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Name: People v. Avignone
Case #: D070012
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 10/13/2017

Trial court lacks discretion to strike aggravated white collar crime enhancement (Pen. Code, § 186.11) in order to make defendants eligible to serve their sentences in county jail rather than state prison. Defendants, husband and wife, defrauded investors out of more than $700,000 in a real estate investment scheme. They entered guilty pleas to three counts of fraud (Corp. Code, §§ 25401, 25540, subd. (b)) and grand theft of property worth more than $950 (Pen. Code, § 487, subd. (a)). They admitted an aggravated white collar crime enhancement (Pen. Code, § 186.11, subd. (a)(2)), which applies to a pattern of…

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Name: People v. Arce
Case #: D069360
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 05/08/2017

Trial court properly refused to order a split sentence for an otherwise qualified defendant because of the fact that he faced mandatory deportation. In 2015, Arce pleaded guilty to possession for sale of heroin and cocaine (Health & Saf. Code, §§ 11351, 11370.4, subd. (a)(1)). The terms of his plea agreement provided that he would serve five years in jail and that he could ask the trial court to impose a split sentence (Pen. Code, § 1170, subd. (h)(5)), so that he could serve the concluding portion of his term on mandatory supervision rather than in custody. At sentencing the…

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Name: People v. Antolin
Case #: A147075
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 03/20/2017

Trial court did not have jurisdiction to modify defendant's straight county jail term (imposed pursuant to Realignment) after execution of the sentence. In 2013, Antolin was sentenced to 11 years in county jail for a drug offense and enhancements. Several years later he petitioned to have his sentence recalled and modified to allow him to serve the remaining term on mandatory supervision. The court granted his request. The prosecution appealed. Held: Reversed. "Under the general common law rule, a trial court is deprived of jurisdiction to resentence a criminal defendant once execution of sentence has commenced." There are differences under…

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Name: People v. Malago
Case #: D069858
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 02/27/2017

Trial court erred in failing to rule on defendant's objection to mandatory supervision conditions, but the error was harmless. In January 2016, Malago pleaded guilty to importing a controlled substance (Health & Saf. Code, § 11352, subd. (a)). The trial court imposed a five-year split sentence, with the concluding 30 months on mandatory supervision. In addition, the trial court imposed certain alcohol-related conditions of supervision. While it noted Malago's objections to the conditions, the trial court delegated a ruling on them to the future "mandatory supervision judge." Malago appealed. Held: Affirmed. "The sentencing court has broad statutory discretion in…

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Name: People v. Young
Case #: A143082
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 05/26/2016

Warrantless search of defendant was proper, even though he had already completed more than one year on postrelease community supervision (PRCS), because probation had an additional 30 days in which to discharge him from supervision. On May 14, 2012, Young was released from prison and placed on PRCS. While on supervision he was subject to warrantless searches and prohibited from possessing pornography. Almost a year later, police contacted his probation officer, asking to search his home under the terms of his PRCS, because they had information he was chatting online with teenage girls about sexual matters. In his home, police…

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Name: People v. Butcher
Case #: B261774
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 05/09/2016

Trial court appropriately imposed a state prison term rather than a county jail sentence for felony evading. In April 2012, Butcher pleaded no contest to felony evading (Veh. Code, § 2800.2, subd. (a)). A three year prison term was imposed with execution suspended, and Butcher was placed on probation. His probation was subsequently revoked and reinstated on multiple occasions, including in June 2013, when Butcher pleaded no contest to a new charge of threatening a public officer (Pen. Code, § 71). Ultimately his probation was revoked and the prison term executed. Butcher appealed. One issue on appeal was whether felony…

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Name: People v. Butler
Case #: B259153
Court: CA Court of Appeal
District 2 DCA
Division: 5
Opinion Date: 01/15/2016

Penal Code section 1202.45 revocation fine may not be imposed on defendant who received straight felony county jail sentence under Penal Code section 1170, subdivision (h). Butler was convicted of misdemeanor false imprisonment and felony resisting an officer. He was sentenced to two years in county jail. No part of the sentence was suspended as permitted by Penal Code section 1170, subdivision (h)(5)(B). The trial court imposed a Penal Code section 1202.4 restitution fine and imposed and stayed a revocation fine under Penal Code section 1202.45. Butler challenged the revocation fine on appeal. Held: Fine reversed. Section 1202.45, subdivision (a)…

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Name: People v. DeLeon
Case #: A140050
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 10/28/2015
Subsequent History: Review granted 2/3/2016: S230906

Parole revocation hearings held in superior court pursuant to the Realignment Act of 2011 need not be preceded by a preliminary probable cause hearing. DeLeon was on parole following his 2003 conviction for committing a lewd act on a minor. One term of parole prohibited him from possessing pornographic material. During a parole check in August 2013, his parole agent found pornographic material on DeLeon's cell phone. He was taken to jail and charged with a parole violation. The CDCR gave DeLeon written notice of the parole violation and a petition to revoke parole was filed in superior court. A…

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Name: People v. Mendoza
Case #: E059613
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 10/26/2015

The procedure whereby a defendant sentenced to state prison may request sentencing in absentia in a probation case (Pen. Code, § 1203.2a) also applies to defendants sentenced to "county prison." Mendoza was convicted of drug offenses in Riverside County and granted probation. Two years later, while she remained on probation for the Riverside offense, Mendoza was convicted of a felony in San Bernardino and sentenced to 16 months, to be served in the county jail. She filed a petition in Riverside to terminate her probation and sentence her in absentia. (Pen. Code, § 1203.2a.) The trial court did not act…

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Name: People v. Borynack
Case #: E061733
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 06/24/2015

Provisions of the Realignment Act of 2011 that allow the court to impose a split sentence may not be applied to a conviction for possession of a destructive device. Borynack pled guilty to a number of counts related to possession of destructive devices (Pen. Code, §§ 18715, subds. (a)(1), (a)(3), 18720) and other offenses. The trial court imposed a two-year term for possession of a destructive device (Pen. Code, § 18715, subd. (a)) and ordered the remaining counts served concurrently. After applying credits, the court suspended execution of the remainder of the sentence and placed appellant on mandatory supervision (Pen.…

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