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Name: In re Johnny O.
Case #: E031600
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 04/08/2003
Subsequent History: None

Appellant, a minor, was found in violation of the conditions of his probation for possessing two bongs, which he admitted he used to smoke marijuana. The bongs tested positive for cannabinoids, compounds containing THC. Here, the appellate court reversed the order revoking appellant’s probation. The Legislature decriminalized the possession of a device for smoking marijuana in 1975, and it is not a crime in…

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Name: People v. Deporceri
Case #: H023851
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 01/13/2003
Subsequent History: Rev. denied 4/16/03.

Assault with intent to commit lewd touching, in violation of Penal Code section 220, qualifies as a "strike" under the three strikes law. Since a lewd or lascivious act on a child under 14 is a serious felony, "any attempt" to commit such an act is also a serious felony. Assault with the intent to commit a violation of section 288 necessarily involves an attempt to commit the act, and therefore is a serious…

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Name: In re Black
Case #: A094946
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 09/05/2002
Subsequent History: Rev. granted 12/18/02: S110683

Black was convicted of a violent felony in 1996 and sentenced to five years in state prison, with his credits limited to 15 percent pursuant to Penal Code section 2933.1, subdivision (a). In 1999, he was convicted of possession of marijuana by a prisoner and sentenced to a concurrent three year term. In setting Black’s parole release date, the Department determined that the 15 percent credit limitation applied to the 1999 offense, which was not a violent felony. This extended Black’s term by one year. Black challenged the Department’s decision in a writ to the Superior…

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Name: People v. Superior Court (Blanquel)
Case #: G027134
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 12/19/2000
Subsequent History: None

The failure to include the predecessor statutes, Vehicle Code sections 23175 and 23175.5, in Vehicle Code section 23550.5, which defines the punishment for drunk driving with a prior drunk driving conviction under 23152, was mere scrivener's error and does not require a trial court to refrain from treating a prior conviction covered under the predecessor statute as covered by section 23550.5. The appellate court held that the legislative correction of this oversight, which left a 100 day "window," did not create a "lottery winner" out of those whose offenses fell within that period. The appellate court also rejected…

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Name: People v. Mower
Case #: F030690
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 12/06/2000
Subsequent History: Review Granted March 14, 2001 (S094490)

In this marijuana possession and cultivation case, the appellate court held it was not error for the trial court to fail to instruct, sua sponte, on the primary caregiver defense, because the defense was not supported by substantial evidence. While a trial court has the power to instruct a jury on its power to return a special verdict, it is inappropriate to so instruct the jury when there is little doubt as to the legal effect of the facts found. Here, if the jury found appellant was growing marijuana for his own personal use, the jury would have…

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Name: People v. Drennan
Case #: C033959
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/27/2000
Subsequent History: None

Drennan, the superintendent of the Modoc School District, was convicted of violating Penal Code section 632, subdivision (a), (intentional eavesdropping or recording a confidential communication), for installing a hidden video camera, which took still pictures, in the office of the Modoc High School principal. The appellate court reversed the conviction, because the photographing of the office, without recording of conversations, was not an intentional act of recording a confidential communication within the meaning of the statute. Although unconsented videotaping is prohibited by Penal Code section 647, subdivision (k), section 632 does not extend to the taking of photographs…

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Name: People v. Baniqued
Case #: C031869
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/29/2000
Subsequent History: None

A rooster or other bird falls within the statutory definition of "every dumb creature" and therefore qualifies as an animal for purposes of the animal cruelty statutes described by Penal Code section 597, subdivisions (a) and (b). The statutory language used in the statute is unambiguous. The phrase "dumb creatures" describes all animals except human beings. An analysis of legislative history supports the view that a rooster is an animal. The specific statutes prohibiting cockfighting do not preclude charging under general animal cruelty statutes where the acts are particularly cruel. The Legislature intended the cockfighting…

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Name: People v. Farrell
Case #: H019633
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 08/31/2000
Subsequent History: Review granted 12/13/00 (S092183)

Review granted on this case. Penal Code section 1203.044, which mandates a minimum term of 90 days in the county jail as a condition of probation for a defendant convicted of felony theft in excess of $50,000, does not apply to theft of trade secrets. The language of other subdivisions of the statute itself support an interpretation that the Legislature intended the section to apply only to monetary theft. The legislative history of the statute reflects that it was intended to punish the theft of large sums of money, following high notoriety savings and loan scandals. Amendments to…

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Name: People v. Wutzke
Case #: D033221
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 09/01/2000
Subsequent History: Review granted 12/20/00 (S092179)

Review granted on this case. Remand for resentencing was required where the trial court was under the mistaken belief that appellant was ineligible for probation because he was not a "relative" as described by Penal Code Section 1203.066. A jury convicted Wutzke of four violations of section 288, subdivision (a), against more than one victim. He was therefore ineligible for probation under section 1203.066 unless he was a parent or relative who lived in the household. Although Wutzke was not related by blood to the victims, he was the functional equivalent of their grandfather, and had…

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Name: People v. Superior Court (Jefferson)
Case #: E030590
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 04/09/2002
Subsequent History: None

Jefferson was charged with possession of methamphetamine with two prior robbery strikes in 1984 and 1985. He entered into a negotiated plea agreement and was sentenced to a drug treatment program under Proposition 36. The prosecutor appealed, arguing that the five-year washout period did not apply, in that appellant went to prison in 1999 for another drug offense. The appellate court here issued an order setting aside the probation grant. Under Penal Code section 1210.1, subdivision (b)(1), appellant would have had to be free from prison custody since October, 1996, in order to be eligible for…

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