Skip to content

Striking PC § 12022.53 Firearm Enhancement and Imposing Lesser Uncharged Enhancement Pursuant to a Different Statute (PC § 12022.5)

Does the trial court have discretion to strike a firearm enhancement imposed pursuant to Penal Code section 12022.53 and instead impose a lesser uncharged firearm enhancement pursuant to a different statute (Pen. Code, § 12022.5)? Review on this issue has also been granted with briefing deferred in: Third District People v. Johnson (2022) 83 Cal.App.5th 1074, review granted 12/14/2022 (S277196/C094491)…

Case: People v. McDavid (Apr. 21, 2022) [nonpub. opn.], review granted 9/28/2022
Case Number: S275940/D078919
Updated: February 28, 2024
Read more

PC 1172.6–Does Sufficient Evidence Support Trial Court’s Finding Defendant Acted With Reckless Indifference to Human Life?

Does sufficient evidence support the trial court’s finding that defendant acted with reckless indifference to human life and therefore was ineligible for resentencing pursuant to Penal Code section 1172.6? [Editor's Note: Emanuel was convicted of first degree felony murder. His codefendant Whitley shot the victim (Cody) during a drug deal that turned into a robbery. After a section 1172.6(d)(3) hearing,…

Case: People v. Emanuel (May 12, 2023, H049147) [nonpub. opn.], review granted 9/13/2023
Case Number: S280551/H049147
Updated: February 28, 2024
Read more

Retroactivity of PC § 352.2 (Added by AB 2799), Which limits the Admissibility of Creative Expressions

People v. Bankston and People v. Hin, both automatic appeals, include an issue involving the retroactivity of the provision in Assembly Bill No. 2799 (Stats. 2022, ch. 973) limiting the admissibility of creative expressions (Evid. Code, § 352.2). Review on this issue has also been granted with briefing deferred in: Third District People v. Perez (C095466) [nonpub. opn.], review granted…

Case: People v. Bankston; People v. Hin
Case Number: S044739 (Bankston) / S141519 (Hin)
Updated: February 28, 2024
Read more

Equal Protection Clause Challenge to Penal Code Section 3051

Does Penal Code section 3051, subdivision (h), violate the Equal Protection Clause of the Fourteenth Amendment by excluding young adults sentenced to life without the possibility of parole from youth offender parole consideration, while young adults sentenced to parole-eligible terms are entitled to such consideration? On 10/4/2023, the California Supreme Court ordered supplemental briefing on the following issue: Whether the…

Case: People v. Hardin (2022) 84 Cal.App.5th 273, review granted 1/11/2023
Case Number: S277487/B315434
Updated: February 28, 2024
Read more

Prejudice Standard on Appeal for SB 567 Issue

What prejudice standard applies on appeal when determining whether a case should be remanded for resentencing in light of newly-enacted Senate Bill No. 567 (Stats. 2021, ch. 731)? Review on this issue has also been granted with briefing deferred in: First District People v. Whyte (A160769) [nonpub. opn.], review granted 1/11/2023 (S277463) People v. Ross (A163242) [nonpub. opn.], review granted…

Case: People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], review granted 8/10/2022
Case Number: S274942/C094174
Updated: February 28, 2024
Read more

Did Defendant Meaningfully Understood the Immigration Consequences of Her Plea

Does the totality of the circumstances establish that defendant meaningfully understood the immigration consequences of her plea? Review on this issue has also been granted with briefing deferred in: Second District People v. Chweya (B301780) [nonpub. opn.], review granted 1/31/2024 (S282832) People v. Taghilou (B324856) [nonpub. opn.], review granted 2/21/2024 (S283275) Fifth District People v. Ojeda (F084804) [nonpub. opn.], review…

Case: In re Hernandez (F076752) [nonpub. opn.], review granted 12/20/2023
Case Number: S282186/F076752
Updated: February 21, 2024
Read more

Retroactive Application of SB 567 to Stipulated Plea Agreements

Does Senate Bill No. 567 (Stats. 2021, ch. 731), which limits a trial court’s discretion to impose upper term sentences, apply retroactively to defendants sentenced pursuant to stipulated plea agreements? Review on this issue has also been granted with briefing deferred in: Second District People v. Sovalbarro (B317652) [nonpub. opn.], review granted 12/28/2022 (S277121) People v. Caro (B315233) [nonpub. opn.],…

