The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.

DECEMBER 2007

Kassman, Martin — People v. Ramirez, D049922 — Unlawful Search
Order denying Penal Code section 1538.5 motion reversed, because the pat down search and detention resulting from it were not supported by objectively reasonable suspicion on the officer’s part. (I) PED/DLN

Well, Mary Woodward — People v. Gelashvili, D047844 — Black II/Sandoval
Upper term sentences reversed. Trial court had imposed the upper term based upon five aggravating factors and one mitigating factor. Only one aggravating factor was admitted by appellant. Hence, case remanded for the trial court to consider appropriate term. (I) LAR

Schaefer, Laura — People v. Hernandez, D048004 — Penal Code Section 654; Improper Enhancement
Court of Appeal ordered Penal Code section 12022.5, subdivision (a) enhancement stricken, because trial court incorrectly stayed the enhancement after imposing enhancement pursuant to Penal Code section 12022.53, subdivision (b). In addition, the Court of Appeal ordered the consecutive sentence for appellant’s criminal threats conviction stayed pursuant to Penal Code section 654, because the threat was made to facilitate the kidnaping, for which appellant received a separate sentence. (I) DKR

Burz, Dacia — People v. Saddler, D048364 — Blakely/Cunningham
Where the only factor cited by the trial court for imposing the upper term on the great bodily injury enhancement was improper (severity of the injury imposed) under Cunningham, remanded for resentencing. (I) MCR

Blake, Christopher — People v. Newline, D049262 — Sentencing
Appellant argued, respondent conceded, and the Court of Appeal agreed that because five years had elapsed between prison release and date of offense and the record contained no evidence of any excepting circumstance, one-year prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) was erroneous. (I) HCC

Wilson, Sachi — People v. Hall, D049364 — Penal Code Section 654
Appellant was convicted and sentenced for assault with a deadly weapon on an officer (count 1, Pen. Code, § 245, subd. (c)), resisting an executive officer (count 2, Pen. Code, § 29) and battery on a peace officer (count 3, Pen. Code, § 243, subd. (c)(2)). The Court of Appeal ordered his sentence on counts 2 and 3 stayed, since the crimes arose formed one indivisible course of conduct. (A) LKH

Stralla, Ava — People v. Lawson, D049409 — Compulsory Process
Trial court erred when it refused to grant short continuance to allow appellant’s ex-wife, who was under subpoena but unavailable because she was in the hospital giving birth, to testify on his behalf. (I) RBB

Lampkin, David — People v. Zacarias, D049593 — Conspiracy
In this published decision, the Court of Appeal reversed appellant’s convictions for kidnaping for financial gain, because the trial court instructed the jury on an erroneous theory of liability. Specifically, the jury was instructed that appellant could be liable for the kidnaping if the jury found that he conspired to commit the federal crime of alien smuggling and the kidnaping was a natural and probable consequence. The Court of Appeal found the instruction erroneous, because conspiracy applies only where the parties conspire to commit a crime which would violate California law. (I) LKH

Scott, Patricia — People v. Johnson, D050190 — Restitution
Attorney General conceded and Court of Appeal agreed that restitution fines must be stricken, because they were calculated based upon statutes which were not in effect at the time of the 1978 murder. Matter remanded for imposition of restitution fines based upon laws then in effect. (I) APJ

Koryn, Sylvia — People v. Arenas, D050417 — Sentencing
Appellant contended, respondent conceded, and the court agreed the trial court erroneously sentenced appellant to two (rather than one) five-year prior serious felony conviction enhancements (Pen. Code, § 667, subd. (a)(1)), because his two prior serious felony convictions were not brought and tried separately. Additionally, the abstract of judgment erroneously referred to four (rather than three) one-year prior prison term enhancements, because only three such enhancements were charged and found true by the jury. (Pen. Code, § 667.5, subd. (b).) (I) HCC

Blake, Christopher — In re D.J., D050668 — Insufficient Evidence
Court of Appeal agreed there was insufficient evidence to support the finding on the residential burglary, and the trial court erred in denying the Welfare and Institutions Code section 701.1 motion. Reversed with order to dismiss the petition. (I) APJ

Barry, Leslie — In re V.F., D050824 — Dependency Disposition
Published reversal. Juvenile court erred in using incorrect statute to remove children from an incarcerated parent. Correct statute was Welfare and Institutions Code section 361.2, not section 361, subdivision (c)(1). Under section 361.2, subdivision (a), court must determine whether placement with that parent would be detrimental to child. Here court would not imply that detriment and remanded the case for proper findings under section 361.2, subdivision (a). (I) ACS

Fabian, Linda — In re Antonio G., D051079 — Dependency; Relative Placement
Order denying grandmother’s relative placement request reversed, where agency failed to evaluate grandmother’s home (because children were previously removed from this home) and juvenile court failed to consider relative placement criteria under Welfare and Institutions Code section 361.3. Court of Appeal agreed that children’s prior removal from grandmother did not demonstrate she was an unsuitable caretaker, so current placement evaluation and assessment was necessary. (S) LMF

Lankford, Valerie — In re Justin R., D051129 — Dependency Jurisdictional
Three younger children appealed the juvenile court’s order dismissing their dependency petitions but sustaining the petition over their older sibling under Welfare and Institutions Code section 300, subdivision (b). Court reversed and ordered juvenile court to sustain jurisdiction over three siblings and hold dispositional hearing regarding them. (I) ACS

Williams, Nicole (mother); Fabian, Carl (minors) — In re Calvin P. et al, D051172 — Denial of Reunification Services
After trial court made finding under Welfare and Institutions Code section 361.5, subdivision (b)(10) that mother was not required to have reunification services, it failed to exercise its discretion under section 361.5, subdivision (c) to consider whether services were in the minors’ best interest and should nevertheless be ordered. Instead, the court improperly delegated the determination to the Agency and did not directly address the issue of the children’s best interests. Case remanded for minors’ best interest consideration. (I) CBM

Vento, Christine (Appellant Armster), Shulman, Corinne (Appellant Varela), Jones, Sharon (Appellant Reyes) — People v. Tony Armster, et al., E038151 — Penal Code Section 654.
Appellants’ sentences for conspiracy to commit murder and the attendant enhancements are stayed pursuant to Penal Code section 654. where appellants were separately punished for attempted murder. (I) LKH

Brandes, Elisa — People v. Aragon, E038944 — Blakely/Cunningham
Upper term sentence violates Sixth Amendment, because trial judge relied only on factors related to the crime that were not admitted by appellant, and none of which was implicit in any of the jury’s verdicts. (I) DKR

Shudde, Athena — People v. Gebhardt, E039807 — Abstract of Judgment
Abstract of judgment ordered amended to conform to actual sentence imposed by the court. Term reduced by one year. (I) PED

Levy, Richard — People v. Barajas, E039512 — Instructional Error
Two counts of first degree murder, as well as multiple murder and burglary murder special circumstances, reversed, because the trial court neglected its sua sponte duty to instruct on the merger doctrine, according to which a burglary based solely on an intent to kill or feloniously assault cannot support burglary felony murder or a burglary murder special circumstance. (I) RBB

Torres, Steven A — People v. Romero, E040434 — Penal Code Section 654
Trial court violated section 654 in failing to stay the term for the possession of handgun conviction, where appellant was also sentenced for attempted premeditated and deliberate murder. (I) LAR

Weis, Lizabeth — People v. Dodson, E040617 — Pet Condition
The probation condition requiring appellant to notify his probation officer of any pets violates People v. Lent and is unconstitutionally overbroad. The trial court is directed to modify the condition. (I) AMJ

Matsumoto, Ellen — People v. Rivera, E040755 — Penal Code Section 654
Attorney General conceded and Court of Appeal agreed that trial court erred in failing to stay the prison term imposed for the terrorist threat crime. Appellant’s threats were uttered to force the victim to commit oral copulation (a crime of which appellant was also convicted). Because the evidence showed appellant had but one criminal objective – the oral copulation, the trial court erred in failing to stay the prison sentence on this count. (I) CBM

Schwartzberg, Richard — People v. Leonard, E041250 — Evidence of Strike Prior; Propriety of Dismissal of Charge

In the defendant’s appeal, Attorney General conceded and Court of Appeal agreed that least adjudicated elements of Nevada robbery conviction are not equivalent to those of a California robbery conviction, because the Nevada statute requires neither the intent to permanently deprive the property nor that fear inducing the victim to part with the property to be caused by a threat of immediate harm. True finding for the strike prior was reversed; case remanded for new trial.

In state’s appeal, where perpetrator induced the victim to part with her car by pretending to be a repossession agent and thus caused the taking by trick and not by force or fear, the Court of Appeal affirmed the trial court’s dismissal of carjacking charges. (I) CBM

Jones, Sharon — People v. Soria, E041401 — Sufficiency of Evidence; Lesser Included Offense
Evidence waa found insufficient to sustain conviction for grand theft where the amount of loss attributable to appellant was $399.62. Further, conviction for carjacking reversed as it is a lesser included offense to kidnaping for and during a carjacking. (I) MCR

Costan, Charlotte — People v. Huffman, E041407 — Sentencing
One two-year on-bail enhancement ordered permanently stayed, because primary offense was dismissed and did not result in a conviction. A second two-year on-bail enhancement ordered stricken, because it was duplicative of enhancement imposed on another count. (I) DKR

Shudde, Athena — People v. Garcia, E041957 — Penal Code Section 654
Court of Appeal agreed that Penal Code section 654 applied to possession of a firearm by a felon where the evidence failed to support the prosecution’s theory that defendant had actual or constructive possession of the gun prior to the shooting, such that his intent in possessing was indivisible from his intent in shooting. (I) AMJ

Schwartzberg, Richard — In re McKnight — Correction of Fines
In response to a letter sent by the Department of Corrections and Rehabilitation to clarify the court’s restitution order of $500 pursuant to Penal Code section 1202.4, subdivision (b) and $6000 pursuant to Penal Code section 1202.45, the trial court issued a nunc pro tunc order imposing $6000 in restitution under Penal Code section 1202.4 and $6000 in restitution under Penal Code section 1202.45. The Court of Appeal granted appellant’s writ petition, reasoning the correction was not clearly one of a clerical error and thus could not be made after judgment issued. Rather, the court’s action was an attempt to correct a judicial error. At sentencing, the court had referred to the $500 not only as victim restitution but also as a fine. Because it was unclear what the court had initially ordered, any correction could not be defined as one fixing a clerical error. (I) CBM

McLaughlin, Robert (mother), Rehm, Linda (father) — In re Shannon C., E042554 — Indian Child Welfare Act (ICWA)
Court reversed termination of parental rights and remanded on limited basis with directions for the lower court to conduct further proceedings to ensure compliance with ICWA notice requirements. (A) BCT

Dodd, John — People v. Oates, E042645 — Sentencing
Appellant was initially sentenced some years ago as an aider and abettor for multiple attempted murders of rival gang members, when a fellow gang member shot at five people, grievously wounding one. Originally, the trial court imposed concurrent sentencing for the offenses; the People sought review on whether the firearm-great bodily injury enhancement attached to each of the five victims (albeit only one was wounded). The Supreme Court held that the enhancement did attach to each of the victims. After the superior court prematurely resentenced appellant after a second petition for review had been granted on a second appeal, the Court of Appeal remanded for a proper resentencing. The trial court then sentenced consecutively, giving reasons inconsistent with its original sentencing, although no factual circumstance had changed. On this appeal, the People conceded error, and the Court of Appeal ordered concurrent sentencing. (I) HCC

Klaif, Leonard — People v. Cotten, E042927 — Restraining Order
Appellant argued, respondent conceded, and Court of Appeal agreed that once appellant had been sentenced in a terminal disposition without being put on probation, the trial court was without jurisdiction to issue a restraining order. Neither Penal Code section 136.2 nor section 1203.097 authorizes such an order. (I) HCC

Jog, Anita — People v. Scruggs, E042938 — Probation Modification
The Court of Appeal found that the condition of probation prohibiting appellant from associating with probationers and parolees was vague and overbroad. Condition was modified to include a knowledge requirement and an exception for probationers and parolees participating in programs with appellant. (S) APJ

Rich, Renee — In re Elvia G., E043135 — Juvenile Dispositions
Trial court failed to declare whether a wobbler offense was a misdemeanor or felony pursuant to Welfare and Institutions Code section 702. (A) RBB

Matulis, Jean — People v. Wolfe, G036847 — Parole Revocation Fine
Attorney General conceded and Court of Appeal agreed that where trial court failed to orally impose restitution fine and parole revocation fine, minute order and abstract of judgment indicating $10,000 imposed for each fine were erroneous. Case remanded for court to consider whether to impose restitution fines pursuant to Penal Code sections 1202.4 and 1202.45. (I) CBM

Gambale, Jennifer — People v. Phillips, G037493 — Prior Acts
In prosecution for transporting and possessing for sale methamphetamine, trial court erred in allowing evidence of a subsequent uncharged methamphetamine offense under Evidence Code section 1101, subdivision (b), where defendant did not contend he possessed the methamphetamine through accident or mistake, and where knowledge of the nature of the substance was not at issue. (I) RBB

Hennessey, Patrick — People v. Solis, G037903 — Insufficient Evidence.
Appellant’s convictions for being an ex-felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) and street terrorism (Pen. Code, § 186.22, subd. (a)) are reversed for insufficient evidence. The court found insufficient evidence to establish that appellant possessed a gun found in an abandoned vehicle. Here, the court stated, “There was no physical evidence that appellant possessed the gun, and no evidence to connect him to the abandoned vehicle.” Appellant’s conviction for street terrorism was also reversed, because gun possession was the only alleged conduct proved at trial. (I) LKH

Shanahan, Maureen — People v. Prosser, G037953 — Unauthorized Sentence
Appellant, a real estate broker, pleaded guilty to various offenses, resulting from her use of her real estate broker key card to access lockboxes on homes listed for sale, thereby gaining entry and thereafter stealing property worth over $400,000. She was sentenced to prison, and the court ordered that defendant not act as a real estate broker, agent, or salesperson in any real estate transaction. Appellant argued, respondent conceded, and the Court of Appeal agreed that the latter order was an unauthorized sentence. The penal statutes do not authorize the court to prohibit the defendant from engaging in a certain occupation, and the Legislature has vested in the Real Estate Commissioner the authority to bar convicted felons from practicing as real estate brokers, agents, or salespersons. (Bus. & Prof. Code, §§ 10003, 10177, subd. (b).) (I) HCC

Rehm, Linda (mother), Mack, Jennifer (minor) — In re Julian K., G038030 — ICWA. Judgment terminating parental rights was reversed and the case remanded to the juvenile court with directions to order Agency to comply with the ICWA. ICWA notices filed with juvenile court did not include the maternal grandmother’s place of birth or information for the maternal grandfather. (I) LKH

NOVEMBER 2007

King, Nancy — People v. Sison, D047341 — Denial of Fair Trial
Carjacking conviction reversed, where evidence of a murder stemming from a separate incident was found prejudicial. (I) MCR

Brajevich, Sally — People v. Mack, D048084 — Sentencing
Attorney General conceded and Court of Appeal agreed that two counts should have been stayed pursuant to Penal Code section 654. Abstract of judgment also ordered corrected to reflect correct Penal Code section for one of the convictions. (I) BCT

Scott, Patricia — People v. Cogswell, D049038 — Witness Availability
Court of Appeal reversed rape convictions and remanded for new trial, because trial court erred when it found that prosecution exercised due diligence in attempting to secure court attendance of complaining witness who had moved to Colorado. The prosecution used the Uniform Act to Secure the Attendance of Witnesses, codified in Penal Code section 1334 et seq., to obtain a Colorado court order compelling attendance twice. The witness refused to comply with each order and advised the prosecutor after her first failure to appear that she would not attend. Trial proceeded using the witness’s preliminary hearing testimony. The Court of Appeal reversed, concluding the prosecutor should have had the Colorado court order the witness taken into custody as a material witness and transported to California. The Court of Appeal rejected the government’s argument that California Code of Civil Procedure section 1219, which bars a trial court from using its contempt power to imprison a sexual assault victim who refuses to testify, also applied to bar taking the victim into custody as a material witness for the purpose of guaranteeing the witness’s attendance at trial. The Court of Appeal held that the trial court’s contempt power is different than its power under the Uniform Act. (I) DKR

