The Court of Appeal vacated a victim restitution award (Pen. Code, § 1202,4, subd. (f)) to the victim’s sister due to the absence of supporting…
The Court of Appeal vacated a victim restitution award (Pen. Code, § 1202,4, subd. (f)) to the victim’s sister due to the absence of supporting evidence.
The Court of Appeal agreed with the parties that the trial court abused its discretion in denying appellant's request for mental health diversion, as there was insufficient evidence of an unreasonable risk that appellant will commit a super strike offense if treated in the community. There was no evidence appellant had been previously charged with a super strike offense, and his current offense was not a super strike. Appellant’s criminal history consisted of two nonviolent felonies and four misdemeanor offenses. At the time of the hearing on his application, appellant was doing well in an outpatient program. He had successfully…
The Court of Appeal agreed with the parties that the trial court abused its discretion in denying appellant's request for mental health diversion, as there was insufficient evidence of an unreasonable risk that appellant will commit a super strike offense if treated in the community. There was no evidence appellant had been previously charged with a super strike offense, and his current offense was not a super strike. Appellant’s criminal history consisted of two nonviolent felonies and four misdemeanor offenses. At the time of the hearing on his application, appellant was doing well in an outpatient program. He had successfully engaged in a treatment program for six months, he was maintaining housing and a job, he had not reoffended, and his treatment provider recommended appellant continue treatment in the community. The matter was reversed and remanded for a new hearing on appellant’s present suitability for mental health diversion.
In an appeal from the juvenile court's orders terminating parental rights, the Court of Appeal agreed with appellant's argument that the department failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA), where the department did not inquire of, or make any record of inquiry of, numerous known maternal and paternal relatives and did not provide the tribes with the information necessary for a membership or citizenship eligibility determination. The Court of Appeal also agreed with appellant that the juvenile court erred by directing father to undertake the ICWA investigation, since the affirmative and continuing duty…
In an appeal from the juvenile court's orders terminating parental rights, the Court of Appeal agreed with appellant's argument that the department failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA), where the department did not inquire of, or make any record of inquiry of, numerous known maternal and paternal relatives and did not provide the tribes with the information necessary for a membership or citizenship eligibility determination. The Court of Appeal also agreed with appellant that the juvenile court erred by directing father to undertake the ICWA investigation, since the affirmative and continuing duty of inquiry rests with the juvenile court and the department, not the parents. The orders terminating parental rights were conditionally reversed and the matter remanded for further ICWA proceedings.
In an appeal from a first degree murder conviction, the Court of Appeal agreed with appellant that the trial court's oral pronouncement of sentence controls over the sentencing minutes and the abstract of judgment. The Court of Appeal ordered the minutes corrected to reflect that the trial court struck the restitution fine under Penal Code section 1202.4, subdivision (b), and did not impose the court operations fee (Pen. Code, § 1465.8) or the criminal conviction fee (Gov. Code, § 70373). Rather than simply adding those mandatory assessments to the judgment as respondent requested, the Court of Appeal remanded so that…
In an appeal from a first degree murder conviction, the Court of Appeal agreed with appellant that the trial court's oral pronouncement of sentence controls over the sentencing minutes and the abstract of judgment. The Court of Appeal ordered the minutes corrected to reflect that the trial court struck the restitution fine under Penal Code section 1202.4, subdivision (b), and did not impose the court operations fee (Pen. Code, § 1465.8) or the criminal conviction fee (Gov. Code, § 70373). Rather than simply adding those mandatory assessments to the judgment as respondent requested, the Court of Appeal remanded so that appellant would have the opportunity to request a waiver based on inability to pay, and directed that the abstract be corrected to reflect the trial court's determination on remand.
In an appeal from the juvenile court's orders issued at a six-month review hearing under Welfare and Institutions Code section 366.21, subdivision (e), which denied return of mother's four children and continued them in out-of-home placement, appellate counsel obtained a stipulated reversal. In a prior appeal, the underlying disposition order removing the children had been reversed and remanded for a new disposition hearing; in light of that decision, mother's counsel and the department jointly stipulated that the six-month review orders should likewise be reversed. The Court of Appeal accepted the stipulation, reversed the orders as to mother, and remanded for…
In an appeal from the juvenile court's orders issued at a six-month review hearing under Welfare and Institutions Code section 366.21, subdivision (e), which denied return of mother's four children and continued them in out-of-home placement, appellate counsel obtained a stipulated reversal. In a prior appeal, the underlying disposition order removing the children had been reversed and remanded for a new disposition hearing; in light of that decision, mother's counsel and the department jointly stipulated that the six-month review orders should likewise be reversed. The Court of Appeal accepted the stipulation, reversed the orders as to mother, and remanded for a new disposition hearing, directing that the remittitur issue immediately
The Court of Appeal agreed with the parties that appellant's conviction for assault with a firearm (Pen. Code, § 245, subd. (a)(2)) must be vacated because it is a lesser-included offense of his conviction for assault with a semi-automatic firearm (§ 245, subd.…
The Court of Appeal agreed with the parties that appellant's conviction for assault with a firearm (Pen. Code, § 245, subd. (a)(2)) must be vacated because it is a lesser-included offense of his conviction for assault with a semi-automatic firearm (§ 245, subd. (b)).