Case: People v. Mitchell (2022) 83 Cal.App.5th 1051, review granted 12/14/2022
Case Number: S277314/A163476
Updated: February 21, 2024
Read more

Retroactive Application of AB 333 Where Defendant Appeals for Second Time After Limited Remand to Address Sentencing Issues

Is defendant entitled to retroactive application of Assembly Bill No. 333 (2021-2022 Reg. Sess.) where he appeals for a second time after his judgment was conditionally reversed and the Court of Appeal issued a limited remand to the trial court to address sentencing issues? The request for an order directing depublication of the opinion was denied. Review on this issue…

Case: People v. Lopez (2023) 93 Cal.App.5th 1110, review granted 11/15/2023
Case Number: S281488/E080032
Updated: February 21, 2024
Read more

PC 1172.75 Resentencing When Defendant’s Prior Prison Term Enhancements Were Imposed and Stayed

Does Senate Bill No. 483 (Stats. 2021, ch. 728) entitle a defendant to a full resentencing hearing under Penal Code section 1172.75 if the defendant’s prior prison term enhancements (Pen. Code, § 667.5, subd. (b)) were imposed and stayed, rather than imposed and executed? Review on this issue has also been granted with briefing deferred in: Fourth District People v.…

Case: People v. Rhodius (2023) 97 Cal.App.5th 38, review granted 2/21/2024
Case Number: S283169/E080064
Updated: February 21, 2024
Read more

Whether PC 1385(c) Creates a Rebuttable Presumption in Favor of Dismissing an Enhancement

Does the amendment to Penal Code section 1385, subdivision (c) that requires trial courts to “afford great weight” to enumerated mitigating circumstances (Stats. 2021, ch. 721) create a rebuttable presumption in favor of dismissing an enhancement unless the trial court finds dismissal would endanger public safety? Review on this issue has also been granted with briefing deferred in: First District…

Case: People v. Walker (2022) 86 Cal.App.5th 386, review granted 3/22/2023
Case Number: S278309/B319961
Updated: February 14, 2024
Read more

Setting Victim Restitution After Terminating Probation Pursuant to AB 1950

Did the trial court exceed its jurisdiction by setting the amount of victim restitution after terminating defendant's probation pursuant to Assembly Bill No. 1950 (Stats. 2020, ch. 328)? Review on this issue has also been granted with briefing deferred in: First District People v. Orozco (A164946) [nonpub. opn.], review granted 1/31/2024 (S283247) Sixth District People v. Bui (H049109) [nonpub. opn.],…

Case: People v. McCune (2022) 81 Cal.App.5th 648, review granted 10/26/2022
Case Number: S276303/A163579
Updated: January 31, 2024
Read more

Does AB 333 Unconstitutionally Amend the Requirements for a True Finding on a Prior Strike Conviction and a Prior Serious Felony Conviction?

(1) Does Assembly Bill No. 333 amend the requirements for a true finding on a prior strike conviction (Pen. Code, §§ 667, subds. (b)–(i) & 1170.12, subds. (a)–(d)) and a prior serious felony conviction (Pen. Code, § 667, subd. (a)), or is that determination made on “the date of that prior conviction”? (See Pen. Code, §§ 667, subd. (d)(1) &…

Case: People v. Fletcher (2023) 92 Cal.App.5th 1374, review granted 9/27/2023
Case Number: S281282/E077553
Updated: January 10, 2024
Read more

May the People Seek Review of a Superior Court’s Post-Preliminary Hearing, Prejudgment Order Reducing Felony “Wobbler” Offense to a Misdemeanor?

