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Name: In re K.F.
Case #: C098527
Opinion Date: 01/25/2024
Attorney: Jack A. 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 County Human Services Agency failed to comply with ICWA’s inquiry requirements.

Name: People v. Daniel
Case #: F084961
Opinion Date: 01/22/2024
Attorney: David W. Beaudreau

The Court of Appeal held the trial court erred under Penal Code section 1170, subdivision (b), when it considered two aggravating sentencing factors that weren’t decided by the jury, stipulated to by appellant, or proven by certified records. Appellant did not forfeit his claim by failing to raise it before the trial court. The error was not harmless because there is a reasonable probability the court would have imposed a lesser sentence in the absence of the improperly considered factors. The Court of Appeal remanded the matter for resentencing in compliance with section 1170.

Name: In re A.K.
Case #: C097776
Opinion Date: 01/18/2024
Attorney: Mara L. Bernstein

The Court of Appeal agreed with appellant, C.B.’s, arguments that the Calaveras County Health and Human Services Agency did not comply with duties (1) to try to identify all of the minor’s alleged fathers (including C.B.) early in the dependency proceedings, (2) to give adequate notice to C.B. that his parental rights were at stake in the proceedings, or (3) to give C.B. notice of specific important hearings. Accordingly, the court reversed the order terminating parental rights and remanded to the juvenile court.

Name: People v. Fouse
Case #: F085131
Opinion Date: 01/18/2024
Attorney: Brad Kaiserman

A jury convicted appellant of two counts of attempted murder and three counts of robbery (the underlying target offenses). Following the enactment of Penal Code section 1172.6, appellant successfully petitioned for resentencing. The trial court then redesignated appellant’s attempted murder convictions as assaults with a firearm on a peace officer (lesser included offenses) and added a conviction for evading a peace officer. The Court of Appeal agreed with appellant that the trial court erred, as the resentencing procedure provided in subdivision (d)(3) of section 1172.6 limited resentencing to the robbery target offenses of which appellant was charged and convicted.

Name: People v. Reyes
Case #: F084152
Opinion Date: 01/12/2024
Attorney: Scott Concklin

Appellant was interrogated post-Miranda warnings and remained mostly silent when confronted by law enforcement with the victim’s allegations. During the trial, an audio recording of the interrogation was played for the jury; the jury was instructed with CALCRIM No. 357 (Adoptive Admissions); and the prosecutor told the jury, during both her closing and rebuttal arguments, appellant had the opportunity to deny the allegations made against him, but “[h]e chose not to say anything at all.” The Court of Appeal agreed with appellant that both the trial court and the prosecutor erred in violation of Doyle v. Ohio (1976) 426 U.S. 610, 617–618 and Griffin v. California (1965) 380 U.S. 609, 615, which held that it was a violation of due process and fundamental fairness to use a defendant’s postarrest silence following Miranda warnings to impeach a defendant’s trial testimony. The court further found appellant was prejudiced by the trial court instructing the jury with CALCRIM No. 357, along with the prosecutor’s subsequent references to his silence during her closing and rebuttal arguments. Thus, the court reversed the judgment.

Name: People v. Magana
Case #: F085087
Opinion Date: 01/08/2024
Attorney: Michelle T. LiVecchi-Raufi

The Court of Appeal reversed the denial of appellant’s Penal Code section 1172.6 petition to vacate his attempted murder conviction because substantial evidence did not support the trial court’s ruling.

The trial court focused on whether appellant had acted with reckless indifference to human life and was a major participant in the underlying felony. This was improper because appellant was not convicted of felony murder and California does not recognize the crime of “attempted felony murder.” The proper question was whether appellant held a specific intent to kill and committed a direct but ineffectual act toward accomplishing the intended killing. More specifically, as an aider and abettor, appellant must have aided and encouraged an attempted murder knowing of the direct perpetrator’s intent to kill and intending to facilitate the killing.

