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Name: In re Tate
Case #: F047529
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 01/12/2006

A defendant's non-violent in-prison conviction is not subject to the credit limitations of section 2933.1 where the term imposed is separate from his violent out-of-prison conviction. The defendant was convicted of a violent felony and sentenced to prison. While in prison, he pled guilty to a non-violent weapons charge and was sentenced to a mandatory consecutive term. The Department of Corrections applied the credit limitations of Penal Code section 2933.1 to defendant’s entire sentence, because his first conviction was for a violent felony. After defendant’s petition for writ of habeas corpus was partially granted, CDC appealed,…

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Name: People v. Rodriguez
Case #: E030401
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 06/07/2005
Subsequent History: prhng. den. 7/7/05; rev. den. 9/7/05

The one strike law permits the trial court to impose concurrent terms for multiple lewd acts against multiple victims. Upon the People's concession, the court of appeal remanded for resentencing where the court had indicated that it did not believe it had discretion under the One Strike Law to impose concurrent terms where there were multiple acts and multiple victims. The appellate court concluded that while section 667.61 requires a separate 15 year to life sentence for each offense, the sentencing court had discretion as to whether those counts should run…

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Name: People v. Griffin
Case #: A104361
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 04/28/2005
Subsequent History: Rev. den. 8/10/05

Appellant was on bail in Arizona for the primary offense when he committed secondary offenses in California. After the California conviction, the court determined he was subject to an enhancement pursuant to Penal Code section 12022.1 for committing a new offense while on bail, and imposed the sentence concurrently to the Arizona term. On appeal, he argued that this determination was error because section 12022.1 only applies where the primary offense is committed in California. The appellate court rejected appellant's argument, holding that the enhancement applies regardless of where the primary offense is committed. However, the…

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Name: In re Consiglio
Case #: D045081
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/15/2005
Subsequent History: Rev. den. 7/27/05

Petitioner was serving a 33-year term including both upper terms and consecutive sentences, a judgment which was final at the time the opinion in Blakely v. Washington was issued. In this petition he contended that the Blakely decision applies retroactively to cases which were final when the decision was issued. The appellate court rejected appellant's argument. Since Blakely merely clarified, or, at most, extended the procedural rule announced in Apprendi, Blakely does not apply retroactively to cases like petitioner's which are already final. Further, petitioner failed to establish that the judge was unaware of his discretion…

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Name: People v. Saphao
Case #: A103716
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 02/10/2005
Subsequent History: Rev. Granted: 6/8/05 (S132399)

The determination of whether consecutive 25-life terms are to be imposed under the one-strike law should be made by applying the "separate occasion" test under section 667.6. The defendant was convicted of various offenses including rape and penetration with a foreign object, and was sentenced to consecutive 25-life terms under the one strike law. On appeal he argued that the separate terms violated the "single occasion" limitation under Penal Code section 667.61 as clarified in People v. Jones (2001) 25 Cal.4th 98. The Court of Appeal disagreed and held that Jones permitted separate terms under the facts…

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Name: People v. Harless
Case #: H026885
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 12/20/2004
Subsequent History: Rev. gr. 3/23/05: S131011

Admission of a crime victim’s prior testimonial statements did not violate the defendant’s confrontation rights where the witness was available and testified at trial, even though by the time of trial she did not remember the events that were the subject of the out-of-court statements. Memory loss does not necessarily render a witness unavailable. Further, the court did not err in including "hardship" in the instructions under Penal Code section 288, subdivision (b), and the evidence of duress was sufficient to support defendant’s convictions under that section where the evidence showed that he had told the victim she…

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Name: People v. Navarro
Case #: F043826
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 12/13/2004
Subsequent History: 3/2/05: rev. den.

The imposition of consecutive sentences does not violate the right to a jury trial when the facts in support of the consecutive terms were found by a jury. The factors cited by the court in support of consecutive terms included the fact that the acts involved separate victims, and separate acts occurring on different occasions over a long period of time. The Court of Appeal rejected the defendant’s argument that a jury was required to make the decision about whether consecutive terms should be imposed, noting that Blakely only requires that factors used to enhance a sentence be…

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Name: People v. Prieto
Case #: B172963
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 12/07/2004
Subsequent History: Rev. granted 2/23/05: S130611

Appellant was convicted of foreign object rape and attempted forcible rape, and sentenced to six years in state prison, consisting for three years for the penetration count and three years for the attempted rape. His case was remanded for resentencing because the trial court did not state reasons for imposing a full consecutive sentences under Penal Code section 667.6, subdivision (c). On remand, the court imposed the same sentence, stating that the reason was that the crime involved great violence and callousness and the victim was particularly vulnerable, and because the crimes were separate acts of violence. …

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Name: People v. Dalby
Case #: C041880
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 11/02/2004
Subsequent History: Rev. granted 2/16/05: S129810

Where a defendant is charged with both continuous sexual abuse of a child as well as individual molestation offenses, the jury is not required to determine which of the alternative convictions should stand. After the jury returned a verdict convicting the defendant of violations of Penal Code section 288.5, subdivision (a), as well as individual violations of sections 269 and 288a, the trial court reversed the convictions of three counts of continuous sexual abuse. On appeal, appellant argued that under Blakely v. Washington (2004) 159 L.Ed.2d 403, the jury rather than the judge should have made the determination as to…

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Name: People v. Picado
Case #: A102251
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 11/05/2004
Subsequent History: Rev. granted 1/19/05: S129826

Picado was convicted of five felony assaults. Counts two, three, six and seven involved different victims. Count five involved the same victim as count three, but was perpetrated with a different weapon. The trial court sentenced Picado consecutively on all five counts, finding that the crimes were independent of one another and involved separate acts of violence. On appeal, Picado argued that section 654 barred consecutive sentences because all of the convictions derived from a singular intent to bring the perpetrators of the assaults to the fight, and therefore Picado was merely an aider and abettor…

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