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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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Name: People v. Codinha (2023) 92 Cal.App.5th 976
Case #: D080633
Court: CA Court of Appeal
District 4 DCA
Opinion Date: 06/26/2023

A trial court’s inherent authority to correct an unauthorized sentence allows the court to modify a final judgment. In 2019, defendant pleaded guilty to two felonies (counts 1 and 3), and admitted committing count 3 while released on bail for count 1. At his initial sentencing hearing, the trial court ordered count 3 to be served concurrent to count 1, for a total of 8 years. After defendant’s case was final, CDCR sent a letter noting that under the Penal Code, it appeared count 3 should be consecutive to count 1, and asked if correction was required. The trial court…

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Name: People v. Falcon (2023) 92 Cal.App.5th 911
Case #: F083577
Court: CA Court of Appeal
Opinion Date: 06/26/2023
Subsequent History: Opn. modified 7/13/2023

Resentencing for noncompliance with revised Penal Code section 1170(b) is unwarranted only where the sentence remains legally valid under federal and state law, and the record clearly indicates the trial court would have imposed the upper term had it know of its circumscribed sentencing discretion. Falcon was convicted of attempted murder and other offenses. His sentence included some upper terms, which he challenged on appeal. Held: Remanded for resentencing. Senate Bill No. 567 amended Penal Code section 1170(b) to limit a trial court’s discretion to impose an upper term sentence by creating a presumptive sentencing preference for the middle term.…

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Name: People v. Achane (2023) 92 Cal.App.5th 1037
Case #: A165968
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 06/28/2023

Because defendant’s upper term sentence was not unauthorized and an objection to the sentence would not have been futile, defendant forfeited his request for resentencing under the recent amendments to Penal Code section 1170 by failing to raise the issues below. In 2022, defendant violated probation. The trial court ordered him to serve a sentence previously imposed in 2020, with execution of sentence suspended; that sentence included an upper term. On appeal, defendant argued he is entitled to resentencing for retroactive application of Senate Bill No. 567 and Assembly Bill No. 124, which were in effect at the time he was…

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Name: People v. Tilley (2023) 92 Cal.App.5th 772
Case #: C096411
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/20/2023

Defendant’s claim that the trial court erred by failing to consider the low-term presumption of Penal Code section 1170(b)(6) was forfeited where defendant did not raise the issue, and trial counsel was not prejudicially ineffective for failing to raise the issue. Defendant pleaded no contest to robbery and was sentenced to the middle term. On appeal, he argued the trial court abused its discretion in imposing the middle term because the court did not consider his mental health problems in accordance with section 1170(b)(6). Held: Affirmed. Section 1170(b)(6), created a presumption in favor of the lower term if a defendant’s…

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Name: People v. Waqa (2023) 92 Cal.App.5th 565
Case #: A163761
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 06/14/2023

There was insufficient evidence of asportation to support the jury’s aggravated kidnapping finding under the One Strike law where the rape victim was moved from one bathroom stall to another. A jury convicted defendant of forcible rape after he sexually assaulted a woman in a public restroom. Because he moved the victim from the restroom’s small stall to its large stall before raping her, the jury also found true an aggravated kidnapping circumstance under the One Strike law (Pen. Code, § 667.61), requiring a sentence of 25 years to life. Defendant appealed. Held: Sentence modified. Under the One Strike law,…

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Name: People v. Farias (2023) 92 Cal.App.5th 619
Case #: C094195
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 05/26/2023
Subsequent History: Ordered published 6/14/2023

Considering changes to the law governing gang offenses, the trial court lacked substantial evidence to support its finding that defendant’s prior conviction under Penal Code section 186.22(a) was for a serious felony. Farias and Miranda were convicted of attempted murder and assault offenses after attacking and stabbing a fellow prison inmate. They appealed, raising multiple issues. Held: Remanded for resentencing and retrial of Miranda’s prior section 186.22(a) conviction. Miranda argued there was insufficient evidence that his 2009 prior conviction under section 186.22(a) was for a serious felony under current law, relying on People v. Rodriguez (2012) 55 Cal.4th 1125 and…

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Name: In re Ferrell (2023) 14 Cal.5th 593
Case #: S265798
Court: CA Supreme Court
Opinion Date: 04/06/2023

The jury’s true finding on a firearm enhancement (Pen. Code, § 12022.53, subd. (d)) did not render Chun error harmless beyond a reasonable doubt. Ferrell was convicted of the second degree murder of his fellow-gang member who was killed when Ferrell fired two shots at the end of a gang fight. The jury also found that Ferrell intentionally discharged a firearm and caused death in committing his offense (Pen. Code, § 12022.53, subd. (d)). At trial, the prosecutor’s presented three theories for murder: express malice, implied malice, or felony murder based on the willful discharge of a firearm in a…

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Name: People v. Govan (2023) 91 Cal.App.5th 1015
Case #: B316245
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 05/22/2023

It was an abuse of discretion to require a restraint belt without an individualized finding that defendant posed a safety or flight risk or was likely to disrupt the proceeding. A jury found defendant guilty of three counts of false imprisonment by violence; three counts of forcible oral copulation; three counts of forcible rape; and one count of attempted forcible rape. Because of the pandemic, jury selection was held in an unsecured room normally used for jury assembly. Because of this, and the seriousness of the charges, the trial court ordered defendant to be physically restrained by way of a…

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