuse to answer any questions; if the witness refuses to answer any questions at a retrial, his statements to the police are not admissible. (I) PMI

Angres, Robert L.S. — People v. Bess, G049721 — Proposition 36 — Gregg L. Prickett, Judge — Opinion by Rylaarsdam, J., with Bedsworth, J., Ikola, J. Following an unsuccessful appeal from the dismissal of his Proposition 36 petition seeking redress for two convictions, a robbery and a second degree burglary, appellant petitioned for review. California Supreme Court transferred the appeal to the appellate court for reconsideration in light of People v. Johnson (2015) 61 Cal.4th 674. Based on that case, the Court of Appeal reversed the trial court’s order, because appellant was potentially eligible for resentencing on the burglary conviction. It remanded to the trial court to further evaluate eligibility and entitlement for resentencing. (I) AMJ

Norman, Jan B. — In re Zachary T., D067539 — Miranda Violation — Aaron H. Katz, Judge — Opinion by McIntyre, J., with McConnell, P.J., Nares, J. Court of Appeal determined Minor was in custody under Miranda v. Arizona (1966) 384 U.S. 436 when a Deputy, presumably in uniform and carrying a weapon, singled-out and separated minor from group of people who were already detained and not free to leave during the early-morning execution of a search warrant. Further, the Deputy should have known it was reasonably likely his questions about recent marijuana or methamphetamine use would produce an incriminating response. Admission of the statements was prejudicial in light of the fact that Minor’s objective symptoms (enlarged pupils, rapid heart rate, and sobriety test results) could have been caused by an energy drink and ADHD just as they could have been caused by drug use. (I) CBM

Beckham, Sylvia Whatley — People v. Fernandez, G049353 — Juror Misconduct — William R. Froeberg, Judge — Opinion by Bedsworth, J., with Fybel, J., Thompson, J. After the jury issued its verdict, the foreperson admitted to another juror that she had discovered information on the internet showing appellant and an accountant had committed the charged crime and the accountant had been convicted. That other juror then wrote a letter to the trial court. After interviewing each juror individually, the trial court found misconduct but no prejudice. Court of Appeal disagreed. Relying on People v. Holloway (1990) 59 Cal.3d 1098, the reviewing court found the juror’s misconduct had created a presumption of prejudice and the information she had learned was such that it was objectively and inherently likely to have influenced her. (I) CBM

Clark, Marcia R. — People v. Parson, D068476 — Credits/Fees — Steven A. Mapes, Judge — Opinion by Aaron, J., with McConnell, P.J., Benke, J. Because assault with a deadly weapon is not classified as a violent felony, appellant is entitled to conduct credit under Penal Code section 4019, not section 2933.1. (I) PMI

Klaif, Leonard J. — People v. Johnson, E060351 — Driver’s License Suspension — William Jefferson Powell IV, Judge — Opinion by King, J., with McKinster, J., Miller, J. Trial court erred in directing the DMV to permanently revoke appellant’s driver’s license under Vehicle Code section 13351.5 where the record does not support a finding that a motor vehicle was used as an instrument of assault. Additionally, because revocation of a driver’s license is a civil rather than criminal sanction and it is the DMV, not the court, that revokes a person’s driver’s license, matter is remanded for lower court to prepare a supplemental order clarifying that the DMV is authorized to revoke appellant’s driver’s license for one year under Vehicle Code section 13350, but not permanently per Vehicle Code section 13351.5. (I) PMI

Auwarter, Neil — People v. Smith, G050533 — Proposition 36 — Ingrid Adamson Uhler, Judge — Opinion by O’Leary, P.J., Rylaarsdam, J., Bedsworth, J. Following People v. Johnson (2015) 61 Cal.4th 674, the Court of Appeal granted Proposition 36 resentencing relief as to appellant’s 14 counts of false imprisonment, a non-serious, non-violent, felony, even though appellant was concurrently convicted of robbery, a violent felony. The court rejected respondent’s argument that the vicarious armed-with-a-firearm findings accompanying the false imprisonment counts disqualified appellant from relief under Penal Code section 1170.12, subdivision (c)(2)(C)(iii), which disqualifies from Proposition 36 relief a defendant who used or was armed with a firearm in the commission of the current offense. (S) NFA

Curnow, Rodger P. — People v. Cortez, D068051 — Chiu/Natural and Probable Consequences — Michael J. Rushton, Judge — Opinion by Benke, J., with Huffman, J., Nares, J. Appellant was convicted of first degree murder in a case where the instructions permitted the jury to rely on the natural and probable consequences doctrine, contrary to the holding in People v. Chiu (2014) 59 Cal.4th 155 (decided after trial). The prosecutor relied on same in her closing argument and in her rebuttal she directed the jury to focus primarily on same. Court of Appeal concluded that the prosecutor’s emphasis in rebuttal made it difficult to conclude with confidence that the jury relied instead on a permissible straight aiding and abetting theory. The conviction of first degree murder was reversed and remanded for further proceedings. As in Chiu, the People may accept a reduction of the conviction to second degree murder or retry the greater offense. (I) HCC

Rehm, Joanna — People v. White, E061932 — Serious Felony Prior Enhancement — Michael J. Rushton, Judge — Opinion by Codrington, J., with King, J., Miller, J. Appellant was sentenced to a determinate term and the lower court imposed the five-year serious felony prior enhancement on each of two counts. Respondent conceded the error and Court of Appeal reversed and vacated the imposition of the “nickel” prior as to one count. (I) BCT

Haggerty, Edward J. — People v. Holland, D068040 — Penal Code Section 654 — Michael M. Dest/Duke D. Rouse/Arthur R. Harrison/J. David Mazurek, Judges — Opinion by O’Rourke, J., with Aaron, J., Irion, J. Court of Appeal agreed with appellant’s argument that one of two enhancements for inflicting great bodily injury must be stayed (one was attached to a count of attempted murder and one was attached to a count of attempted robbery) because there was a single assault on the victim that was motivated by appellant’s single intent to obtain money. (I) APJ

