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Name: People v. Belmares
Case #: F039060
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 02/06/2003
Subsequent History: Rev. denied 4/30/03.

Appellant was convicted of a violation of Penal Code section 69 , deterring an executive officer from performing a lawful duty (deterring), and a violation of section 148, resisting arrest (resisting). On appeal he argued that resisting is a lesser included offense of deterring, which violated the rule against multiple convictions in necessarily included offenses, section 954. The appellate court here rejected the argument, finding that the Legislature’s use of markedly different words in the statutes shows an intent not to incorporate into either statute the meanings of the words of the other. Therefore, resisting is not…

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Name: People v. Phelps
Case #: C038176
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/19/2002
Subsequent History: 12/16/02: rehrg. granted & opn. depublished; 3/19/03 rehrg. opn. not published

The trial court did not err when it allowed the prosecutor to consolidate two felony charges: making criminal threats and failure to appear. The underlying circumstances of each felony charge were relevant to the other charge. Phelps failed to appear in court proceedings involving the criminal threats charge. His failure to appear in court could reflect consciousness of guilt of pending charges. The charges shared a common element of substantial importance and therefore joinder was permissible. Further, joinder was not unfairly prejudicial. However, it was error for the court to have imposed…

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Name: People v. Konow
Case #: D037680
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 10/09/2002
Subsequent History: Rev. granted 11/6/02. Depublished.

The defendants were charged with marijuana sale, but the complaint was dismissed by the magistrate following the preliminary hearing pursuant to Penal Code section 1385 based on constitutional grounds. The prosecutor moved to reinstate the complaint in superior court, and the court granted that motion, holding that the dismissal was based on an erroneous interpretation of the law. The case was returned to municipal court and the defendants were held to answer. The magistrate stated that he had no discretion to entertain the 1385 motion under the superior court’s order. The defendants then filed a 995…

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Name: People v. Betts
Case #: E029720
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 10/08/2002
Subsequent History: Rev. granted 1/15/03: S111309

Appellant was convicted of numerous counts of child molestation of his step-daughters. Appellant lived in California with the children, but was a trucker and also traveled, sometimes taking the girls with him. Some of the molestation allegations took place outside California. Appellant argued that the trial court lacked jurisdiction to prosecute him for all the molestation counts which occurred outside California, and that he was erroneously denied a jury trial on the jurisdiction issue. The appellate court here affirmed. Where some act is committed in California which is an ingredient of the crime, a conviction…

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Name: People v. Maguire
Case #: B150839
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 09/25/2002
Subsequent History: Rev. denied 12/18/02. PORTIONS OF OPINION TO BE DELETED NOT CERTIFIED FOR PUBLICATION.

Appellant was charged in 1999 with acts of lewd conduct with a minor committed in 1989. On appeal, he argued that his conviction was time-barred, since the statute of limitations for the offense was six years. The appellate court here held that the offense fell under the exception authorized by Penal Code section 803, subdivision (g). The victim of the offense reported the offense to her counselor in 1997, who reported it directly to law enforcement. The action was subsequently filed within a year, and was therefore timely under the statute. In the unpublished…

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Name: People v. Zandrino
Case #: A095434
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 07/15/2002
Subsequent History: Rev. denied 10/30/02.

In this opinion, the First DCA, Division 3, followed the opinion issued by its Division 5 in Stogner v. Superior Court [(2001) 93 Cal. App. 4th 1229], and rejected the contrary holding in Lynch v. Superior Court [(1995) 33 Cal. App. 4th 1223], in holding that the provisions of Penal Code section 805.5 do not supercede the provisions of section 803(g). Therefore, the prosecution of a time-barred offense under section 803(g) is permissible even where the statute of limitations for the offense had expired as of January 1, 1985. Further, section 803(g) is not an ex post…

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Name: People v. Tindall
Case #: S080078
Court: CA Supreme Court
District CalSup
Opinion Date: 12/28/2000
Subsequent History: None

Resolving the question left by People v. Valladoli (1996) 13 Cal.4th 590, the California Supreme Court held that the trial court erred in permitting the prosecution to make a post-verdict, presentencing amendment to the information to add prior conviction allegations. Here the jury had already been discharged, and this violated Penal Code section 1025, subdivision (b), which entitles a defendant to the same jury for proof of the offense and proof of the prior conviction allegations. Finding Penal Code section 1025, subdivision (b), motivated by fiscal considerations for the state, and not benefit to the defendant, and recalling…

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Name: Jones v. Smith
Court: US Court of Appeals
District 9 Cir
Opinion Date: 11/01/2000
Subsequent History: None

The omission of a premeditation charge from a state court attempted murder information, combined with its inclusion in the jury instruction, constituted a variance. Although premeditation was a sentence-enhancing provision under California law on the date petitioner's conviction became final, the discrepancy between the information and the jury instructions was a variance and was harmless beyond a reasonable doubt. Had the omission required an amendment of the information, the omission would have been prejudicial per se. After Apprendi v. New Jersey (2000) 530 U.S. — [147 L.Ed.2d 435, 120 S.Ct. 2348], California's treatment of premeditation as a…

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Name: Salazar v. Superior Court of Monterey County
Case #: H020621
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 09/08/2000
Subsequent History: None

The Court of Appeal granted petitioner's request for a writ of prohibition where the trial court denied petitioner's motion to set aside two sentence-enhancement allegations, pursuant to Penal Code section 995. Finding that Proposition 115 did not abrogate the court's holding in People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, the Court of Appeal held that a 995 motion is a proper way to challenge the sufficiency of the evidence of an enhancement proved at a preliminary hearing. It further held that because no evidence whatsoever was presented at the preliminary hearing to support the gang enhancement,…

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Name: Burris v. Superior Court
Case #: G028636
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 08/01/2002
Subsequent History: Rev. granted 10/16/02: S109746

Penal Code section 1387 does not bar a subsequent felony prosecution if the identical criminal act was originally charged as a misdemeanor and was previously dismissed by the…

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