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Name: People v. Avalos
Case #: F086715
Opinion Date: 06/04/2024
Attorney: Sylvia W. Beckham

The Court of Appeal held that Penal Code section 1172.75 applies to prior prison term enhancements (section 667.5, former subd. (b)) that have been imposed and stayed. The trial court erred in finding that the stay of appellant’s 667.5(b) enhancement made him ineligible for full resentencing under section 1172.75. The matter was remanded for the trial court to recall appellant’s sentence and resentence him in compliance with section 1172.75.

Name: In re N.V.
Case #: F087619
Opinion Date: 05/30/2024
Attorney: Shaylah Padgett-Weibel

In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal remanded for compliance with the Indian Child Welfare Act (ICWA), because the juvenile court and the Department of Human Services failed to comply with ICWA’s inquiry requirements.

Name: In re E.C., et al.
Case #: C097741
Opinion Date: 05/24/2024
Attorney: Jesse F. Rodriguez

Mother appealed from the juvenile court’s termination of her parental rights pursuant to Welfare and Institutions Code section 300, subdivisions (b)(1) and (g). The termination was based in part on the the “tender years presumption” that a finding of substance abuse is prima facie evidence of the inability of a parent or guardian to provide regular care resulting in a substantial risk of physical harm to a child of “tender years.”

While the appeal was pending, the California Supreme Court issued its opinion in In re N.R. (2023) 15 Cal.5th 520, which disapproved the tender years presumption. The Court of Appeal accordingly held that the evidence did not support the finding that the minor was at risk due to mother’s substance abuse. The error was not harmless, as the secondary basis for sustaining the section 300 petition was also unsupported by the evidence. Because the juvenile court’s application of an incorrect legal standard prevented it from resolving factual disputes, the matter was reversed and remanded for a new hearing under the correct standard.

Name: People v. Larned
Case #: C098071
Opinion Date: 05/15/2024
Attorney: Laura R. Vavakin

The Court of Appeal agreed with the parties that the trial court erred by imposing a one-year term for possession of burglary tools (Pen. Code § 466) because the maximum term for that offense is six months. Given the trial court’s clear intent to impose the maximum term for the offense, the Court of Appeal modified the judgment to reflect the six-month term. (See § 1260; People v. Jefferson (2019) 38 Cal.App.5th 399, 409 [“remand is not appropriate when it would be an idle act”].)

Name: In re S.A.
Case #: C099361
Opinion Date: 05/13/2024
Attorney: Elaine Forrester

In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal remanded for compliance with the Indian Child Welfare Act (ICWA), because the juvenile court and Department of Child, Family and Adult Services failed to comply with ICWA’s inquiry requirements.

Name: People v. Lopez
Case #: C097623
Opinion Date: 05/09/2024
Attorney: Scott Concklin

The Court of Appeal held that appellant’s murder conviction and robbery-murder special-circumstance finding must be reversed for lack of sufficient evidence. Appellant was not the actual killer and there was no evidence he had the intent to kill. The fact that appellant planned an armed robbery of two participants in a drug deal involving a large sum of money without taking steps to minimize the risk of violence was insufficient to support a finding that he acted with reckless indifference to human life. The court remanded the matter for resentencing.

Name: People v. H.P.
Case #: F085895
Opinion Date: 05/02/2024
Attorney: Benjamin Adam Owens

The Court of Appeal held that pursuant to Penal Code section 288.5, subdivision (c), appellant could not be dually convicted of both continuous sexual abuse and specific-act sex offenses involving the same victim during the same period. It agreed with People v. Torres (2002) 102 Cal.App.4th 1053 and People v. Alvarez (2002) Cal.App.4th 1170 that the appropriate remedy is to vacate the conviction(s) that resulted in the lesser aggregate penalty.

Name: In re W.E.
Case #: F087333
Opinion Date: 05/02/2024
Attorney: Gregory M. Chappel

In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal remanded for compliance with the Indian Child Welfare Act (ICWA), because the juvenile court and Department of Human Services failed to comply with ICWA’s inquiry requirements.

Name: People v. Valdez
Case #: F085097
Opinion Date: 04/26/2024
Attorney: J. M. Malik

The Court of Appeal held the admission of certain out-of-court statements violated appellant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. The parties on appeal disagreed only on whether the statements were testimonial. The court found that the primary purpose of the conversation between law enforcement and the declarants was to create an out-of-court substitute for trial testimony, and that the resulting statements were therefore testimonial. The error was not harmless beyond a reasonable doubt as to two of appellant’s counts. The court reversed the affected counts and remanded so as to give the prosecution the opportunity to retry appellant on those charges.