No evidence demonstrated that appellant intended to kill. An older gang member planned the robbery and fired a shotgun at the victim. Appellant did not plan the crime, he was unarmed, he did not provide the shotgun to the shooter, he did not interact with the victim, and nothing shows appellant intended for the shooter to fire at the victim. Neither appellant’s presence at the crime scene nor his knowledge that the shooter was armed established appellant’s own intent to kill; malice may not be imputed to appellant based solely on his participation in the crime. The fact that the shooting occurred during a four-day crime spree did not in and of itself suggest he held an intent to kill.

The Court of Appeal granted appellant’s petition and vacated his conviction for attempted murder. It further held that because the judgment would no longer be final, he would be entitled to the retroactive benefits of both Proposition 57 and Senate Bill No. 1391.

Name: In re J.S.
Case #: F086780
Opinion Date: 01/05/2024
Attorney: Amy Tobin

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. Williams
Case #: C097116
Opinion Date: 01/04/2024
Attorney: Robert L. Angres

On appeal, appellant argued there was insufficient evidence to support his convictions for vehicle theft and receipt of a stolen vehicle. Appellant was charged with vehicle theft and tried solely on the theory that he took the car without the owner’s consent. Neither party disputed appellant initially had consent from the rental car company to take the car, nor did either party dispute that appellant exceeded the scope of that consent when he failed to return the car as he had contracted to do. But exceeding the scope of the owner’s consent does not change the fact that the owner originally did consent to the taking. Because there is no evidence appellant took the car without the rental car company’s consent, there is insufficient evidence to support his conviction for vehicle theft. Because there was insufficient evidence the car was stolen, there necessarily was insufficient evidence to sustain appellant’s conviction for receiving stolen property.  The court reversed both of the challenged counts of conviction accordingly.

Name: People v. Lewis
Case #: C097765
Opinion Date: 01/02/2024
Attorney: William G. Holzer

The Court of Appeal held the trial court erred in denying appellant’s Penal Code section 1172.6 petition at the prima facie stage. In denying the petition, the trial court relied on the opinion from appellant’s direct appeal, which held there was sufficient evidence to support the jury’s true finding on the robbery-murder special circumstance. However, although appellant’s trial happened after People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 were decided, the instructions on the special circumstance did not include the Banks/Clark factors. Accordingly, neither the jury’s true finding, nor the Court of Appeal’s prior conclusion that there was sufficient evidence to support that finding, precluded appellant’s eligibility for relief as a matter of law. The Court of Appeal reversed the trial court’s order and remanded the matter for further proceedings under section 1172.6, subdivision (d).

 

Name: People v. J.W.
Case #: C096898
Opinion Date: 12/22/2023
Attorney: Michael Sampson

The Court of Appeal agreed with appellant that (1) the trial court prejudicially erred in instructing the jury that lack of consent is not an element of forcible rape, and (2) the trial court prejudicially erred in failing to instruct the jury on all the elements of rape by threat of future retaliation. The court reversed the convictions, vacated the sentence, and remand the matter for possible retrial of the reversed counts.

Name: In re C.S.
Case #: B329602
Opinion Date: 12/13/2023
Attorney: Jack A. 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: People v. Plascencia
Case #: C097265
Opinion Date: 12/13/2023
Attorney: Kaiya R Pirolo

The Court of Appeal agreed with the parties that appellant’s conviction of discharging a firearm in a grossly negligent manner must be reversed as it is a lesser included offense of discharging a firearm at an occupied motor vehicle, which he was also convicted of. The court reversed the conviction for the lesser included offense and vacated the sentence on that count.

Name: In re D.T.
Case #: F084105
Opinion Date: 12/13/2023
Attorney: Arthur L. Bowie

Appellant entered a plea agreement in 1999 placing him on “probation for life” and committing him under Welfare and Institutions Code section 6500. Appellant further agreed not to object to his annual section 6500 commitment reviews and to waive his presence at all future annual ex parte review hearings. In 2005, the court modified these latter two terms to only require annual review hearings “at [the] Court’s discretion or upon request of counsel.” Appellant later appealed from a 2022 placement order, arguing the lack of a probation report at the review hearing violated the plea agreement.

