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Name: In re J.A.
Case #: C097054
Opinion Date: 06/30/2023
Attorney: Darlene Kelly

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: In re S.D.
Case #: F085491
Opinion Date: 06/29/2023
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 Community Services Agency failed to comply with ICWA’s inquiry and notice requirements.

Name: People v. Calderon
Case #: C096331
Opinion Date: 06/29/2023
Attorney: Jill M. Klein

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

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

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

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

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

Name: People v. Lopez
Case #: F084487
Opinion Date: 06/29/2023
Attorney: Steven A. Tones

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

Name: People v. Marconnett
Case #: C095774
Opinion Date: 06/28/2023
Attorney: Sangeeta Sinha

The Court of Appeal vacated appellant’s sentence and remanded for resentencing, holding that the trial court did not understand the scope of its discretion at sentencing. The court also found that appellant’s the personal use enhancement must be reversed because the jury was prejudicially instructed with an incorrect legal theory, where the jury was informed that a knife was an inherently dangerous weapon. As such, the court reversed the personal use of a deadly weapon enhancement.

Name: In re I.G.
Case #: F085565
Opinion Date: 06/27/2023
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 Social Services failed to comply with ICWA’s inquiry and notice requirements.

Name: In re M.V.
Case #: F085609
Opinion Date: 06/27/2023
Attorney: Darlene Azevedo Kelly

In an appeal from the juvenile court’s orders terminating parental rights, the Court of Appeal remanded for compliance with the Indian Child Welfare Act (ICWA), because the juvenile court and Community Services Agency failed to comply with ICWA’s inquiry and notice requirements.

Name: In re M.A.
Case #: C097037
Opinion Date: 06/26/2023
Attorney: Patricia K. Saucier

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. Gray
Case #: C096335
Opinion Date: 06/26/2023
Attorney: William W. Lee

The Court of Appeal reversed the trial court’s order denying appellant’s Penal Code section 1172.6 petition at the prima facie stage. At appellant’s trial, the jury was instructed on felony murder and two alternate theories requiring intent to kill. It found appellant guilty of first degree murder, without indicating which theory it relied on, with kidnapping and lying-in-wait special circumstances. First, nothing in the record of conviction that is properly considered at the prima facie stage indicated appellant was the actual killer. Second, the true finding on the kidnapping circumstance did not establish appellant was a major participant who acted with reckless indifference to human life. The finding predated the California Supreme Court’s opinions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, which “both substantially clarified the law governing findings under [section] 190.2, subdivision (d)” and what constitutes a major participant and acting with reckless indifference to human life. (People v. Strong (2022) 13 Cal.5th 698.). Finally, the true finding on the lying-in-wait special instructions and prosecutor’s arguments as to the lying-in-wait circumstance may have permitted the jury to find that circumstance allegation true without finding appellant personally had the intent to kill. The Court of Appeal ordered the trial court to issue an order to show cause and to conduct further proceedings in accordance with section 1172.6.

 

Name: People v. Victoria
Case #: F083538
Opinion Date: 06/23/2023
Attorney: Patricia J. Ulibarri

Appellant’s sentence was vacated and remanded for resentencing based on the application of Assembly Bill No. 124 (2021–2022 Reg. Sess.) and Senate Bill No. 567’s (2021–2022 Reg. Sess.) amendments to Penal Code section 1170.

Name: People v. Cunningham
Case #: C094958
Opinion Date: 06/22/2023
Attorney: Dale Dombkowski

The Court of Appeal remanded for resentencing in light of legislative changes to Penal Code section 518 made by Senate Bill No. 654 (2021-2022 Reg. Sess.), which now affords trial courts the discretion to choose the count on which to impose punishment, instead of having to choose the one that provided for the longest potential term of imprisonment. On remand, appellant shall receive a full resentencing.

Name: In re E.T.
Case #: F085083
Opinion Date: 06/20/2023
Attorney: Katie Curtis

In an appeal from a reunification order issued pursuant to Welfare and Institutions Code section 361.5(c)(2), the Court of Appeal found there was substantial evidence to support the juvenile court’s finding that family reunification services were in the children’s best interests.

Name: In re R.M.
Case #: F085130
Opinion Date: 06/15/2023
Attorney: Gregory Chappel & Lelah 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 Family Services failed to comply with ICWA’s inquiry and notice requirements.