Hinkle, Stephen M. — People v. Sylvester, D067157 — Due Process Notice/Protective Order — Melinda Lasater, Judge — Opinion by McDonald, J., with McConnell, P.J., Huffman, J. Court of Appeal reversed the trial court’s order allowing the prosecution to file a third amended information during jury deliberations which added an out-of-state prior that qualified as a strike and a prior serious felony conviction. Prior to trial when appellant rejected an 8-year plea offer, the prosecution indicated it was waiting for documents from Florida regarding appellant’s criminal history and there was a possibility of an additional prior, but there was no mention that it would qualify as a strike. When the trial court allowed the third amended information to be filed it was under the mistaken impression that appellant had been aware during plea negotiations that a possible “strike” could be alleged. Court of Appeal determined the trial court had not exercised its “informed discretion” when it allowed the amendment and, therefore, remanded the matter to the trial court to reconsider whether to allow the prosecution to file the third amended information based on a correct view of the facts and circumstances. If after reconsideration, the trial court allows the third amended information, then appellant’s sentence would remain at 19 years. If the court denies the amendment, then appellant would be re-sentenced accordingly. Court of Appeal also ordered the trial court to modify the criminal protective order issued under Penal Code section 273.5, subdivision (j), by removing appellant’s child’s name from the list of protected persons as she had not been born at the time of the offense and did not qualify as a victim. (I) BCT

Braden, Julie E./Bishop, Rosemary — In re D.C., D068146, (2016) 243 Cal.App.4th 41 — Indian Child Welfare Act (ICWA) — Sharon L. Kalemkiarian, Judge — Opinion by McDonald, J., with McConnell P.J., Prager, J. Where adoptive father claimed Indian heritage, Agency was required to provide notice to the appropriate tribes. Adoptive status is not relevant to analysis and tribe determines whether membership will be extended to a non-biological child; thus, notice to the tribe is mandated to effectuate the purpose of the ICWA. Partial publication granted. (I) LLF

Clark, Marcia R./Ulibarri, Patricia J. — People v. Orozco/Batson, D068491 — Potential Juror Misconduct/Fine — John M. Tomberlin, Judge — Opinion by McIntyre, J., with Nares, J., McDonald, J. Trial court erred in denying both appellants Batson and Orozco a continuance to investigate potential juror misconduct based upon information received about contacts during trial between a juror’s wife and the victim’s father and, later, involving the juror himself and the victim’s family. Matter remanded to allow for investigation and possible motion for new trial. Additionally, Batson’s abstract of judgment ordered corrected to delete a $41 fine under former Penal Code section 12025 that was not included in the trial court’s oral pronouncement of judgment. (I) AMJ

Angres, Robert L.S. — People v. Flores, E063131 — Resentencing — Michael A. Smith, Judge — Opinion by Codrington, J., with Ramirez, P.J., McKinster, J. In appellant’s prior appeal, the Court of Appeal remanded and ordered the trial court to correct the abstract of judgement to reflect that appellant was convicted of false imprisonment, not kidnapping. As a result of the change and because the conviction was for a non-serious or violent felony, the sentence could not be for 25-years-to-life. Trial court failed to follow the Court of Appeal’s instructions in the prior appeal and again sentenced appellant to 25-years-to-life. Matter again remanded for correction. (I) DKR

Angres, Robert L.S. — People v. Watson, E061781 — Abstract of Judgment — Jon D. Ferguson, Judge — Opinion by McKinster, J., with Ramirez, P.J., Hollenhorst, J. Court of Appeal agreed with appellant and respondent that the abstract of judgment and relevant minute orders should be corrected to reflect that appellant pleaded no contest to and was convicted of possession of a controlled substance, not possession of marijuana for sale. (I) MCR

Erickson, Kristin A. — People v. Mitchell, E062512 — Serious Felony Prior Enhancement — Edward D. Webster, Judge — Opinion by McKinster, J., with Ramirez, P.J., Codrington, J. Two of appellant’s Penal Code section 667, subdivision (a) felony priors stricken because the evidence was insufficient to prove they were brought and tried separately. (I) MCR

Staley, John L. — People v. Ortiz, D068217 — Proposition 47 — Raymond A. Cota, Judge — Opinion by Huffman, J., with McIntyre J., Irion, J. Appellant petitioned under Penal Code section 1170.18 to reduce his burglary conviction to a misdemeanor shoplifting under the newly enacted Penal Code section 459.5. Trial court denied the petition, concluding the theft of surveillance cameras from the laundromat in this case did not involve the theft of the type of property contemplated by section 459.5. Court of Appeal reversed, finding that appellant met his burden to show the value of the lost property was less than $950, and that section 459.5 is not limited to the taking of merchandise otherwise offered for sale. (I) HSI

Irza, Helen S. — People v. Harrison, E062157 — Plea Bargaining — Becky Dugan, Judge — Opinion by Ramirez, P.J., with McKinster J., Codrington, J. Appellant made a “plea to the court” and signed a felony plea form which stated that as a result of his plea to two counts he would receive a total of six years consisting of the mid-term doubled on one count and a concurrent term on the other. The plea did not include anything about admitting the alleged priors and appellant did not admit the priors in court. At sentencing, the trial court imposed the indicated sentence. Because appellant never admitted the strike prior allegation required for doubling of the sentence, matter remanded for appellant to either admit alleged priors, if trial court still inclined to follow previously indicated sentence, or decline to enter a new plea and proceed to trial. (S) HSI