The Court of Appeal found that if a future allegation is made that appellant violated a rule or regulation that could impact his continuation in a section 6500 facility, yet he either believes or is told he cannot challenge the allegation under the plea agreement, the lack of input from a probation department on the severity of the violation could result in a violation of appellant’s right to due process. It accordingly found appellant did not waive or lose the ability to require the participation of a probation department in his case.

As it was undecided whether the original sentencing county or appellant’s current county of residence should be responsible for appellant’s probation, the court remanded the matter so that a transfer of probation jurisdiction can be pursued under Penal Code section 1203.9. The court further suggested the parties reach an agreement addressing the frequency of reports required by the appropriate probation department.

Name: In re L.B. et al.
Case #: F086109
Opinion Date: 12/13/2023
Attorney: Jamie A. Moran

Minor appellant and her siblings appealed from the juvenile court’s order for reunification services to mother and father.

Although the appeal was likely rendered moot by a subsequent order returning three of the children to mother’s custody, the Court of Appeal chose to reach the merits of appellants’ claim, as the issues raised are of continuing public importance because they challenge the juvenile court’s erroneous application of Welfare and Institutions Code section 361.5, subdivision (b)(13), which risks children being deprived of permanency and stability in a timely manner.

The Court of Appeal found that the juvenile court erroneously relied on the parents’ current participation in treatment in concluding it was unable to apply section 361.5(b)(13). The order for reunification services was reversed and the matter remanded for a new disposition hearing consistent with section 361.5.

Name: People v. Ewing
Case #: C097547
Opinion Date: 12/13/2023
Attorney: James Bisnow

The Court of Appeal agreed with the parties that the trial court erred in engaging in fact-finding and denying appellant’s Penal Code section 1172.6 petition at the prima facie stage. The trial court relied on the opinion in appellant’s direct appeal, which did not address the question of whether appellant was a major participant who acted with reckless disregard for human life at all, much less resolve it as a matter of law. The Court of Appeal reversed the order denying appellant’s petition and remanded the matter with directions to issue an order to show cause.

Name: In re N.B.
Case #: C098540
Opinion Date: 12/12/2023
Attorney: S. Lynne  Klein

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 and notice requirements.

Name: In re N.B.
Case #: C098540
Opinion Date: 12/12/2023
Attorney: S. Lynne Klein

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. Cross
Case #: C095957
Opinion Date: 12/11/2023
Attorney: William J. Capriola

The Court of Appeal agreed with the parties that the trial court erred in imposing two five-year prior serious felony enhancements fpr appellant’s conviction for assault with force likely to produce great bodily injury conviction, as that is not a serious felony. The court struck the enhancements, vacated the sentence, and remanded the matter for a full resentencing.

Name: People v. Wyatt
Case #: C098249
Opinion Date: 12/05/2023
Attorney: John Schuck

The Court of Appeal held appellant was entitled to a full resentencing hearing when the trial court struck his one-year prior prison term enhancements pursuant to Senate Bill No. 483. Because the record did not establish that CDCR failed to inform the trial court of appellant’s eligibly for relief under SB 483, the Court of Appeal presumed CDCR performed its duty and that the trial court had jurisdiction to strike the priors.

Name: In re A.M.
Case #: C097550
Opinion Date: 12/04/2023
Attorney: Elizabeth C. Alexander

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 initial inquiry requirements.

Name: People v. Foley
Case #: C097140
Opinion Date: 11/29/2023
Attorney: James Bisnow

The Court of Appeal reversed the denial of defendant’s Penal Code section 1172.6 petition because the court violated defendant’s constitutional right to conflict-free representation when it appointed the same attorney to represent defendant and his codefendant at a consolidated evidentiary hearing after both had filed separate petitions for resentencing. The Court of Appeal remanded for a new section 1172.6 evidentiary hearing.