Kessler, Daniel J. — People v. Romes, D049659 — Remand to Allow Plea Withdrawal.
The Attorney General conceded and the Court of Appeal agreed that appellant should be allowed to withdraw his guilty pleas when the plea forms listed concurrent sentences as a term of the plea agreement, but the trial court found consecutive sentences to be mandatory under the Three Strikes law. The issue was treated as a sentencing issue, and no certificate of probable cause was required. (I) APJ

Robinson, Warren. — People v. Stidum, D049999 — Correction of Probation Report
The trial court erred in not striking incorrect information contained in the probation report; remanded for correction. (I) AMJ

Gordon, Laura. — People v. Lovejoy, D050234. — Improper Enhancement
Attorney General conceded and Court of Appeal agreed that trial court erred in imposing a one-year enhancement for knife use, because knife use was an element of the substantive offense. (I) AMJ

Trop, Neil — In re Baby Boy L. D050245. — Dependency-Special Hearing
Minor appealed the failure of court to place him with his maternal grandparents in Mexico. Court of Appeal held juvenile court abused its discretion in failing to place minor with his grandparents. Baby was conceived as the result of a sexual assault and mother wanted nothing to do with child. (I) ACS

White, Catherine. — People v. Quitiquit, D050385. — Evidence re Physical Abuse.
The critical issue of this appeal was whether the trial court erred in admitting evidence of a declarant’s statements to her doctor and a police officer that defendant had cause her neck injury seven weeks earlier, pursuant to the “physical injury” exception to the hearsay rule for statements made “at or near” the time of the injury. In a split decision, the court found the statements to the doctor were not made at or near the tine of the injury and that the statements to the police officer were not made under circumstances indicating their trustworthiness and non-qualified for admission pursuant to Evidence Code section 1370. (I) LAR

Smith, Barbara — People v. Masiel, D050398/E040351 — Sentencing
Sentence modified to strike the 10-year enhancement imposed under Penal Code section 186.22, subdivision (b)(1)(C), and to impose the 15-year parole eligibility minimum under section 186.22, subdivision (b)(5) in its place. (I) HCC

Mallinger, Kathleen. — In re Nolan W., D050408. — Civil Contempt Sentence
Appellant argued and Court of Appeal agreed that trial court abused its discretion by sentencing mother in a dependency case to 300 days in jail for failure to enter a substance abuse program. Court of Appeal held sentence was punitive and, therefore, an abuse of discretion. (Opinion treated the appeal as a writ of habeas corpus.) (I) LLF

Lankford, Valerie and Trop, Neil — In re Miguel A.; D050694 — Sibling Relationship After Termination of Parental Rights
The Court of Appeal decided in this published case that termination of parental rights in a dependency case did not sever the sibling relationship between the subject child and his/her biological brothers or sisters. The court exercised its discretion to decide the otherwise moot case, because it raised important issues capable of repetition, but likely to evade review. The case was affirmed because the sibling with whom the appellant minor sought visitation had been adopted, and the juvenile court no longer had jurisdiction to order visitation with him. (I) CAG

Chirco, Donna. — In re Taylor H., D050776. — Indian Child Welfare Act (ICWA)
Agency conceded improper notice pursuant to ICWA, and parties stipulated to immediate issuance of remittitur. Judgment reversed with limited remand for agency to give proper ICWA notice. If no tribe finds child is Indian child, judgment to be reinstated. (I) LLF

Braden, Julie — In re Steven H., D050817 — ICWA.
ICWA remand due to failure to provide notice to all tribal entities and failure to address notice to tribal chairperson. (I) LMF

Cilli, Gregory — People v. Vogt, E039410 — Correction of Abstract of Judgment
Minute order and abstract of judgment were in error, because they were inconsistent with the oral pronouncement of judgment. Trial court then increased the fine further following request by Department of Corrections. Superior Court ordered to correct these errors. (A) AMJ

Erickson, Kristin. — People v. Emmert, E039817 — Blakely/Cunningham
Following a People’s petition for review, the Supreme Court returned the matter for reconsideration in light of Black II and Sandoval. The Court of Appeal reconsidered and reached the same conclusion that the trial court improperly relied on factors which required true findings by the jury and the error was not harmless. Upper term reversed and remanded for resentencing. (A) AMJ

Cilli, Gregory — People v. Rosenberg, E040241 — Lesser Included Offense
Appellant’s conviction of assault is dismissed because it is a lesser included offense of conviction for corporal injury to a cohabitant in another count. (A) DKR

Shanahan, Maureen — People v. Gonzales, E040366 — Dual Convictions
Appellant’s receiving stolen property conviction is reversed.because he cannot be convicted of both stealing and receiving the same property. (I) DKR

Keiser, Susan — People v. Lopez, E041017 — Great Bodily Injury Enhancement
Attorney General conceded and Court of Appeal agreed that Penal Code section 12022.8 great bodily injury enhancements do not apply to violations of Penal Code section 288, subdivision (a). Five-year consecutive enhancements stricken as unauthorized and matter remanded to trial court for consideration of whether to impose a section 12022.7 enhancement. (I) APJ

Keiser, Susan — People v. Spiking, E041481 — Sentencing
Trial court erred in staying punishment on two prison priors, rather than striking the priors. (I) LAR

Matsumoto, Ellen — People v. Hicks, E042221 — Penal Code Section 654
Receiving stolen vehicle count stayed because same vehicle involved in count for unlawful taking. (I) DKR

Matulis, Jean — People v. Freeman, E042272 — Consecutive Sentence; Credits.
This case was previously reversed and remanded for resentencing. On this appeal after resentencing, court reversed and remanded for trial court to provide reasons for consecutive sentences and to recalculate custody credits. (I) BCT

Randall, Michael — In re Alexis H., E042322 — ICWA
Reversed for failure to give adequate notice. (I) ACS

Keller, Roni — In re Kevin M.,E042623 — Dependency Jurisdiction; Disposition Findings; ICWA.
The Court of Appeal reversed for lack of subject matter jurisdiction the dependency adjudication of three older children who had been living in Arizona with their grandmother. In addition, the mother’s confrontation rights were violated to the extent the court relied upon evidence for one of the two allegations of the petition from another individual’s case, not the evidence presented at the hearing. Although there was no objection by mother’s attorney, the allegation was not supported by sufficient evidence, and mother’s attorney had presented her arguments and rested when the court made its unusual findings. Disposition findings were reversed for the juvenile court to reconsider in light of the remaining ground for jurisdiction, mother’s alleged substance abuse, as the juvenile court failed to explain the basis of its findings and orders to remove custody. Finally, no evidence was presented that the social worker performed the necessary notice under ICWA. (I) CAG

Auwarter, Neil — People v. Elder, D042685 — Proposition 36
Attorney General conceded and Court of Appeal agreed that appellant was erroneously sentenced to prison and was instead entitled to Proposition 36 probation. The sentencing court, at prosecutor’s urging, had interpreted Penal Code section 1210.1 as precluding Proposition 36 probation for a defendant with a prior DUI conviction, when in fact the preclusion only applies where the DUI occurred within five years after a prior serious felony conviction. With the stipulation of the parties, the Court of Appeal issued the remittitur immediately. (S) NFA

Webb, H. Reed — People v. Mohoff, G037232 — Penal Code Section 654
The Court of Appeal stayed a concurrent sentence for passing a fictitious instrument, when appellant was sentenced for burglary based on intent to commit the same offense. (A) APJ

Haggerty, Edward — People v. Yocum, G037621 — Amendment of the Information Trial court erred when it permitted the prosecution to amend the information at the end of the prosecution’s case-in-chief to “conform to proof.” In this case, defendant had waived his preliminary hearing, and any amendment that changed the specific charges listed in the original complaint was barred by Penal Code section 1009. (A) LAR

Ward, Paul — People v. Najar, et. al., G038687 — Penal Code Section 654
Trial court erred by failing to stay the one-year consecutive sentence on the possession of contraband money conviction, because he possessed the funds with the same intent and objective underlying the conviction of possession for methamphetamine for sale. (I) AMJ

Tavano, Joseph — People v. Dominguez, et. al., G038687 — Peanl Code Section 654; Blakely/Cunningham
Trial court erred by failing to stay the one-year consecutive sentence on the possession of contraband money conviction, because he possessed the funds with the same intent and objective underlying the conviction of possession for methamphetamine for sale. The imposition of the upper term was prejudicial error and violated the Sixth Amendment. (I) AMJ

Stechel, Howard — People v. Lamas, S145231 — Gang offenses
Convictions of Penal Code sections 12031, subdivision (a)(2)(C) [active gang member carrying a loaded firearm in public] and 12025, subdivisions (a)(2) & (b)(3) [active gang member carrying concealed firearm on his person] require proof the gang member promoted felonious conduct distinct from otherwise misdemeanor conduct of carrying loaded firearm in public or carrying a concealed firearm. (I) RBB

OCTOBER 2007

Martin, Arthur; Scott, Patricia — People v. Cole & Robles, D047095 — Jury Instructions, Insufficient Evidence.
Court of Appeal reversed 11 counts of selling securities without a licence (Corp. Code, § 25210), because jury instructions erroneously eliminated the defense of good faith belief defendant was exempt from the licensing requirement. Also, two counts of selling securities by false statement (Corp. Code, § 25401) were reversed for insufficient evidence of scienter (knowledge of falsity). (I) NFA

Harris, Donna — People v. Flores, D048488 — Sentencing.
Judgment modified to strike two lesser included offenses and to stay one term pursuant to Penal Code section 654. (I) PED

Polsky, David — People v. Booth, D047740 — Cunningham
Upper term sentence reversed in light of Cunningham and Sandoval. Erroneously calculated sentence corrected. Consecutive sentences changed to concurrent. (I) PED

Zimmerman, Harry — People v. Rodriguez, D048564 — Insufficient Evidence.
Court found insufficient evidence in prosecution for discharging a firearm with gross negligence (Pen. Code, § 246.3) and serious bodily injury enhancement, because discharge of firearm was accidental, rather than willful or intentional. Also, the court struck two prison priors the trial court had erroneously attached to that count. (I) JLP

Boyce, Robert — People v. Chavez, D048908 — Sentencing
Trial court erred in staying rather than striking a Penal Code section 12022.5, subdivision (a) enhancement in a case where a section 12022.53, subdivision (d) enhancement was imposed. (I) RBB

Ford, Patrick — People v. Armitage, D048975 — Sentencing
In a resentencing following appeal, trial court erred in 1) imposing what it believed to be mandatory consecutive Three Strike sentences for felony convictions arising out of the same set of operational facts, 2) imposing two Penal Code section 1202.4, subdivision (b) restitution fines when two cases were consolidated for trial, and 3) failing to recognize its discretion to dismiss strikes as to some but not all counts pursuant to People v. Garcia (1999) 20 Cal.4th 490. (I) RBB

Shudde, Athena — People v. Cruz, D049567 — Lesser Included Offenses
Carjacking count dismissed as a lesser included offense of kidnapping during a carjacking; false imprisonment by violence count dismissed as a lesser included offense of kidnapping for robbery. (I) RBB

Lankford, Valerie (mother); Mallinger, Kathleen (2 minors); Braden, Julie (3d minor) — In re: Elijah Pack, D049807 — Post-Judgment Evidence
Partial reversal as to one minor and remand to conduct a new hearing under Welfare and Institutions Code section 366.26. Court concluded “this was a rare and compelling case that lies within the exception prohibiting the reviewing court from considering post judgment evidence.” Specifically, the court considered a trial court order authorizing third minor’s emergency removal from the home as evidence supporting a finding that the minor was not likely to be adopted within a reasonable period of time. (I) PED

White, Catherine — People v. Bunch, D050138 — Prior Conviction Admission
Although trial court took waivers of appellant’s constitutional rights, it never took appellant’s admission to the enhancement allegations. Because appellant never actually admitted the enhancements, trial court erred in imposing a prison sentence for them. Case remanded for a new hearing on the enhancements and a new sentencing hearing. (A) CBM

Tavano, Joseph (for mother) — In re Alexandria M., D050407 — Termination of Dependency Jurisdiction
Affirmance of the termination of jurisdiction, remand to the family court. (I) CAG

Mallinger, Kathleen (for father); Hook, William (for minors) — In re Alexandria M., D050407 — Termination of Jurisdiction, Settlement Agreement, Visitation Orders, Custody Orders, and Child Support
Affirmance of the termination of jurisdiction. Reversal of the orders regarding custody, visitation, and child support. Remand to the family court to determine these issues. The court abused its discretion by not accepting the settlement agreement and by terminating child support. The juvenile dependency court lacked jurisdiction to make child support orders. Minor’s counsel joined with Agency which agreed with the father’s position(I) CAG

Buchanan, Vicki — People v. Sebald, D050427 — Penal Code Section 654 Stay
Disagreeing with the Attorney General, the court determined that appellant harbored a single objective for the possession of burglary tools and burglary convictions. (A) AMJ

Christiansen, Mark — People v. Woosley, E039885 — Cunningham and Sentencing
Reversed and remanded. The trial court erred in imposing the upper term in violation of the Sixth Amendment; imposing a 20-year firearm enhancement and a stayed 10-year firearm enhancement because there was no finding by the jury; imposing two multiple-murder special circumstances rather than one; and imposing a stayed parole revocation fine because appellant’s sentence did not include a period of parole. The abstract of judgment was in error for stating that the two attempted murder convictions were for first degree, rather than unpremeditated attempted murder. (I) AMJ

CeVito, Cara — People v. Calzaretta, E040603 — Restitution
Appellant was convicted of various offenses, including felony assault as to one named victim, and sentenced to prison. The trial court ordered restitution to another unnamed victim as well, i.e., for conduct not resulting in a conviction. The Court of Appeal struck the contested restitution as unauthorized. Because it was unauthorized, the failure of trial counsel to object was not a forfeiture. The Court of Appeal also distinguished the case law which permitted such restitution as a condition of probation, because, here, probation was denied. (I) HCC

Robinson, Warren — People v. Smith, E040604 — Sentencing
Court erred in imposing upper term, in part, by using four of appellant’s prior convictions, which also served as enhancements upon which sentence was imposed under another provision of law. Remanded for resentencing. (I) AMJ

Dixon, Larry — People v. Heyden, E041047 — Custody Credits
Trial court failed to properly calculate appellant’s conduct credit. Attorney General conceded, and Court of Appeal agreed, ordering the abstract of judgment corrected to reflect an additional eight days of conduct credit. (A) LKH

Eskenazi, Lauren E. — People v. Meekins, E041048 — Theft/Receiving Stolen Property Attorney General conceded appellant could not be convicted both of the theft of the property and receiving that property. Conviction of receiving stolen property reversed. (A) LAR

Stralla, Ava — People v. Bolton, E041315 — Prison Priors
People conceded lower court did not intend to impose prior prison terms. Court of Appeal ordered abstract of judgment corrected to reflect the prior prison terms were stricken rather than stayed. (I) BCT

Auwarter, Neil — People v. Smith, E041331 — Sentencing
In an unpublished decision with one justice dissenting, the court denied the prosecution’s petition for writ of mandate seeking resentencing. Defendant was initially sentenced to prison for two years for vehicular manslaughter and driving under the influence. On its own motion, the trial court recalled the sentence under Penal Code section 1170, subdivision (d), and announced its intent to grant probation. At the resentencing, the District Attorney sought to have the victim’s family give a victim impact statement. The trial court noted that the family had given a lengthy impact statement at the initial sentencing and ruled they could speak again only if there was an “offer of proof” the family had new information to convey. There was no offer of proof, and the court resentenced defendant to probation without allowing the family to speak. The District Attorney filed a petition for mandamus, arguing the denial of the family’s right to speak under the Victim’s Bill of Rights (Cal. Const., art I, § 28; Pen. Code, § 1191.1) required resentencing. The Court of Appeal summarily denied the petition. The District Attorney then petitioned for review, and the Supreme Court granted review and directed the Court of Appeal issue an order to show cause. After an OSC, full briefing, and argument, the Court of Appeal denied the petition. The majority found the denial of a second victim impact statement did not violate the victims’ rights, and if it did, any violation was harmless. (Staff) NFA

Judkiewicz, Rene — In re W.M., E041590 — Indian Child Welfare Act (ICWA)
Reversal for failure to properly inquire as to parent’s Indian heritage under ICWA requirements. (I) ACS

Owen, Thomas — People v. Smith, E042042 — Sentencing
Concurrent sentences for possessing methamphetamine and marijuana for sale stayed per Penal Code section 654 because there was no evidence possession of the drugs preceded or continued beyond the transportation of them. (I) RBB