Name: In re M.T.
Case #: C097292
Opinion Date: 06/14/2023
Attorney: Katie Curtis

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. Ramos
Case #: F082502
Opinion Date: 06/14/2023
Attorney: Diane E. Berley

The Court of Appeal agreed with appellant that his former Penal Code section 186.22, subdivision (b) gang enhancements and section 12022.53, subdivision (e) gang-related firearm enhancements should be reversed and remand for full resentencing under Assembly Bill No. 333. On remand, appellant will receive a full resentencing where he can raise the application of Senate Bill No. 567.

Name: In re E.P.
Case #: F085090
Opinion Date: 06/13/2023
Attorney: Gino V. deSolenni

The Court of Appeal found that the juvenile court’s factual findings underlying its removal order were unsupported by the evidence, and therefore, it erred by ordering E.P. removed from father’s custody. The court reversed the portion of the juvenile court’s order removing E.P. from father’s custody under section Welfare and Institutions Code section 361 and remanded for further proceedings for father to request custody under section 361.2.

Name: People v. Farwell
Case #: C095434
Opinion Date: 06/13/2023
Attorney: John Steinberg

The Court of Appeal remanded for resentencing in light of legislative changes to Penal Code section 518 made by Senate Bill No. 654 (2021-2022 Reg. Sess.), which now affords trial courts the discretion to choose the count on which to impose punishment, instead of having to choose the one that provided for the longest potential term of imprisonment. The Court of Appeal also remanded for resentencing in light of legislative changes to Penal Code section 1170 made by Senate Bill No. 567 (2021-2022 Reg. Sess.), which now requires that circumstances in aggravation used to justify imposition of the upper term be found true by the jury, admitted by the defendant, or based on prior convictions evidenced by a certified record of conviction.

Name: People v. Patella
Case #: F084397
Opinion Date: 06/13/2023
Attorney: Paul Kleven

The Court of Appeal agreed with the parties that the order denying appellant’s application for mental health diversion must be reversed in light of amendments to Penal Code section 1001.36 by Senate Bill No. 1223 (2021-2022 Reg. Sess.). First, the trial court could not properly rely on the nature of appellant’s offenses because they do not per se disqualify him from diversion under section 1001.36, subdivision (d). Second, there was no evidence appellant was likely to commit a super-strike offense and thus no evidence he posed an unreasonable risk of danger to public safety. Finally, the court’s finding that appellant’s offenses are not mental health related was an abuse of discretion in light of amended section 1001.36, which now includes a presumption that appellant’s mental disorder was a significant factor in the commission of the offense. This presumption may be rebutted only by clear and convincing evidence the appellant’s mental disorder was not a motivating factor, causal factor, or contributing factor to his involvement in the alleged offense. The Court of Appeal remanded the matter for the trial court to reevaluate appellant’s application under amended section 1001.36.

 

Name: In re S.R.
Case #: F085626
Opinion Date: 05/31/2023
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 Family Services failed to comply with ICWA’s inquiry and notice requirements.

Name: People v. Gaxiola
Case #: F085450
Opinion Date: 05/30/2023
Attorney: Brad Kaiserman

After the trial court summarily denied appellant’s Penal Code section 1172.6 petition, the Court of Appeal reversed, holding that appellant pleaded a prima facie case for relief and his convictions (first degree murder with willfulness, premeditation, and deliberation) did not render him ineligible for relief as a matter of law. The jury was instructed on two theories of attempted murder—express malice attempted murder and natural and probable consequences attempted murder as an aider and abettor. Based on the instructions given, the jury could have found defendant guilty of first degree premeditated attempted murder under either an indirect aiding and abetting natural and probable consequences doctrine theory or an express malice theory. The indirect aiding and abetting natural and probable consequences doctrine theory is no longer valid under Senate Bill 1437 and, based on the record before the trial court, the court was not permitted to make the factual finding necessary to rule out that theory at the prima facie stage.

Name: Stanislaus County Community Services Agency v. E.N. et al.
Case #: F085511
Opinion Date: 05/30/2023
Attorney: Lauren K. Johnson

In an appeal from an order terminating parental rights pursuant to Welfare and Institutions Code section 366.26, the Court of Appeal agreed with the parties that the Stanislaus County Community Services Agency and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because maternal and paternal extended family members were not asked about the child’s possible Indian ancestry. The error was not harmless. The court accepted a joint stipulation seeking a limited remand to the court for purposes of ICWA compliance.