February 2016

Kraft, Rudy — People v. Reyes, G049409 — Hearsay/Sexually Violent Predator (SVP) Proceeding — John L. Flynn, Judge — Opinion by Moore, J., with O’Leary, P.J., Bedsworth, J.
Court of Appeal reversed the judgment committing appellant as a SVP due to the substantial amount of inadmissible hearsay introduced at trial. Court found the trial court admitted a “voluminous amount” of hearsay evidence inadmissible under Welfare and Institutions Code, section 6600, subdivision (a)(3). The evidence was comprised of documents admitted without redaction including: psychological evaluations; police reports; probation sentencing reports; and an appellate opinion from a previous case. Trial court had allowed the evidence because “the jury was very bright,” which the Court of Appeal presumed meant it would not prejudice appellant to have the evidence admitted. However, the Court of Appeal found appellant was prejudiced because the cumulative amount of improperly admitted evidence made the evidence appear “absolutely overwhelming.” (I) LMF

Bostwick, James R. — People v. Luker, G050205 — Insufficient Evidence/Gang Offense (Rodriguez) — David A. Hoffer, Judge — Opinion by Ikola, J., with O’Leary, P.J., Rylaarsdam, J. Appellant argued that his gang participation conviction was foreclosed by People v. Rodriguez (2012) 55 Cal.4th 1125 because there was insufficient evidence he acted with a fellow gang member. Respondent argued that there was substantial evidence to support a finding that appellant’s girlfriend, who was present with appellant, was a fellow gang member. Court of Appeal disagreed, concluding that the prosecution’s own expert established that the girlfriend was an active participant in the gang but not a member and Rodriguez requires the co-participation of another member. (I) HCC

Coleman, Jared G./Dodd, John L. — People v. Lopez et al., D068685 — Victim Restitution — John M. Tomberlin, Judge — Opinion by McConnell, P.J., with McDonald, J., Aaron, J. Reversal of victim restitution awarded for the cost incurred by the victim to move away from appellant where there was no evidence law enforcement had verified the move was necessary for the victim’s safety, as required by Penal Code section 1202.4, subdivision (f)(3)(I). Remanded for a new restitution hearing. (I) NFA

Weinberg, Allen G. — People v. Garcia, E061200 — Ineffective Assistance of Counsel/Sentencing — Richard Todd Fields, Judge — Opinion by Ramirez, P.J., with King, J., Miller, J. Counsel was prejudicially ineffective for conceding that consecutive sentences on four counts of nonforcible lewd acts was mandatory. Additionally, although respondent conceded counsel was also ineffective where counsel failed to object when the court imposed a $300 restitution fine instead of $280, this issue is moot because the case is remanded for resentencing. (I) PMI

Moller, Richard Jay — People v. Pierce, G050799 — Penal Code Section 654 — Kimberly Menninger, Judge — Opinion by Rylaarsdam, J., with Moore, J., Aronson, J. Respondent conceded and Court of Appeal agreed that appellant’s conviction for driving/taking a vehicle was based upon the same conduct as his conviction for carjacking and, thus, under Penal Code section 654, the sentence for driving/taking the vehicle must be stayed rather than run concurrent. (I) APJ

Packer, Trenton C. — People v. Foley, E062446 — Credits/Fines — Mark E. Johnson, Judge — Opinion by Ramirez, P.J., with King, J., Miller, J. Respondent conceded that trial court erred in denying appellant additional credits for the time he spent in residential treatment programs under Penal Code section 2900.5, subdivision (a). Respondent also agreed that the trial court erred in increasing his restitution fine from $240 to $300 after revoking probation and imposing the fine twice and when the court imposed the $40 court operations assessment fee and the $30 criminal conviction fee twice. Case remanded because record is unclear as to whether appellant waived his right to accrue custody credits for the time he spent in the residential treatment program and also unclear as to how much time he spent in the program. (A) AMJ

Ganaja, Gail — In re Moises R., G050550 — Probation Condition — Deborah C. Servino, Judge — Opinion by Bedsworth, J., with Moore, J., Thompson, J. The condition of probation requiring appellant to steer clear of all court proceedings unless he is a party or subpoenaed witness in the proceeding is unconstitutionally overbroad. It is modified to state: “You shall not be present at any court proceeding where you know or the probation officer informs you that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless you are a party, you are a defendant in a criminal action, you are subpoenaed as a witness, or you have the prior permission of your probation officer.” (A) AMJ

Grimm, Cynthia — People v. Gonzales, G051278 — Proposition 47 — Jonathan S. Fish, Judge — Opinion by Ikola, J., with Moore, J., Thompson, J. Appellant petitioned to designate his prior felony convictions as misdemeanors for second degree vehicle burglary and receiving stolen property. Respondent opposed the petition as to the vehicle burglary, but agreed that appellant was entitled to relief on the receiving stolen property conviction. Trial court denied the petition as to both convictions. Court of Appeal reversed the trial court’s denial on the receiving stolen property conviction. (I) BCT

Moller, Richard Jay — People v. Hammond, G051383 — Proposition 47 — Christopher Evans, Commissioner — Opinion by Bedsworth, J., with Moore, J., Thompson, J. Trial court erred when it failed to apply excess credits to reduce parole and fines after it granted appellant’s petition to reduce his sentence to a misdemeanor. (I) DKR

Schwartzberg, Richard — People v. Kelley, G051196 — Proposition 47 — Vickie Hix, Temporary Judge — Opinion by Ikola, J., with O’Leary, P.J., Bedsworth, J. During the appeal, Court of Appeal published People v. Armogeda (2015) 240 Cal.App.4th 1039, which held that a person resentenced under Penal Code section 1170.18, subdivision (a) is entitled to apply excess custody credits against the one-year parole period. Here, the matter was remanded to the trial court with instructions to recalculate appellant’s parole period by applying any excess custody credits to reduce the parole period pursuant to Penal Code section 2900.5. (I) BCT