Ward, Paul — In re Teresa G., E042810 — Probation Condtions
Court held the probation conditions restricting association with gang members must be modified to require a knowledge requirement. As to the probation condition restricting use of a toluene-based substance without a medical prescription and then only if a written notice is given the probation officer by a physician, the court did not decide whether the term violated fundamental fairness, but decided to err on the side of caution and agreed with the minor the condition required modification. (I) BCT

Randall, Michael — In re Gracie S., E042971 — ICWA
Reversal for failing to properly inquire as to parents’ Indian heritage under ICWA requirements. (I) ACS

Hoffman, Edward — People v. Lamont, G032369 — Suppression Motion
Denial of motion to suppress reversed based on Brendlin v. California (2007) 551 U.S. ___ [127 S.Ct. 2400], because incriminating evidence was obtained in an unlawful detention from appellant, who was a passenger, in a traffic stop made without legal justification. (I) DKR

Hart, Mark — People v. Thuy, G036743 — Parole Revocation Fine
Court held the trial court erred in imposing parole revocation fine where appellant was sentenced to life in prison without the possibility of parole, notwithstanding that appellant was also sentenced to life with the possibility of parole, 15-years to life, and a determinate term. (I) BCT

Blair, Janyce — People v. Moun, G036862 — Parole Revocation Fine
Court held the trial court erred in imposing parole revocation fine where appellant was sentenced to life in prison without the possibility of parole. (I) BCT

Gamble, Jennifer — People v. Gutierrez, G037023 — Lesser Included Offense.
Attorney General conceded and Court of Appeal reversed the conviction for misdemeanor assault, because it was a lesser included offense of battery. (I) BCT

Lathrop, Stephen — People v. Castro, G037208 — Sentencing
Enhancement for Penal Code section 12022.5 ordered stricken, where enhancement pursuant to Penal Code section 12022.53, subdivision (c) imposed. (I) HCC

SEPTEMBER 2007

Lathrop, Stephen — People v. Bradford, D046614 — Judicial Misconduct
Published reversal. The Court of Appeal concluded that the trial judge’s act of engaging in private, unrecorded discussions with the jurors while the jury was deliberating was highly improper and required reversal. In entering the jury room during deliberations and engaging in off the record discussions with the jurors concerning points of law applicable to the case, the judge violated appellant’s right to have his counsel present during a critical stage of the proceedings. The judge’s unorthodox method of responding to the jury’s inquiries also infringed on the jury’s deliberative process, thereby violating appellant’s right to trial by jury. Because there is no record of the trial court’s interactions with the jury and the judge cannot recall precisely what was said during those interactions, the record was insufficient to enable the appellate court to conduct meaningful appellate review of the effect of the error, and the cause was remanded for retrial. (I) HCC

Dain, Anthony — People v. Trujillo, D046614 — Restitution Fine
The trial court erred by failing to exercise its discretion in setting the amount of the restitution fine under Penal Code section 1202.4, subdivision (b)(1). The Court of Appeal reversed the restitution fine and remanded with instructions that the court exercise its discretion. (I) CFS

Gilbert, Stephen — P. v. Bakeer, D048928 — Lesser Included Offense/Same Offense
The Court of Appeal reversed appellant’s grand theft conviction, because he was convicted of embezzlement, a different form of the same offense, based upon the same conduct. (I) APJ

Cannon, Gregory — People v. Kuechmann, D049401 — Restitution
Trial court erred in ordering restitution to police department as reimbursement for victim examination by sexual assault response team. (I) RBB

Polsky, David — People v. Lozano, D049594 — Lesser Included Offense. Attorney General conceded and Court of Appeal agreed that appellant cannot be convicted of both discharging a firearm at another person from a motor vehicle (Pen. Code, § 12034, subd. (c)) and discharging a firearm from a motor vehicle (Pen. Code, § 12034, subd. (d)), which is a necessarily included offense, based upon the same conduct. Accordingly, the latter conviction is reversed. (I) APJ

Robinson, Warren — People v. Cota, D050238 — Lesser Included Offense
Trial court erred in staying terms for unlawful driving or taking of a vehicle and receiving a stolen vehicle because unlawful driving or taking is a lesser included offense of grand theft auto, and a defendant cannot be convicted of both grand theft auto and receiving the same vehicle as stolen property. (I) RBB

Marshall, Marilee — People v. Jimenez, D050380 — Gang Crime/Enhancement
Insufficient evidence existed to support substantive gang crime and enhancements where appellant’s last documented association with a gang was 20 months before his arrest in the instant case, appellant had no gang clothing or paraphernalia at the time of his arrest or in his home, appellant was not tattooed with any gang symbols, appellant had not conveyed (by word or deed) gang slogans or signs, and appellant was not found within the boundaries of the turf claimed by the gang with which the government asserted appellant associated. (I) CBM

Ford, Patrick M. — People v. Fanelli, D050425 — Cunningham
The Court of Appeal determined that: 1) because a prior conviction was otherwise used to enhance the sentence in this case, it could not also be used to justify the upper term sentence; and 2) the court’s finding the remaining factors in aggravation true violated appellant’s right to a jury trial. The trial court remanded the matter for re-sentencing. (I) APJ

Vogelmann, Monica — In re Amana W., D050483 — Indian Child Welfare Act (ICWA)
County counsel for the respondent conceded and the Court of Appeal agreed that notice under the ICWA was not given and a limited remand was ordered to give that notice. (I) CAG

Matsumoto, Ellen — People v. Gramaje, E033887 — Cunningham
Court of Appeal reversed upper term sentence based on Cunningham error where the sentencing court relied on three aggravating factors: threat of injury, callousness, and taking advantage of a position of trust. A fourth factor, appellant's conviction of other crimes for which he could have been sentenced consecutively, was invalid because consecutive sentencing was, in fact, not possible. (I) NFA

Dodd, John — People v. Merchant, E033887 — Sentencing
Applying the holding of People v. Modiri (2006) 39 Cal.4th 481, the Court of Appeal struck a great bodily injury enhancement on a count of child endangerment, where appellant had aided the perpetrator, but had not personally inflicted the injury or applied force to the victim. (I) NFA

De La Sota, Richard — People v. Burks, E039382 — Cunningham
Trial court committed error under Cunningham where the recidivist factor it cited was not supported by the appellate record. Rather than being on probation at the time of the commission of appellant’s crime, the record showed appellant received probation in two misdemeanor cases after he pleaded guilty to the felony crime in the instant case. Case remanded for resentencing. (I) CBM

Costan, Charlotte — People v. Madrid, E040450 — Penal Code section 654
Appellant was convicted of manufacturing methamphetamine, and the jury made 15 true findings for each enhancement alleging a separate child under the age of 16 who had been in the structure, a motel. The court concluded that section 654 did apply to enhancements in this circumstance and ordered 14 of the enhancements stayed. (I) HCC

Schwartzberg, Richard — In re Soliz, E040533 — Credits
Petitioner filed a writ petition after the prison deducted 30 days of conduct credit and gave him a disciplinary writeup for not reporting to his prison job. The writ petition was denied in the superior court and the Court of Appeal. The California Supreme Court granted review and returned the matter to the Court of Appeal with directions that the court issue and order to show cause requiring respondent to show some evidence to support the finding petitioner committed a rules violation. After again examining the record, the Court of Appeal concluded the evidence was insufficient to show a violation. It ordered the credits restored and the disciplinary record removed from petitioner’s file. (I) CMS

Eskenazi, Lauren — People v. Engram, E040549 — Jury Instructions
Conviction of burglary was reversed, where trial court failed to instruct on the definition of any target offense. The omission was prejudicial because the evidence left unclear what, if any, offense appellant intended to commit inside the residence. (A) NFA

Rollo, Sharon — In re M.M., E041083 — ICWA
The Court of Appeal remanded the matter for compliance with ICWA after county conceded that ICWA notices were incomplete. No return receipts were filed for notices sent based upon father’s claim of Blackfoot ancestry, and no notices were sent based upon father’s claim of Cherokee ancestry. (I) APJ

Milberg, Jonathan -- People v. Guillen, E041094 -- Resentencing
After a felony false imprisonment count was reduced to misdemeanor false imprisonment following a successful appeal, the trial court erred in imposing a consecutive 180-day term when sentence on the felony had been stayed pursuant to Penal Code section 654. (I) RBB

Hennessey, Patrick — People v. Thornton, E041123 — Penal Code section 654
Penal Code section 654 barred the sentence imposed on count 1 for attempted battery, where that offense and the offense in count 2 for resisting and obstructing a law enforcement officer were part of a continuous attempt by defendant to resist lawful orders. (I) AMJ

Williams, Rex — People v. Caselin, E041217 — Cunningham
The Court of Appeal remanded the matter for re-sentencing in light of Cunningham, where trial court relied on factors, other than prior offenses, not found true by the jury. After the Court of Appeal determined that a couple of the factors were either an element of the offense or otherwise used to enhance the sentence, it concluded that the violation was not harmless, because there was doubt as to whether a jury would have found true the remaining factors. (I) APJ

Ting, Allison — People v. Ibarra, E041692 — Lesser Included Offense.
Court of Appeal reversed count of being an active participant in a criminal street gang (Pen. Code, § 186.22, subd. (a)), because is it a lesser included offense within the crime of carrying a concealed firearm while participating in a criminal street gang (Pen. Code, § 12025, subd. (b)), of which defendant was also convicted. (I) NFA

Novoa, Kathleen — People v. Niehouse, E041761 — Restitution Fine
Court of Appeal agreed that trial court erred in imposing an increased restitution fine ($1600), when appellant was resentenced after remand when original fine imposed was $1200. (I) BCT

Stanton, Marta — People v. Scott, E041908 — Penal Code section 654.
Resisting arrest count ordered stayed, because it resulted from the same indivisible couse of conduct as the first count of using force upon a peace officer. (A) PED

Williams, Nicole; Barry, Leslie — In re S.E., E042356 — ICWA Notice
Court of Appeal reversed for notice under the ICWA where mother said there may be some Indian background in her family, but she was not sure what tribe or which relative. The maternal grandmother said in response to a query from the court, “Too far back.” Mother’s counsel added, “Maybe very distant, remote.” As the Court of Appeal said, “‘Courts have repeatedly held that only a hint or suggestion of Indian ancestry is required to trigger the ICWA notice requirements.’ (See In re Miguel E. (2004) 120 Cal.App.4th 521, 549.)” (I) CAG

Hennessey, Patrick — People v. Culbertson, E042585 — Proposition 36
Appellant pleaded guilty to possession of methamphetamine. Pursuant to the plea bargain, the defendant would be granted probation under Proposition 36. He failed to appear at sentencing. Based on the failure to appear, the court denied Proposition 36 probation, ordering defendant to enroll in the PRIDE drug program. Attorney General conceded and Court of Appeal agreed that trial court erred in finding defendant’s failure to appear rendered him ineligible for Proposition 36 probation. Court said defendant would have been ineligible for Proposition 36 if he had been convicted of the failure to appear as a misdemeanor, because this would have qualified as “a misdemeanor not related to the use of drugs.” (Pen. Code, § 12010.1, subd. (b)(2); People v. Canty (2004) 32 Cal.4th 1266, 1279.) Since defendant was not convicted of the failure to appear, he remained eligible for treatment under Proposition 36. Further, trial court did not have discretion to deny Proposition 36 probation based on the terms of the plea. Under Penal Code section 1192.5, the court was required to either sentence defendant to Proposition 36 probation or give him the opportunity to withdraw his plea. (I) CMS

Peters, Gerald — People v. Merritt, G037372 — Sentencing
Appellant was convicted in a current prosecution and sentenced to prison. His probation on two other cases was revoked, and the court imposed consecutive sentencing. As to one of those cases, the consecutive term was imposed as a full term. The People conceded and the Court of Appeal agreed that the term should have only been one-third the mid-term. (A) HCC

Flenniken, William — People v. Hallett, G037505 — Cunningham
Remand for resentencing where trial court sentenced appellant to upper term. Remanded because the record was not clear that the trial court relied on proper factors to impose the upper term under Cunningham. (I) MCR

Blake, Christopher — People v. Douglas, G037645 — Lesser Included Offense
Attorney General conceded and Court of Appeal agreed petty theft with prior conviction was a lesser included offense of robbery; conviction for the former reversed. (I) BCT

Lathrop, Steven M. — People v. Hong, G037973 — Insufficient Evidence
Appellate court found there was insufficient evidence appellant shot at a vehicle occupied by a particular victim, because there was no evidence the alleged victim was in the vehicle at the time of the shooting. Conviction reversed. (I) LAR

AUGUST 2007

Benedict, Amanda — People v. Fernando Vasquez, D042623 — Cunningham
Appellant was sentenced to the upper term. None of the aggravating facts fell within the recidivist exception, was admitted by appellant, or found true by the jury. Case remanded to the trial court for re-sentencing. (I) LKH

Boyce, Robert E. — Raul Macias Garcia, D048286 — Sentencing
Trial court ordered to correct the abstract of judgment to reflect the prior prison term was stricken, not stayed. (I) LAR

Harris, Donna — People v. Equihua, D048555 — Sentencing/No contact order
Trial court erred in imposing a no contact order on appellant after he pleaded guilty to one count of forcible rape and was sentenced to prison. No statute authorized the order: the victim was not a minor (Pen. Code, § 1202.05), appellant had no conviction of stalking-related charges (Pen. Code, § 646.9, subd. (k)), appellant had not been not granted probation (Pen. Code, § 1203.1, subd. (j)), and no criminal action was pending. (Pen. Code, § 136.2). Finally, this was not the type of case where the court’s inherent power to protect the administration of justice would support such an order. (See Wheeler v. U.S. (1981) 640 F.2d 1116, 1123; U.S. v. Morris (2001) 259 F.3d 894.) If the victim wanted a no contact order, she could request one be included as a condition of parole. (Pen. Code, § 3053.2, subd. (a).) (I) CBM

Auwarter, Neil — People v. Smith, D048625 — Search and Seizure.
Court of Appeal reversed a narcotics conviction on Fourth Amendment grounds. Police responding to a report of domestic violence encountered appellant and his girlfriend, both with cuts and scrapes, in the front yard of appellant’s home. Appellant told police the girlfriend had cut him with scissors, which were in the house, but that he did not want police to go inside. Police nonetheless entered and searched the home and found narcotics on a shelf in a closet. The trial court denied appellant’s suppression motion, finding the home search was justified under the “protective sweep” and “community caretaker” exceptions to the warrant requirement. The Court of Appeal found neither exception applied, and so the suppression motion should have been granted.
(S) NFA

Schuck, John — People v. Layton, D048892 — Suppression of Evidence
Reversed, with directions to suppress evidence. An officer was investigating a non-criminal traffic accident. He came to appellant’s home and entered appellant’s garage where he saw marijuana being cultivated. This information was used by another officer to gain a warrant. At the suppression hearing, the investigating officer testified that what he saw had been in plain view prior to entry, but the trial judge found him not credible. Even though the unlawful observation was the purported probable cause for the warrant, the trial judge denied the motion, utilizing an incorrect standard as if the motion were one to traverse the warrant, rather than to suppress the fruits of a warrantless search. The People conceded the issue. (I) HCC

Stanley, Allison — People v. Palmer, D049109 — Probation Conditions
Court of Appeal agreed that trial court abused its discretion by imposing a polygraph condition which was overbroad and not tailored to appellant's situation, because it permitted questions regarding a nonexistent stalking program. (A) CMS

Gabrielidis, Cristina — People v. Christopher G., D049208 — Jurisdiction
Trial court lacked subject matter jurisdiction over crime minor admitted committing in Arizona. (A) RBB

Cohen, Howard — People v. Strausbaugh, D049309 — Specific Performance
Appellant pleaded guilty to receiving stolen property pursuant to a plea agreement in which the court and the parties agreed to a straight jail sentence (concurrent with another prison sentence) which would have rendered the “wobbler” a misdemeanor. At sentencing before a different judge, however, a different prosecutor argued, erroneously, that probation was necessary to order any restitution. While defense counsel acquiesced, the court did not inquire of appellant and did not advise him of the right to withdraw his plea. On appeal, the People argued that appellant was attacking the validity of his plea and, without a certificate of probable cause, the appeal should be dismissed. The Court of Appeal disagreed and ordered specific performance of the agreed plea bargain. (S) HCC

Robinson, Warren — People v. Holbrook, D049515 — Right to Jury Trial
Convictions after court trial reversed because appellant did not personally waive his right to a jury trial. (I) DKR

Wells, Mary — People v. Pratts, D049918 — Fine Reduction
The Attorney General conceded and the Court of Appeal agreed that the trial court erred in increasing restitution fine and parole revocation fine after probation revocation. Thus, increased fines are stricken and original fines remain in place. (I) APJ

