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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. Mancilla
Case #: F082925
Opinion Date: 12/29/2023
Attorney: David L. Polsky

In the Court of Appeal’s original opinion, it accepted the People’s concession that appellant’s gang enhancements required reversal pursuant to People v. Renteria (2022) 13 Cal.5th 951. However, although the trial court erred in failing to instruct on imperfect self-defense, the error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836. Appellant petitioned the California Supreme Court for review, arguing the error in failing to instruct on imperfect self-defense should be reviewed under the harmless beyond a reasonable doubt standard articulated in Chapman v. California (1967) 386 U.S. 18. The state high court granted review and ultimately transferred the matter back to the Court of Appeal with directions to vacate the prior opinion and reconsider the cause in light of People v. Schuller (2023) 15 Ca1.5th 237. The Court of Appeal subsequently held that the failure to instruct on imperfect self-defense was not harmless beyond a reasonable doubt and appellant’s convictions must be reversed. Additionally, it once again accepted the People’s concession that the findings on the gang enhancements must be vacated and retrial of the enhancements prohibited, inasmuch as there was not substantial evidence to support the enhancements under the standard articulated in Renteria, supra, 13 Cal.5th 951.

Name: People v. Garcia
Case #: C097092
Opinion Date: 12/27/2023
Attorney: Ross Thomas

A jury found appellant guilty on two counts each of making a criminal threat, assault with a deadly weapon, and assault by means of force likely to produce great bodily injury. Under People v. Aguayo (2022) 13 Cal.5th 974, he should not have been convicted of both assault with a deadly weapon and assault by means of force likely to produce great bodily injury. The court remanded the matter for the trial court to vacate, as to each victim, either the conviction for assault with a deadly weapon or the conviction for assault with force likely to produce great bodily injury.

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: 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 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: 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: 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: 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. Lambert
Case #: C097859
Opinion Date: 12/07/2023
Attorney: Richard J. Moller

The Court of Appeal held the resentencing court erred in relying on appellant’s criminal history from the probation report to impose the upper term. While Penal Code section 1170, subdivision (b)(3) allows the trial court to consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to the jury, a probation report is not a certified record of conviction.

Appellant did not forfeit the issue. All parties and the trial court understood that Senate Bill No. 567’s provisions applied at the resentencing hearing; the court expressly considered appellant request to impose the middle or lower term rather than the upper term; and appellant had no meaningful opportunity to specifically object to the trial court’s consideration of the probation report because the court did not indicate it was doing so until it actually announced the sentence at the conclusion of the hearing.

The error was not harmless. The Court of Appeal could not confidently conclude that the resentencing court would have chosen the upper term if it could rely only on the prior robbery conviction that the original sentencing court found true.

The matter was remanded for 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. Martinez
Case #: F085295
Opinion Date: 11/17/2023
Attorney: Sylvia W. Beckham

The Court of Appeal agreed with the parties that because the record reflects that the intent and objective of appellant’s assault and burglary offenses were the same, the trial court erred in not staying one of the sentences pursuant to Penal Code section 654. Additionally, the court erred in increasing the restitution and parole revocation fines during appellant’s resentencing hearing, and it miscalculated the appropriate court operations assessment and criminal conviction assessment. The Court of Appeal vacated appellant’s sentence and remanded for the trial court to conduct a full resentencing hearing to exercise its discretion under section 654, impose restitution and parole revocation fines that do not exceed the originally imposed amounts, and correct the assessments.

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.

Name: People v. A.C.
Case #: C097078
Opinion Date: 11/15/2023
Attorney: Conness Thompson

The trial court found appellant incompetent to stand trial and committed him to the Department of State Hospitals for a maximum term of three years. The Court of Appeal agreed with appellant’s argument that Penal Code section 1370 only permits a maximum commitment of two years for competency restoration, and reduced his maximum commitment accordingly.

Name: People v. Rotta
Case #: C097330
Opinion Date: 11/15/2023
Attorney: Maureen M. Bodo

On appeal, the court agreed with appellant that the trial court erroneously relied on the prosecutor’s incorrect assertions that appellant had previously agreed to the upper term sentence when it imposed the upper term. The court held that the trial court was required to apply Senate Bill No. 567 when it executed appellant’s sentence, and it could not deem the error harmless. Accordingly, the court vacated appellant’s sentence and remanded for a full resentencing.

Name: People v. Cordero
Case #: F085025
Opinion Date: 11/08/2023
Attorney: Joshua L. Siegel

The Court of Appeal agreed with the parties that the the jury should not have been permitted to find two multiple-murder special circumstances, one for each murder. The court struck the second multiple-murder special circumstance.