Moran, Jamie A. — In re Angelo G., D067759 — Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) — Carol Isackson, Judge — Opinion by O’Rourke, J., with Haller, J., Aaron, J. Jurisdictional, dispositional, and all subsequent findings, including termination of parental rights, are reversed and the case is remanded for hearing on UCCJEA subject matter jurisdiction. If jurisdiction was appropriate, the orders will be reinstated. If jurisdiction was not appropriately taken, the petitions should be dismissed. (I) CAG

Brines, Cindy — In re Nathaniel P., G051242 — Probation Conditions — Lewis W. Clapp, Judge — Opinion by Bedsworth, J., with O’Leary, P.J., Ikola, J. Court of Appeal modified probation conditions to include an express knowledge requirement. Court declined to imply a knowledge requirement into the conditions because “the law has no legitimate interest in punishing an innocent citizen who has no knowledge of the particular person, place or object he is required to avoid.” (I) PMI

Stevenson, Theresa Osterman — People v. Morgan, G051397 — Proposition 47 — Christopher Evans, Commissioner — Opinion by Bedsworth, J., with O’Leary, P.J., Moore, J. Appellant, while on post-release community supervision, received Proposition 47 relief and appealed the imposed parole period. Court of Appeal found that the parole period was valid but agreed that appellant’s excess custody credit should be counted toward that period and eligible fines. (I) LLA

Gupta, Niti — In re M.D., E063668 — Indian Child Welfare Act (ICWA) — Timothy F. Freer, Judge — Opinion by Hollenhorst, J., with Miller, J., Codrington, J. Court of Appeal reversed the finding of ICWA tribal notification because insufficient identifying information of the parents and relatives was sent to the tribes. (A) CAG

Klein, Jill M. — People v. Flores, E061469 — Enhancements/Attorney Fees — William Jefferson Powell IV, Judge — Opinion by Ramirez, P.J., with King, J., Miller, J. Trial court erred by imposing both a prior serious felony conviction enhancement and a prior prison term enhancement based on the same underlying offense. Not analyzing the issue independently, Court of Appeal accepted respondent’s concession that the trial court erred by ordering appellant to pay $750 in appointed counsel costs. (I) AMJ

Barry, Leslie A./McLaughlin, Robert — In re N.P., E063000 — Indian Child Welfare Act (ICWA) — Timothy F. Freer, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Codrington, J. Department of Public Social Services failed to notice the tribes under the ICWA statute and rules. Court of Appeal vacated the juvenile court’s order terminating parental rights and remanded the matter to the juvenile court with directions to order compliance with the notice provisions of ICWA. (I) CAG

Hong, Esther K. — People v. Haas, E062013 — Sentencing — Katrina West, Judge — Opinion by Miller, J., with Ramirez, P.J., King, J. Court of Appeal ordered appellant’s one-year enhancement under section 12022, subdivision (b)(1) stricken, and reduced the restitution and parole revocation fines from $300 to $240. Trial court improperly stayed the one-year enhancement, and appellate counsel successfully argued it should be stricken rather than remanded to the trial court. In addition, Court of Appeal agreed the restitution fine should be reduced to $240 (the statutory minimum in effect at the time the crime was committed) because the trial court expressed its intent to impose the minimum statutory fine. (I) LKH

Levy, Richard A. — People v. Rascon, D068510 — Pre-Sentence Custody Credits — Debra Harris, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Benke, J. Court of Appeal ordered the pre-sentence custody credits corrected to reflect 1,483 days of actual credit (not 1,428 days as calculated by the trial court). Trial court is ordered to prepare minute orders and amended abstracts of judgment which reflect this correction. (I) LKH

Auwarter, Neil — People v. Young, E061236 — Proposition 36 — Becky Dugan, Judge — Opinion by McKinster, J., with Ramirez, P.J., King, J. Appellant was convicted in 1997 of robbery and felony evading an officer (Veh. Code, § 2800.2), along with several prior felony strikes, and was sentenced to two consecutive Three Strikes life terms. Appellant subsequently petitioned for relief under Proposition 36 (Pen. Code, § 1170.126, subd. (a)) as to his non-serious, non-violent current offense of evading an officer. Relief was denied by the trial court, and initially by the Court of Appeal, on the ground appellant’s current violent offense of robbery disqualified him from Proposition 36 relief as to any current offense. Following the Supreme Court’s contrary decision in People v. Johnson (2015) 61 Cal.4th 674, the case was remanded to the trial court to determine appellant’s eligibility for Proposition 36 relief as to the evading count. (S) NFA

Fisher, Lelah S. — In re Gianna I., D068548 — Indian Child Welfare Act (ICWA) — Edlene C. McKenzie, Judge — Opinion by McConnell P.J., with Benke, J., Huffman, J. Parent claimed Indian ancestry with the Chumash Indian tribe. Only one of the two tribes was given ICWA notice and no further ICWA notices were sent with respect to the third child born after the notices were sent. Limited reversal with directions to provide proper ICWA notice and file all required documentation with the court. (I) LMF

Williams, Rex Adam — People v. Brosseau, G050297 — Penal Code Section 654 — David A. Hoffer/James Edward Rogan, Judges — Opinion by Aronson, J., with Rylaarsdam, J., Moore, J. Court of Appeal agreed with appellant that his concurrent sentence for contacting a minor with intent to commit a lewd act must be stayed pursuant to Penal Code section 654 because appellant is already serving an enhanced sentence for the more egregious conduct of not only arranging a meeting with the minor, but actually going to the arranged meeting place. Despite the opportunity to reflect between acts, the intended harm was the same, the course of conduct shared a single objective, and the escalating conduct is already adequately punished by elevation of the arranged meeting crime from misdemeanor to felony. (I) APJ