Keiser, Susan K. — People v. Lockhart, D050067— Penal Code Section654
Attorney General conceded and Court of Appeal agree that appellant’s concurrent sentence for possession of marijuana for sale must be stayed pursuant to Penal Code section 654, because appellant was also punished for selling marijuana based upon the same conduct. (I) BCT

Braden, Julie; Vogelmann, Monica — D050351 — Presumed mother & ICWA.
In an appeal by the minor and the biological mother whose rights had been terminated some years before, the court affirmed the trial court's decision that the biological mother could not be found a presumed mother, but reversed for ICWA notice. [Only the child and the adoptive father raised ICWA.] (I) CAG

Milcetic, Maryann — In re Alliyah H., D050448 — ICWA
The Agency conceded, the minor’s counsel concurred, and the court agreed the notices sent to the BIA and Cherokee contained insufficient information and the matter should be remanded for the limited purpose of complying with the notice provisions of ICWA. (I) HCC

King, Nancy — People v. Ortiz, E038140 — Prior Convictions
Defendant’s admission of three serious felony priors reversed because trial court did not advise defendant of the penal consequences (i.e., 15 additional years) of the admission. (I) RBB

Popper, Jamie — People v. Perez, et al., E038140 — Prison Priors
Attorney General conceded and Court of Appeal agreed insufficient evidence existed to support prison prior (Pen. Code, § 667.5, subd. (b)) based on content of appellant’s admission. (S) JLP

Sheehy, Kevin — People v. Deville, E039557 — Penal Code Section 654
Sentences for misdemeanor use/being under the influence and possession of drug paraphernalia stayed under Penal Code section 654, because they were part of the same course of conduct and incident to the same intent as the felony possession charge. (A-M) MCR

Sheehy, Kevin — People v. Trujillo, E040053 — Cunningham.
Case reversed and remanded to the trial court for re-sentencing. At the original sentencing, the court imposed the upper term based upon four aggravating facts. Two were arguably recidivist factors (defendant had been unsuccessful in every attempt at rehabilitation and probation and defendant’s prior performance on parole and probation was unsatisfactory), but the Court of Appeal found them to be factual findings falling outside the scope of Almendarez-Torres. (I) LKH

De La Sota, Richard – People v. Raymond R., E040097 – Juvenile Delinquency.
Judgment is reversed and remanded to allow the juvenile court to clarify whether the Penal Code section 422 offense is a felony or misdemeanor and specify the maximum term of confinement. (Welf. & Inst. Code, §§ 702 & 726, subd. (c).) (A) LKH

Gabrielidis, Cristina — People v. Quintanilla, E040712 — Sentencing.
Trial court improperly counted appellant’s juvenile adjudication as a strike prior. It was improper as appellant was only 14 years old at the time of the adjudication. (A) LAR

Stanton, Marta — People v. Terry, E041252 — Sentencing
1) Trial court violated due process by reinstating suspended prison sentence at an ex parte hearing. 2) Trial court also erred in delegating its duty to determine credits to the Department of Corrections and Rehabilitation. (I) RBB

Randall, Michael — In re Shauna D., E041616 — ICWA
Limited reversal to demonstrate compliance with ICWA. (I) PED

JULY 2007

Brajevich, Sally — People v. Fullbright, D048113 — Cunningham
Upper term sentence reversed pursuant to Cunningham and remanded. (I) RBB

Kessler, Daniel — People v. Fallow, D048231 — Jury Instructions
Trial court prejudicially erred when it omitted definition of “taking” from carjacking instruction, CALJIC No. 9.46. (I) RBB

Cannon, Gregory L. — People v. Robinson D049044 — Penal Code section 1203.03 Diagnostic Evaluation
Remanded with directions that court refer defendant for section 1203.03 diagnostic evaluation by Department of Corrections and Rehabilitation as promised by trial court at acceptance of guilty plea. (I) MCR

Weiss, Elizabeth — People v. Cruz, D049285 — Cunningham
Upper term reversed pursuant to Cunningham and case remanded to determine whether defendant's criminal record alone supports an upper term. (I) RBB

Kaiser, Donna (appellant); Braden, Julie (minor) — In re Ivan E., D050051 — ICWA
Stipulated reversal based upon Agency’s failure to comply with the notice provisions of Indian Children Welfare Act (ICWA) and the juvenile court not making a finding pursuant to 25 United States Code section 1912(f). (I) LAR

Hennessey, Patrick — People v. Rizo, D050146 — Continuance at Sentencing
Attorney General conceded and Court of Appeal agreed that trial court erred in denying appellant’s request for a continuance of the sentencing hearing where counsel had just received a psycho-sexual evaluation of appellant shortly before the scheduled hearing, had not had the opportunity to review the evaluation and prepare a sentencing memorandum by the time of the hearing, and the evaluation triggered the need to investigate whether a request to withdraw the plea would be appropriate. Sentence vacated and remand ordered. Upon remand, the trial court is directed to consider any motion to appoint new counsel and/or withdraw the guilty plea. (I) CBM

Schwartzberg, Richard — People v. Toan Quoc Van, et. al., E037955 — Pitchess Judgment conditionally reversed and remanded to trial court with directions to hold a new Pitchess motion in conformance with the procedures described in People v. Guevara (2007) 148 Cal.App.4th 62, 68-69. (I) LAR

Zimmerman, Harry — People v. Florence E039635 — Restitution Fines
Restitution fine imposed when probation revoked and defendant sentenced to prison stricken, where initial fine had been imposed at grant of probation. (I) DLN

Salisbury, William — People v. Smith, E039638 — LIOs; Sufficiency of Evidence; Sentencing
1) Conviction of possessing a controlled substance reversed as a lesser included offense of possessing cocaine base for sale. 2) Evidence was insufficient defendant possessed for sale cocaine base within 1000 feet of a high school. 3) Trial court erroneously imposed term for school enhancement on count on which jury made no true finding, and on which enhancement could not even attach. (I) RBB

Bostwick, James, Jr. — People v. Sepulveda, E039695 — Probation Conditions
Probation conditions (pet condition, income/expenditure records, and non-use possession of computer device) stricken as invalid. (I) DLN

Costan, Charlotte — People v. Lopez, E039828 — Cunningham
Upper term sentence reversed pursuant to Cunningham. Attorney General argued defendant waived his right to a jury trial. Court of Appeal stated it did not have a reporter’s transcript of the waiver of jury trial and, therefore, could not determine whether it encompassed sentencing matters or the obligation to find sentencing factors beyond a reasonable doubt. With respect to appellant’s argument regarding consecutive sentencing, the court stated that People v. Black (2005) 35 Cal.4th 1238 remains binding precedent on this aspect of sentencing. (I) CMS

Jones, Sharon — People v. Johnson, E040044 — Sentencing
Only one 25-to-life term may be imposed pursuant to Penal Code section 667.61 for offenses committed against a single victim during a single occasion. (I) RBB

Torres, Tonja — People v. Olachea, E040239 — Sentencing
Trial court erred in concluding it had no discretion to impose concurrent 15-year-to-life terms under Penal Code section 667.61, subdivision (b). (I) RBB

Cannon, Gregory — People v. Ford, E040342 — Probation Revocation Fine
Attorney General conceded and Court of Appeal agreed that trial court erred in imposing a $220 probation revocation fine under Penal Code section1202.44 where it had imposed only a $200 probation fine under Penal Code section 1202.4, subdivision (b). (I) CBM

Auwarter, Neil — People v. Arbiso, E040994 — Sentencing/Three Strikes.
Attorney General conceded and Court of Appeal agreed abstract of judgment and sentencing minutes erroneously stated appellant was sentenced under the Strikes Law. No strike was alleged or proved, and the contrary references in the abstract and minutes were clerical error, which the Court of Appeal ordered corrected. The error had caused the Department of Corrections and Rehabilitation to mis-classify appellant as eligible for only 20% custody credits, rather than half-time credits. (Staff)

Webb, H. Reed — People v. Khouri, E0E040829 — Fees
Trial court erred in ordering defendant to pay attorney's fees and probation report costs without determining actual amount of fees or costs or defendant's ability to pay them. (I) RBB

Wass, Valerie — People v. Moralez, G036391 — Drug Enhancement
In a conviction for simple possession and transportation of drugs, the jury found true that appellant had previous qualifying drug convictions for enhancement of sentence pursuant to Health and Safety Code section 11370.2. The trial court struck, for sentencing purposes only, the enhancement to the simple possession. The Attorney General conceded and Court of Appeal agreed that the enhancement did not apply at all to simple possession, and the court struck the enhancement for all purposes. (I) HCC

Robinson, Warren — People v. Fritz, G037428 — Evidence of Prior Crime
Published reversal. Appellant was found guilty of conspiring to and burglarizing a merchant in two separate alleged incidents of shoplifting. Appellant did not testify. Over objection, the prosecution was permitted to introduce incidental false statements appellant had made to the police concerning a past conviction for theft. The Court of Appeal concluded that the statement did not display a consciousness of guilt (but even if it did, its prejudicial effect outweigh its slight probative value), and its incidental nature rendered it inadmissible as impeachment. The court further concluded that the introduction carried immense prejudicial weight, that the jury's knowledge of the past conviction was "huge," and that other instructions could not cure the error. (A) HCC

Scott, Daphne — In re Adam A., G037303 — Juvenile (Welf. & Inst. Code, § 602) Disposition
Court of Appeal reversed removal order because trial court failed to find one of the facts set out in Welfare and Institutions Code section 726, and no such finding could be fairly implied from the record. In addition, reviewing court reversed order delaying minor's driver's license for one year under Vehicle Code section 13357, because appellant did not suffer a true finding of offense (10851) enumerated in that section. (A) CMS

DuNah, Patrick — In re Carlos I., G037589 — Juvenile (Welf. & Inst. Code, § 602) Disposition
Disposition order vacated and matter remanded to the juvenile court to declare whether terrorist threat offense is a felony or misdemeanor and to determine whether this offense should be stayed pursuant to Penal Code section 654 in determining maximum period of confinement. (Staff)

Ballentine, Jean — People v. Bornstein, G037615 — Resentencing/ Law of the Case Trial court acted in excess of jurisdiction by refusing to accept the Court of Appeal’s decision from the first appeal, requiring remand to and resentencing by a different judge. (I) AMJ

JUNE 2007

Castillo, Irma — People v. Croteau D042779 — Cunningham
Upper term sentence reversed and remanded for resentencing. (I) DLN

Swain, Robert — In re Sotelo, SCS182470 — Ineffective Assistance of Counsel; Suppression of Evidence
Petition for writ of habeas corpus granted and judgment vacated; evidence suppressed; upon motion of the People, case dismissed; and petitioner released from prison forthwith. In the former appeal, an officer had testified that upon seeing an expired registration and confirming the expiration from the Department of Motor Vehicles, he stopped petitioner, reasonable suspicion developed that petitioner was under the influence, and a search of the vehicle uncovered drugs. On appeal, the judgment was affirmed. At the conclusion of the appeal, appellant wrote ADI and complained that his vehicle had a lawful temporary registration. ADI obtained the police report from the Public Defender. The report indicated that the officer saw there was a temporary registration, DMV confirmed there was a temporary registration, but the officer initiated the stop because of his belief that the temporary registration was forged. Trial defense counsel had no reason not to have moved to suppress on the basis of an unlawful detention. On habeas corpus, the superior court found that the motion to suppress would have been meritorious, and, therefore, trial counsel had provided ineffective assistance. After the court ordered suppression, the People had no other proof of the existence of contraband and reluctantly moved to dismiss, and the court granted the motion. The court then ordered petitioner released from custody forthwith. (I) HCC

Mazur, Janice R. — People v. Pratt D046844 — Lesser Included Offense
Attorney General conceded and Court of Appeal agreed that assault with a firearm (Pen. Code, § 245, subd. (a)(2)) is a lesser included offense of assault with a semi-automatic firearm (Pen. Code, § 245, subd. (b)), and the former therefore must be reversed. (I) DLN

Kessler, Daniel — People v. Willis, D047786 — Cunningham
Upper term sentence reversed and remanded for resentencing. (I) CMS

Owen, Thomas — People v. Trotter, D047878 — Involuntary Plea
The trial court abused its discretion in denying appellant’s motion to withdraw his guilty plea. The plea was part of a package deal. Evidence showed that appellant had been threatened and pressured into taking the deal by at least one co-defendant. Appellant was visibly upset during the change of plea. Judgment is reversed and matter is remanded to allow appellant to withdraw his guilty plea. Justice Aaron has written a concurring opinion explaining why the de novo standard of review should apply to the question of whether a guilty plea was voluntary. (A) APJ

Brisbois, Patricia — People v. Montesinos, D048005 — Restitution
Restitution order awarding the victim $10,000 for a wedding set is stricken. The amount was not supported by substantial evidence, where the trial court relied solely upon testimony of the victim’s son who did not own the property and had no expertise in jewelry. (A) LKH

Brajevich, Sally — People v. Mack, D048084 — Cunningham; Penal Code Section 654
Upper term sentence reversed and remanded for resentencing. Court also ordered two counts stayed pursuant to Penal Code section 654, and typographical error in abstract of judgment corrected. (I) BCT

Schwartzberg, Richard — People v. Owen, D048090 — Cunningham
Upper term sentence reversed and remanded for resentencing. The court declined to find harmless error and reversed, because on the record it could not determine “beyond a reasonable doubt what balance the court would have struck between the mitigating and aggravating factors if it relied solely on permissible aggravating factors.” (I) DKR

Cannon, Gregory — People v. Parrish, D048368 — Cunningham
Upper term sentence reversed and remanded for resentencing. Court’s upper term reasoning was based on aggravating factors of great violence, threats, high degree of cruelty, particularly vulnerable victim. However, jury had convicted appellant of lesser included offense of manslaughter instead of murder based on administering lethal dose of heroine [among other acts]. (I) CFS

Dain, Anthony — People v. Cortez, D048425 — Sentencing.
The trial court erred in sentencing the defendant under both the habitual sexual offender law (Pen. Code, § 667.71) and the one strike law (Pen. Code, § 667.61). Appellant's sentence under the one strike law is ordered stricken. (I) LKH

Halka, Waldemar — People v. McNeely, D048692 — Juror Misconduct
Judgment on theft, residential burglary, and receiving stolen property convictions vacated and remanded with directions to set a hearing pursuant to Code of.Civil Prpcedure section 237, subdivisions (c) and (d) to determine whether juror information should be released to defense counsel. Trial counsel’s motion for new trial had requested juror names and addresses after it was learned that the foreman had not disclosed he was a lawyer during voir dire and that during jury deliberations he was maintaining a blog, referring to the defendant as “Donald the Duck.” The blog also revealed that the verdict may have been a compromise verdict. (I) CFS

Rankin, David — People v. Buzby, D049153 — Restitution
Court of Appeal struck direct restitution of $1,366 payable to San Diego Police Department incurred for the rape victim and rape suspect interviews, because the costs were investigative and the Department was not a victim within the meaning of the restitution statute. (Staff) DKR

Morris, Michelle; Mallinger, Kathleen; and Bookout, Susan — In re Joseph B., D049231 — Dependency
Jurisdictional findings reversed as there was no nexus between acts or omissions of parents and hospitalizations of 15-year old son who suffered from myasthenia gravis. (A, I, I ) / CAG

Buckley, Christian and St. Julian, Andrea — In re N.G. D049963 — Indian Child Welfare Act (ICWA)
Agency agreed that ICWA notices were incomplete and one notice sent to wrong address. Reversed for limited ICWA remand. Both appellant and minor’s counsel argued that the child’s adoptability should be reassessed on remand, but the Court of Appeal disagreed and noted “we decline to depart from our practice of issuing limited reversals in an appeal involving only defective ICWA notice.” (A, I) ACS

Milcetic, Maryann and Evans, Suzanne — In re Jay H., D049990 — ICWA
The Court of Appeal reversed only on the ground that sufficient notice was not given to the tribe. The grandfather was enrolled in the Nez Perce tribe, but the notice did not provide all of the required information on the grandparents. The grandfather was caring for the child, so the information was available. In addition, the Nez Perce requested the father’s and child’s birth certificates, but the Agency did not provide them. (I) CAG

Lankford, Valerie — In re Amanda P., D050046 — ICWA
Although the county had notified the Bureau of Indian Affairs and the Barona Indian Tribe with respect to minor’s status from father’s lineage (albeit with incomplete notices), it failed to notify the Cherokee tribe with respect to minor’s status from mother’s lineage. A limited remand was ordered to allow notice to the Cherokee tribe. (I) CBM

Evans, Suzanne — In re Wolfgang S., D050103 — ICWA
Parties stipulated to limited reversal of termination of parental rights in order for Agency to give proper notice under ICWA. (I) MCR

Torres, Steven — People v. Manuel, E036429 — Ineffective Assistance of Counsel
Court reversed first degree murder conviction based on ineffective assistance of counsel for failing to object to hearsay testimony of a witness (Halsey, who cut a deal with the prosecution for a lesser conviction). The failure to object was prejudicial because 1) there was little evidence of defendant’s guilt aside from Halsey’s testimony, 2) Halsey’s credibility was questionable, and 3) the prosecutor relied on another questionable witness’s (Cooper’s) hearsay statements to corroborate Halsey’s hearsay testimony. (I) BCT

Frizzell, Doris — People v. Caesar, D050387 — Natural and Probable Consequences
Appellant’s conviction for attempted premeditated murder is reduced to attempted unpremeditated murder. Appellant was convicted under the natural and probable consequences theory. The direct perpetrator was convicted of attempted unpremeditated murder. Citing to People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5), the Court of Appeal held that appellant cannot be convicted of attempted premeditated murder after the jury found the direct perpetrator did not premeditate because under the natural and probable consequences doctrine an aider and abettor is only “‘guilty of any reasonably foreseeable offense committed by the person he aids and abets.’” (I) DKR

Cilli, Gregory — People v. Vogt, E039410 — Cunningham
Upper term sentence reversed and remanded for resentencing. (I) AMJ

Koryn, Daniel — People v. Victorino Flores — E039666 -- Lesser Included Offenses; Consecutive Sentences
Convictions of Penal Code section 487e (grand theft, dog) reversed because necessarily included offense of robbery. Also, full term consecutive sentences for false imprisonment of an elder and for elder abuse each reduced to one-third midterm per Penal Code section 1170.1, subdivision (a). (I) RBB

Jones, Sharon, E039722 — Cunningham
Upper term sentence reversed and remanded for resentencing. (I) PED

Gabrielidis, Cristina — People v. Legorreta, E039731 — Sufficiency of Evidence; Cunningham
One count of inflicting injury on a police officer reversed where evidence demonstrated injury was only minor. Cunningham remand for re-sentencing also ordered. (A) PED.