Name: People v. Frye
Case #: C096975
Opinion Date: 11/28/2023
Attorney: Erin J. Radekin

The Court of Appeal declined to dismiss the appeal as untimely, as appellant complied with the prison mailbox rule by delivering the notice of appeal to a custodial official prior to the 60-day deadline. In order to forestall a claim of ineffective assistance of counsel, the court then exercised its discretion to decide the merits of appellant’s forfeited claim that the trial court erred when it declined to hold a full resentencing hearing when striking appellant’s Penal Code section 667.5(b) enhancements pursuant to section 1172.75. The Court of Appeal accepted the People’s concession of this error and remanded for full resentencing.

Name: In re N.B.
Case #: C098565
Opinion Date: 11/22/2023
Attorney: Roni Keller

In an appeal from termination of parental rights, Father contended the juvenile court and the Sacramento County Department of Child, Family and Adult Services failed to comply with the inquiry and notice requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) because the department did not inquire of the minor’s maternal or paternal relatives. Although the record did not affirmatively show error by the juvenile court, or even error by the department, it also did not detail the manner in which the department complied with its duty of inquiry under the ICWA. The Court of Appeal would generally presume the department performed its duties; however, here the department conceded the ICWA error without explanation. Consequently, the court conditionally affirmed and remanded for limited ICWA proceedings.

Name: In re E.H.
Case #: F085700
Opinion Date: 11/21/2023
Attorney: Laura Pedicini

In an appeal from the juvenile court’s orders at a disposition hearing, 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. Hammon
Case #: C097757
Opinion Date: 11/20/2023
Attorney: Theresa Osterman Stevenson

The Court of Appeal reversed the denial of appellant’s Penal Code section 290.5 petition to terminate sex offender registration. There was no evidence that “terminating the registration requirement considerably raised the threat to society because [defendant] was currently likely to reoffend.” (People v. Thai (2023) 90 Cal.App.5th 427, 433.) Given the denial was reversed for insufficient evidence, the People were not entitled to a second evidentiary hearing.

Name: People v. Garcia
Case #: 085213
Opinion Date: 11/20/2023
Attorney: Kaiya R. Pirolo

The Court of Appeal agreed with the parties that the trial court erred in denying appellant’s Penal Code section 1172.6 petition at the prima facie stage. In denying the petition, the court found the information, which alleged appellant committed murder with premeditation and deliberation by means of intentional discharge of a firearm, did not allow for the natural and probable consequences doctrine. However, the manner in which the murder was charged did not limit the prosecution to any particular theory. Rather, it generically charged appellant with murder. (See People v. Flores (2022) 76 Cal.App.5th 974, 987 [“the first amended information charged petitioner generically with murder, and did not specify or exclude any particular theory of murder”]; see also People v. Rivera (2021) 62 Cal.App.5th 217, 233 [“The generic manner in which murder was charged here did not limit the People to prosecuting Rivera on any particular theories”].) The Court of Appeal reversed and remanded the matter with directions for the trial court to issue an order to show cause and, to the extent necessary, hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).

Name: People v. Martinez
Case #: F085295
Opinion Date: 11/17/2023
Attorney: Sylvia W. Beckham

The Court of Appeal agreed with the parties that the resentencing court erred in failing to stay one of appellant’s offenses pursuant to Penal Code section 654, increasing appellant’s restitution and parole revocation fines from the amount originally imposed, and imposing excess assessment fines.