Weinberg, Allen G. — People v. DeAquino, G049671 — Fines — W. Michael Hayes, Judge — Opinion by Fybel, J., with Bedsworth, J., Ikola, J. Respondent conceded and Court of Appeal agreed that trial court was mistaken in failing to consider appellant’s ability to pay when it imposed probation report fee, restitution fine, and parole revocation fine. In imposing maximum fines, trial court was under the mistaken impression that appellant had failed to prepare a financial disclosure which he had, in fact, prepared. Trial counsel was ineffective for not calling the error to court’s attention. Matter remanded for court’s consideration of appellant’s ability to pay fines. (I) APJ

Nordin, Kenneth H. — People v. Jones, E062039 — Penal Code Section 654 — Graham A. Cribbs, Judge — Opinion by Ramirez P.J., with Hollenhorst J., McKinster, J. Respondent conceded and Court of Appeal agreed that the concurrent term on count one, making a criminal threat should be stayed because it stemmed from the same threat – a single physical act – that supported the conviction on count two, dissuading a witness. (I) BCT

Pfeiffer, Rich/Schirn, Megan Turkat— In re M.S., E063521 — Bypass Provision — Dean Stout, Judge — Opinion by Codrington, J., with Ramirez, P.J., Miller, J. Agency appealed the trial court’s decision to grant mother reunification services finding the bypass provision found under Welfare and Institutions Code section 361.5, subdivision (b)(10) did not apply. Agency argued the exception to the bypass provision regarding reasonable efforts to overcome the problems from an earlier dependency case is limited in time to the parent’s efforts prior to the current detention. Court of Appeal found instead that all the parent’s efforts, up to the time of the disposition orders, can be considered by the trial court. Court affirmed the trial court’s finding. (I) LLF

LeRoy, Dorris M. — People v. Pena, E061908 — Unauthorized Fine — Jeffrey Prevost, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Respondent conceded and Court of Appeal agreed that because appellant was not convicted of triggering offenses listed in Penal Code section 288, subdivision (e), the court was not authorized to impose the $500 fine under that section. Court of Appeal ordered fine stricken. (I) CBM

Sheppard, Laura R. — People v. Chase C., D067787, (2015) 243 Cal.App.4th 107 — Insufficient Evidence — Browder A. Willis, III, Judge — Opinion by Huffman, J., with McIntyre, J., Aaron, J. Novel issue raised regarding when a refusal to cooperate with police becomes unlawful interference with police activity under Penal Code section 148. Court of Appeal held refusal to cooperate only becomes criminal when it obstructs lawful police activity. Here, the minor’s verbal protests against the detention of his friends, pre-arrest, was protected political speech under the First Amendment. Minor’s pre-arrest conduct in telling the non-suspect minor friends not to cooperate amounted to nothing more than lawful protest against unlawful detention. (A) LAR

Leftwich, Maria — People v. Borsteins, G050415 — Correction of Minute Order — David A. Hoffer, Judge — Opinion by Fybel, J., with O’Leary, P.J., Thompson, J. Respondent conceded and Court of Appeal agreed that the minute order reflected an incorrect amount for appellant’s restitution fine. When court orally ordered appellant to pay a $240 fine, which was consistent with the statutory minimum fine applicable at the time the crime committed, Court of Appeal found the oral pronouncement of judgement took precedence over the written minute order and directed the trial court to correct the minute order. (A) CBM

Buckley, Christian C. — People v. Elder, E062417 — Restitution Order — Helios (Joe) Hernandez, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. In this People’s appeal, Court of Appeal affirmed trial court’s order denying victim restitution to the Riverside Fire Department (RFD). Although plea agreement included the term appellant would pay $3360.23 to the RFD for suppression and investigation of appellant’s arson fire, and court had initially awarded this restitution, court subsequently struck the order. RFD’s sole remedy for restitution is a civil action. Under People v. Martinez (2005) 36 Cal.4th 384, fire suppression and investigation costs are not collectible as criminal Penal Code section 1202.4 restitution. In addition, by failing to obtain a ruling on its request to withdraw the plea agreement, People forfeited contention that it should have been allowed to proceed to trial. (I) CBM

Carroll, Steven J. — People v. Eggen, G051158 — Proposition 47/Custody Credits/Registration — Vickie Hix, Commissioner — Opinion by Bedsworth, J., with Moore, J., Thompson, J. Court of Appeal found that after trial court granted Prop. 47 relief, excess custody credits should have been credited against appellant’s parole period and his eligible fines. Court also found the trial court erred in requiring appellant to register as a narcotics offender because he was not convicted of an offense to which the registration requirement applies. (I) MCR

Jones, Cynthia M. — People v. Westline, E061992 — Attorney Fees — Becky Dugan, Judge — Opinion by Miller, J., with King, J., Codrington, J. Trial court erred in denying appellant’s petition under Penal Code section 987.8, subdivision (h), to modify or vacate the judgment for attorney fees on the grounds that it was untimely. Trial court failed to inquire as to potential changed circumstances where appellant tried to explain but the court cut him off. Order reversed and case remanded to the trial court to conduct a hearing on appellant’s petition. (I) AMJ

Stevenson, Theresa Osterman — People v. Baltazar, G051161 — Proposition 47/Parole Custody Credit/Drug Offender Registration — Vickie Hix, Temporary Judge — Opinion by Aronson, J., with Bedsworth, J., Moore, J. Upon reduction of a drug offense to a misdemeanor under Proposition 47, the matter was remanded for the trial court to calculate and apply any excess custody credits to reduce or eliminate appellant’s parole period. Respondent conceded and Court of Appeal agreed that the trial court on remand also must strike appellant’s obligation to register as a drug offender because the requirement does not apply to a misdemeanor conviction. (I) HCC

Stevenson, Theresa Osterman — People v. Borrayo, G051394 — Proposition 47 — Vickie L. Hix, Temporary Judge — Opinion by O’Leary, P.J., with Aronson, J., Thompson, J. Court of Appeal agreed that after trial court granted Prop. 47 relief, it should have awarded excess custody credits to reduce appellant’s parole time and fines. It was noted that during the pendency of the appeal, the trial court modified appellant’s sentence to comport with People v. Morales (2015) 238 Cal.App.4th 42, but the Court of Appeal held the trial court lacked jurisdiction to do so in light of People v. Scarbrough (2015) 240 Cal.App.4th 916. The modification order was void. Remanded for trial court to recalculate parole period and fines. (I) LAR