Name: People v. Farias
Case #: C094195
Opinion Date: 05/26/2023
Attorney: Robert L. Angres

Because the record was completely silent as to whether the trial court made true findings that the appellant had previously been convicted of strikes under Penal Code sections 667, subdivision (e)(2), and 1170.12, subdivision (c)(2), the Court of Appeal held the appellant’s strike sentence was unauthorized. The sentence was vacated without prejudice as to the trial court’s ability to correct the record if it could be clearly shown that the omission of strike findings was a clerical error and not a failure to make a finding and disposition on those allegations.

Additionally, the court held Assembly Bill No. 518, which modified section 654 to give trial courts the discretion to choose the count on which to impose punishment (instead of having to choose the one that provided for the longest potential term of imprisonment), applies retroactively to the appellant’s case. Because the court was already remanding the case, it instructed the trial court to exercise its discretion under the current version of section 654.

Name: People v. Flores
Case #: F083424
Opinion Date: 05/25/2023
Attorney: Thomas P. Owen

The Court of Appeal agreed with appellant’s argument that one of her two convictions for accessory after the fact must be reversed because both counts were based upon the single act of concealing a firearm; and the jury’s true findings on the criminal street gang enhancements must be vacated pursuant to Assembly Bill No. 333 (2021-2022 Reg. Sess.), which was enacted during the pendency of this appeal.

Name: People v. Jaime
Case #: C096022
Opinion Date: 05/20/2023
Attorney: William Holzer

The Court of Appeal found the trial court prejudicially erred when it concluded the People’s peremptory challenge was valid because the prosecutor provided no evidence to rebut the presumptively invalid reasons for exercising the challenge (the juror’s “negative experience with law enforcement” and her “close relationship with people who have been convicted of a crime.”) The judgment was reversed and the case remanded for a new trial.

Name: People v. Jaime
Case #: C096022
Opinion Date: 05/19/2023
Attorney: William G. Holzer

The Court of Appeal held that the trial court prejudicially erred when it concluded the People’s peremptory challenge was valid because the prosecutor provided no evidence to rebut the presumptively invalid reasons for exercising the challenge. The reason was presumptively invalid under Code of Civil Procedure section 231.7, which was added by Assembly Bill No. 3070 (2019-2020 Reg. Sess.), a bill that creates new procedures for identifying unlawful discrimination in the use of peremptory challenges. The court reversed the judgment and remanded for a new trial.

Name: In re T.L.
Case #: C097010
Opinion Date: 05/17/2023
Attorney: Carol Koenig

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: Kern County Department of Human Services v. C.F.
Case #: F085075
Opinion Date: 05/16/2023
Attorney: Elizabeth C. Alexander

In an appeal from an order terminating parental rights, the Court of Appeal agreed with the parties that the Kern County Department of Human Services and the juvenile court failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) and related California law because extended family members were not asked about the child’s Indian ancestry. The court conditionally reversed the juvenile court’s finding that ICWA does not apply and remanded for full compliance with ICWA.

Name: People v. Gage
Case #: C096533
Opinion Date: 05/16/2023
Attorney: John L. Staley

The Court of Appeal agreed with the parties that the trial court relied on improper aggravating factors in imposing the upper term. The trial court (1) relied on the same factor to impose both the upper term and a consecutive sentence, (2) considered a fact that was an element of the offense when choosing the upper term, and (3) relied on the appellant’s prior felony convictions, as opposed to his current convictions, in finding that he was sentenced to concurrent terms when he could have been sentenced to consecutive terms. The errors were not harmless. The sentence was vacated and the case remanded for resentencing.

Name: In re E.V.
Case #: F085320
Opinion Date: 05/16/2023
Attorney: Paul A. Swiller

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: In re K.H.
Case #: F085284
Opinion Date: 05/09/2023
Attorney: Seth Gorman

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. The court also found that the juvenile court’s order for random drug testing and requirement that father test negative for all substances was an abuse of discretion, as there was no basis on which to conclude father abused substances. The court reversed that portion of the juvenile court’s disposition.