(1) Does Penal Code section 1238 authorize an appeal by the People from a superior court’s post-preliminary hearing, prejudgment order reducing a felony “wobbler” offense to a misdemeanor? (2) If not, may the People obtain review of the order by petition for extraordinary writ? On 12/5/2023, the People filed a motion to dismiss review. The Real Party in Interest (defendant…

Case: People v. Superior Court (Mitchell) (2023) 94 Cal.App.5th 595, review granted 11/21/2023
Case Number: S281950/B326653
Updated: January 10, 2024
Read more

Permissible Enhancements on Penal Code Section 1172.6(e) Resentencing

When a defendant obtains resentencing of a conviction under Penal Code section 1172.6, subdivision (e), is the trial court permitted to impose not only the target offense or underlying felony, but also corresponding enhancements? Review on this issue has also been granted with briefing deferred in: Third District People v. Trent (2023) 96 Cal.App.5th 33, review granted 12/20/2023 (S282644/C096306)

Case: People v. Arellano (2022) 86 Cal.App.5th 418, review granted 3/15/2023
Case Number: S277962/H049413
Updated: December 20, 2023
Read more

SB 1437–Impermissible Judicial Factfinding by Relying on the Preliminary Hearing Transcript to Deny Petition at the Prima Facie Stage?

Did the trial court engage in impermissible judicial factfinding by relying on the preliminary hearing transcript to deny defendant’s Penal Code section 1172.6 petition at the prima facie stage? (See People v. Lewis (2021) 11 Cal.5th 952.) Review on this issue has also been granted with briefing deferred in: Second District People v. Pickett (2023) 93 Cal.App.5th 982, review granted…

Case: People v. Patton (2023) 89 Cal.App.5th 649, review granted 6/28/2023
Case Number: S279670/B320352
Updated: December 13, 2023
Read more

Crimes PC 136.1 and Dissuading a Victim or Witness After a Charging Document Has Been Filed

Does Penal Code section 136.1, subdivision (b)(2), which prohibits dissuading or attempting to dissuade a victim or witness from causing a charging document "to be sought and prosecuted, and assisting in the prosecution thereof," encompass attempts to dissuade a victim or witness after a charging document has been filed? Review on this issue has also been granted with briefing deferred…

Case: People v. Reynoza (2022) 75 Cal.App.5th 181, review granted 5/11/2022
Case Number: S273797/H047594
Updated: October 25, 2023
Read more

PC Section 1172.6 Resentencing and Pre-2009 Provocative Act Murder Convictions

(1) Is defendant entitled to resentencing pursuant to Penal Code section 1172.6 on the ground that malice could be imputed to the defendant under the provocative act theory of murder for convictions occurring before 2009 (see Sen. Bill No. 775 (2021-2022 Reg. Sess.); People v. Concha (2009) 47 Cal.4th 653)? (2) Did the trial court err by not considering the…

Case: People v. Antonelli (2023) 93 Cal.App.5th 712, review granted 10/18/2023
Case Number: S281599/B321947
Updated: October 18, 2023
Read more

Does the SVPA Allow the People to Retain a Private Expert to Testify at Trial

Does the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) allow the People to retain a private expert to testify at trial as to whether a defendant is a sexually violent predator, or are the expert witnesses limited to those designated by the State Department of State Hospitals (Welf. & Inst. Code, §§ 6601 & 6603)? …

Case: Needham v. Superior Court (2022) 82 Cal.App.5th 114, review granted 10/26/2022
Case Number: S276395/G060670
Updated: September 20, 2023
Read more

AB 1950 Retroactive Application When Probation Revoked Before Effective Date

Does Assembly Bill No. 1950 (Stats. 2020, ch. 328) apply retroactively to a defendant, serving a suspended-execution sentence, whose probation was revoked before the law went into effect? Review on this issue has also been granted with briefing deferred in: First District Kuhnel v. Superior Court (2022) 75 Cal.App.5th 726, review granted 6/1/2022 (S274000/A163307) People v. Jackson (2023) 93 Cal.App.5th…

Case: People v. Faial (2022) 75 Cal.App.5th 738, review granted 5/18/2022
Case Number: S273840/A159026
Updated: September 13, 2023
Read more

Retroactivity of Assembly Bill No. 333’s Provision Permitting the Bifurcation of Gang Allegations at Trial