DiGuiseppe, Raymond M. — People v. Martinez, D066479 — Fines/Credits — Sim Von Kalinowski, Judge — Opinion by McConnell, P.J., with Benke, J., Irion, J. Respondent conceded and Court of Appeal agreed that trial court ordered court operations and court facilities assessments in excess of amounts statutorily authorized. Thus, amounts reduced to the amounts authorized by statute. In addition, trial court erred in failing to award any pre-sentence conduct credits when appellant was entitled to credits at the rate of 15 percent of actual days served. Credits ordered corrected. (I) APJ

Norman, Jan B. — In re W.E., E063193 — Lesser Included Offenses — Barbara A. Buchholz, Judge — Opinion by Hollenhorst, J., with King, J., Miller, J. Kidnaping and false imprisonment counts stricken because they are lesser included offenses of kidnaping for rape and the true findings on all three counts were based on the same conduct. (I) DKR.

Fabian, Carl — People v. Jones, D065740 — Penal Code Sections 654/Enhancements — Lorna A. Alksne, Judge — Opinion by O’Rourke, J., with McConnell, P.J., Haller, J. Respondent conceded and Court of Appeal agreed that the record does not contain substantial evidence that appellant harbored separate criminal objectives to commit both robbery and assault with a deadly weapon when he assaulted the victim in the course of the robbery. Thus, the sentence for assault must be stayed under Penal Code section 654. In addition, the trial court erred when it stayed rather than struck four prison priors it did not intend to impose. Finally, under People v. Sasser (2015) 61 Cal.4th 1, the five-year serious felony prior enhancement should have been added only once to a defendant’s aggregate determinate term, even when the determinate term is imposed as part of a second strike sentence. (I) HCC

Keller, Roni — In re B.M., E063532 — Indian Child Welfare Act (ICWA) — Timothy F. Freer, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., McKinster, J. Reversed for failure to make adequate inquiry and notice under ICWA. (I) ACS

Mahoney, Brian M. — In re N.O., G052726 — Indian Child Welfare Act (ICWA) — Gary L. Moorhead, Judge — Opinion by Rylaarsdam, J., with Aronson, J., Fybel, J. Stipulated reversal for failure to make adequate inquiry and notice under ICWA. (A) ACS

Bishop, Rosemary — In re Albert A., E063869, (2016) 243 Cal.App.4th 1220 — Legal Impediments to Adoption/ Indian Child Welfare Act (ICWA) — Lynn M. Poncin/Cheryl C. Kersey, Judges — Opinion by McKinster, J., with Hollenhorst, J., King, J. Termination of parental rights reversed due to court failing to consider legal impediments to adoption and failure to make adequate inquiry and give notice under ICWA. (I) ACS

Swiller, Paul A. — In re Ariana B., D068720 — Indian Child Welfare Act (ICWA) — Michael J. Imhoff, Commissioner — Opinion by O’Rourke, J., with Huffman, J., McIntyre, J.
Reversal for failure of court to make proper inquiry under the ICWA. (A) ACS

Harris, Donna L. — People v. Arvizu, D067503 — Proposition 47 — Poli Flores, Jr., Judge — Opinion by Huffman, J., with Benke, J., Nares, J. Trial court denied appellant’s Proposition 47 petition to reduce his conviction of receiving stolen property to a misdemeanor, finding the value of the property to be $2,000 based on a probation report. Appellant argued he is eligible for resentencing because the record of conviction does not show the value of the stolen property exceeded $950. Court of Appeal reversed and remanded the case because there was not a sufficient evidentiary foundation to support the trial court’s finding that the property was worth $2,000. (I) HSI

Irza, Helen S. — People v. Licona, G049553 — AIDS Education Fee/Presentence Credits — James Edward Rogan, Judge — Opinion by Fybel, J., with Bedsworth, J., Moore, J. Attorney General conceded and Court of Appeal agreed that the trial court improperly imposed an AIDS education fee and incorrectly computed his presentence credit. Court of Appeal struck the AIDS education fee because appellant was convicted of violating Penal Code section 228, subdivision (a), which is not one of the crimes specified in Penal Code section 1463.23. Court awarded presentence custody and conduct credits pursuant to Penal Code section 2933.1. (S) HSI

Miller, Gerald J. — People v. Perez, E062063 — Penal Code Section 1203.4 — Eric M. Nakata, Judge — Opinion by Miller, J., with Ramirez, J., King, J. Court of Appeal agreed that the trial court improperly denied appellant’s petition for dismissal pursuant to Penal Code section 1203.4 based on facts surrounding appellant’s offense even though appellant successfully completed her probation and complied with the terms and conditions of her probation. Court reasoned that section 1203.4 was intended to apply when a defendant has satisfied the terms of probation, the trial court should have no discretion but to grant a defendant’s petition for dismissal. Nothing in section 1203.4 allows a court to deny a petition based on the facts of the underlying conviction. (I) HSI

Bjerkhoel, Alissa — People v. Lee, D066915 — Mandatory Supervision Conditions/Penal Code Section 654 — Timothy R. Walsh, Judge — Opinion by Benke, J., with McConnell, P.J., O’Rourke, J. Appellant argued and Court of Appeal agreed that some of his conditions of mandatory supervision were unconstitutionally overbroad. Court found unconstitutionally overbroad the condition that appellant obtain permission from his probation officer regarding his residence and employment. Court reasoned that as written, appellant’s probation officer could bar appellant from a living arrangement or job opportunity for inconvenience or other reasons unrelated to appellant’s rehabilitation or crime prevention. Court also found unconstitutionally overbroad the condition requiring appellant to participate and comply with any assessment program ordered by the probation officer because it does not specify what types of assessment programs the probation officer can order appellant to participate in. Moreover, Court of Appeal also agreed with appellant that each of his burglary and petty theft conviction arises from the same sequence of events, and therefore, sentences for petty theft should be stayed under Penal Code section 654. (I) HSI

