Panel Victories

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.

The Court of Appeal agreed with the parties that the trial court’s order that appellant pay direct victim restitution must be stricken. There was insufficient evidence that the Employment Development Department (EDD) was a direct victim of appellant’s offense of making a false statement to obtain unemployment benefits, as EDD disqualified appellant’s claim and he did not receive any money from EDD for it. Furthermore, appellant was not convicted of conspiracy with either of his co-defendants who received payments from EDD. Appellant could therefore not be held jointly and severally liable for victim restitution compensating EDD for losses incurred as a result of his co-defendants’ claim. The Court of Appeal found remand was inappropriate because investigative or other costs associated with EDD’s disqualification of appellant’s EDD claim do not qualify for restitution for a direct economic loss under Penal Code section 1202.4.

The Court of Appeal agreed with the parties that (1) one of appellant’s two convictions for false imprisonment must be reversed because the victim was continuously restrained, and (2) any unpaid portion of the 10 percent surcharge on appellant’s $300 restitution fine must be vacated pursuant to Assembly Bill No. 177 (2021-2022 Reg. Sess.), which eliminated certain fees in criminal cases and rendered the unpaid balance of any such fees unenforceable and uncollectible.

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.

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.

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.

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.

The Court of Appeal found the trial court erred in imposing the upper term after finding true aggravating circumstances that were not brought before the jury. The sentence was unauthorized under Penal Code section 1170, subsection (b) as amended by Senate Bill No. 567 (2021–2022 Reg. Sess.), which took effect prior to appellant’s sentencing. Because the sentence was unauthorized, appellant did not forfeit the issue by failing to object at the sentencing hearing. The Court of Appeal remanded for resentencing and further ordered the trial court to correct an error in the abstract of judgment.

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 Deptartment of Human Services failed to comply with ICWA’s inquiry and notice requirements.

Appellant was sentenced to a term of 25 years to life, an unauthorized enhancement term of 15 years to life, and multiple concurrent terms. Following appellant’s initial appeal, the trial court was directed to conduct a transfer hearing pursuant to Proposition 57, and, should the case be transferred back to the criminal court, modify the 15 years to life term. The court acted accordingly and additionally modified two of the concurrent terms to be consecutive. Appellant appealed. While the appeal was pending, the Legislature enacted Assembly Bill No. 2361 (Reg. Sess. 2021-2022), which changed the finding a juvenile court must make before ordering a transfer to criminal court. The Court of Appeal agreed with the parties that AB 2361 applied retroactively to appellant and that the trial court exceeded the scope of the remittitur when it modified appellant’s sentence beyond what was directed. The matter was conditionally reversed and remanded to the juvenile court to conduct an amenability hearing pursuant to current law. Should the matter be transferred to a court of criminal jurisdiction, the criminal court was ordered to modify the consecutive terms to be concurrent as originally imposed.

Almost ten years after defendant was originally sentenced, defendant requested the trial court strike his four stayed prior prison term enhancements (Penal Code section 667.5, subdivision (b)) under section 1172.75 and requested a full resentencing. The trial court struck the previously stayed prior prison term enhancements but found that it was not permitted to conduct a full resentencing hearing under section 1172.75. The Court of Appeal found the trial court erred, and remanded to the trial court for a full resentencing hearing, which is required by section 1172.75.

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.

In an appeal from the juvenile court’s order 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 and notice requirements. Because the record did not disclose in any level of detail what efforts were made to identify and locate paternal relatives and no ICWA information was obtained regarding father’s paternal side, the Court of Appeal further ordered the agency to provide to the juvenile court, at a minimum, efforts to identify and locate paternal relatives. In the event the agency has already done so, that information should be provided to the court so it may make an informed decision in determining the adequacy of the agency’s efforts.

Applying People v. Renteria (2022) 13 Cal.5th 951, Court of Appeal agreed with appellant that insufficient evidence supported his gang enhancements where he was the lone actor in the underlying crimes. The court remanded for a full resentencing where appellant can raise the application of Senate Bill No. 567 and Assembly Bill No. 518.

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 after making factual findings from the reporter’s transcript of the trial record and the factual statement from the opinion in the direct appeal. The error was prejudicial because the jury instructions and the prosecutor’s closing argument show the jury was advised it could convict appellant as an aider and abettor who committed an assault under the natural and probable consequences doctrine. The Court of Appeal remanded the matter for issuance of an order to show cause and an evidentiary hearing.

The Court of Appeal remanded for resentencing based on the trial court’s improper dual use of facts to impose the aggravated term. Defendant was sentenced for his first degree robbery conviction, and an allegation that he had personally used a firearm. (§ 12022.53, subd. (b).) The court relied upon the threat of great bodily harm (rule 4.421(a)(1)) and defendant’s danger to society (rule 4.421(b)(1)) to aggravate his sentence. However, only defendant’s gun use constituted substantial evidence of these aggravating factors. Therefore, based on the prohibition on the dual use of facts, defendant’s use of a gun could not be used to aggravate defendant’s base term without striking the firearm enhancement. (§ 1170, subd. (b)(5); rule 4.420(g).)

In an appeal from the juvenile court’s order to free appellant’s biological child from his custody and control, the Court of Appeal remanded for compliance with the Indian Child Welfare Act (ICWA), because the juvenile court failed to comply with ICWA’s inquiry and notice requirements.

In light of People v. Strong (2022) 13 Cal.5th 698, the Court of Appeal reversed the trial court’s denial of appellant’s Penal Code section 1172.6 petition for resentencing, holding that a pre-Banks and Clark special circumstance finding did not preclude appellant from making a prima facie case for relief.