Briefing in People v. Burgos (2022) 77 Cal.App.5th 550, review granted 7/13/2022 (S274743) was initially deferred pending decision in People v. Tran (2022) 13 Cal.5th 1169 (S165998). On 10/12/2022, the court ordered briefing on the following issue: Does the provision of Penal Code section 1109 governing the bifurcation at trial of gang enhancements from the substantive offense or offenses apply retroactively to cases that…

Case: People v. Burgos (2022) 77 Cal.App.5th 550, review granted 7/13/2022
Case Number: S274743/H045212
Updated: August 30, 2023
Read more

Sufficient Evidence for Second Degree Murder Conviction Based on Failure to Protect

Does sufficient evidence support defendant’s conviction for second degree murder based on a failure to protect? (People v. Collins (Mar. 30, 2023, B322744) [nonpub. opn.], review granted 7/19/2023 (S279737).) [Editor’s Note: The Court of Appeal concluded there was sufficient evidence to permit a rational juror to find beyond a reasonable doubt that defendant (the infant victim’s mother) by inaction and…

Case: People v. Collins (Mar. 30, 2023, B322744) [nonpub. opn.], review granted 7/19/2023
Case Number: S279737/B322744
Updated: August 9, 2023
Read more

Detention Based on Avoiding Contact With Police in High Crime Neighborhood

Briefing in People v. Flores (2021) 60 Cal.App.5th 978, review granted 4/21/2021, was initially deferred pending decision in People v. Tacardon (2022) 14 Cal.5th 235. On 7/26/2023, the court ordered briefing on the following issue: Was defendant’s detention supported by reasonable suspicion that he was engaged in criminal activity? [Editor’s Note: The Court of Appeal affirmed the trial court’s denial…

Case: People v. Flores (2021) 60 Cal.App.5th 978, review granted 4/21/2021
Case Number: S267522/B305359
Updated: July 26, 2023
Read more

Establishing a “Pattern of Criminal Gang Activity”–Must the People Show Two or More Gang Members Worked in Concert During Each Predicate Offense

Can the People meet their burden of establishing a "pattern of criminal gang activity" under Penal Code section 186.22 as amended by Assembly Bill No. 333 (Stats. 2021, ch. 699) by presenting evidence of individual gang members committing separate predicate offenses, or must the People provide evidence of two or more gang members working in concert with each other during…

Case: People v. Clark (2022) 81 Cal.App.5th 133, review granted 10/19/2022
Case Number: S275746/E075532
Updated: July 12, 2023
Read more

What Constitutes Reversible Error When ICWA Inquiry Not Made

What constitutes reversible error when a child welfare agency fails to make the statutorily required inquiry concerning a child's potential Indian ancestry? A request for an order directing depublication of the Court of Appeal opinion was denied. Review on this issue has also been granted with briefing deferred in: In re G.A. (2022) 81 Cal.App.5th 355, review granted 10/12/2022 (S276056/C094857) In re…

Case: In re Dezi C. (2022) 79 Cal.App.5th 769, review granted 9/21/2022
Case Number: S275578/B317935
Updated: April 26, 2023
Read more

Youth Offender Parole–Constitutionality of Excluding Young Adults Sentenced Under One Strike law

Does Penal Code section 3051, subdivision (h), violate the equal protection clause of the Fourteenth Amendment by excluding young adults convicted and sentenced for serious sex crimes under the One Strike law (Pen. Code, § 667.61) from youth offender parole consideration, while young adults convicted of first degree murder are entitled to such consideration? Review on this issue has also…

Case: People v. Williams (2020) 47 Cal.App.5th 475, review granted 7/22/2020
Case Number: S262229/D074098
Updated: April 12, 2023
Read more

Whether the Trial Court’s Failure to Appoint Substitute Counsel Deprived Defendant of the Effective Assistance of Counsel

Did the trial court deprive defendant of effective assistance of counsel by failing to appoint substitute counsel to evaluate and potentially argue defendant’s pro. per. motion to dismiss after appointed counsel refused to consider the motion based on an asserted conflict in arguing her own ineffective assistance of counsel?  

Case: People v. Carter (2022) 86 Cal.App.5th 739, review granted 3/1/2023
Case Number: S278262/C094949
Updated: March 1, 2023
Read more

Level of Scrutiny for Determination of SVPA Equal Protection Violation

What level of scrutiny applies in determining whether the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.) violates equal protection because it does not require an advisement or personal waiver of a jury trial as afforded in other civil commitment statutes?