Norris, Ronda G.— People v. Darrick A. Booker, E039736 — Penal Code section 654
Appellant was convicted of assault of a child under eight years of age, causing death (count one) and second degree murder of the same child (count two). Attorney General conceded and Court of Appeal agreed that trial court erred in imposing concurrent term on second degree murder count (count 2) in violation of Penal Code section 654. (I) LAR

Erickson, Kristin — People v. Emmert, E039817 — Cunningham
Upper term sentence reversed and remanded for resentencing. (I) AMJ

Bernstein, David — People v. Alfredo E., E040018 — Probation Conditions
Probation term “Not to associate with anyone who has possession of weapons of any kind . . .” modified to “Not associate with anyone who he knows possesses weapons of any kind . . . .” (A) RBB

Brooks, Philip — People v. Roberts, E040045 — Hearsay; Due Diligence
Court of Appeal reversed attempted robbery conviction, because trial court erroneous allowed introduction of a witness’s preliminary hearing testimony after she was declared unavailable. Reviewing court found the evidence contained in the record on appeal did not support the trial court’s factual findings regarding due diligence. “Beyond the factual discrepancies, the evidence [did] not support the trial court's finding that the prosecution used due diligence to secure [the witness’s] attendance at trial.” (I) CMS

Somers, Robert F. — In re Amir B., E040660 — Probation Condition
Court agreed a probation condition should be modified to add the word “illegally” before the word “possess.” (A) LAR
Torres, Steven. — People v. Jose Miguel Montiel, E040672 — Abstract Correction.
Attorney General conceded and Court of Appeal agreed that the abstract of judgment incorrectly referred to a conviction of assault with a deadly weapon, rather than the crime of assault with intent to commit great bodily injury. (I) LAR

Willis Newton, Joanne D. — In re Suzanne B., E041166 — ICWA
The Court of Appeal found the county did not comply with ICWA requirement because notices did not include complete information about family members. (A) APJ

Rehm, Linda — In re J.R., E041450 — ICWA
Court reversed termination of parental rights and remanded for the limited purpose of allowing the agency to provide complete ICWA notice. (A) BCT

Rollo, Sharon — In re Erik S., E041496 — ICWA
Matter reversed for failure to give adequate notice. (I) ACS

Matulis, Jean — People v. Tillotson, G035041 — Multi-issue Published Reversal.
In this 24-count case involving narcotics possession and computer fraud, the Court of Appeal reversed the judgment as to one count, modified the judgment as to another count, struck a three-year enhancement and remanded for re-sentencing on various other counts. The reversal for retrial is due to misinstruction of the jury. The Court of Appeal agreed with appellant’s argument that the instruction on the elements of computer access and fraud (Pen. Code, § 502, subd. (c)(1)) omitted the element of altering, damaging, deleting, or destroying data by using the words “in order to” instead of “and.” The Court of Appeal further agreed that the error was prejudicial. The judgment modification is due to the Court of Appeal’s agreement that there was insufficient evidence to support the contempt of court (Pen. Code, § 166, subd. (a)(4)) conviction, but sufficient evidence to support an attempt of the same crime. The Court of Appeal struck a three-year drug enhancement (Health and Saf. Code, § 11370.2, subd. (c)) because it is a status enhancement which can be imposed only once. The Court of Appeal remanded for re-sentencing on four counts. because the trial court erroneously believed it was required to impose consecutive sentences on all four counts pursuant to Penal Code section 12022.1, subdivision (e), when, in fact, the trial court had discretion to run the sentences concurrently (only one of the “secondary” offenses are required to be consecutive). Finally, the matter was remanded for re-sentencing on count one pursuant to Cunningham.
(I) APJ

Bostwick, James — People v. Martinez, E040827 — Speedy Trial
Order dismissing a murder trial for lack of speedy trial affirmed. A complaint was filed against respondent-defendant in 1979 for the murder of his girlfriend that year. In 1980, the prosecution located respondent in Texas where he was serving a term for an unrelated murder. By 1995, respondent was back in California. Thereafter, he was he was arrested twice in 1998 and in 2001 convicted of another offense and imprisoned. In 2005, respondent was paroled, and the prosecution learned respondent was about to be deported. Only then did further investigation ensue in which police discovered a new witness, the victim’s adult daughter, and in 2005, respondent was arrested for the 1979 murder. In the interim, respondent’s wife, a key defense alibi witness, had died, which the trial court concluded prejudiced respondent. The People contended on appeal that the trial court should have let the trial proceed to determine prejudice. The Court of Appeal held that the People had forfeited the contention by failure to raise it below and, regardless, had not demonstrated that the trial court had abused its discretion. (I) HCC

Clark, Marcia — People v. Arriola, E040849 — Sentence Modification
Appellant argued in an opening brief that the one-year enhancement imposed for one of the prison priors he admitted was not authorized, because the record shows the conviction occurred on the same date as another conviction which appellant also admitted as a prison prior. In a petition for writ of habeas corpus, appellant/petitioner argued ineffective assistance of counsel for allowing admission of an invalid prison prior. The Attorney General conceded that one of appellant's prison prior enhancements was not shown on the record to have been based upon a separately served prison sentence and that the sentence was therefore unauthorized. The Court of Appeal directed the trial court to strike the one-year enhancement and denied the petition for writ of habeas corpus as moot. (A) APJ

Shanahan, Maureen J. — In re Fulford, E040961 — DNA Testing
Petitioner filed an appeal from the denial of his request for appointed counsel to pursue a motion for DNA testing pursuant to Penal Code section 1405. Prior to the appointment of counsel, the Court of Appeal deemed the notice to be from an order after judgment affecting the substantial rights of the defendant. The Attorney General conceded that the denial of appointed counsel was erroneous, but argued that the denial was not appealable. In the interest of judicial economy, the Court of Appeal treated the appeal as a writ of habeas corpus and granted it. (I) APJ

Menaster, Jackie — People v. Alp, G036668 — Suppression of Evidence
The Court of Appeal found appellant’s admission he had drugs on him and consent to search his person were coerced by officer’s threat: “Start jacking me around, I’m gonna own you.” Until that point, appellant, who had been stopped for a Vehicle Code violation (excessive exhaust) had denied having anything illegal in the car and had responded, “Yes, I do,” when asked whether he minded if the officer searched the car. Judgment reversed with directions to grant the motion to suppress evidence. (A) APJ

Haggerty, Edward — People v. Almazan, G036777 — Multiple Sex Offenses
Appellant was charged with one count of continuous sexual abuse in one count and, apparently, in the alternative with five counts of lewd and lascivious conduct with the same victim during the same time period. In closing argument, the prosecutor alluded to the charges being in the alternative. The jury initially returned with a verdict as to one count, but the record did not establish which count. The trial court sent the jury back, and the jury returned with six guilty verdicts. The trial court sentenced appellant to 30 years on the individual counts, concurrent to 12 years on the continuous count. Both parties and the court agreed it is improper to find guilt as to both continuous abuse and multiple individual counts. Appellant argued and the Court of Appeal agreed that when the jury initially returned with one count, it could only reasonably have been the continuous abuse count, and the court reversed and ordered stricken the five individual counts. (I) HCC

Matsumoto, Ellen — People v. Rojas, G036863 — Penal Code Section 654; Retroactive Application of Fines
1) Burglary sentence stayed per Penal Code section 654 because defendant entered dwelling with intent to commit sex offense. 2) Though courtroom security fee imposed pursuant to Penal Code section 1465.8 was a fiscal rather than punitive measure and thus did not constitute ex post facto punishment where defendant’s crimes predated the measure, it did violate Penal Code section 3 which states no part of the Penal Code is retroactive unless expressly so declared. (I) RBB

Buchanan, Vicki — People v. Corea, G036877 — Sufficiency of Evidence; Instructional Error
Two counts of making fraudulent statements to obtain workers’ compensation benefits reversed where the special instruction which defined "materiality" was erroneous. Count two also reversed, where there was insufficient evidence appellant’s statement was material to obtaining benefits. (I) MCR

Dodd, John — People v. Beltran, G037052 — Consecutive Sentences
Attorney General conceded and Court of Appeal reversed and remanded a consecutive sentence in a rape case, where trial court felt that mandatory consecutive terms were required by the Strikes Law, despite the fact the court did not expressly find the multiple serious or violent felonies were not committed on the same occasion and did not arise from same set of operative facts. (I) CFS

Dain, Anthony — People v. Leon, G037125 — Sufficiency of Gang Evidence; Strike Priors
Court of Appeal agreed that evidence was insufficient to support either the criminal street gang substantive offense or the gang enhancement. A gang expert testified at trial that appellant was a member of a criminal street gang and the assault was committed for the benefit of the gang. However, the court stated that an expert’s opinion is no better than the facts on which it is based, citing In re Frank (2006) 141 Cal.App.4th 1192, 1196. The evidence did not support the finding this assault was committed for the benefit of, or in conjunction with, a criminal street gang. In addition, the reviewing court found that one of the two strikes used to impose a life sentence is invalid because it was a lesser included offense of the other strike. Citing People v. Flores (2005) 129 Cal.App.4th 174, the court found that street terrorism (Pen. Code, § 186.22(a)) is a lesser included offense of carrying a firearm while being an active participant in a criminal street gang (Pen. Code, § 12031(a)(2)( c)). Thus, appellant could not be convicted of both crimes arising from the same conduct. Conviction for participating in a criminal street gang and gang enhancement stricken. Matter remanded for resentencing in light of invalidating one of appellant’s strikes. (I) CMS

Fields, Lori — In re Yancey, Y., G038060 — Insufficient Evidence
Jurisdictional finding declaring minor a dependent is not supported by substantial evidence as to father, and the order is reversed. (I) AMJ

Kaiser, Donna — In re Zachary T., G038023 — ICWA
The order terminating parental rights was reversed, and the matter remanded with directions to ensure that proper notice is given under ICWA. If, after proper notice, no response is received showing that the minor is an Indian child, then the judgment is affirmed. If it is shown that minor is an Indian child, then a new permanency hearing shall be conducted. (I) AMJ

Missakian, Elizabeth A. — People v. Burgos G037851 — Return of property
Peremptory writ of mandate issued directing lower court to vacate its order denying petitioner’s motion for return of property and enter new order granting the motion, where there was insufficient evidence the property was stolen, instrumentalities of the offense or contraband. (I) DLN

Castillo, Irma — People v. Rojas, G037542 — Custody Credits
Attorney General conceded and Court of Appeal agreed that trial court erred by refusing to award conduct credits as part of presentence credits. Appellant was awarded 1,113 days of actual presentence credit but was also entitled to 167 days of conduct credit pursuant to Penal Code section 2933.1, subdivision (c). Trial court ordered to amend abstract of judgment to include additional credits. (I) LLF

Pfeiffer, Rich — In re Y.R., G037715 — Adoptability
In the unpublished portion, the Court of Appeal affirmed the juvenile court’s finding of adoptability, reviewing the results rather than the reasons stated. In the published portion, however, the court differentiated the differences between a “probability” that the children would be adopted (Welf. & Inst. Code, § 366.26, subd. (c) (3)) and the “likelihood” of adoptability (Welf. & Inst. Code, § 366.26, subd. (c) (1)). The latter means “more probable than not,” whereas the former does not mean more likely than not but rather “a reasonable chance, more than an abstract possibility.” Hence, a finding of “probability” at one hearing from which appellate relief is not sought does not preclude the appeal of an eventual finding of a “likelihood.” (I) HCC

MAY 2007

Menaster, Jackie — People v. Shearer, D046321 — Cunningham
Court of Appeal agreed that appellant's upper term sentence was prejudicial error, because trial court relied on two inappropriate factors to impose the upper term, and the matter is remanded for resentencing in light of Cunningham. (I) AMJ

Stralla, Ava — People v. Ortiz, D047556 — Cunningham
Court of Appeal agreed that appellant's upper term sentence must be reversed and remanded for resentencing pursuant to Cunningham. . (I) AMJ

Staley, John — People v. Luis Mendoza — Cunningham
The trial court erred in imposing the upper term in violation of Cunningham, and it is reversed and remanded for further proceedings. (I) AMJ

Schraer, George — People v. Johnson, D047679 — Proof of strike prior conviction
Trial court erred in relying on the police reports of appellant’s prior case to determine that appellant had personally inflicted great bodily injury in that case and it constituted, therefore, a strike. Although the parties had stipulated during the earlier plea that a factual basis could be found in the police reports, these reports were never marked as exhibits or lodged with the court during the plea proceedings. Without such action, the reviewing court found that the police reports were not part of the record of conviction and therefore could not be used by the trial court in the subsequent proceedings to support a true finding of the strike prior. (I) CBM

Polsky, David — People v. Booth, D047740 — Cunningham
Remanded for reconsideration of upper term. Similar claim for consecutive sentences rejected. (I) PED

Rudasill, Denise — People v. Jackson, D047769 — Cunningham
Remanded for resentencing after imposition of upper term (albeit stayed) in violation of Cunningham. (I) HCC

Weis, Lizabeth — People v. Bartoleno, D047996 — Sentence; Enhancement for Consecutive Term
Trial court had imposed a full 10-year term for a Penal Code section 12022.53, subdivision (b) enhancement to a subordinate, consecutive term. Attorney General conceded that it should be limited to one-third the middle term, and the court ordered it modified. (I) CFS

Clark, Marcia — People v. Lewandowski, D048012 — Instructional Error; Lesser Included Offenses
Conviction of assault with a deadly weapon reversed, where trial court prejudicially erred in failing to instruct on misdemeanor assault. (A) RBB

Frizzell, Doris — People v. David Schlitz, D048214 — Prior Convictions
Appellant's true finding for a strike prior is reversed and remanded for retrial. The defendant filed a motion to dismiss, arguing that the prior Nevada conviction should be stricken because appellant did not receive his Boykin/Tahl advisals. No change of plea form or reporter's transcript was provided at the hearing. The People relied purely on a minute order which indicated that the court advised the defendant of his “legal rights” and the rights were waived. The trial court denied the motion to strike the prior, and the Court of Appeal reversed. It concluded, “The record produced below does not satisfy the prosecution's burden of showing Schlitz was expressly advised of and waived the rights enumerated by Boykin/Tahl, and we will not speculate (based solely on the amorphous reference in the minute order to Schiltz being advised of his ‘rights’) that Schlitz was actually given his Boykin/Tahl advisements.” (I) LKH

