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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.

Name: In re D.C.
Case #: C098500
Opinion Date: 02/07/2024
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 Family Services failed to comply with ICWA’s inquiry requirements. The Department failed to contact known relatives to inquire whether they knew of possible Indian ancestry.

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

Appellant filed several procedurally defective Senate Bill No. 1437 petitions for resentencing. The trial 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 the parties that this was error, and remanded the matter with directions for the trial court to issue an order to show cause.

Name: In re J.F.
Case #: F086950
Opinion Date: 02/06/2024
Attorney: Carolyn S. Hurley

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. Villagomez
Case #: F084663, F085933
Opinion Date: 02/06/2024
Attorney: Kendall Dawson Wasley

After the trial court denied appellant’s Penal Code former section 1170.95 petition at the prima facie stage, appellant filed his first appeal. That appeal was still pending when the court recalled the matter, reevaluated the petition, and once again denied it. Appellant filed a second appeal.

The Court of Appeal agreed with the parties that because the first appeal was still pending, the trial court lacked jurisdiction to issue any orders that impacted appellant’s judgment or involved the denial of the petition. As such, the second denial of appellant’s resentencing petition was vacated as null and void.

As to the initial denial, the trial court erred because when appellant pleaded no contest to attempted murder in 2019, the law had not been expressly amended to prohibit the use of the natural and probable consequences doctrine to establish liability for attempted murder.

The Court of Appeal accordingly remanded the order with orders for the trial court to issue an order to show cause and hold an evidentiary hearing.

Name: In re A.P.
Case #: F086311
Opinion Date: 02/05/2024
Attorney: Marissa Coffey

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

Name: People v. M.H.
Case #: F084042
Opinion Date: 02/02/2024
Attorney: Robert L. Angres

The Court of Appeal agreed with appellant that because appellant was charged with several acts of substantial sexual conduct during the same time period as the alleged continuous sexual abuse, he could not stand convicted of both under Penal Code section 288.5, subdivision (c). Thus, the court vacated the conviction for count 1. The court also granted appellant’s request to strike the $40 fee pursuant to Penal Code section 1465.8 and the $30 fee pursuant to Government Code section 70373 imposed for count 1.

Name: People v. Langston
Case #: F083560
Opinion Date: 02/01/2024
Attorney: Patricia L. Brisbois

During appellant’s first interview with police, the detectives who questioned him did not provide Miranda warnings until over two hours into the interview, elicited a confession of his involvement in the underlying crimes in that prewarning period and then, after the warnings, reinterrogated him about the same facts. The Court of Appeal agreed with appellant that the trial court prejudicially erred when it concluded defendant was not in custody when he was initially questioned by detectives without Miranda warnings. The court also agreed that appellant’s first interview with police should be excluded because the detectives utilized a “two-step interrogation technique,” which, as the United States Supreme Court stated in Missouri v. Seibert (2004) 542 U.S. 600, 616-617, makes both the unwarned and warned statements inadmissible. Appellant was prejudiced by the admission of the first interview. Thus, the court reversed his convictions for two first degree murders with special circumstances, two robberies, active gang participation and various enhancements.

Name: People v. Hammond
Case #: F083530
Opinion Date: 02/01/2024
Attorney: Victor J. Morse

Based on People v. Rojas (2023) 15 Cal.5th 561, 580, the Court of Appeal concluded the entirety of Assembly Bill 333 applies retroactively to appellant’s case and, as to all offenses, reversed the Penal Code section 186.22, subdivision (b)(1) enhancements, and as to counts 1 and 2, reversed the gang murder special circumstance allegations pursuant to section 190.2, subdivision (a)(22).

Name: People v. Davis
Case #: C098153
Opinion Date: 01/30/2024
Attorney: Allan Junker

The Court of Appeal agreed with the parties that appellant was entitled to recalculation of presentence credit as of the date he was resentenced. (Pen. Code, §§ 2900.1, 2900.5, subd. (d); People v. Buckhalter (2001) 26 Cal.4th 20, 29.) The matter was remanded to the trial court for recalculation of appellant’s presentence credit.

Name: People v. Boyd
Case #: F085425
Opinion Date: 01/26/2024
Attorney: Scott Concklin

The Court of Appeal agreed with the parties that the abstract of judgment must be corrected as to appellant’s credits.

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. Evans
Case #: F085206
Opinion Date: 01/25/2024
Attorney: Sylvia W. Beckham

The Court of Appeal agreed with appellant that the trial court erred in denying his Penal Code section 1172.6 petition at the prima facie stage because the record did not conclusively establish he was convicted under a valid theory of attempted murder. Though not instructed on a natural and probable consequences theory of attempted murder, the jury instructions still permitted the jury to convict appellant under an imputed malice theory based solely on his participation in a crime. Further, the trial court erroneously imposed concurrent terms on counts two and four, which required the Court of Appeal to vacate the sentence on these counts and to remand for the court to determine which terms must be stayed. On remand, the trial court was directed to recalculate appellant’s custody credits.

