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Name: People v. Phillips
Case #: H020377
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 05/16/2001
Subsequent History: Modif. on den. rehg. with no change in jmt. 6/7/01; Rev. Granted 9/12/01 (S099017)

Editor's note: Review granted. Nearly 989 grams of cocaine were found in one bedroom and 24 grams of cocaine base were found in another. The court rejected the contention that the two batches could be aggregated to reach the one kilogram quantity enhancement of Health and Safety Code section 11370.4, subdivision (a). The "substance" referred to in the statute must be one of the enumerated…

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Name: People v. Belmudes
Case #: B147885
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 10/16/2001
Subsequent History: 4/3/02: this case depublished by 2DCA before official citation entered.

The ten-year gang enhancement under Penal Code section 186.22, subdivision (b)(1) does not apply to an attempted robbery conviction because it is not a violent felony within the meaning of section 667.5, subdivision (b)(1). Unless otherwise specified, an attempt to commit an enumerated felony does not fall within the scope of the section. However, since attempted robbery is a serious felony, appellant was eligible for an additional maximum five year sentence for the gang enhancement, which could be imposed on remand. Further, the trial court erred when it imposed the gang enhancement concurrently. A gang…

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Name: People v. Villegas
Case #: E027539
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 10/18/2001
Subsequent History: Rev. denied 12/12/01.

There was sufficient evidence to support a gang enhancement pursuant to Penal Code section 186.22 based on testimony of two gang experts that appellant associated with a documented street gang, as well as documentary evidence regarding a prior…

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Name: People v. Villegas
Case #: E027539
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 10/18/2001
Subsequent History: Rev. denied 12/12/01.

Appellant’s 40 year to life sentence for attempted murder committed in furtherance of criminal gang activity was not cruel and unusual…

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Name: People v. Garrett
Case #: H021589
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 10/23/2001
Subsequent History: Rev. denied 1/29/02.

Appellant pleaded guilty to a residential burglary and two other offenses occurring in 1998. The court found true five "strikes" priors, and appellant was sentenced to 25 years to life, in May of 2000, after the passage of Proposition 21. On appeal, appellant argued that Proposition 21 amended the definition of serious felony burglary under Penal Code section 1192.7, subdivision (c)(18), and that his prior second degree residential burglaries were not strikes under the new section. The appellate court here found appellant’s argument to be "wishful thinking." Although the court found uncertainty in the amended statute’s…

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Name: People v. Adair
Case #: B138462
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 05/09/2001
Subsequent History: Rev. granted 8/22/01 as S098218

Appellant was acquitted of the special circumstance murder of her husband. She filed a petition pursuant to Penal Code section 851.8, for a finding of factual innocence, which was granted by the trial court. Following an appeal by the prosecutor, the appellate court reversed the trial court's finding. The appropriate standard of review is to independently review the record to ascertain if any reasonable cause exists to believe the defendant committed the offense for which she was arrested and tried, and determine if the trial court abused its discretion in granting the petition. Applying that standard,…

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Name: People v. Herrera
Case #: B139597
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 05/10/2001
Subsequent History: Rev. den. 8/22/01

Defendant was convicted of first degree murder, and was found to have personally used a firearm under Penal Code section 12022.53, subdivisions (d) and (e). The murder was found to have been for the benefit of a street gang under Penal Code section 186.22, subdivision (b)(1). After a lengthy statutory history analysis, the court concluded that the correct term for the first degree murder was 25 years to life, because that punishment was set by a voter initiative (Pen. Code, § 190), which could not be amended by a mere legislative enactment (former Penal Code section 186.22, subdivision…

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Name: People v. Herrera
Case #: B139597
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 05/10/2001
Subsequent History: Rev. den. 8/22/01

Defendant was convicted of first degree murder, and was found to have personally used a firearm under Penal Code section 12022.53, subdivisions (d) and (e). The murder was found to have been for the benefit of a street gang under Penal Code section 186.22, subdivision (b)(1). After a lengthy statutory history analysis, the court concluded that the correct term for the first degree murder was 25 years to life, because that punishment was set by a voter initiative (Pen. Code, § 190), which could not be amended by a mere legislative enactment (former Penal Code section 186.22, subdivision…

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Name: People v. Franz
Case #: C034462
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 05/10/2001
Subsequent History: Rehg. den. 5/24/01; Rev. den. 8/22/01

The court reversed the prior prison term enhancement for a federal offense on the basis that the People failed to prove it included all of the elements of a comparable California felony. Defendant was convicted of possession of counterfeit U.S. currency with intent to defraud (18 U.S.C. § 472). There was no comparable crime in Penal Code section 480, because that statute requires possession of paper not consisting of the counterfeit bank notes or bills themselves. Similarly the general California forgery statute (Pen. Code, § 475) requires an intent to pass or facilitate the passage or utterance…

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Name: People v. Duran
Case #: G024274
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 05/14/2001
Subsequent History: Rehg. den. 8/22/01

Appellant forced the driver of a car back into the car at gunpoint, and ordered him to drive. The driver's wife and baby were also in the car. The court held that a felonious taking under the carjacking statute can occur when the victim remains with the car. A taking occurs when the defendant exercises dominion and control over the car by ordering the victim to drive and directing him where to go. The court reversed a single conviction for carjacking as a necessarily included offense of the three kidnaping for carjacking convictions. The court…

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