Case: People v. Cannon (2002) 85 Cal.App.5th  786, review granted 2/15/2023
Case Number: S277995/A163083
Updated: February 15, 2023
Read more

Duty to Inquire About Child’s Potential Indian Ancestry When Child Taken into Custody Under Protective Custody Warrant

Does the duty of a child welfare agency to inquire of extended family members and others about a child’s potential Indian ancestry apply to children who are taken into custody under a protective custody warrant? Review on this issue has also been granted with briefing deferred in: Fourth District In re Robert F. (2023) 90 Cal.App.5th 492, review granted 7/26/2023…

Case: In re Ja.O. (2023) 91 Cal.App.5th 672, review granted 7/26/2023
Case Number: S280572/E079651
Updated: February 14, 2023
Read more

IAC for Failing to Advise Potential SVPA Involuntary Commitment

(1) Does constitutionally effective assistance of counsel require defense counsel to advise a defendant that a guilty plea may subject the defendant to commitment proceedings under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et seq.; SVPA)? If so, did petitioner in this case suffer prejudice? (2) In the alternative, should this Court, in the exercise of…

Case: In re Tellez (2022) 84 Cal.App.5th 292, review granted 1/19/2022
Case Number: S277072/D079716
Updated: January 25, 2023
Read more

Additional Evidence in Appellate Court to Remedy the Failure to Comply with ICWA

May an appellate court take additional evidence to remedy the failure of the child welfare agency and the trial court to comply with the inquiry, investigation, and notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; Welf. & Inst. Code, § 224 et seq.), and if so, what procedures must be followed? (In re Kenneth…

Case: In re Kenneth D. (2022) 82 Cal.App.5th 1027, review granted 11/30/2022
Case Number: S276649/C096051
Updated: November 30, 2022
Read more

Constitutionality of Three Strikes Law–Requiring Prosecutors to Plead and Prove Prior Convictions

(1) Does the Three Strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) violate the separation of powers doctrine by requiring prosecutors to plead and prove prior qualifying felony convictions? (2) If there is a duty to plead prior qualifying convictions, is mandamus the proper remedy to compel a prosecutor to act?  

Case: The Association of Deputy District Attorneys v. Gascón (2022) 79 Cal.App.5th 503, review granted 8/31/2022
Case Number: S275478/B310845
Updated: August 31, 2022
Read more

Court Dismissal of Strict Liability Offense and State Law Preemption of Local Ordinance

(1) Can a trial court dismiss a strict liability offense pursuant to Penal Code section 1385 based in part on a defendant's lack of knowledge concerning the offense? (2) Does state law preempt a local ordinance when both prohibit the same conduct and the state law has a mens rea component that the local ordinance does not?

Case: Wheeler v. Appellate Division of Superior Court (2021) 72 Cal.App.5th 824, review granted 3/16/2022
Case Number: S272850/B310024
Updated: March 16, 2022
Read more

Evidence at Bail Hearing

What evidence may a trial court consider at a bail hearing when evaluating whether the facts are evident or the presumption great with respect to a qualifying charged offense, and whether there is a substantial likelihood the person?s release would result in great bodily harm to others? (Cal. Const., art. I, § 12, subd. (b).)

Case: In re Harris (2021) 71 Cal.App.5th 1085, review granted 3/9/2022
Case Number: S272632/A162891
Updated: March 9, 2022
Read more

Fines, Fees, Assessments and Considering Defendant’s Ability to Pay

(1) Must a court consider a defendant's ability to pay before imposing or executing fines, fees, and assessments? (2) If so, which party bears the burden of proof regarding the defendant's inability to pay? Review on this issue has also been granted with briefing deferred in: People v. Hicks (2019) 40 Cal.App.5th 320, review granted 11/26/2019 (S258946/B291307) People v. Belloso (2019) 42…

Case: People v. Kopp (2019) 38 Cal.App.5th 47, review granted 11/13/2019
Case Number: S257844/D072464
Updated: June 17, 2020
Read more