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Name: People v. Isazaga
Case #: F085643
Opinion Date: 10/23/2023
Attorney: Vanessa Place

Appellant pleaded no contest to attempted murder in 2019. He later filed a petition for resentencing under Penal Code section 1172.6. The trial court found he made a prima facie case and issued an order to show cause. At the evidentiary hearing, the court rescinded its prima facie finding after the district attorney argued appellant was ineligible for relief because he entered his plea after Senate Bill No. 1437 (2017–2018 Reg. Sess.) went into effect. The Court of Appeal agreed with the parties that the trial court erred. The law was not expanded to prohibit attempted murder convictions based on imputed malice until Senate Bill No. 775 (2021–2022 Reg. Sess.) went into effect in 2022. The Court of Appeal found the district attorney’s amicus brief (which reiterated the same arguments from the evidentiary hearing) unpersuasive. The court remanded the matter with orders for the trial court to reissue the order to show cause and conduct an evidentiary hearing.

Name: People v. M.M.
Case #: C096402
Opinion Date: 10/23/2023
Attorney: Tonja R. Torres

A jury found appellant guilty of three counts of continuous sexual abuse of a child (Pen. Code, § 288.5, subd. (a)). The Court of Appeal agreed with appellant that the trial court erred in ordering appellant to undergo HIV testing under section 1202.1, subdivisions (a) and (e)(5)(A)(iv), because there was insufficient evidence to support probable cause to believe that appellant’s bodily fluids capable of transmitting the HIV virus came into contact with the children. The court remanded to the trial court to give the prosecution an opportunity to present additional evidence regarding this matter. The court also ordered the trial court to add one day to appellant’s presentence credits.

Name: People v. Mayes
Case #: C097314
Opinion Date: 10/20/2023
Attorney: Jeffrey Kross

The Court of Appeal reversed the denial of appellant’s Penal Code section 1172.6 petition, finding there was insufficient evidence to support the trial court’s finding that appellant acted with reckless indifference to human life under the factors set forth by our Supreme Court in People v. Clark (2016) 63 Cal.4th 522. The court remanded to the trial court with directions to vacate appellant’s murder conviction and resentence him on his remaining convictions.

Name: In re S.W. et al.
Case #: F085709
Opinion Date: 10/17/2023
Attorney: Sean Angele Burleigh

Mother appealed from the juvenile court’s order removing her children from her physical custody under Welfare and Institutions Code section 361(c)(1). Although the juvenile court later granted her section 388 petition and returned the children to her physical custody, this did not make the appeal moot. The case remained ongoing and she remained subject to the dispositional orders challenged in the appeal. Even if the issues raised were moot, the Court of Appeal had the inherent discretion to reach them on the merits.

First, Mother’s past use of marijuana edibles to treat morning sickness as directed by her doctor provided no basis for the juvenile court’s finding that she was a substance abuser or that her marijuana use placed the children at substantial risk of serious harm.

Second, the record did not contain clear and convincing evidence that there would be a substantial danger to the children if returned to Mother’s physical custody and no reasonable means by which to protect the children’s physical health without removal. Mother was no longer living at the property found to present a substantial risk of serious physical harm or illness to the children, nor was she living with Father, against whom there was a “failure to protect” finding under section 300(b). The juvenile court’s concern that Mother was being less than forthcoming in her testimony about her connection to the property and was somewhat minimizing her responsibility for the family’s initial living situation was by itself insufficient to remove the children from her physical custody.

Third, the juvenile court erred in ordering drug and alcohol testing, a second mental health assessment, and substance abuse and mental health services. Neither Mother’s past marijuana use nor her testimony provided any evidence that she had substance abuse or mental health issues.

The court reversed the aforementioned findings and orders. The judgment was otherwise affirmed.

Name: People v. Harris
Case #: C097002
Opinion Date: 10/17/2023
Attorney: Victor J. Morse

The Court of Appeal held that because defendant’s petition alleged the facts necessary for relief under Penal Code section 1172.6, and nothing in the record conclusively demonstrated that he was ineligible for relief as a matter of law, his petition made a prima facie showing of entitlement to relief under section 1172.6. As such, the Court of Appeal reversed the trial court’s denial and remanded for the trial court to issue an order to show cause

Name: In re C.L.
Case #: C097911
Opinion Date: 10/13/2023
Attorney: Carol A. Koenig

Father appealed from the trial court’s order terminating his parental rights because (1) the Department of Social Services removed the child through a protective custody warrant under Welfare and Institutions Code section 340 without complying with the initial inquiry requirements of California law implementing the Indian Child Welfare Act (ICWA), and (2) the department failed to comply with ICWA’s further inquiry requirements after father stated that his great-grandmother was full-blooded Cherokee at the detention hearing.