January 2016

Bostwick, Jr., James R. — People v. Cross, E062173 — Penal Code Section 1170.126 (Prop. 36) — Becky Dugan, Judge — Opinion by Ramirez, P.J., with Hollenhorst, J., Codrington, J. Court of Appeal reversed and remanded in part for resentencing on convictions that were not serious or violent felonies based on the California Supreme Court’s decision in People v. Johnson (2015) 61 Cal.4th 674. (I) BCT

Shaler, Susan K. — People v. Jarvis, D066240 — Sentencing — Jeffrey F. Fraser, Judge — Opinion by McConnell, P.J., with Huffman, J., Aaron, J. Court of Appeal remanded the matter for resentencing of determinate terms where the trial court erroneously imposed a five year serious felony enhancement for each determinate term. (I) LKH

Stanton, Marta I. — People v. Ambriz, D067732 — Lesser Included Offense — Edward P. Allard III, Judge — Opinion by Prager, J., with Nares, J., Aaron, J. Appellant contended, respondent conceded, and Court of Appeal agreed that conviction of attempted auto taking must be dismissed as a lesser included offense of attempted grand theft auto of which appellant was also convicted. (I) HCC

Puertas, Linda B. — In re A.O., E062111, (2015) 242 Cal.App.4th 145 — Appeal Advisement/Reasonable Services/Medication — Lawrence P. Best, Temporary Judge — Opinion by Codrington, J., with King, J., Miller, J. Court of Appeal addressed challenges to jurisdiction and disposition in an appeal from a 12-month review hearing because the juvenile court failed to provide an appeal advisement at disposition. Court found this error similar to the failure to give a party a writ advisement required by Welfare and Institutions Code section 366.26, subdivision (l)(3)(A). Mother was required to take psychotropic medication to reunify with her daughter. The department referred mother to a clinic that concluded she did not require medication. Because mother was not taking medication, the department opined it was detrimental to return the child. Court of Appeal reversed the juvenile court’s reasonable services findings at the 6- and 12-month review hearings, and remanded for the department to provide services designed to give mother an opportunity to start a medication program. (A) LMF

Schuck, John F. — People v. Quinn, G050970 — Protective Order — David A. Hoffer, Judge — Opinion by Ikola, J., with Fybel, J., Thompson, J. Protective order stricken. Attorney General conceded the order was unauthorized because this type of order cannot be imposed at sentencing when the appellant is sentenced to prison. (I) AMJ

Auwarter, Neil F. — People v. Moreno, E062614 — Penal Code Section 1170.126 (Prop. 36) — Michael A. Smith, Judge — Opinion by Ramirez, P.J., with Miller, J., Codrington, J. Where trial court had denied appellant’s Prop. 36 petition with regard to an eligible offense because appellant was also serving sentence for a non-eligible offense, Court of Appeal reversed the trial court’s denial per People v. Johnson (2015) 61 Cal.4th 675. (S) NFA

Berley, Diane E. — People v. Castaneda, G048862 — Instructional Error (Chiu) — Richard M. King, Judge — Opinion by Fybel, J., with O’Leary, P.J., Bedsworth, J. Convictions of first degree murder and first degree attempted murder reversed pursuant to People v. Chiu (2014) 59 Cal.4th 155 where jury was instructed it could convict based upon a natural and probable consequences theory. Remanded for the People to accept the reduction to second degree murder and attempted second degree murder or elect to retry appellant. (I) LAR

Weinberg, Allen G. — People v. Rollins, D068475 — Penal Code Section 654 — Michael J. Rushton, Judge — Opinion by McIntyre, J., with Benke, J., Irion, J. Judgment modified to stay, pursuant to Penal Code section 654, the sentence for infliction of corporal injury on a co-habitant as it involved the same conduct as the torture offense for which appellant was separately punished. (I) LAR

Jones, Cynthia M. — People v. Valencia, D066316 — Credits/Sentencing/Penal Code Section 654 — Dwayne K. Moring/Ana L. Espana, Judges — Opinion by McDonald, J., with McConnell, P.J., Nares, J. Trial court deprived appellant of an additional day of conduct credit when it applied the old Penal Code section 4019 formula rather than the day-for-day formula to which appellant was entitled based upon the date of his offenses. In addition, where trial court gave appellant “time served” on each of three misdemeanor convictions, but that time was more than the 364-day maximum per count, sentences must be reduced to 364 days per conviction. In addition, because these sentences were the result of a resentencing, appellant was entitled to additional credits for the time he spent in custody between original sentencing and resentencing. Finally, Attorney General conceded and Court of Appeal agreed that sentence for being under the influence of methamphetamine must be stayed pursuant to Penal Code section 654 because appellant was separately punished for possessing the methamphetamine and the intent was the same. (I) MCR

Kessler, Daniel J. — People v. Rivera, D065375 — Three Strikes (Vargas) — Louis R. Hanoian, Judge — Opinion by O’Rourke, J., with Huffman, J., McDonald, J. Appellant argued, respondent conceded, and Court of Appeal agreed that appellant’s two prior strikes, robbery and assault with a firearm convictions, were based on the same act and committed at the same time, People v. Vargas (2014) 59 Cal.4th 635 governed, and one of the prior strikes must be stricken. (I) HCC

Bitar, Andrea S. — People v. Hiles, D067230 — Protective Order — Donal B. Donnelly, Judge — Opinion by McDonald, J., with O’Rourke, J., Aaron, J. Criminal protective order issued under Penal Code section 136.2 terminated because when the trial court sentenced appellant to prison it lost jurisdiction to continue and enforce the order. (A) MCR