A jury convicted appellant of burglary, assault with a deadly weapon, attempted murder, and participation in a criminal street gang on the theory he entered the victim’s home in order to commit assault or attempted murder. The attempted murder and gang convictions were reversed on appeal. At resentencing, the trial court imposed consecutive unstayed terms for the burglary and assault convictions. “When a defendant is convicted of burglary and the intended felony underlying the burglary, section 654 prohibits punishment for both crimes.” (People v. Islas (2012) 210 Cal.App.4th 116, 130; accord, People v. Hester (2000) 22 Cal.4th 290, 295; People v. Radil (1977) 76 Cal.App.3d 702, 713.) The court also imposed a $8,000 restitution fine and a stayed $8,000 parole revocation fine, which were more than the $4,000 fines imposed when appellant was originally sentenced. A trial court’s increase of these fines on remand for resentencing following a partially successful appeal violates California’s constitutional prohibition against double jeopardy. (See People v. Hanson (2000) 23 Cal.4th 355, 363.) Finally, the resentencing court imposed a $160 court operations assessment (Pen. Code, § 1465.8) and $120 criminal conviction assessment (Gov. Code, § 70373); the same amounts it imposed at the original sentencing hearing though two of appellant’s convictions had been reversed. In light of the reversal, the fines should have been reduced to $80 and $60 respectively. The Court of Appeal remanded the matter for the trial court to choose which of appellant’s offenses to stay under section 654, reduce the restitution and parole revocation fines to an amount equal to or less than the amount imposed at the original sentencing hearing, and correct the assessment fines.

 

Name: People v. Gutierrez
Case #: C097551
Opinion Date: 11/17/2023
Attorney: Carlo Andreani

Appellant was resentenced pursuant to Penal Code section 1172.75. The trial court struck appellant’s prior prison term enhancements and made no further modifications to the sentence. On appeal, appellant argued the court erred by failing to strike his prior sexual offense conviction enhancement under section 1385, subdivision (c), as the court did not consider and afford great weight to the fact that the enhancement was over five years old and resulted in a sentence of over 20 years. Because the record was ambiguous as to whether the trial court made an informed sentencing decision not to strike the five-year prior conviction enhancement, the Court of Appeal vacated the sentence and remanded for resentencing.

Name: People v. Burnette
Case #: C095825
Opinion Date: 11/17/2023
Attorney: Karriem J. Baker

The Court of Appeal found that appellant’s trial counsel performed ineffectively by not seeking a ruling on mental health diversion based on appellant’s alcoholism, and then failing to file a later petition focused on that mental disorder after stating an intent to do so. Although counsel’s initial failure to seek a ruling was potentially tactical given counsel’s stated intent to file a later petition, there is no tactical reason for failing to file that second petition during the four months between the mental health diversion hearing and appellant’s plea. There is a reasonable probability the trial court would have found appellant suitable for diversion had counsel sought a ruling based on his alcoholism.

The Court of Appeal further rejected the Attorney General’s argument that appellant provided insufficient notice to the prosecution that he was seeking mental health diversion in part based on his alcoholism. First, his petition included an expert’s opinion that his alcoholism was a factor in his conduct and stated he required assessment and treatment. Second, a second expert specifically diagnosed defendant with alcoholism the day after the incident. Finally, the prosecution questioned both experts about appellant’s alcoholism during the hearing.

The judgment was conditionally reversed to give appellant the option to withdraw his plea and seek mental health diversion for alcoholism.

Name: People v. Martin
Case #: F084530
Opinion Date: 11/15/2023
Attorney: Joseph C. Shipp

Appellant argued the prosecutor’s use of certain peremptory challenges during jury voir dire violated Code of Civil Procedure section 231.7, which was enacted by Assembly Bill 3070 on January 1, 2022, several months before the April 2022 trial in this matter. (§ 231.7, subd. (i).) Section 231.7, subdivision (j), mandates that any error in overruling an objection to a peremptory challenge under section 231.7 must be deemed prejudicial and requires retrial. The Court of Appeal agreed that the peremptory challenge against Prospective Juror No. 15 was predicated on presumptively invalid reasons under section 231.7, subdivisions (e) and (g)(1)(B), and the presumption was not rebutted. As a result, the trial court should have sustained the objection to the peremptory challenge of Prospective Juror No. 15. Based on section 231.7, the court reversed appellant’s conviction and remanded for a new trial.