The first issue (whether ICWA’s initial inquiry requirements apply to section 340 removals) reflects a split within the Courts of Appeal that is under review by the California Supreme Court. After reviewing the language and legislative intent of the relevant statutes, the Court of Appeal held that section 340 removals trigger ICWA’s initial inquiry requirements. The manner in which ICWA deficiency errors should be assessed for harmlessness is likewise under review by the California Supreme Court. The Court of Appeal reviewed the error through the lens of the remedial purpose of ICWA and related California law and concluded it was not harmless.

As to the second issue, the court accepted the department’s concession that father’s statement was sufficient to trigger a duty of further inquiry, which the department failed to satisfy.

The court conditionally reversed the order terminating father’s parental rights and remanded the matter with directions to the department and juvenile court to comply with the requirements of ICWA.

Name: People v. Young
Case #: C096971
Opinion Date: 10/11/2023
Attorney: Benjamin Owens

The Court of Appeal found appellant received ineffective assistance of counsel when his trial counsel, after successfully requesting the trial court to dismiss one of appellant’s 25 years-to-life firearm enhancements under Penal Code section 1385(c)(2)(B), failed to request dismissal of the second firearm enhancement under section 1385(c)(2)(C). Section 1385(c)(2) states that certain mitigating factors weigh greatly in favor of dismissing an enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. The two relevant mitigating circumstances here are when “[m]ultiple enhancements are alleged in a single case” (§ 1385, subd. (c)(2)(B)) and when “[t]he application of an enhancement could result in a sentence of over 20 years” (id., subd. (c)(2)(C)). Given that trial counsel already argued to the court that all but a single enhancement should be dismissed under subsection (c)(2)(B), there was no reasonable tactical purpose for not also moving for dismissal of the remaining enhancement under the same standard. There is a reasonable probability that, but for trial counsel’s deficient performance, the trial court would have dismissed the second enhancement, as it reasoned dismissing the first enhancement would not endanger public safety because appellant received an indeterminate life sentence for the substantive offense.

Name: In re A.G.
Case #: C097493
Opinion Date: 10/10/2023
Attorney: Gregory Chappel

Mother appealed the juvenile court’s order terminating her parental rights, alleging the Health and Social Services Agency and the juvenile court failed to comply with the requirements of the Indian Child Welfare Act (ICWA) when they made no ICWA inquiries after mother initially claimed Seneca tribe ancestry. The agency argued any error was harmless because the record didn’t support a reason to believe that the minors may be Indian children within the meaning of ICWA. The Court of Appeal reviewed the error through the lens of the remedial purpose of ICWA and related California law. The determination in a previous case that the children were not Indian children within the meaning of ICWA was not dispositive, and the error was not harmless. The court conditionally affirmed the judgment and remanded with instructions to the agency and the juvenile court to comply with the requirements of ICWA.

Name: People v. Simmons
Case #: C096866
Opinion Date: 10/10/2023
Attorney: Robert L Hernandez

The Court of Appeal agreed with appellant’s argument that he was entitled to additional custody credit for the actual time he spent in a residential drug treatment facility prior to sentencing, as a defendant committed to county jail is generally entitled to credit for all days spent in custody prior to sentencing, including days spent in a residential drug treatment program as a condition of supervised release. (Pen. Code § 2900.5.)

Name: People v. Rodriguez
Case #: F084165
Opinion Date: 10/03/2023
Attorney: Barbara A. Smith

The Court of Appeal reversed the denial of appellant’s Penal Code section 1172.6 petition at the prima facie stage because there is a reasonable possibility the jury could have convicted petitioner of second-degree murder without finding he personally harbored any malice. The court noted that although it may be highly likely the jury found appellant to have personally acted with implied malice given the facts of the case, this strays into factfinding and weighing the evidence, which is not permitted at the prima facie stage. In assessing prejudice, the court assumed, without deciding, that the reasonable likelihood standard applies in this context.

Section 1172.6(a)(3), which states that a petitioner must show that they could not presently be convicted of murder or attempted murder “because of changes to Section 188 or 189 made effective January 1, 2019,” does not mean that appellant is barred from relief because his petition is based on an error that could have, but was not, raised on direct appeal. The “‘because of’ language [in section 1172.6(a)(3)] does not require a showing that a claim to relief under Senate Bill 1437 arises from no other cause—only that the 2019 changes [to the law] supply a basis for the claim and so are a cause.” (People v. Strong (2022) 13 Cal.5th 698, 712.)

The court remanded the matter with directions to issue an order to show cause and hold an evidentiary hearing.