Name: In re S.J.
Case #: F086859
Opinion Date: 04/17/2024
Attorney: Jamie A. Moran

In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal remanded for compliance with the Indian Child Welfare Act (ICWA), because the juvenile court and Department of Human Services failed to comply with ICWA’s inquiry requirements.

Name: People v. Solorio
Case #: F085860
Opinion Date: 04/15/2024
Attorney: Karriem Baker

Appellant appealed following the denial of his petition for resentencing under Penal Code section 1172.6. The Court of Appeal agreed with the parties that the trial court erred in denying appellant’s petition at the prima facie stage of the statutory proceedings. Appellant’s conviction for voluntary manslaughter was not an absolute bar to eligibility as it did not require an admission that appellant acted with intent to kill. And although appellant admitted using a firearm in committing the offense (§ 12022.5, subd. (a)), he was not charged with nor admitted firing that weapon.

Name: People v. Garcia
Case #: F083387
Opinion Date: 04/09/2024
Attorney: Laura Schaefer

The Court of Appeal agreed with the parties that the trial court erred by instructing the jury that implied malice can support a conviction for attempted murder, and that the error was compounded by statements the prosecutor made during her comments in closing argument. The error was prejudicial and necessitated reversal of appellant’s convictions for attempted murder. Furthermore, Assembly Bill no. 333’s recent amendments to Penal Code section 186.22 require reversal of the gang enhancements. The matter was remanded to allow the prosecution the opportunity to retry appellant.

Name: In re A.C. et al
Case #: B326205
Opinion Date: 04/04/2024
Attorney: Keith Fox

The Court of Appeal agreed with appellant (mother) that substantial evidence did not support the juvenile court’s order requiring father’s visitations with the children to be monitored. Although neither parent objected to the order, the court did not reject appellant’s contention on forfeiture grounds or for lack of standing because the argument had merit and touched upon her fundamental interest in her children’s management and care.

Because the petition to declare the children dependents of the court only regarded mother’s parenting, whether father placed the children at risk of harm was not directly at issue in the juvenile court proceedings, and the juvenile court made no finding regarding that question. The record contained no evidence father’s behavior around the children was inappropriate or in any way created a risk of harm.

The order necessarily restricted visitation to times when a monitor is available. This would interfere with the family’s housing, as mother and father made plans for the family to live together. Furthermore, it would impede the duration and quantity of father’s interactions with the children and potentially create an environment during those interactions where father’s ability to bond with the children is unnecessarily constrained due to the presence of a formal supervisor.

The juvenile court’s order requiring father’s visits with the children to be monitored was vacated.

Name: People v. Wright
Case #: C096558
Opinion Date: 04/03/2024
Attorney: Scott Concklin

On appeal after his conviction for second degree murder, defendant argued he was denied a fair trial when the court failed to properly instruct the jury. The Court of Appeal agreed the jury was improperly instructed as to the wrongful conduct portion of CALCRIM No. 571 and that defendant was thereby prejudiced. There was not substantial evidence that defendant committed the sort of wrongful conduct that would preclude imperfect self-defense, i.e., that he was the initial aggressor as opposed to merely approaching the victim’s living area. By telling the jury that defendant’s approach of the victim was sufficiently wrongful to preclude self-defense, when the approach itself did not legally justify the victim’s use of force, the instruction as used by the prosecutor misstated the law and improperly removed defendant’s theory of self-defense from the jury’s consideration. The court reversed the judgment and remand for a new trial.

Name: In re A.F.
Case #: C099427
Opinion Date: 03/28/2024
Attorney: Neale B. Gold

In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal remanded for compliance with the Indian Child Welfare Act (ICWA), because the juvenile court and Human Services Agency failed to comply with ICWA’s inquiry requirements.

Name: People v. Ernst
Case #: C096758
Opinion Date: 03/19/2024
Attorney: Carl Fabian

In this resentencing appeal, the Court of Appeal agreed with appellant that the trial court should not have awarded conduct credits for time spent in CDCR after his initial sentencing. Determination of credits for behavior and worktime in prison is the responsibility of the CDCR. The court ordered the abstract of judgment amended.

Name: People v. J.K.
Case #: F084883
Opinion Date: 03/13/2024
Attorney: Victoria H. Stafford

The Court of Appeal agreed with the parties that pursuant to the California Supreme Court’s recent decision in In re Vaquera (2024) 15 Cal.5th 706, appellant’s 25-year-to-life terms on multiple counts must be reduced to 15-year-to-life terms. Vaquera held that a charging document’s allegation in the underlying substantive count that the victim was under 14 was insufficient to put defendant on notice that he might be sentenced under Penal Code section 667.61, subdivision (j)(2). (Vaquera, supra, at p. 724.) The prosecution must go further and expressly notify the defendant it intends to use that fact for purposes of One Strike sentencing. (Ibid.) According to Vaquera, failing to do so is a constitutional violation requiring appellate courts to strike the otherwise mandatory 25-year-to-life term(s) and replace them with 15-year-to-life term(s). (Vaquera, supra, at pp. 724, 726.) The Court of Appeal remanded the matter for resenetncing, and further ordered the trial court to pronounce judgment as to the individual fines and fees listed in the probation report and imposed on appellant.