Holman, William — People v. Knight, D048230 — Lesser Included Offense
Attorney General conceded and Court of Appeal agreed that the conviction for possession of cocaine under Health and Safety Code section 11350, subdivision (a) must be reversed,because it is a lesser included offense of possession of cocaine for sale. (A) AMJ

Gerald Peters — People v. Gomez, G048254 — Evidentiary Errors
Trial court committed two evidentiary errors which went to the heart of the victim-witness’s credibility. The cumulative effect of the errors was prejudicial. First, the trial court erred when it ruled to allow the prosecution to cross-examine the defense expert witness in this sex abuse case and ask about the victim’s diagnosis of childhood sexual abuse by a different expert. Based on the trial court’s ruling, the defense did not call its expert witness. Even though the witness was not called, the court reached the legal question because a sufficient offer of proof had been made. Cross-examination of an expert on the content of a report of a nontestifying expert is improper where the expert has not relied in any part on the report of the nontestifying expert. Second, the trial court abused its discretion under Evidence Code section 352 when it ruled a defense witness could not testify that the victim had stated to their mother during an argument: “I can put you in jail, just like I put him in jail.” The probative value of the statement, where the victim’s credibility was the crux of the case, was significant and its introduction would not have consumed undue time. (I) CBM

Robinson, Warren — People v. Little, D048452 — Cunningham
Upper term reversed pursuant to Cunningham and case remanded for resentencing. (I) RBB

St. Julian, Andrea — In re Mary G., D049027 — Indian Child Welfare Act (ICWA) ICWA error occurred where the Agency’s report indicated it had received responses from various tribes, but these responses were not filed with the court and included in the appellate record. Further, error occurred where the Agency sent the notice to the wrong address of the Kumeyaay tribe and the record lacked conclusive evidence the tribe received actual notice. (I) CBM

Dikes, Patti — In re Mary G., D049027 — Presumed Father; ICWA
Where appellant father had executed a voluntary declaration of paternity in Michigan, the trial court violated equal protection and the full faith and credit clause and failed to follow Family Code section 5604, when it failed to assign him presumed father status and instead required him to establish this status under California procedures. ICWA error occurred where the Agency’s report indicated it had received responses from various tribes, but these responses were not filed with the court and included in the appellate record. Further, error occurred where the Agency sent the notice to the wrong address of the Kumeyaay tribe and the record lacks conclusive evidence the tribe received actual notice. (I) CBM

DuNah, Patrick — In re Omar C., D049141 — Lesser Included Offense
True finding for Vehicle Code section 10851 (driving or taking stolen vehicle) reversed, where minor also convicted of greater offense of Penal Code section 487, subdivsion (d) (grand theft auto). (Staff)

Jauregui, Anna — In re Lance M., D049280 — DNA Order
Attorney General conceded and Court of Appeal agreed that ordering minor, who committed a misdemeanor, to provide a DNA sample under Penal Code section 296 was invalid, because that section only applies to felony offenses. (Staff)

Devore, Mark — People v. Govan, D049586 — Cunningham
In a published opinion, the Court of Appeal reversed and remanded for resentencing based on Cunningham error in the selection of the upper term. Notably, the court construed the Almendarez-Torres “prior conviction” exception very narrowly, to exclude several prior-related factors, i.e., increasing seriousness of priors, that defendant was on probation, and that his prior performance on probation was poor. The court also rejected the so-called Osband argument by the People that the existence of a single proper aggravating factor makes the defendant eligible for the upper term and negates any claim of Cunningham error as to other factors. One Justice concurred in the result, but disagreed that Almendarez-Torres should be construed so narrowly. The case was originally a Division Two appeal, but was transferred to Division One due to court workload. (I) NFA

Duxbury, Brett — People v. Carrillo, D049607 — Sentencing.
Court of Appeal struck deadly weapon use enhancement (Pen. Code, § 12022, subd. (b)(1)) attached to aggravated assault (Pen. Code, § 245, subd. (a)(1)), because weapon use is an element of that offense. (I) NFA

Tavano, Joseph — In re Claudia R., D049780 — Dependency Jurisdiction
Mixed results in a combined jurisdiction/disposition appeal. Court reversed and struck a Welfare and Institutions Code section 300, subdivision (g) allegation, grounded on allegation parent was in custody and unable to care for child, where mom was not in custody at time of hearing, although she had been arrested and deported at time of initial detention. (I) CFS

Newton, Joanne Willis — In re A.U., D050047 — Notice; Guardian ad Litem; ICWA
Upon stipulation by the Health and Human Services Agency and appellant, the Court of Appeal reversed this case a second time, as mother was not noticed of the remand hearing at which her guardian ad litem was relieved and ICWA notice findings were made despite flaws in the notices. (I) CAG

Halka, Waldemar — People v. Acosta, E038605 — Instructional Error
Appellant was convicted of both unlawful taking or driving a vehicle (Veh. Code, § 10851) and receiving stolen property (Pen. Code, § 496). The court failed to instruct the jury that appellant could not be convicted of both crimes where he was a passenger in the vehicle, and not the driver, and since the court could not determine the facts upon which the jury based its driving/taking conviction, it could not apply the divorcement rule urged by respondent. (I) CFS

Edward Haggerty and AllisonTing — People v. Jesus Santacruz and Ignacio Nieblas — Cunningham
The upper term sentence imposed for Santacruz’s personal use of a firearm enhancement is reduced from three years to the middle term of two years. Nieblas’s case is remanded to the trial court, because it impermissibly based the upper term sentences on his prison prior, for which he received an additional year (Pen. Code, § 667.5). (I) LKH

Jones, Sharon — People v. Hale, E039377 — Strike Prior; Sufficiency of Evidence
Insufficient evidence existed that appellant personally inflicted great bodily injury in his prior conviction of battery with serious bodily injury. (I) RBB

Ting, Alison — E039664, People v. Jules Buckley — Cunningham
Upper term sentence vacated, and case remanded for resentencing. (I) DLN

Buchanan, Vicki Marolt — People v. Shields, E039693 — Instructional Error
Attorney General conceded and Court of Appeal agreed that conviction for receiving stolen property must be reversed, when appellant was also convicted of stealing the same property. (A) APJ

Peters, Gerald — People v. Jackson, E039974 — Strike Prior; Sufficiency of Evidence
Court of Appeal reversed the finding of a prior serious felony for insufficient evidence. The prosecution sought to prove a violation of Penal Code section 246.3 by asking the trial court to take judicial notice of various documents from prior case file. The Court of Appeal noted that a violation of Penal Code section 246.3(discharging firearm in grossly negligent manner) is not a serious felony, unless the defendant personally uses a firearm (Pen. Code, § 1192.7, subd. (c)), and it is possible to be convicted of section 246.3 as an aider and abettor (People v. Bartow (1996) 46 Cal.App.4th 1573) or as an accomplice (People v. Rodriguez (1998) 17 Cal.4th 253). Although the prosecution argued the probation report included a summary from the Los Angeles Police Department crime report which stated appellant fired a gun in the air, the court found this insufficient for two reasons. First, the probation report was prepared after the trial court found the prior true and was therefore not before the trial court when it made its decision. Second, in People v. Trujillo (2006) 40 Cal.4th 165, the Supreme Court held that a statement in a probation report could not be used to prove that the prior was a serious felony. The court reversed the true finding on the strike prior and remanded the case. (A) CMS

Hennessey, Patrick — People v. Calderon, E039993 — Cunninngham
Upper term on count one reversed and case remanded for resentencing.. (I) LAR

Wass, Valerie G. — People v. Perkins, E040226 — Cunningham
Upper term sentence reversed and remanded for resentencing. (I) AMJ

White, Catherine — People v. Leaf, E040253 — Cunningham
Upper term sentence reversed and remanded for resentencing.. (I) HCC

Simoncini, Carmela — People v. Vences, E040343 — Probation (Pet) Condition
Court found probation condition requiring that appellant give 24 hours advance notice of any changes in, among other things, pets, was overbroad and failed to meet any of the three Lent criteria. (However, the court left room for a more narrowly tailored condition.) (Staff)

Klaif, Leonard J. — People v. Wornstaff, E040528 — Probation (Pet) Condition
Court of Appeal agreed that the condition of probation requiring notification as to pets is unconstitutional. Case remanded for modification of the condition. (I) APJ

Hinkle, Stephen — People v. Stiles, E040964 — Sentencing
Court of Appeal struck prior prison term which had been imposed concurrently. Pursuant to People v. Riel (2000) 22 Cal.4th 1153, 1203, the enhancement is for the prison term, not for the prior conviction. Here, appellant had two convictions but served only one qualifying prison term. Accordingly, prior prison term enhancement based on concurrently served prior prison term stricken. (I) CMS

Cindi Mishkin — People v. Turner, E041062 — Victim Restitution
Attorney General conceded and Court of Appeal agreed that trial court erred when it denied appellant a hearing on the amount of victim restitution to be ordered. (Staff)

Missakian, Elizabeth — People v. Mitchell, E041295 — Probation; Victim Restitution
Trial court’s extension of probationary period reversed. Defendant reached the end of his five-year probationary period and still owed a portion of the ordered restitution, though he had paid the ordered installments and was not in violation of probation. The trial court order probation extended one year to retain jurisdiction over appellant to supervise completion of the ordered restitution. The Court of Appeal reversed, finding that Penal Code section 1203.1, subdivision (a) limited the length of probation to five years. The trial court lacked the jurisdiction to extend probation beyond the statutory maximum. (I) NFA

Marshall, Gregory — People v. Bamboa, E041494 — Cunningham
After revocation of probation, the trial court erroneously selected the upper term for appellant’s single assault based on factors not found true by a jury. Sentence vacated and case remanded. (I) CBM

Williams, Nicole — In re Faith M., E041526 — ICWA
On appeal from termination of parental rights, Court of Appeal remanded for compliance with notice requirements of the ICWA. (I) NFA

Hook, William — In re Joshua P., E041983 — ICWA
Order terminating parental rights is reversed, and case is remanded to the juvenile court with instructions to comply with the ICWA. If no tribe intervenes, the termination orders shall be reinstated. (I) LKH

Owen, Tom — People v. Matthew Le, G037221 — Juvenile Probation Conditions
Court of Appeal finds minor’s probation conditions are unconstitutionally vague and overbroad. Conditions are modified to require minor not to associate with people he knows to be members of the Dragon Family, Jr., persons he knows to be gang members/associates of gang members, or persons he knows to be users/sellers of narcotics. (I) LKH

Shetty, Siri — In re Manuel A., G036962 — Probation (Pet) Condition
The Court of Appeal found that the condition of probation prohibiting the minor from wearing gang-affiliated items is unconstitutionally vague without a knowledge requirement. The condition is accordingly modified. The court rejected respondent’s argument that a certificate of probable cause was required to raise this issue in a delinquency appeal. In light of In re Sheena K. (2007) 40 Cal.4th 875, the court also rejected respondent's argument that the issue is waived for failure to object. (A) APJ

Jones, Sharon — People v. Ernest Gerald Benefiel, G036952 — Improper Demonstrable Evidence
Court of Appeal reversed the judgment after finding the trial court prejudicially abused its discretion in allowing the prosecution to demonstrate the deployment of a flash bang device under circumstances which were not similar to those under which appellant would have heard the device when police deployed it outside his apartment window. Police had attempted to get appellant to exit the apartment after reports he was inside with a gun. Appellant, who had hearing difficulties and was taking pills in an effort to end his life, claimed he was passed out, didn’t hear the flash bang device and didn’t know what was happening when he awoke to the sound of shots fired outside his window. He shot his own gun out the window and hit a street sign. His sentence had been 27 years, 4 months. (I) APJ

King, Nancy — People v. Robert E. Darling, G036752 — Three Strikes
The trial court erred in believing the Three Strikes Law required mandatory consecutive
sentences on several of appellant’s convictions, and the Court of Appeal remanded
for a new sentencing hearing. Case involved whether particular offenses were committed on the same occasion or arose from the same set of operative facts. (I) LAR

Rubin, Andrew — People v. Petrovich, G036209 — Guilty Plea; Nonexistent Crime.
Guilty plea to being under the influence of “depakote ,” purportedly in violation of Health and Safety Code section 11550, subdivision (a), reversed. Court of Appeal found depakote was not a prohibited substance, and therefore appellant had pled guilty to a nonexistent crime. This fact, together with her trial attorney’s failure to properly advise her, rendered the plea not knowing and voluntary. (I) NFA

Vento, Christine — People v. Smirin, G035819 — Probation
Case reversed in part and remanded as the record demonstrated the trial court failed to determine whether this was an "unusual case" in which justice required defendant be granted probation. (I) PED

APRIL 2007

Nancy Olsen — People v. Winston, D046809 — Sentencing
Court of Appeal agreed that trial court erred in failing to conduct an evidentiary hearing regarding one of defendant's prior strikes. Trial court failed to follow our Supreme Court's mandate in People v. Sumstine (1984) 36 Cal.3d 909, requiring an evidentiary hearing when the defendant affirmatively alleges that at the time of his prior conviction he did not know of and intelligently waive his Boykin/Tahl rights. Sentence reversed and remanded. (I) CMS

Romero, Lynda — People v. Huhn, D047328 — Juror Misconduct.
Court of Appeal reversed first degree murder conviction based on juror misconduct. The defense established in a new trial motion that a hold-out juror had admitted discussing the case with a non-juror friend during deliberations. The friend advised the juror to change her vote to guilty, which the juror did. The new trial motion was denied, but on appeal, the court found the conversation amounted to prejudicial misconduct and reversed. (I) NFA

Kessler, Daniel — People v. Diaz, D047420 — Hearsay; Confrontation; Evidence re Probation Conditions
Appellant, who had been convicted of robbery, testified that it was not a robbery but a drug deal gone bad. The crucial evidence against him was the preliminary hearing testimony and other hearsay statements of a witness who was not available at trial. Cross-examination of the witness at the preliminary hearing was cut off by the magistrate who stated that the witness's testimony lacked credibility and was useless. Over defense objection, the testimony and other hearsay statements were admitted at trial without including the magistrate's observation. On appeal, the court concluded that admitting the testimony where cross-examination had been curtailed was a denial of confrontation, and the error was not harmless given the defense theory. Also, the court concluded that the trial court had erred in permitting the prosecution to introduce "gang conditions" from a previous probation, where the record did not establish that the conditions were imposed because appellant was, in fact, a gang member as opposed to a condition to avoid the danger of gang association. (I) HCC

King, Nancy — People v. Lawrence, D047547 — Evidence of Priors
References to a 1961 conviction in the amended information, minute orders, and appellate court opinion of a 1970 conviction, all of which constituted the sole evidence produced by the prosecution to prove the 1961 prior, were outside the record of the 1961 conviction. (I) RBB

McKinney, David — People v. James Soper, D047875 — Severance
In a double homicide involving two homeless men who were killed in their campsites on separate days, the cases were charged together, and the defense severance motion was denied. The jury convicted appellant of first degree and second degree murder. Court of Appeal reversed both convictions, finding that the trial court erred in denying the severance motion, and remanding the matter for separate re-trials. Although the prosecutor listed 28 similarities between the murders in support of their claim that the evidence was cross admissible, the court found many of these factors were "generic, redundant, irrelevant, or simply not all that similar." (I) LKH

Zimmermann, Harry — People v. Prescott, D045540 — Ineffective Assistance of Counsel
In a published opinion, the Court of Appeal granted habeas corpus relief. Defendant's habeas corpus petition alleged that trial counsel appointed to pursue a motion to withdraw the guilty plea breached the attorney-client privilege and advocated against defendant. Rather than simply declining to file a motion, appointed counsel reported to the court that there was no basis for a motion, detailing the reasons for this conclusion, including confidential communications with defendant. The Court of Appeal held this amounted to a total deprivation of counsel at a critical stage, creating a presumption of prejudice and requiring relief. The court ordered defendant be allowed new counsel and an opportunity to renew his motion to withdraw and that it be heard by a different judge. (I) NFA

