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Name: People v. Morgan
Case #: A166435
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 07/08/2024

(1) Substantial evidence supported resisting officer by "use of force or violence" conviction (PC 69) when defendant pointed unloaded gun at officer and pulled the trigger; (2) follows People v. Wiley (2023) 97 Cal.App.5th 676, review granted March 12, 2024, S283326, in holding PC 1170(b)(3) does not require jury to determine "unsatisfactory" past probation performance or "numerous" prior convictions aggravating factors; (3) trial court improperly made "dual use" of defendant's firearm brandishing by imposing sentence for gun enhancement and also considering jury's true finding on gun use aggravator when imposing midterm sentence after defendant presented "super mitigant" evidence under PC…

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Name: People v. Patton (2024) 101 Cal.App.5th 922
Case #: F085895
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 05/02/2024

Under PC 288.5(c), a defendant may not be convicted of both continuous sexual abuse and other overlapping discrete sexual-act counts. Defendant was convicted of continuous sexual abuse (PC 288.5(a)) and other counts of distinct sexual acts occurring within the same period. Section 288.5(c), by prohibiting multiple charges, also prohibits multiple convictions for continuous sexual abuse of a child and for the discrete sexual offenses underlying the continuous abuse conviction. Here, the remedy is to vacate the continuous abuse conviction because this is not a section 654 issue subject to sentencing discretion, and the defendant should be left with a sentence…

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Name: People v. Fay (2024) 101 Cal.App.5th 767
Case #: B328209
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 04/29/2024

Judgment reversed where prosecutor’s misstatement of the mental state for implied malice murder was not harmless error. The prosecutor misstated the law regarding the mental state required for implied malice when it told the jury that the mental state element was met if the defendant did not “care if someone is hurt or killed.” This is inconsistent with the requirement that a defendant act with conscious disregard for human life. The trial court compounded this error by telling the jury that the prosecutor’s statement was based on “case law decisions.” Prior to the comment, the jurors had been divided on…

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Name: People v. Lewis (2024) 100 Cal.App.5th 349
Case #: G060049
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 03/07/2024

Substantial evidence supports defendant’s conviction for kidnapping an intoxicated woman to commit rape under the relaxed force standard applicable to incapacitated adults. Opinion on remand from the California Supreme Court. A jury convicted Lewis of rape by an intoxicating substance and kidnapping to commit rape based on evidence that he drugged a woman (S.D.) at a bar and then sexually assaulted her after they left the bar. In People v. Lewis (2023) 14 Cal.5th 876, 884, the Supreme Court concluded the relaxed force standard for kidnapping applicable to children (i.e., the use of deception rather than actual force) applies to…

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Name: People v. Carney (2023) 14 Cal.5th 1130
Case #: S260063
Court: CA Supreme Court
Opinion Date: 07/20/2023

Opinion by: Justice Jenkins (unanimous decision)

A defendant’s life-threatening deadly acts in a gun battle may be the proximate cause of a bystander’s death, even where someone else fired the fatal shot. A jury convicted two brothers (the Mitchells) of first degree murder and other offenses based on evidence they initiated a gun battle with Carney and others outside a barbershop in the middle of the day. During the public shootout, a stray shot by Carney killed a bystander. On appeal, the Mitchells argued that, because the fatal shot was fired by Carney, their actions were not a proximate cause of…

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Name: People v. Zemek (2023) 93 Cal.App.5th 313
Case #: D080917
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/11/2023

Trial court’s ruling requiring defendant’s husband and sister to attend her trial via livestreaming on the Internet during the COVID-19 pandemic did not violate her right to a public trial. During the COVID-19 pandemic, Zemek was convicted of first degree murder, elder abuse, and theft offenses. She raised a number of issues on appeal, including that she was denied her right to a public trial. The trial court had closed the physical courtroom to the public based on COVID-19 emergency orders and protocols, but the trial was livestreamed on the Internet. The court denied defense counsel’s multiple requests for Zemek’s…

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Name: People v. Lewis (2023) 14 Cal.5th 876
Case #: S272627
Court: CA Supreme Court
District CalSup
Opinion Date: 06/22/2023

Majority opinion: Chief Justice Guerrero authored the opinion of the Court, in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and Evans concurred.
Concurring opinion: Justice Kruger filed a concurring opinion, in which Justice Groban concurred.

The force requirement for kidnapping is relaxed when the victim is an intoxicated adult—a defendant acting with an illegal intent or purpose may be liable for kidnapping if he uses physical force to move a person who is unable to consent due to intoxication. A jury convicted defendant of raping S.D. while she was intoxicated and kidnapping S.D. to commit rape. The evidence showed defendant met…

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Name: People v. Webb (2023) 90 Cal.App.5th 660
Case #: D080147
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/14/2023

For purposes of assault, a defendant has a “present ability” to commit a violent injury where he or she attains the means and location to do so, even if additional steps remain to be taken. Webb, a wheelchair-bound amputee with one leg, was convicted of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) after swinging a knife at two employees of a restaurant. He appealed, arguing insufficient evidence. Held: Affirmed. To constitute an assault, the defendant must not only intend to commit a battery; he must also have the present ability to do so. At some point a…

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Name: People v. Collins
Case #: B304853
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 06/10/2021

Prosecutor committed prejudicial error by telling the jury that the "fear" element of robbery is judged by an objective rather than subjective standard. Collins put store merchandise into his bag. When approached by the store's assistant manager, Collins extended an arm to push him but the manager stepped out of the way. Collins then pulled a knife out of his pocket and made it visible to the manager, who stepped further back and allowed Collins to leave without paying. He was convicted of second degree robbery (Pen. Code, § 211) with a weapon use enhancement (Pen. Code, §…

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Name: People v. Jones
Case #: C087494
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/02/2021

Although victim did not see, hear, or feel defendant's gun, there was sufficient evidence to support personal gun use enhancement. Jones approached the victim (and her toddler grandchild) as she entered her car, gesturing as if he had a gun in pocket, and told her nothing would happen if she did what he said. He demanded her cell phone so she could not call the police and directed her to drive him around to various locations. He eventually took over driving and the victim actually saw the gun at this time. Later he parked the car and forced the victim…

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