Name: People v. Johnson
Case #: C097856
Opinion Date: 03/12/2024
Attorney: Brad J. Poore

The Court of Appeal agreed with appellant that changes made to Penal Code section 186.22 by Assembly Bill No. 333 require reversal of appellant’s gang participation conviction. The Court of Appeal remanded to the trial court to provide the prosecution with the opportunity to retry appellant on that count.

Name: In re J.L.
Case #: C098773
Opinion Date: 02/29/2024
Attorney: Brian C. Bitker

In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal remanded for compliance with the Indian Child Welfare Act (ICWA), because the juvenile court and Human Services Agency failed to comply with ICWA’s inquiry requirements.

Name: People v. Patterson
Case #: F086065
Opinion Date: 02/26/2024
Attorney: Kathy Moreno

Appellant filed a resentencing petition under Penal Code section 1172.6, and the trial court determined he was eligible for relief. The court redesignated his murder conviction as attempted robbery and first-degree residential burglary. The Court of Appeal concluded the murder conviction cannot be redesignated as a first-degree residential burglary because it was not the underlying felony  of appellant’s felony-murder conviction. The trial court’s order redesignating the murder conviction as a first-degree residential burglary conviction was reversed, and the matter remanded for the court to sentence appellant on the redesignated attempted robbery conviction.

Name: In re K.M.
Case #: F087236
Opinion Date: 02/23/2024
Attorney: Jack Love

In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal remanded for compliance with the Indian Child Welfare Act (ICWA), because the juvenile court and Department of Family Services failed to comply with ICWA’s inquiry requirements

Name: In re K.M.
Case #: F087236
Opinion Date: 02/23/2024
Attorney: Jack A. Love

In an appeal from the juvenile court’s orders terminating parental rights, the parties jointly stipulated to a conditional reversal based on the Indian Child Welfare Act (ICWA) because the juvenile court and Department of Family Services failed to comply with ICWA’s inquiry requirements. The Court of Appeal remanded for compliance with ICWA.

Name: In re M.W.
Case #: F086775
Opinion Date: 02/21/2024
Attorney: Liana Serobian

In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal remanded for compliance with the Indian Child Welfare Act (ICWA), because the juvenile court and Department of Human Services failed to comply with ICWA’s inquiry requirements.

Name: Conservatorship of C.M.
Case #: C097458
Opinion Date: 02/14/2024
Attorney: Arthur Bowie

C.M. appealled from an order issued after a bench trial appointing a conservator over her person and estate under the Lanterman-Petris-Short Act (LPS Act) pursuant to Welfare & Institutions Code section 5000 et seq. The Court of Appeal agreed with C.M. that the order should be reversed because she did not knowingly and intelligently waive her right to a jury trial.

Name: In re M.H.
Case #: B329102
Opinion Date: 02/13/2024
Attorney: Jamie Moran

In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal remanded for compliance with the Indian Child Welfare Act (ICWA), because the juvenile court and Department of Family Services failed to comply with ICWA’s inquiry requirements.

Name: People v. Dominguez
Case #: C096435
Opinion Date: 02/13/2024
Attorney: Theresa Osterman Stevenson

The Court of Appeal agreed with the parties that (1) appellant could not be convicted of both simple kidnapping and kidnapping for robbery based on the same conduct because the former is a necessarily included offense of the latter (People v. Lewis (2008) 43 Cal.4th 415, 518), (2) the trial court erred in failing to stay the sentences of some of appellant’s counts under Penal Code section 654, and (3) the trial court erred in failing to conduct presentence credits under section 2900.5. The court reversed the simple kidnapping charge and remanded the matter for full resentencing, including, but not limited to, the trial court’s exercise of discretion as to which counts to stay and the recalculation of custody credits.

Name: In re K.B. et al.
Case #: C099035
Opinion Date: 02/13/2024
Attorney: Beth A. Sears

In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal remanded for compliance with the Indian Child Welfare Act (ICWA), because the juvenile court and County Department of Child, Family and Adult Services failed to comply with ICWA’s inquiry requirements.