Name: People v. Trent
Case #: C096306
Opinion Date: 10/03/2023
Attorney: Brad Kannof Kaiserman

After the trial court granted appellant’s Penal Code section 1172.6 petition, his murder conviction was redesignated as assault with force likely to cause great bodily injury with a great bodily injury enhancement, plus a substantive gang offense. At the resentencing hearing, the court declined to retroactively apply AB 333 to the gang conviction. The Court of Appeal agreed with appellant that he is entitled to the retroactive application of Assembly Bill 333. Once appellant’s collateral attack successfully vacated his murder conviction, he was entitled to the retroactive application of ameliorative laws that benefited him because the judgment was no longer final for purposes of Estrada retroactivity (In re Estrada (1965) 63 Cal.2d 740). He had a right to be resentenced “on any remaining counts in the same manner as if the petitioner had not previously been sentenced,” which included retroactive application of AB 333. The court reversed appellant’s section 186.22, subdivision (a) conviction and remanded to the trial court for possible retrial of that count in compliance with the amendments brought about by Assembly Bill 333.

Name: People v. Rodriguez
Case #: F084165
Opinion Date: 10/03/2023
Attorney: Barbara A. Smith

Appellant appealed the denial of his Penal Code section 1172.6 petition at the prima facie stage. Assuming without deciding the reasonable likelihood standard applies, the Court of Appeal concluded there is a reasonable likelihood the jury could have been misled by the instructions regarding aiding and abetting, leaving open the possibility appellant was convicted of second degree murder under an improper theory of imputed malice. Because the record of conviction did not conclusively negate this reasonable likelihood, appellant could not be deemed ineligible for resentencing as a matter of law at the prima facie stage. The court reversed the order denying the petition and remanded for an evidentiary hearing.

Name: In re: N.R.
Case #: F085881
Opinion Date: 10/02/2023
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 Human Services failed to comply with ICWA’s inquiry requirements.

Name: In re: S.A.
Case #: F085999
Opinion Date: 09/29/2023
Attorney: Susan M. O'Brien

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 Social Services failed to comply with ICWA’s inquiry requirements.

Name: In re: O.E.
Case #: F085319
Opinion Date: 09/29/2023
Attorney: Jesse F. Rodriguez

Father (who lived in Missouri) requested placement of his child pursuant to Welfare and Institutions Code section 361.2. The juvenile court denied Father’s request based on its finding that the placement would be detrimental to the child. The Court of Appeal reversed because the detriment finding was unsupported by substantial evidence. The record showed Father is “a competent, caring and stable parent.” (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1263.) There was insufficient evidence that the child was so “extremely bonded” with her half-siblings and her relationship with them is so “much closer than in normal sibling relationships” that she would suffer emotional harm if she were separated from them. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426-1427.) Nothing in the record indicated placement with Father would take the child away from Mother’s ability to reunify. (In re John M. (2006) 141 Cal.App.4th 1564, 1570.) The fact that the child had never lived with Father before was not determinative. (See In re C.M. (2014) 232 Cal.App.4th 1394, 1403.) The juvenile court’s emphasis on Father not coming to California for in-person visits seemingly discounted the practical reality of maintaining relationships across state lines. Finally, to the extent the court believed supervision via the Interstate Compact on Placement of Children (“ICPC”) was a prerequisite for placement, it was mistaken; under section 361.2, the court must first determine whether placement with the nonoffending noncustodial parent would be detrimental, place the child with said parent if there is no showing of detriment, and only then decide whether there is a need for ongoing supervision. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1135; see § 361.2, subds. (a)-(b).) Furthermore, placement with an out-of-state parent may comply with ICPC procedure, but it is not required. If the court felt further investigation of Father was necessary, it should have continued the hearing and left the child in her temporary placement for the period of time necessary to gather information about Father. (John, supra, 141 Cal.App.4th at p. 1572.) The Court of Appeal ordered the matter remanded to the juvenile court with directions to hold a new dispositional hearing on the issue of placement under section 361.2.

Name: In re J.B.
Case #: F085222
Opinion Date: 09/28/2023
Attorney: Kristen E. Owen

A juvenile petition was filed pursuant to section 602 of the Welfare and Institutions Code alleging J.B. committed carjacking (Pen. Code, § 215). At a contested jurisdictional hearing the juvenile court found the carjacking allegation not true. However, the court found true the lesser related offenses that appellant received a stolen vehicle (§ 496d, subd. (a)) and unlawful driving of a vehicle (Veh. Code, § 10851, subd. (a)). The Court of Appeal agreed with J.B.’s argument that due process right to notice of the charges was violated when the juvenile court found true Vehicle Code section 10851 and section Penal Code section 496d, which were not alleged in the juvenile petition, as these offenses are not lesser included offenses of section 215. The juvenile court’s true findings of violations of section 459d and Vehicle Code section 10851 were reversed, and the matter was remanded to the juvenile court with directions to dismiss the juvenile petition.

