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Name: People v. Davis
Case #: A164046
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 01/19/2023

Defendant was not entitled to presentence custody credits under Penal Code section 2900.5 for time spent in a residential treatment program where he voluntarily entered the program and his stay there was not attributable to the proceedings relating to his conviction. Defendant was charged with felony offenses (the first case). While he was out on bail for the first case, he was arrested for possessing percocet without a prescription. Shortly after the latter arrest, but before the resolution of all charges, defendant voluntarily enrolled in a residential drug treatment program. Later, defendant pleaded no contest to one felony charge in…

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Name: People v. Lewis (2023) 88 Cal.App.5th 1125
Case #: E076449
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 03/02/2023

Defendant's case was remanded for resentencing under amended Penal Code section 1170(b) because the imposition of his upper term sentences was not harmless under the Court of Appeal’s two-part harmless error test for SB 567. A jury convicted Lewis of various pimping-related offenses against several minors. The trial court imposed upper term sentences on several counts and enhancements based on three aggravating factors (the factors were not prior convictions). One of his arguments on appeal was that the matter must be remanded for resentencing in light of recently enacted SB 567 so the trial court could decide whether to impose…

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Name: People v. Ung (2023) 88 Cal.App.5th 997
Case #: H049359
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 02/28/2023

Order for in-kind restitution in the form of cryptocurrency for cryptocurrency theft was neither an abuse of discretion nor a violation of due process. Ung pleaded no contest to multiple theft-related felonies for stealing significant amounts of cryptocurrency. The trial court ordered Ung to make restitution by “transferring cryptocurrencies to the victims in the same kinds and amounts he had stolen from them.” On appeal, Ung argued this was an abuse of discretion because the dollar value of the cryptocurrencies had increased ten-fold since he stole them, thus resulting in a windfall for the victims. Ung also argued that the…

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Name: People v. Pierce (2023) 88 Cal.App.5th 1074
Case #: B322890
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 02/28/2023

The order summarily denying CDCR’s recommendation for recall of defendant’s 2011 stipulated sentence was reversed based on the new recall and resentencing procedures. The defendant entered into a plea agreement under which he received a stipulated term of 19 years 4 months. CDCR asked the trial court to recall and resentence defendant based on the amendment to Penal Code section 12022.53, allowing discretion to strike a gun use enhancement. Recall was denied. Defendant appealed. Held: Reversed. AB 1540, effective January 1, 2022, amended and moved the recall and resentencing provisions of former Penal Code section 1170(d)(1) to a new section,…

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Name: People v. Jones (2023) 88 Cal.App.5th 818
Case #: B318732
Court: CA Court of Appeal
District 2 DCA
Division: 9
Opinion Date: 02/27/2023

The trial court erred in failing to award presentence custody credits under Penal Code section 4019 because defendant’s current and prior assault with a firearm convictions did not qualify as violent felonies. Defendant pleaded no contest to one count of assault with a firearm and admitted a prior 2012 conviction for the same offense. Defendant argued on appeal the trial court erred in not awarding him presentence custody credits under section 4019. Held: Affirmed as modified to award credits under section 4019. Where a defendant has been in custody prior to sentencing, the defendant shall be given presentence credits pursuant…

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Name: People v. Hiller (2023) 91 Cal.App.5th 335
Case #: A165126
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 05/09/2023

Prior convictions for robbery in Washington State did not support prior serious or violent conviction sentencing enhancement in California. The trial court found true the allegations that defendant had been convicted of three serious or violent felonies in Washington, specifically robbery. These offenses were used to treat his current offenses as third strike offenses and to impose two five-year enhancements. Hiller appealed, arguing the evidence did not support the trial court's findings related to his prior convictions in Washington State. Held: True findings of prior convictions reversed, remanded. The elements of robbery in Washington are broader than those in California,…

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Name: People v. Johnson (2023) 88 Cal.App.5th 487
Case #: A162599
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 02/21/2023

Penal Code section 667.6, subdivision (d), which requires full consecutive sentences on specific sex crimes if the trial court makes certain factual findings, violates a defendant’s Sixth Amendment right to a jury trial. Johnson admitted engaging in sexual conduct with his nine-year-old daughter. After a jury trial, he was convicted of multiple counts, including nine counts of aggravated sexual assault of a child and four counts of forcible lewd acts on a child. He was sentenced to 32 years, plus 135 years to life. He appealed, arguing, among other issues, that his Sixth Amendment right to a jury trial was…

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Name: People v. Todd
Case #: H049129
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 02/15/2023

Senate Bill No. 567’s amendments to Penal Code section 1170, subdivision (b) apply retroactively to defendants sentenced to the upper term pursuant to a plea agreement to a stipulated term. As part of a plea agreement, Todd pleaded no contest to three counts of receiving stolen property in exchange for a stipulated sentence that included the upper term on one of the counts. On appeal, Todd argued he should be resentenced in light of SB 567. Held: Reversed and remanded for resentencing. As amended by SB 567, section 1170 provides that the trial court may impose an upper term “only…

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Name: People v. Sallee
Case #: F083728
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 02/15/2023

Defendant sentenced to upper term pursuant to a stipulated plea agreement was not entitled to relief based on Senate Bill No. 567’s amendments to Penal Code section 1170, subdivision (b). As part of his plea to first degree residential burglary, defendant entered a Cruz waiver and agreed that if he appeared for sentencing he would receive an eight-year sentence, but if he failed to appear he would receive twelve years (based on the upper term of six years doubled for a prior strike conviction). He failed to appear and was sentenced to twelve years. On appeal, defendant sought remand for…

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Name: Nijmeddin v. Superior Court (2023) 90 Cal.App.5th 77
Case #: H050870
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 04/05/2023

Trial court erred by failing to grant inmate compassionate release where he was presumptively entitled relief and there was not a specific finding he poses an unreasonable risk of committing a “super strike” offense. CDCR recommended that Nijmeddin be granted compassionate release pursuant to Penal Code section 1172.2 due to his advanced incurable pancreatic cancer and other comorbid conditions. His life expectancy was between three to six months. The trial court denied the request on the ground that Nijmeddin posed an unreasonable risk of danger. Nijmeddin filed a petition for writ of mandate, and the Attorney General conceded error. Held:

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