Name: People v. Gantz
Case #: C098294
Opinion Date: 01/24/2024
Attorney: Vicki Hightower

Appellant was required to pay restitution directly to her victims totaling $60,312.24 for the estimated cost of a fence the victims built themselves “to secure their home after appellant’s criminal conduct caused them to lose their sense of security.” The Court of Appeal agreed with appellant that the trial court’s restitution order provided the victims with a windfall because “there was no evidence of out-of-pocket expenses, no determination of the value of the victims’ time spent building the fence, and no consideration of the value added to their property resulting from the fence’s construction.” The court reversed the restitution order and remanded the matter for a new restitution hearing.

Name: People v. Quiroz
Case #: F085117
Opinion Date: 01/24/2024
Attorney: Francine R. Tone

The Court of Appeal agreed with the parties that insufficient evidence supported the trial court’s finding that appellant had violated his probation terms requiring him to report to the probation department within one court day of his release from custody and to report monthly to his probation officer.

Appellant was deported before he could be released from custody, and therefore his failure to report to his probation officer cannot be considered willful. (See People v. Galvan (2007) 155 Cal.App.4th 978, 983.) Furthermore, no evidence established that appellant was present in the United States during the five-year probationary period. As such, substantial evidence fails to show that appellant willfully failed to report during the duration of this probation. (Id. at pp. 982– 983.)

The Court of Appeal reversed appellant’s judgment and ordered the trial court to alert the California Department of Corrections and Rehabilitation that the judgment is no longer in effect.

Name: People v. Davis
Case #: C097495
Opinion Date: 01/24/2024
Attorney: Heather E. Shallenberger

The Court of Appeal held the trial court erred in relying on hearsay testimony from appellant’s preliminary hearing to deny his SB 1437 petition at the prima facie stage. The matter was remanded with instructions for the trial court to issue an order to show cause and hold an evidentiary hearing.

Name: People v. Khademi
Case #: C096746
Opinion Date: 01/24/2024
Attorney: Linda Zachritz

Defendant petitioned to reduce or dismiss his assault with a deadly weapon conviction (a wobbler offense) under Penal Code section 17, subdivision (b) and sections 1203.4, 1203.41, and 1203.42. The trial court denied the petition, finding broadly that he was not entitled to relief on his petition. When defendant filed his petition in June 2022, section 1203.42 provided in relevant part that a defendant sentenced prior to the implementation of the 2011 Realignment Act for a crime for which he would have otherwise been eligible for sentencing under section 1170, subdivision (h), may be permitted, in the trial court’s discretion, to withdraw his guilty or no contest plea. This did not apply to defendant who was not sentenced prior to the 2011 Realignment Legislation. However, while defendant’s appeal was pending, the Legislature amended section 1203.41 to expand relief to persons sentenced to state prison. Because defendant’s case is still pending on appeal and thus not yet final, the court decided to remand for the trial court to consider whether defendant satisfies all the statutory criteria under newly amended section 1204.41, and, if so, whether the court chooses to exercise its discretion to grant defendant relief under the statute.

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: People v. Nicholson
Case #: C097850
Opinion Date: 01/22/2024
Attorney: Hilda Scheib

In this appeal from the trial court’s order declining to dismiss an enhancement pursuant to Penal Code section 1385, the Court of Appeal agreed with appellant that the trial court erred by concluding that the enhancement’s application could not result in a sentence of over 20 years. Because the record did not establish that the court would have reached the same conclusion but for this error, the court vacated the sentence and remanded for resentencing.

Name: People v. Sydnor
Case #: C096333
Opinion Date: 01/19/2024
Attorney: Matthew J. Watts

In defendant’s prior appeal, the matter was remanded for the trial court to exercise its discretion regarding whether to strike his firearm enhancement pursuant to Senate Bill No. 620. At the resentencing hearing, defendant’s trial counsel did not request consideration of Senate Bill No. 567 or Assembly Bill No. 518, which went into effect after the remittitur was issued. The trial court did not consider this new legislation when it resentenced defendant. Defendant appealed, claiming this was an abuse of discretion.

The Court of Appeal held the issue was forfeited, but nonetheless chose to reach the merits to eliminate the need to address defendant’s alternative ineffective assistance of counsel claim.  The court agreed with defendant that the trial court abused its discretion. The record contained no clear indication that the trial court would have made the same sentencing choices if it had been aware of the scope of its discretion. The Court of Appeal vacated the sentence and remanded the matter for the trial court to exercise its discretion under SB 567, AB 518, and any other applicable sentencing law changes.

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.