Name: In re T.S.
Case #: F085886
Opinion Date: 09/26/2023
Attorney: Jesse F. Rodriguez

The Court of Appeal accepted the parties’ stipulated reversal of the juvenile court’s order terminating the legal guardianship and the order issuing jurisdictional and dispositional findings. Based on the parties’ stipulation, the court also reversed the order terminating the legal guardianship, remanded for a new jurisdiction hearing, and ordered an immediate issuance of the remittitur.

Name: People v. Clapps
Case #: C096554
Opinion Date: 09/18/2023
Attorney: William Holzer

Following a bench trial, the trial court found appellant guilty of attempted murder, aggravated mayhem, mayhem, assault with a deadly weapon in prison, and assault likely to cause great bodily injury. The Court of Appeal found the the mayhem conviction must be dismissed because it is a lesser included offense of the aggravated mayhem conviction.

Name: In re: A.M.
Case #: C097343
Opinion Date: 09/13/2023
Attorney: Karen J. Dodd; Melissa Chaitin

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.

Name: In re J.R.
Case #: F085850
Opinion Date: 09/11/2023
Attorney: Brian C. Bitker & Shaylah Padgett-Weibel

The Court of Appeal found that the juvenile court erred in finding the agency conducted a proper, adequate, and duly diligent inquiry into whether the children are or may be Indian children, in compliance with California law. The court further found that the error was prejudicial, which necessitated a conditional reversal of the court’s finding that the Indian Child Welfare Act does not apply and a limited remand so that an inquiry that comports with Welfare and Institutions Code section 224.2, subdivision (b), may be conducted. The court rejected the agency’s contention that the broad duty of inquiry under section 224.2, subdivision (b), does not apply in cases where, as here, children are taken into protective custody by warrant under section 340, subdivision (a) or (b).

Name: People v. Maitia
Case #: F085203
Opinion Date: 09/08/2023
Attorney: Rex Williams

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.

Name: People v. Rivas
Case #: C094563
Opinion Date: 09/07/2023
Attorney: Patricia L. Brisbois

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.

Name: People v. Thomas
Case #: C097130
Opinion Date: 09/07/2023
Attorney: Brad Poore

The trial court sentenced defendant to life without the possibility of parole for a crime committed in 1997. Appellant filed a Penal Code section 1172.6 petition that was denied at the prima facie stage. The Court of Appeal reversed and remanded for an evidentiary hearing, finding that at the prima facie stage, the court could not conclude defendant was the actual killer without engaging in impermissible factfinding. Under two separate theories, felony murder and the natural and probable consequences doctrine, the jury could have found defendant guilty of murder without finding he was the actual killer or acted with the intent to kill. Further, the instructions allowed the jury to find the robbery murder special circumstance true solely based on the fact the murder was committed to carry out the attempted robbery, facilitate escape, or avoid detection, regardless of who was the actual killer and whether defendant had the intent to kill.

Name: In re A.C.
Case #: F085961
Opinion Date: 08/31/2023
Attorney: Lelah S. Fisher

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.

Name: In re B.R.
Case #: F086057
Opinion Date: 08/28/2023
Attorney: Monica Vogelmann

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.

Name: In re D.P.
Case #: F086027
Opinion Date: 08/28/2023
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 Department of Human Services failed to comply with ICWA’s inquiry requirements.

Name: In re M.G.
Case #: F086215
Opinion Date: 08/25/2023
Attorney: Jacob I. Olson

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.

Name: In re R.E.
Case #: C097682
Opinion Date: 08/25/2023
Attorney: Stephanie  L. Gunther

Following a contested jurisdictional hearing, the juvenile court found the minor R.E. committed three criminal offenses, two of which were based on a finding that he drove a stolen minivan while fleeing from police. That fleeing minivan ultimately crashed into the side of a house, and the only witness saw three people flee from the scene of the crash. More than 30 minutes later, after searching a nearby neighborhood, police found and arrested only two people: R.E., and a second juvenile, J.L. J.L’s injuries indicated he had been riding in one of the passenger seats, but no evidence indicated whether R.E. or the third person had been driving. In an attempt to get around this evidentiary obstacle, the petitioner argued, and the juvenile court found, that only two people had been in the minivan, making the minor the only possible driver. The Court of Appeal concluded no substantial evidence supported the juvenile court’s inference that only two people were in the minivan, which means no substantial evidence supports the juvenile court’s finding that R.E. committed the two challenged offenses. Accordingly, the court reversed the juvenile court’s judgment that R.E. fled from a peace officer while driving a vehicle with willful or wanton disregard for safety (Veh. Code, § 2800.2) and withheld or concealed a stolen vehicle (Pen. Code, § 496d).

Name: People v. Smart
Case #: F083799
Opinion Date: 08/24/2023
Attorney: Victoria H. Stafford

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.

Name: In re: S.T.
Case #: C097832
Opinion Date: 08/24/2023
Attorney: Robert F. McLaughlin

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.