Kessler, Daniel J. — People v. Pena, G049885 — Insufficient Evidence — David A. Hoffer, Judge — Opinion by O’Leary, P.J., with Fybel, J., Thompson, J. Court of Appeal reversed appellant’s street terrorism conviction and the jury’s finding on the street terrorism enhancement Court of Appeal found there was insufficient evidence to support the finding that Varrio Sureno Insane’s (VSI) “primary activities” established a “pattern of gang activity” and thus that VSI was a criminal street gang. Here, five crimes occurred on three occasions in a little more than a week. Court concluded this is more akin to “occasional” criminal activity than it is to “consistent and repeated” criminal activity. (I) MCR

Ting, Allison, H. — People v. Canter, G049998 — Penal Code Section 654 — Daniel Barrett McNerney, Judge — Opinion by Fybel, J., with Moore, J., Aronson, J. Attorney General conceded and Court of Appeal agreed that where convictions for receiving stolen property and unlawful possession of a firearm are based upon the same act of possession, the sentence for one offense must be stayed per Penal Code section 654. (I) APJ

Stafford, Victoria H. — People v. Jimenez, E061215 — Fines/Fees/Abstract of Judgment — Victor R. Stull, Judge — Opinion by Codrington, J., with Hollenhorst, J., McKinster, J. Case remanded for a new restitution hearing where current award to Victim Compensation Board is not supported by sufficient evidence (no copies of bills or sworn statements to support claims). In addition, further proceedings on attorney’s fees required where appellant sentenced to prison and court failed to make finding of unusual circumstances to rebut presumption of inability to pay based upon prison status. Finally, Court of Appeal ordered the court operations assessment fee reduced to $40 per count and the criminal conviction assessment fee reduced to $30 per count and correction of clerical errors in the abstract of judgment. (I) LAR

Ball, Lindsey M. — People v. Scott, E062468 — Driver’s License Suspension — John M. Tomberlin, Judge — Hollenhorst, J., with McKinster, J., Codrington, J. Trial court erred in ordering appellant’s driver’s license to be revoked for one year under Vehicle Code section 13550 where there was no evidence a motor vehicle was involved in commission of the crime. (A) LAR

Schwartzberg, Richard — People v. Roman, G051214 — Penal Code Section 1170.18 (Prop. 47)/Credits — Vickie Hix, Temporary Judge — Opinion by Ikola, J., with Fybel, J., Thompson, J. Under Proposition 47, appellant’s petty theft felony conviction was reduced to a misdemeanor. Appellant had two years of credit for the time he served in prison. Trial court erred when it sentenced him to one year in jail with 365 days credit and one year of parole. Court of Appeal held that appellant is entitled to apply excess custody credits against his parole period. (I) PMI

Farber, William — People v. Martinez, D063719 — Penal Code Section 1170.126 (Prop. 36) — Michael A. Smith, Judge — Opinion by Huffman, J., with O’Rourke, J., Aaron, J. Appellant filed a Proposition 36 petition which was denied because one of the current offenses was serious and violent. Court of Appeal affirmed, but the California Supreme Court granted review pending People v. Johnson (2015) 61 Cal.4th 674. After Johnson was issued, the case was remanded to the Court of Appeal for re-consideration. Court of Appeal reversed the order denying the petition to recall the sentence for the Penal Code section 273.5, subdivision (a). Trial court is ordered to evaluate the charges count-by-count, pursuant to Johnson. (I) LKH

Mishkin, Cindi B. — People v. Davis, E061036 — Penal Code Section 1170.126 (Prop. 36)/Penal Code Section 654/Presentence Credits — Charles Everett Stafford, Jr., Judge — Opinion by Miller, J., with McKinster, J., King, J. Following People v. Johnson (2015) 61 Cal.4th 674, Court of Appeal determined that although appellant is not eligible for Proposition 36 resentencing consideration for count one, possession of cocaine base for sale with a firearm enhancement, he is eligible for resentencing consideration on both count two, simple felon in possession of a firearm, and count three, receiving stolen property. Matter remanded for this consideration. In addition, trial court had ordered an unauthorized sentence in 1997 when it failed to impose or stay sentence for the firearm enhancement attached to the possession for sale count. Matter remanded for trial court to order a sentence on this enhancement. And, when it does so, the court must consider under Penal Code section 654 whether to stay the sentence imposed for the firearm enhancement or for the felon in possession of a firearm count, since the crime occurred when People v. Norrell (1996) 13 Cal.4th 1 remained good law. Finally, trial court erred when it limited presentence conduct credits under Penal Code section 2933.5 because appellant had not been convicted of any of the qualifying crimes. (S) CBM

Zehner, Michelle C. — People v. Tucker, E063751 — Crime Prevention Fee — Bert L. Swift, Judge — Opinion by Hollenhorst, J., with McKinster, J., King, J. Court of Appeal ordered correction of a clerical error in that the sentencing minute order includes a “crime prevention fee” under Penal Code section 1202.5, subdivision (a), for an offense, identify theft, which is not affected by that statute. (A) APJ

 

Back to Top

 

Recent Victories: 2017
Recent Victories: 2016
Recent Victories: 2015
Recent Victories: 2014
Recent Victories: 2013
Recent Victories: 2012
Recent Victories: 2011

For lists from previous years, email staff attorney Anita Jog.

 

*The material found on this Web site is for informational purposes only. It should not be considered to be legal advice and is not guaranteed to be complete or up to date. Use of this Web site is not intended to create, and receipt of it does not constitute, an attorney-client relationship between the user and Appellate Defenders, Inc. (ADI) or any of the firm's attorneys. Readers should not rely upon or act upon this information without seeking professional counsel. See full disclaimer.