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Name: People v. Ponder (2023) 96 Cal.App.5th 1042
Case #: A166053
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 10/26/2023

Under Penal Code section 1385(c)(2), the trial court retains discretion to choose not to dismiss a firearm enhancement in the furtherance of justice for reasons other than public safety. Defendant was convicted of murder and other offenses for opening fire and killing one person at a child’s birthday party when he was 18 years old. He was initially sentenced to 40 years to life, but the Court of Appeal reversed the 25-year-to-life gun enhancement and remanded for resentencing in light of the extensive evidence of defendant’s neurodevelopmental disorders, immaturity, and history of trauma. On remand, defendant urged the trial court…

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Name: People v. Suazo (2023) 95 Cal.App.5th 681
Case #: F082140
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 09/19/2023

A predrinking intent to drive is not required before a jury may find implied malice supporting a second degree Watson murder (People v. Watson (1981) 30 Cal.3d 290). Defendant, while intoxicated, drove his vehicle at a high rate of speed off the highway and into an area occupied by an adjacent tractor supply business. When the vehicle hit agricultural equipment the passenger was ejected and killed. Defendant fled. He was convicted of second degree implied malice Watson murder, as well as other counts. He appealed. Held: Remanded for resentencing. Defendant contended the evidence was insufficient to support his murder conviction,…

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Name: People v. Escobedo (2023) 95 Cal.App.5th 440 (and People v. Chavira)
Case #: B322608; B323765
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 09/12/2023

Trial court orders denying inmates’ petitions to strike their prior prison term enhancements pursuant to Penal Code section 1172.75 were nonappealable. The defendants, each currently serving consecutive terms for in-prison offenses, filed separate postjudgment requests to strike prior prison term enhancements. The petitions were denied and they appealed. Held: Appeals dismissed. After imposition of the prior prison term enhancements on these defendants, former Penal Code section 667.5(b) was amended (SB 136) to limit its application to prison terms served for sexually violent offenses. Later, SB 483 made SB 136 retroactive by creating a mechanism and timetable to strike such enhancements…

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Name: People v. Narro (2023) 95 Cal.App.5th 316
Case #: E079444
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 09/07/2023

Restitution to replace furniture that was undamaged but invoked painful memories of the victim’s molestation by defendant was authorized as nonecomonic damages under Penal Code section 1202.4(f)(3)(F). Defendant was convicted of numerous sexual offenses after molesting his two stepdaughters and their friend for a period of over 10 years. On appeal he argued the trial court erred by awarding $9,461.34 in restitution as noneconomic damages under section 1202.4(f)(3)(F) in order for a victim’s mother to replace the furniture where the molestations had occurred as the furniture invoked painful memories. Held: Affirmed. “With one exception, restitution orders are limited to the…

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Name: People v. Harrell (2023) 95 Cal.App.5th 161
Case #: E080838
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 09/01/2023

In light of recent amendments to Penal Code section 1170.91, which permits military veterans to petition for resentencing, a veteran serving a stipulated sentence according to a plea agreement is not categorically ineligible for relief. In 2001, petitioner entered into a plea bargain, wherein he pleaded guilty to robbery and sentencing enhancements, in exchange for a stipulated sentence of 28 years. In 2023, Harrell filed a second petition for resentencing pursuant to section 1170.91, which allows a convicted veteran suffering from a specified disorder as a result of his or her military service to petition for resentencing, so that the…

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Name: People v. Superior Court (Mitchell) (2023) 94 Cal.App.5th 595
Case #: B326653
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 08/16/2023

A superior court’s order reducing a felony “wobbler” to a misdemeanor is unauthorized under Penal Code section 17(b) when made after the preliminary hearing and before trial. The first count in a felony information charged defendant with a wobbler as a felony—resisting an officer in violation of Penal Code section 69(a). On the day that trial was to begin, the superior court reduced the felony wobbler to a misdemeanor over the People’s objection. The People petitioned for a writ of mandate directing the superior court to vacate its order. Held: Petition granted. Section 17(b) permits the trial court to reduce a…

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Name: People v. Vaesau (2023) 94 Cal.App.5th 132
Case #: A165925
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 08/04/2023

A trial court has discretion to terminate a Penal Code section 1172.1 recall and resentencing proceeding when a district attorney identifies a legitimate basis for withdrawing its resentencing request before the court rules on the merits. In 1992, a jury convicted defendant of three counts of attempted murder and other crimes committed when he was a minor. Thirty years later, the then-district attorney filed a request to resentence defendant under former section 1170.03, now section 1172.1. That statute authorizes a trial court, “at any time upon the recommendation of . . . the district attorney of the county in which…

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Name: People v. Marquez (2023) 93 Cal.App.5th 704
Case #: D080411
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/18/2023

People v. Arbuckle (1978) 22 Cal.3d 749, does not require the same judge who approves a plea bargain also determine the amount of victim restitution. Marquez pleaded guilty to several offenses and was sentenced to a prison term. A hearing on victim restitution was held several months later before a different judge. At the hearing, Marquez objected because she had not signed an Arbuckle waiver. The judge overruled the objection and ordered her to pay victim restitution. She appealed. Held: Affirmed. In Arbuckle, the court was concerned with preserving a defendant’s “reasonable expectation” that the same judge who approves a plea…

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Name: People v. Kimble (2023) 93 Cal.App.5th 582
Case #: C097389
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 07/14/2023
Subsequent History: Opinion depublished and matter transferred to the Court of Appeal for reconsideration on 10/25/2023 (S281526)

A resentencing hearing to strike prior prison term enhancements (Senate Bill No. 483) does not entitle the defendant to also seek relief under the Three Strikes Reform Act (Prop. 36). Kimble is serving a life sentence under the Three Strikes law. In 2013, his petition for resentencing under Prop. 36 was denied based on a finding he posed an unreasonable risk of danger to public safety if resentenced. In July 2022, the trial court appointed counsel for Kimble pursuant to SB 483 and he filed a motion to strike his prior prison term enhancement, which was granted. He appealed the…

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Name: People v. Hilburn (2023) 93 Cal.App.5th 189
Case #: D080175
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/05/2023

Under amended Penal Code section 1170, the sentencing court’s consideration of aggravating and mitigating factors in selecting the middle term did not implicate defendant’s Sixth Amendment jury trial rights. Defendant, who was under 26 years old when he committed the underlying crimes, agreed to plead guilty to a robbery charge with a firearm enhancement in exchange for the dismissal of the remaining charges and a sentencing lid of 13 years. At sentencing, the court considered aggravating and mitigating factors, and imposed the middle term of four years for robbery and four years for the firearm enhancement, for a total of eight…

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