The Court of Appeal agreed with appellant that he received one less day of custody credit than he was entitled to, and modified the judgment…
The Court of Appeal agreed with appellant that he received one less day of custody credit than he was entitled to, and modified the judgment accordingly.
In an appeal from the juvenile court's order terminating parental rights, the Court of Appeal agreed with mother's argument that the juvenile court and the department failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA). The Court of Appeal conditionally reversed the order terminating parental rights and remanded for compliance with ICWA's inquiry…
In an appeal from the juvenile court's order terminating parental rights, the Court of Appeal agreed with mother's argument that the juvenile court and the department failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA). The Court of Appeal conditionally reversed the order terminating parental rights and remanded for compliance with ICWA's inquiry requirements.
In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal held that (1) the juvenile court’s visitation orders improperly delegated to the legal guardian the decision whether appellant would have visits, and (2) the juvenile court and Human Services Agency failed to comply with the Indian Child Welfare Act's (ICWA) inquiry and notice requirements. The matter was conditionally reversed and remanded for the entry of a new visitation order and compliance with the…
In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal held that (1) the juvenile court’s visitation orders improperly delegated to the legal guardian the decision whether appellant would have visits, and (2) the juvenile court and Human Services Agency failed to comply with the Indian Child Welfare Act's (ICWA) inquiry and notice requirements. The matter was conditionally reversed and remanded for the entry of a new visitation order and compliance with the ICWA.
The Court of Appeal agreed with the appellant that there was insufficient evidence to support his conviction of assault a firearm (Pen. Code, § 245, subd. (a)(2)). The evidence showed the firearm was unloaded or inoperable at the time of the alleged assault, and the prosecution presented no evidence that appellant nevertheless had the “present ability[] to commit a violent injury on the person of another” with the firearm. (§§ 240, 245, subd. (a)(2).) The Court of Appeal vacated the conviction and remanded the matter for…
The Court of Appeal agreed with the appellant that there was insufficient evidence to support his conviction of assault a firearm (Pen. Code, § 245, subd. (a)(2)). The evidence showed the firearm was unloaded or inoperable at the time of the alleged assault, and the prosecution presented no evidence that appellant nevertheless had the “present ability[] to commit a violent injury on the person of another” with the firearm. (§§ 240, 245, subd. (a)(2).) The Court of Appeal vacated the conviction and remanded the matter for resentencing.
In an appeal from a resentencing under Penal Code section 1172.75, the Court of Appeal agreed with appellant that his restitution fine under section 1202.4, subdivision (b) had to be vacated. Because the fine was originally imposed in 2012, more than 10 years before resentencing, section 1465.9, subdivision (d) rendered it unenforceable and required vacatur. The Court of Appeal modified the judgment to vacate the fine and directed the trial court to prepare amended abstracts of…
In an appeal from a resentencing under Penal Code section 1172.75, the Court of Appeal agreed with appellant that his restitution fine under section 1202.4, subdivision (b) had to be vacated. Because the fine was originally imposed in 2012, more than 10 years before resentencing, section 1465.9, subdivision (d) rendered it unenforceable and required vacatur. The Court of Appeal modified the judgment to vacate the fine and directed the trial court to prepare amended abstracts of judgment.
In an appeal from a denial of a Penal Code section 1172.6 resentencing petition after an evidentiary hearing, the Third District Court of Appeal agreed with the appellant that there was insufficient evidence to support his convictions for murder and attempted murder. The matter was remanded with an order for the trial court to vacate the convictions and resentence…
In an appeal from a denial of a Penal Code section 1172.6 resentencing petition after an evidentiary hearing, the Third District Court of Appeal agreed with the appellant that there was insufficient evidence to support his convictions for murder and attempted murder. The matter was remanded with an order for the trial court to vacate the convictions and resentence appellant.
In an appeal from the juvenile court's orders terminating parental rights as to two children and establishing legal guardianship as to a third, the Court of Appeal agreed with appellant that the department and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA) and the California Indian Child Welfare Act (Cal-ICWA). The Court of Appeal conditionally reversed and remanded for compliance with ICWA and…
In an appeal from the juvenile court's orders terminating parental rights as to two children and establishing legal guardianship as to a third, the Court of Appeal agreed with appellant that the department and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA) and the California Indian Child Welfare Act (Cal-ICWA). The Court of Appeal conditionally reversed and remanded for compliance with ICWA and Cal-ICWA.