Brisbois, Partricia — People v. Knox, D048363 — Restitution
Appellant pleaded guilty to receiving stolen property which had been taken in a burglary of an apartment. The apartment residents sought restitution for a number "losses," including lost wages for attending hearings, investigating to assist the police, and for a small claims judgment they had obtained against appellant and others. In its restitution order, the trial court ordered a lump sum restitution and did not itemize losses. Appellant contended that the evidence did not establish that the time spent by the residents resulted in lost wages (as opposed to the use of spare time) and that at the hearings attended, the residents did not appear as witnesses. The Court of Appeal agreed. The order for victim restitution for lost wages and payment of the small claims judgment was reversed. The matter was remanded with instructions to conduct a rehearing to determine the victims' economic loss, including lost wages and other compensable employment benefits and was for time actually spent in court as a witness and in assisting the police or prosecution. The small claims judgment should be incorporated into the restitution order only to the extent the judgment was supported by substantial evidence that it was for losses authorized for the payment of victim restitution under Penal Code section 1202.4. The revised restitution order should be modified, to the extent possible, to itemize each loss for which restitution is ordered. (A) HCC

Harris, Donna L. — People v. Bojorquez, D048396 — Probation Conditions
The Court of Appeal agreed with appellant's argument that probation conditions requiring appellant not to associate with persons having firearms in their possession, wear insignia of gang affiliation, or display gang signs or gestures are unconstitutionally vague. The Court of Appeal modified the conditions to include knowledge requirements. The opinion cites the recently decided In re Sheena K. (2007) 40 Cal.4th 875 to address the the Attorney General's claim that appellant had forfeited the issue. (I) APJ

Benedict, Amanda — In re Sonny R., D048544 — Insufficiency of Evidence
Court reversed true finding of assault with a deadly weapon and the wardship, where the sole evidence connecting minor to the crime was his membership in a gang and conflicting evidence that he may have been present at the time the victim was stabbed by another. (I) CFS

Blake, Christopher — Conservatorship of Amanda B., D048591 — Conservatorship
In a published decision (after request), the Court of Appeal reversed the placement order in which the trial court had ordered the conservatee's placement in locked facility or board and care, leaving it up to the conservator to decide. The trial court must determine the least restrictive appropriate placement. Publication was ordered after counsel motioned. (I) CAG

Hinkle, Stephen — People v. Castaneda, D048855 — Restitution Fines
Restitution fine of $600 imposed upon revocation of probation and sentencing to state prison is reduced to $200 because trial court set fine at $200 when probation granted and fine remains in force despite probation revocation. Claim not forfeited on appeal despite lack of objection because trial court's purporting to impose a new and greater fine upon revocation of probation is unauthorized. Corresponding parole revocation fine is reduced to $200 as well. (I) DKR

Seick, Steven — People v. Floyd, D049188 — Sentencing
Attorney General conceded sentence for appellant's subordinate offense must be one-third the middle term and not one-third the upper term as imposed by the trial court.

Donna Balderston Kaiser — In re Sabrina H. D049249 — Dependency
In a published decision, the Court of Appeal reversed the placement order reversed and remanded as to one child for the limited purpose of ensuring criminal background checks as to paternal grandfather, who resides in Mexico. Mandatory criminal background check may consist of "comparable" clearances used by Mexican officials. Absent new information that placement is not effective in protecting child or placement is not appropriate in view of Welfare and Institutions Code section 361.3, subdivision (a)(1), placement is to be reinstated. As to a second child also initially placed with the paternal grandfather, her case was dismissed as moot. Court of Appeal was permitted to take judicial notice of post-judgment evidence (minute order showing that second child was now with father), because it did not use the evidence to reverse, but to determine appeal is moot. (I) DLN

Norris, Ronda — People v. Aubert, E038013 — Cunningham
Court of Appeal found Cunningham error in the imposition of the upper term for robbery and remedied the error by modifying the sentence to the middle term. The court also struck two Penal Code section 12022.53, subdivision (b), 10-year gun use enhancements attached to counts of forcible oral copulation. Under a dual use analysis, the court found the gun use was also used to impose life terms under the One Strike Law, Penal Code section 667.61. (I) NFA

Buckley, Stephen — People v. Weatherspoon, E038013 — Cunningham; Penal Code section 654.
Court of Appeal applied section Penal Code section 654 to stay a consecutive term for burglary, where defendant was separately sentenced for robbery based on the same incident. Court also found Cunningham error in the imposition of the upper term for robbery and remedied the error by modifying the sentence to the middle term. (I) NFA

Fabian, Carl — People v. Delgado, E038057 — Sentencing, Ex Post Facto
Trial court improperly imposed five consecutive 15-year to life sentences under the One Strike law where one of the terms was barred because the One Strike law was not enacted until after the date of the offense, and where all of the terms were imposed consecutively under the court's mistaken belief consecutive life terms were required under the One Strike law for violations of Penal Code section 288, subdivision (a). (I) RBB

Ward, Paul — People v. Salas, E038642 — Penal Code section 654
Attorney General conceded and Court of Appeal agreed that the sentence on count one should have been stayed pursuant to Penal Code section 654. (I) BCT

Lathrop, Stephen — People v. Sutton, E038982 — Cunningham; Other Sentencing Error
Court of Appeal struck a personal weapon use enhancement (Pen. Code, § 12022, subd. (b)(1)), because weapon use was an element of the substantive offense (assault with a deadly weapon). The court also struck a great bodily injury enhancement (Pen. Code, § 12022.8) as to one count (rape), because the same injury was the basis for a great bodily injury enhancement on another count (forcible oral copulation). Finally, the court found Cunningham error in the imposition of three upper term sentences and remanded for resentencing on these counts. (I) NFA

Ballantine, Jean — People v. Oliva, E039043 — Cunningham
Sentence reversed and remanded under Cunningham. Court rejected 1) Attorney General's waiver argument, because Black was controlling at the time of sentencing, 2) its invitation to stay the case pending Supreme Court or legislative action, because this particular case needed a final resolution (second appeal), and 3) its contention there was harmless error because there was no procedural mechanism at a contested probation revocation for jury fact finding, right to trial by jury, and presentation and evaluation of evidence as mandated by Cunningham. The harmless error contention "vitiates the holding of Cunningham." (I) DLN

Shudde, Athena — People v. Gebhardt, E039087 — Cunningham
Remanded for resentencing pursuant to Cunningham. (I) PED

Duxbury, Brett Harding — People v. Alvarez, E039133 — Penal Code Section 654
Court of Appeal ordered consecutive sentence on burglary count stayed because appellant had same intent when he committed the burglary as the attempted robbery, to steal money from Wal-Mart. (I) DKR

Capriola, William J. — People v. Carlos Luna, E039308 — Cunningham; Penal Code section 654
Attorney General conceded and Court of Appeal agreed that a sentence for assault must be stayed pursuant to Penal Code section 654, when appellant is also sentenced for attempting to remove the firearm from a police officer based upon the same conduct or course of conduct. The matter was also remanded for a new sentencing hearing in light of the Cunningham decision. The aggravating factors in this case were "flight" and "potential of injury to the officer." (I) APJ

Bookout, Randall — People v. Castleberry, E039464 — Homicide, LIO's
Second degree murder conviction reversed; although trial court instructed the jury on accident in accordance with the defendant's assertion the shooting was accidental, it prejudicially erred in not also instructing on involuntary manslaughter based on criminal negligence. (S) RBB

Brisbois, Patricia — In re Keith T., E041197 — Juvenile Wobbler
The Court of Appeal remanded the matter for the trial court to make a determination as to whether the minor's grand theft offense is a felony or misdemeanor pursuant to Welfare and Institutions section 702. (A) APJ

Prince, Diana, appellant; Rollo, Sharon, respondent minor — In re Amber T., E041534 — Indian Child Welfare Act (ICWA)
County counsel and minor's counsel conceded and the Court of Appeal agreed that no ICWA notice was sent to the Cherokee tribes though notified by mother that her father was possibly Cherokee. The Court of Appeal did not agree the jurisdiction/disposition orders should be reversed unconditionally and ordered the order reinstated if the child was not found to be an Indian child. Minor's counsel provided the court with new case law contrary to the limited remand, but did not argue it. (I) CAG

Vento, Christine — People v. Sherani, G033931 — Statute of Limitations
Multiple counts of failing to file tax returns challenged because they were barred by statute of limitations, established by judicial notice of the issuance of the arrest warrant for purposes of determining when the action commenced. (I) CFS

Schwartzberg, Richard — People v. Kaplan, G035385 — Competency
In a published decision, the Court of Appeal reversed and remanded case for competency hearing in matter involving attempted murder, felonious assault, false imprisonment by violence, and criminal threats. At the beginning of the case, the trial court found appellant competent to stand trial within the meaning of Penal Code section 1368. Nine months later, when jury trial commenced and after the defendant had jumped from a second story balcony, defense counsel questioned whether defendant was competent to stand trial. Trial court determined there was insufficient evidence of change of circumstance that earlier determination of competence was no longer valid. Court of Appeal found that where evidence shows a substantial change in circumstance giving rise to a serious doubt regarding the validity of an earlier competency finding, even if there is conflicting evidence, trial court must hold a subsequent competency hearing. Here the evidence reflected a change in medications which may have caused defendant's mental condition to decompensate. The court noted that retrospective hearing may or may not be able to determine appellant's degree of competence at time of trial. Case remanded determine whether this is possible or whether full reversal required. (I) CMS

Haggerty, Edward — People v. McLellan, G036495 — Cunningham
Cunningham remand for resentencing because the court imposed the upper term based on several aggravating factors that were not tried to and found by a jury. (I) CFS

Petermann, Conrad — People v. Tran, G036277 — Sanity Instruction
Trial court erred in refusing appellant's nonargumentative, requested instruction that pinpointed his theory of the case: that legal insanity refers to the inability to distinguish moral right from wrong, as well as the inability to distinguish legal right from wrong. (I) CBM

Shetty, Siri — In re Alexander L., G036595 — Gang Enhancement
In a published decision, the court reversed a true finding on a gang enhancement for insufficient evidence of the gang’s primary activity, or that the its members had engaged in a pattern of gang activity. (A) CFS

Power, Richard — People v. Coyazo, G036671 — Cunningham
Court of Appeal remanded for resentencing to correct Cunningham error, where sentencing court relied on victim vulnerability to select the upper term. The Court of Appeal did not prescribe a procedure for the sentencing remand. (I) NFA

Ferrentino, Correen — People v. Krohn, G036762 — Penal Code section 1538.5
In appeal after guilty plea the denial of suppression motion was reversed because trial court erred in finding appellant's detention was lawful. Appellant was stopped in gated apartment complex by police for allegedly violating city ordinance against drinking in public place. Court of Appeal agreed with appellant that outside stairway inside a gated apartment complex is not a public place within the meaning of the ordinance. (A) DKR

Ballantine, Jean — People v. Cantor G036838 — Penal Code section 1538.5
In a published opinion, the Court of Appeal held that the trial court erred in denying suppression because unscrewing back of vinyl record cleaner in box in trunk exceeded the scope of appellant's consent and detaining appellant for more than 15 minutes was unnecessarily prolonged. Appellant consented to officer's request, "Mind if I check real quick and get you on your way?" There was no justification to prolong appellant's detention once 15 minutes of exhaustive searches of all compartments of the car had failed to reveal contraband. Unscrewing the back panel of the cleaner was akin to prying open a locked briefcase, exceeding the reasonable scope of appellant's consent. (I) DLN

Clark, Marcia — People v. Nguyen — Penal Code section 654
Appellant was convicted of four different crimes arising out of a domestic dispute. The trial court had stayed the sentence for one of the crimes. On appeal, the Court of Appeal ordered the sentence on two additional counts stayed pursuant to Penal Code section 654. (A) LKH

Harris, Donna L. — In re Roberto O., G037049 — Parental Civil Liability
Attorney General conceded and Court of Appeal agreed that trial court erred in imposing parental civil liability for period juvenile was incarcerated for a crime where the parent was the victim. (Welf. & Inst. Code, § 903, subd. (e).) The question was appealable under Code of Civil Procedure section 904.1, subdivision (a)(1) and Civil Code section 3528. (I) CBM

Buckley, Stephen — People v. Hanson G037054 — Restitution Fine
Attorney General conceded and Court of Appeal agreed that abstract did not correctly reflect the $200 restitution fine as orally imposed (rather than the $600 restitution fine in the abstract). (I) LAR

Levy, Richard — People v. Pisarcik, G037080 — Parole Revocation Fine & Credits
Attorney General conceded defendant was entitled to 2 extra days of credit and that the trial court erred in imposing a parole revocation restitution fine where defendant was sentenced to life without possibility of parole. (I) CFS

Covin, Randi — People v. Perrusquia G037094 — Penal Code section 1538.5
In a published decision, the Court of Appeal affirmed the trial court’s granting defendant's Fourth Amendment suppression motion. Police saw defendant parked outside a 7-11 in an area where there had been several convenience store robberies. Officers approached defendant as he started to approach the store, and when defendant tried to pass the officers they told him to, "hang on a second." The officers asked defendant what he was doing, and he responded he was going to the store. The officers then asked him if he had a weapon, which he denied. An officer then asked permission to frisk defendant, which defendant declined. Defendant then started walking toward the 7-11, and the officers grabbed and frisked him, finding a handgun in his waistband. The Court of Appeal concluded there was no reasonable suspicion to detain. (I) NFA

Benedon, Douglas G. — People v. Milad Ragheb Demetry, G037204 — Cunningham; Restitution
Court of Appeal remanded for Cunningham re-sentencing. There were no prior convictions in this case, and the Court of Appeal rejected respondent's argument that the error was harmless due to one aggravating factor the jury did find true. Abstract of judgment also corrected to indicate restitution obligation is joint and several. (I) APJ

Shetty, Siri — People v. Mercado, G037302 — Probation Conditions
Court found probation condition was vague and modified the probation order to provide minor may not wear any clothing, jewelry, or insignia he "knows" shows gang membership or affiliation. (A) BCT

McLaughlin, Robert — In re Kevin N, G037601 — Dependency
In a published decision, the Court of Appeal reversal a disposition order denying incarcerated father reunification services where one member of the sibling group was under three years of age. Juvenile court had improperly declined to order services, because it erroneously believed it was required to limit services to six months and it failed to consider whether offering services to father would be detrimental to the children. Court refused to consider agency's post-judgment evidence based on In re Zeth S. (A) DLN

Flenniken, Jr., William — People v. Banks, G036872 — Cunningham
In a published decision, the Court of Appeal remanded where court imposed upper term based on multiple aggravating factors. The court also stated, "we concluded a trial court may impose an upper term based on a defendant's prior convictions and other recidivist-related factors such as the nature and circumstances of his or her criminal conduct [citation omitted] without submitting those factors to a jury . . . ." (I) PED

MARCH 2007

Tavano, Joseph — People v. Debra Horton, D046666 — Jury Deliberations, Right to Counsel In response to an ambiguous jury note requesting instructions on deliberating over a lesser included misdemeanor of the felony charge of abuse of a dependant adult likely to produce great bodily harm or death, the trial court prejudicially erred by giving a potentially misleading answer without consulting either defense counsel or the prosecutor. (I)RBB

Benedict, Amanda — People v. Madison, D047297 — Penal Code section 654, Stay of Sentence
Pursuant to Penal Code section 654, the Court of Appeal stayed appellant's sentence for receiving stolen property when appellant was also sentenced for conspiracy to commit a burglary, the object of which was stealing the received property. (I) APJ

Jog, Anita — People v. Culp, D047768 — Restitution Reduction.
The Court of Appeal reduced the restitution award in this case involving misappropriation of construction funds by $655 because the amount was based upon a misunderstanding of the evidence (appraiser stated that the $655 should be credited against the restitution amount; trial court added $655 to the restitution amount). (S) APJ

Khoury, Charles — People v. Bardus, D047774 — Expungement
Trial court' s denial of appellant's petition to expunge her 1999 drug conviction reversed, because the trial court denied her petition due to outstanding attorney fees and costs of probation. (I) MCR

Well, Mary Woodward — People v. Gelashvili D047844 — Penal Code section 654/ Cunningham
Court agreed assault with firearm (and enhancement) should have been stayed pursuant to Penal Code section 654 as to the kidnapping count. Also, case remanded for resentencing where upper term sentences on two of the counts had been imposed in violation of Cunningham, but not as to consecutive sentencing. Abstract also ordered to be corrected. (I) LAR