Appellant’s case was remanded for resentencing. Prior to resentencing, Penal Code section 1385 was amended by Senate Bill No. 81 (2021-2022 Reg. Sess.), reflecting a legislative preference for the dismissal of enhancements if certain “mitigating circumstances” are shown to exist. (§ 1385, subd. (c)(2).) One such circumstance was present in appellant’s case. Nonetheless, the trial court reimposed appellant’s original sentence. The Court of Appeal held that Senate Bill 81 circumscribes the discretion of sentencing courts. While trial courts are presumed to know and follow the relevant law, that presumption was rebutted in this case because the record was “at the very least ambiguous” in terms of the trial court’s “awareness of its discretionary authority.” (People v. Ochoa (2020) 53 Cal.App.5th 841, 853, 852). The record did not clearly indicate the result would have been the same had full consideration been given to amended section 1385. Accordingly, the Court of Appeal vacated appellant’s sentence and remanded the matter for a new sentencing hearing.

The Court of Appeal reversed the trial court’s order finding appellant qualified as a sexually predator (SVP) and committing him to the State Department of State Hospitals, holding that the prosecution had no right under the Sexually Violent Predators Act to use a privately retained expert who testified at appellant’s trial.

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 and notice requirements. The Court of Appeal remanded for compliance with ICWA.

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.

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 and notice requirements.

The Court of Appeal held that the trial court abused its discretion in denying appellant’s Proposition 64 petition on the basis that he posed an unreasonable risk of danger to public safety. Appellant’s prior violent felony convictions were more than 33 years old and were all committed on the same day, in a single episode of criminal conduct. His current marijuana-related felonies may be redesignated as misdemeanors, and his remaining offense is neither a super strike offense nor a violent felony. Except for these offenses, he had not been convicted of criminal conduct since 1990 and had a minimal disciplinary record while in custody for his current convictions. More critically, granting the petition would not entitle him to be released or alter his time in prison. He would remain in custody until he is near 80, when he first becomes eligible for parole, and the Board of Parole Hearings would determine his dangerousness at that time. The Court of Appeal reversed and remanded the matter for the trial court to conduct a new hearing on appellant’s petition.

The Court of Appeal agreed the trial court violated Penal Code section 654 when it imposed and did not stay sentences on both a vandalism count based on breaking the front door window and on the trespass count based on appellant’s entering the house. Appellant was wrongfully punished twice for a course of conduct with a single intent and objective of entering the house without consent. The court vacated appellant’s sentence and remanded for a full resentencing hearing.

The Court of Appeal agreed with the parties that the appellant’s gang enhancements must be reversed pursuant to People v. Renteria (2022) 13 Cal.5th 951. The evidence was insufficient to show that the appellant had knowledge of the criminal activities of the members of his gang, and no evidence was presented to suggest he specifically intended to promote criminal activities by the gang’s members. The matter was remanded for resentencing without permission for the prosecution to retry the gang allegations.

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.

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 Community Services Agency failed to comply with ICWA’s inquiry and notice requirements.

Senate Bill No. 567 (2021-2022 Reg. Sess.), which generally limits the trial court’s ability to impose an upper term sentence unless aggravating circumstances have been stipulated to by the defendant or found true beyond a reasonable doubt by the trier of fact, took effect in the interim between appellant’s original sentencing and his resentencing following appeal. The Court of Appeal held the resentencing court abused its discretion in reimposing the upper term.

Because all parties and the resentencing court understood that SB 567’s provisions applied and the court expressly considered appellant’s request to impose the middle or lower term rather than the upper term, appellant did not forfeit his objection to the reimposition of the upper term, nor did he forfeit any objection that the court failed to impose a low term sentence.

In reimposing the upper term, the court failed to apply the correct legal standards. First, it stated that because the aggravating factors did not involve Apprendi v. New Jersey (2000) 530 U.S. 466, they did not have to be proven to the trier of fact beyond a reasonable doubt or stipulated to by defendant. However, regardless of Apprendi, the court’s reasoning is contrary to the requirements of SB 567. Second, in light of evidence that appellant suffered from past psychological trauma that may have contributed to the offense, the court did not find that circumstances in aggravation outweighed circumstances in mitigation such that the presumptive low term would be contrary to the interests of justice. Finally, the resentencing court unnecessarily deferred to the original sentencing court’s choices rather than conducting a full resentencing based on the new statutory requirements and the information then before the resentencing court.

The errors were not harmless. First, the aggravating circumstances set forth in the probation report were not found to have been substantiated by adequate proof or stipulation. Second, although the jury did find beyond a reasonable doubt that appellant inflicted great bodily injury and personally used a firearm during the offense, the court could not rely on these factors to impose the upper term on the same count where it also imposed great bodily injury and firearm enhancements. Finally, the record did not establish that the court would have chosen the upper term if it could rely only on appellant’s prior conviction, as the court alluded to multiple aggravating factors but did not state which factor, or combination of factors, compelled it to select the upper term.

The Court of Appeal remanded the matter for resentencing and further ordered the trial court to consider all applicable legislation, including, but not limited to, Senate Bill No. 81 and Assembly Bill No. 518.

The Court of Appeal agreed with the parties that the trial court abused its discretion in declining to apply any retroactive ameliorative legislation that had passed during appellant’s first appeal aside from what was specified in the remittitur. The matter was remanded for a new sentencing hearing.