The Court of Appeal agreed with the appellant that in granting his resentencing petition under Penal Code section 1172.75, the trial court should not have reimposed the previously imposed restitution fine, jail classification fee, and booking fee because the fees were unenforceable. As a result, the judgment was modified to strike the…
The Court of Appeal agreed with the appellant that in granting his resentencing petition under Penal Code section 1172.75, the trial court should not have reimposed the previously imposed restitution fine, jail classification fee, and booking fee because the fees were unenforceable. As a result, the judgment was modified to strike the fees.
The Court of Appeal agreed with the appellant that, given the amendments to Penal Code section 186.22 enacted by Assembly Bill No. 333 (2021–2022 Reg. Sess.)(Stats. 2021, ch. 699, § 3), there was insufficient evidence to support the trial court’s finding that his prior conviction under section 186.22 qualifies as a serious or violent felony conviction for the purposes of strike prior and prior serious felony enhancement allegations. As a result, the matter was remanded to the trial court for retrial on these…
The Court of Appeal agreed with the appellant that, given the amendments to Penal Code section 186.22 enacted by Assembly Bill No. 333 (2021–2022 Reg. Sess.)(Stats. 2021, ch. 699, § 3), there was insufficient evidence to support the trial court’s finding that his prior conviction under section 186.22 qualifies as a serious or violent felony conviction for the purposes of strike prior and prior serious felony enhancement allegations. As a result, the matter was remanded to the trial court for retrial on these allegations.
In an appeal from the juvenile court's orders terminating parental rights, the Court of Appeal agreed with appellant that the Department failed to conduct an adequate ICWA inquiry, because it never asked reasonably available extended family members about possible Native American ancestry. The Court of Appeal conditionally reversed the orders terminating parental rights and remanded for further ICWA…
In an appeal from the juvenile court's orders terminating parental rights, the Court of Appeal agreed with appellant that the Department failed to conduct an adequate ICWA inquiry, because it never asked reasonably available extended family members about possible Native American ancestry. The Court of Appeal conditionally reversed the orders terminating parental rights and remanded for further ICWA inquiry.
In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal conditionally reversed and 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 and notice…
In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal conditionally reversed and 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 and notice requirements.
In this juvenile wardship appeal, the Court of Appeal agreed with appellant's argument that insufficient evidence supported the juvenile court's finding that he received a stolen vehicle (Pen. Code, § 496d, subd. (a)). The court held that appellant's mere presence as a passenger in the stolen car, without more, did not establish that he possessed or aided in withholding the vehicle from its owner; no evidence showed he exercised dominion and control over the car or took any affirmative action to aid and abet its receipt. The Court of Appeal reversed the judgment as to that…
In this juvenile wardship appeal, the Court of Appeal agreed with appellant's argument that insufficient evidence supported the juvenile court's finding that he received a stolen vehicle (Pen. Code, § 496d, subd. (a)). The court held that appellant's mere presence as a passenger in the stolen car, without more, did not establish that he possessed or aided in withholding the vehicle from its owner; no evidence showed he exercised dominion and control over the car or took any affirmative action to aid and abet its receipt. The Court of Appeal reversed the judgment as to that count.
The Court of Appeal agreed with the parties that there was insufficient evidence to support his conviction for receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)). "A person who violates section 10851 [, subdivision] (a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property." (People v. Garza (2005) 35 Cal.4th 866, 876.) The Court of Appeal vacated the conviction and ordered correction of clerical errors in the abstract of…
The Court of Appeal agreed with the parties that there was insufficient evidence to support his conviction for receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)). "A person who violates section 10851 [, subdivision] (a) by taking a car with the intent to permanently deprive the owner of possession, and who is convicted of that offense on that basis, cannot also be convicted of receiving the same vehicle as stolen property." (People v. Garza (2005) 35 Cal.4th 866, 876.) The Court of Appeal vacated the conviction and ordered correction of clerical errors in the abstract of judgement.
In an appeal from the trial court's denial of appellant's petition for resentencing under Penal Code section 1172.6, the Court of Appeal agreed with appellant's argument that the record of conviction did not establish his ineligibility for relief as a matter of law. The Court reversed the order denying the petition and remanded with directions to issue an order to show cause and conduct further proceedings under section…
In an appeal from the trial court's denial of appellant's petition for resentencing under Penal Code section 1172.6, the Court of Appeal agreed with appellant's argument that the record of conviction did not establish his ineligibility for relief as a matter of law. The Court reversed the order denying the petition and remanded with directions to issue an order to show cause and conduct further proceedings under section 1172.6.