Name: People v. Lewis et al.
Case #: C093575
Opinion Date: 02/08/2024
Attorney: Byron Charles Lichstein

The Court of Appeal found the trial court prejudicially erred in admitting evidence of appellant’s gang affiliation and materials extracted from appellant’s cellphone, which included statements and videos containing gang-related rap lyrics, photos of appellant holding guns, and text messages regarding shooting guns.

Gang Membership

Due to the uniquely prejudicial nature of gang evidence, “the California Supreme Court has condemned the introduction of such evidence if it is only tangentially relevant to the charged offenses. [Citation.] In fact, in cases not involving gang enhancements, the Supreme Court has held evidence of gang membership should not be admitted if its probative value is minimal. [Citation.]” (Albarran, supra, 149 Cal.App.4th at p. 223.) Here, there was no evidence presented, or even any suggestion, that gangs were involved in these crimes, either directly or indirectly. Nor was there any evidence or argument that appellant’s criminal acts were motivated by gangs, and so there is no basis for their admission as evidence of motive or intent under Penal Code section 1101, subdivision (b). (Albarran, supra, 149 Cal.App.4th at p. 227.) Further, the exhibits and testimony demonstrating appellant’s connection to the gangs were highly inflammatory and confusing to the jury, as they were used to broadly imply that appellant was of bad character, a violent gangster who was predisposed to commit crimes.

Rap Lyrics

There is no indication the rap lyrics bore any relationship to appellant’s charges, state of mind, or any actual events. The lyrics served solely to give the jury the impression that appellant was a heartless gangster, in a case where there was no evidence appellant was in the gangs at issue, and no gang enhancements were charged.

Gun Evidence

A witness’s testimony that they never saw appellant be aggressive toward other people did not permit admission of the gun-related photos and messages as rebuttal evidence under section 1102. Section 1102 does not authorize the admission of specific instances of conduct. Additionally, there was no evidence presented that appellant’s gun possession was illegal, nor did the photos reflect that he threatened or shot anyone with a gun. Instead, the photos showed him posing like a stereotypical gangster, for gangs not at issue in the case, in a way certain to evoke emotional bias in the jury, without providing any actual evidence of aggressiveness beyond posturing. The gun-related messages were additionally inadmissible as evidence of intent or motive under section 1101(b), as they did not relate to any relevant individuals or facts in the case, nor did they shed light on appellant’s motive or intent. Again, they simply served as prejudicial character evidence, painting appellant as a gun-wielding gangster.

Prejudice

Without deciding whether prejudice should be assessed under Chapman v. California (1967) 386 U.S. 18 or People v. Watson (1956) 46 Cal.2d 818, the Court of Appeal concluded the errors were not harmless. The crucial question for the jury to decide in appellant’s case was whether he harbored the intent to kill the victim. The People did not present direct evidence of his intent or motive. As a result, his credibility was central to the case. The panoply of generic, gang-related evidence created a “real danger that the jury would improperly infer that [appellant] had a criminal disposition.” (People v. Cardenas (1982) 31 Cal.3d 897, 905.) Given that appellant admitted to shooting the victim twice and videos showed him laughing with friends and appearing remorseless in the hours that followed, followed, the Court of Appeal found the errors could have been harmless under Watson had the jury received proper limiting instructions. However, the instructions addressing the cellphone and gang-related evidence were ambiguous at best and greatly magnified the chance that the jury either used the motive and intent evidence as impermissible character evidence of aggressiveness, or alternatively considered the rebuttal evidence as evidence of intent and motive.

The judgment was reversed, and the case remanded to the trial court to permit the People to decide whether to retry appellant.

Name: People v. Lopez
Case #: F086154
Opinion Date: 02/07/2024
Attorney: Marcia Clark

Appellant filed several procedurally defective petitions for resentencing. The court provided appellant with information on how to cure these deficiencies but, when appellant complied with the court’s instructions and submitted a facially sufficient petition, the court determined the petition was not meaningfully changed from the prior petitions and denied it with prejudice. The Court of Appeal agreed with appellant that this was error. Further, the People conceded the record did not establish that appellant was ineligible for resentencing as a matter of law. The Court of Appeal accepted the People’s concession and remanded with directions to issue an order to show cause. (§ 1172.6, subd. (c).)

Name: People v. Vargas
Case #: F084820
Opinion Date: 02/07/2024
Attorney: Robert Navarro

Appellant petitioned for resentencing on his conviction for first degree murder under Penal Code section 1172.6. The trial court conducted an evidentiary hearing and denied the petition after finding beyond a reasonable doubt that appellant was the actual killer and, alternatively, was a major participant in the underlying felony who acted with reckless indifference to human life. The Court of Appeal agreed with appellant that substantial evidence does not support the court’s findings. The Court of Appeal reversed the denial of the petition and remanded for further proceedings pursuant to section 1172.6.