The Court of Appeal agreed with the appellant that because her conviction is not enumerated in Health and Safety Code section 11372.5, the $50 fee previously imposed was unauthorized. As a result, the fee was…
The Court of Appeal agreed with the appellant that because her conviction is not enumerated in Health and Safety Code section 11372.5, the $50 fee previously imposed was unauthorized. As a result, the fee was stricken.
In an appeal from a conviction for first degree murder and being a felon in possession of a firearm, the Court of Appeal agreed with appellant's argument that the trial court abused its discretion and violated his right to due process when it denied him a continuance to investigate and file a motion for new trial after granting his motion for self-representation. The Court of Appeal conditionally affirmed the conviction and sentence and remanded with directions for the trial court to grant a reasonable continuance allowing appellant to investigate and file a new trial motion. If the court grants a…
In an appeal from a conviction for first degree murder and being a felon in possession of a firearm, the Court of Appeal agreed with appellant's argument that the trial court abused its discretion and violated his right to due process when it denied him a continuance to investigate and file a motion for new trial after granting his motion for self-representation. The Court of Appeal conditionally affirmed the conviction and sentence and remanded with directions for the trial court to grant a reasonable continuance allowing appellant to investigate and file a new trial motion. If the court grants a new trial, the conviction and sentence will be reversed; if it denies the motion, they will stand.
In an appeal from a resentencing under Penal Code section 1172.75, the Third District Court of Appeal agreed with the appellant that the trial court erred in reimposing a $10,000 restitution fine under section 1202.4, subdivision (b). Because the fine was originally imposed over 10 years ago, section 1465.9, subdivision (d) requires that the fine be vacated. The Court of Appeal ordered the trial court to vacate the…
In an appeal from a resentencing under Penal Code section 1172.75, the Third District Court of Appeal agreed with the appellant that the trial court erred in reimposing a $10,000 restitution fine under section 1202.4, subdivision (b). Because the fine was originally imposed over 10 years ago, section 1465.9, subdivision (d) requires that the fine be vacated. The Court of Appeal ordered the trial court to vacate the fine.
In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal conditionally reversed and 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 and notice…
In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal conditionally reversed and 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 and notice requirements.
In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal conditionally affirmed and 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…
In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal conditionally affirmed and 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 appellant that a probation condition requiring him to participate and complete general education and mental health counseling "at the discretion of and as directed by probation" violated the separation of powers doctrine. The court struck the condition and remanded for the trial court to determine whether the appellant should participate in education and counseling as a condition of…
The Court of Appeal agreed with the appellant that a probation condition requiring him to participate and complete general education and mental health counseling "at the discretion of and as directed by probation" violated the separation of powers doctrine. The court struck the condition and remanded for the trial court to determine whether the appellant should participate in education and counseling as a condition of probation.
The Court of Appeal agreed with the parties that the restitution fine (Pen. Code, § 1202.4, subd. (b)) and parole revocation fine (§ 1202.45) must be stricken from the minute order and abstract of judgment because the trial court did not orally impose the…
The Court of Appeal agreed with the parties that the restitution fine (Pen. Code, § 1202.4, subd. (b)) and parole revocation fine (§ 1202.45) must be stricken from the minute order and abstract of judgment because the trial court did not orally impose the fines.
In a People's appeal from a grant of a motion to suppress evidence, the Court of Appeal disagreed that the law enforcement officer’s initial contact with defendant was a consensual encounter that did not trigger scrutiny under the Fourth Amendment to the United States Constitution. The judgment was…
In a People's appeal from a grant of a motion to suppress evidence, the Court of Appeal disagreed that the law enforcement officer’s initial contact with defendant was a consensual encounter that did not trigger scrutiny under the Fourth Amendment to the United States Constitution. The judgment was affirmed.
The Court of Appeal held that the trial court erred in denying appellant's Penal Code section 1172.6 petitions as procedurally barred by the doctrine of issue preclusion, as there was a relevant and significant change in the law after his prior petitions were denied. Additionally, appellant made a prima facie showing for relief and nothing in the record of conviction establishes his ineligibility. The matter was remanded with directions to the trial court to conduct an evidentiary hearing pursuant to section 1172.6, subdivision…
The Court of Appeal held that the trial court erred in denying appellant's Penal Code section 1172.6 petitions as procedurally barred by the doctrine of issue preclusion, as there was a relevant and significant change in the law after his prior petitions were denied. Additionally, appellant made a prima facie showing for relief and nothing in the record of conviction establishes his ineligibility. The matter was remanded with directions to the trial court to conduct an evidentiary hearing pursuant to section 1172.6, subdivision (d).
In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal conditionally affirmed and 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…
In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal conditionally affirmed and 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.