Cilli, Gregory — People v. Young, D047900 — Credits and Fines.
This is an appeal from appellant's second probation revocation hearing. At the initial grant of probation, appellant was ordered to serve 365 days in custody as a condition. Appellant later violated the terms of his probation, and the trial court reinstated appellant on the condition that he serve 365 days of custody and waive his good time credit. Two months later, appellant violated probation, and the trial court sentenced him to four years in prison. The court did not award appellant good time credit earned after the first probation revocation hearing. The Court of Appeal reversed the trial court's denial of good time credit from May 4th through June 8, 2005, finding that appellant did not waive his right to future credit. The case was remanded to the trial court to determine whether appellant's conduct in custody entitled him to good time credit. In addition, the trial court erred in ordering a $600 restitution fine when it had previously ordered $200 fine at the original grant of probation. Finally, the probation revocation restitution fine imposed under Penal Code section 1202.44 was deleted, because the statute was enacted into law after appellant committed the crime. (A) LKH

Margolis, Gideon — People v. Abdulhafeez, D048082 — Lesser Included Offense
Conviction for simple possession of a controlled substance stricken where it was a lesser included offense of possessing a controlled substance for sale. (I) MCR

Romero, Lynda — People v. Young, D048545 — Evidentiary Sufficiency
Robbery count reversed because of insufficient evidence victim constructively possessed the property taken from another victim. (I) RBB

Polsky, David — People v. Ruiz, D048648 — Minute Order, Correction
Attorney General conceded and Court of Appeal agreed that minute order reference to one count as a felony was incorrect, and the court ordered the minute order to refer to a misdemeanor. (I) HCC

Davis, Linn — People v. Wenberg, D048757 — Lesser Included Offense
Court of Appeal reversed appellant's theft conviction after concluding that the theft offense was necessarily included within the robbery of which he was also convicted. (I) APJ

Gambale, Jennifer — People v. Knox, D049600 — Cunningham
Upper term sentence reversed and case remanded to the superior court to conduct a new sentencing hearing consistent with the views expressed in Cunningham. (I) MCR

Rehm, Linda — In re Gregory M., D049756 — ICWA
Stipulated reversal accepted by the Court of Appeal where there were no copies of notices to the tribes and the information in the notice forms was scant with no accompanying information in the record as to why relatives who allegedly had tribal information were not contacted. (I) CAG

Jones, Rebecca — People v. O'Guynn, E037982 — Evidentiary Sufficiency
In a case tried on the theory defendant was the actual shooter but the jury found true a personal use enhancement as to the codefendant but not the defendant, the court reversed a first degree murder conviction where there was no evidence other than speculation the defendant had aided and abetted the shooting. (I) RBB

Erickson, Kristin A. — People v. Nerys, E038328 — Sentencing
Attorney General conceded and court agreed that abstract of judgment erroneously reflected oral pronouncement of sentencing, specifically consecutive terms that had been sentenced concurrently. (I) DLN

Brandes, Elisa — People v. Aragon, E038944 — Penal Code section 654/ Cunningham
Sentence for assault with firearm stayed pursuant to Penal Code section 654 as act committed with same intent as attempted robbery. In addition, case remanded under Cunningham for resentencing of upper term. (I) CMS

Schwartzberg, Richard — People v. Johnson, E039716 — Sentencing
In case involving one count of murder and two counts of attempted premeditated murder, trial court erred by imposing both a five-year enhancement under Penal Code section 667, subdivision (a) and a one-year prior prison term enhancement for the same prior. (People v. Jones (1993) 5 Cal.4th 1142.) Attorney General argued that Jones predates the three strikes law and should be reconsidered, but under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, Jones remains binding precedent, requiring striking of prior prison term enhancement. In addition, trial court's abstract of sentences on attempted murders was erroneous and must be revised. Court imposed "14 years to life" on each attempted murder count. People v. Jefferson (1999) 21 Cal.4th 86, provides that, pursuant to Penal Code section 3046, a person must serve at least seven years for a deliberate attempted murder before being released on parole. Appellant had one strike, so minimum term before parole would be 14 years. However, there was nothing on the abstract to indicate the 14 years was a minimum parole eligibility requirement of Penal Code section 3046. The "14 years to life" is an erroneous sentence, requiring correction of abstract. (I) CMS

Nelson, Laurel — People v. Langarica, E039975/E040452 — Guilty Pleas, Sentencing
Court violated five-year maximum specified in guilty plea when it sentenced appellant to six years following probation revocation. Also, robbery deemed second degree because trial court did not declare otherwise before imposing sentence. (I) RBB

Frye, Jason R. — People v. Miller, E040337 — Parole Revocation Fine
Attorney General did not oppose and Court of Appeal agreed that trial court violated ex post facto principles in imposing parole revocation fine under Penal Code section 1204.45, where appellant's crime occurred before the authorizing statute was enacted. (A) CBM

Erickson, Kristin — People v. Szypusz, E040842 — Condition of Probation
Court of Appeal and Attorney General agreed that trial court improperly included in the terms and conditions of probation the requirement that defendant pay probation costs as a condition of probation, because such costs are enforceable only as a separate money judgment in a civil action. Judgment modified to delete the condition. (A) AMJ

Lee, Konrad — In re Jacquelyn M., E040947 — ICWA
Dependency reversed for failure to give notice in compliance with the Indian Child Welfare Act. (I)(ACS)

Barry, Leslie; Lee, Konrad — In re Jeanna V. et al., E041137 — ICWA
Order terminating parental rights and limited remand directed to determine whether there had been substantial compliance with ICWA notice requirement. (I) PED

Boyce, Robert E. — People v. Jensen G035003 — Penal Code section654/Stay of Sentence
Court ordered appellant’s sentence for possession ephedrine with the intent to manufacture to be stayed pursuant to Penal Code section 654 as to the manufacturing methamphetamine count. (I) LAR

Webb, Reed — In re Jovany M., G035904 — Juvenile Disposition
Following a court trial, the juvenile court returned true findings against minor for negligent discharge of a firearm (Pen. Code, § 246.3) and active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)). The juvenile court further found that the negligent discharge was committed for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). The juvenile court calculated the maximum punishment, including a consecutive term on for active participation in a criminal street gang. The Court of Appeal affirmed, but modified the order. The matter was remanded to the juvenile court with directions to expressly declare whether each offense is a felony or misdemeanor and to determine minor's maximum term of confinement based on the juvenile court's consideration of the facts and circumstances of the case. Further, the court determined that Penal Code section 654 applied to the term on count 3, active participation. (A) LKH

Beckham, Sylvia Watley — People v. Bergeron — G036254 -- Proof of Priors
Court of Appeal found there was insufficient evidence of defendant's prior Nevada robbery to prove it was a prior serious felony strike offense under Penal Code section section 667, subdivisions (a) and (e)(2)(A). Nevada robbery does not require intent to permanently deprive, as does California robbery, and the evidence admitted established on a Nevada conviction for robbery, with no additional facts. Both enhancements were reversed. (I) NFA

Corpora, Elizabeth — In re Christian P., G036286 — Evidentiary Sufficiency
The allegations arose out of a group assault in which minor and his friends attacked four victims. The juvenile court returned a true finding of assault with means likely to produce great bodily injury as to all four victims. Court of Appeal reversed the finding as to one of the victims for insufficient evidence, finding that one strike in the back of the head was insufficient. There was no evidence that the blow knocked the victim down or caused any injury. The true finding is reduced to simple assault. The case was also remanded for the juvenile court to specify and note the maximum period of confirement. (A) LKH

Popper, Jamie — People v. Davison, G036506 — Aiding/Abetting Jury Instruction
Robbery conviction reversed because trial court erred in giving, in addition to the correct instruction on aiding and abetting, a non-standard instruction that: 1) erroneously instructed an aider or abettor need not share the specific intent of the perpetrator; and 2) reasonably could be read to omit the intent requirement for a conviction based on aiding or abetting. (S)

McPartland, Michael — People v. Izaldo, G036598 — Special Circumstances
In this gang murder, the trial court instructed the jury on various theories of special circumstances. One theory was reckless indifference, which was neither charged nor pertained to gang-related circumstances. The trial court also erroneously referred to two felonies not included in the list of Penal Code section 190.2, subdivision (a)(17). Because the jury could have found guilt of murder on a natural and probable consequences theory, the erroneous reckless indifference, special circumstances option was not harmless. (I) HCC

Scott, Terrence — People v. Tony Stubbs, G036602 — Cunningham
Case reversed and remanded for re-sentencing where the trial court imposed the upper term based on facts not found true by the jury. Here, the trial court found that the defendant engaged in violent conduct indicating a serious danger to society, defendant's prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness, and the crime involved threat of great bodily injury or other acts disclosing a high degree of cruelty, viciousness, or callousness. (I) LKH

Riggs, Brent D. — People v. Gomez, G036763 — Penal Code section 654, Stay of Sentence/Credit Calculation
Attorney General conceded and Court of Appeal agreed that trial court erred (1) in failing to stay punishment for attempt criminal threats where those threats were an integral part to the assault, for which the court had imposed a prison term, and (2) in calculating presentence custody credits. (A) CBM

James Crawford — People v. Davis, G0369424942 — Penal Code section 1538.5 Motion to Suppress
Trial court's denial of suppression motion reversed. Attorney General conceded that appellant's car, which was legally parked in a Target parking lot, should not have been impounded and searched when appellant was arrested just outside the store for shoplifting. Court of Appeal found that appellant's truck was legally parked on private property; therefore it could not be impounded by police under the circumstances of this case, i.e., where vehicle was not involved in a crime, accident, or reported stolen. Thus, no warrantless inventory search pursuant to impound was authorized. (I) CMS

Pfeiffer, Rich — In re Hadley B., G037558 — Dependency
Court erred in not permitting amendment of original petition to include out-of-county evidence, where in-county allegations insufficient to sustain dependency petition. County must consider events outside its borders to have complete picture of child's circumstances and to expedite proceedings to protect child. (I) DLN

February 2007

Buckley, Christian C. -- People v. Dennis, G036945 -- Motion to Suppress
Attorney General conceded and Court of Appeal agreed that trial court erred by denying appellant's motion to suppress evidence based on lack of standing. Appellant was detained and arrested because he exhibited signs of being under the influence. Methamphetamine was discovered in the buckle of the seat belt in the backseat of the police car. The trial court ruled appellant had voluntarily abandoned the drugs and therefore did not have standing to move to suppress. The Court of Appeal held the trial court erred in reaching the standing issue without first ruling on the merits of whether appellant's detention and arrest were lawful. If the detention was lawful, courts have concluded the evidence was voluntarily abandoned, i.e, no standing. However, if the detention was not lawful, then the drugs cannot be voluntarily abandoned. Therefore, the case was remanded for the trial court to consider the merits of defendant's motion and if the motion to suppress is denied, the judgment is reinstated. (A) BCT

Crooks, Gary V.- People v. Goodwillie, D046757 Alvernaz Issue
Defendant, acting in pro per, rejected a plea deal that would have garnered him a stipulated 5 year, 4 month sentence, because both the prosecutor and the judge misinformed him that he could only earn 15% credits against his term and no 4019 credits because two counts were serious felonies. After defendant was convicted on all counts, court realized that PC2933.1 only applied to 667.5(c) violent felonies. Court of Appeal held that because the record demonstrated appellant would have taken the deal but for the court and the prosecutor’s misadvice that he could not earn day-for-day credit, the decision to reject the offer was not knowingly and intelligently made. (I) (CFS)

McGill, Martha -- People v. Baker, D047708, -- Penal Code section 654 Receiving stolen property conviction reversed where defendant was also convicted of theft of the same property. (I) PED

Cannon, Gregory L. - - People v. Eben D. Glaser, D048513 - - Reversal of Conviction.
The Court of Appeal reversed appellant's conviction of attempted robbery after finding that it was based upon the same transaction as appellant's robbery conviction. (I) APJ

Handy, Elizabeth (two older siblings); Dikes, Patti (de facto parent); Lankford, Valerie (mother); Randall, Michael (three younger siblings) -- In re Courtney P. - D048764 - Dependency (388 petition) – The defacto mother (maternal aunt Deborah) and two older siblings (15 and 13 years old) appealed the denial of their Welfare and Institutions Code section 388 petitions. Mother also appealed the termination of parental rights and raised the sibling exception. The two older sisters objected to adoption and were placed with their maternal aunt (Marla). The three younger sisters were freed for adoption with the middle sister placed with paternal relatives, and the two younger sisters in a non-relative placement. A bonding study revealed a very close bond between all five sisters. The Court of Appeal found the lower court abused its discretion in denying the older siblings' 388 petition which had requested that their three younger sisters be placed with them in Marla's home. The Court remanded with specific instructions that the juvenile court direct the Agency to evaluate Marla's home for placement of all five sisters and to commence an adoptive home study evaluation. On receipt of the Agency's home placement evaluation, the court was ordered to conduct a new hearing on the siblings' 388 petition regarding placement of the three younger sisters with Marla. However, even if the court finds Marla's home appropriate as a result of the new section 388 hearing, the court shall not grant the section 388 petition and remove the younger sisters from current placements unless the juvenile court is confident that placement with Aunt Marla will lead to adoption of the younger sisters by Aunt Marla. (I) BCT

Bookout, Susan — In re Guadalupe R., D048821 – Visitation order Partial Reversal for juvenile court to make a visitation order in conformance with W&I section 366.26, subdivision (c)(4). (I) ACS

Dikes, Patti L.- - In re Juan J., Jr., D048925 - - ICWA Reversal.
Court of Appeal reversed ICWA and dispositional findings and remanded for compliance with ICWA notice provisions. Father gave conflicting information about possible Indian heritage and was never made to complete a JV-130 form (Parental Notification of Indian Status). Court of Appeal found that without the form, the juvenile court had inadequate factual basis for finding ICWA did not apply. (I) APJ

Dikes, Patti L. (father); Bacon Ellen (mother) -- In re Anthony S. D049123 -- Dependency -- Judgment terminating parental rights reversed and case remanded to address nonoffending noncustodial presumed father's parental fitness, where court terminated his parental rights without finding he was unfit. (I) DLN

Buckley, Stephen S. - People v. Cruz, D049588 (formerly E038316) - Jury Misconduct Right to Full Jury's Presence During Reading of Verdict First degree murder conviction reversed based on structural error because one of the jurors was not present when the verdict was declared in open court When a juror is absent, it defeats the purpose of requiring the jury to openly acknowledge its verdict, which is to confirm that each juror is willing to stand by his or her individual vote, and it undermines a defendant's right to ensure a unanimous verdict. (I) AMJ

Owen, Thomas --- People v. James, E039481 --- Presentence Custody Credits
Attorney general did not dispute and the Court of Appeal agreed that the trial court had erred in calculating the presentence credit award. Appellate awarded an additional 22 days of presentence custody credits. (A) CBM

Christiansen, Mark -- People v. Guevara, E038475 -- Evidence/witnesses; Parole Revocation Fine. Three out of six counts reversed because trial court admitted preliminary hearing testimony after erroneously finding the prosecution had exercised due diligence in attempting to locate a witness. Also, parole revocation fine wrongly imposed given multiple life without possibility of parole sentences. (I) RBB

Flenniken, William -- People v. Scott, E039093 -- Certified for publication. Penal Code section 285 statute regarding incest upheld against Fourteenth Amendment due process challenge. In unpublished portion of case, Cunningham remand ordered. (I) PED

Romero, Lynda A. -- People v. Salazar, Alberto E039164 -- Parole Revocation Fine and Sentencing 1) Attorney General conceded and Court of Appeal agreed that trial court erred in imposing parole revocation fine where appellant was sentenced to life in prison without the possibility of parole. 2) Concurrent sentence stayed under Penal Code section 654 where two crimes involved same act of firearm possession and was basis for sentence on another count. (I) DLN

Miller, Gerald J. --- People v. Steven Lee Ezell --- E039300 --- CRC
Affirmed with Directions. Because the record is not clear that appellant waived referral to CRC as part of a plea bargain in which he agreed to a specified sentence of 44 months and the trial court refused to refer to CRC because it believed it would alter the plea bargain, the matter is remanded to determine the actual terms of the bargain. (I) AMJ

Miller, Gerald – People v. Vanwhy, E039574 – Insufficiency of Evidence
Appellant was convicted of manufacturing methamphetamine in his trailer, and his sentence was enhanced, pursuant to Health and Safety Code section 11353.6, based on a finding that the manufacturing occurred within 1,000 feet of a school during school hours. However, given the 1993 amendment to the statute, the qualifying drug offense must take place in “public.” The People conceded and the court agreed that the enhancement did not apply to the offense which took place wholly within a private residence. The enhancement was ordered stricken, and the case remanded for resentencing. (I) HCC

Crawford, James M. – People v. Staves, E039662 – Probation Condition (Pets) In a 2-1 decision, the Court of Appeal concluded that a probation condition requiring a defendant to notify the probation officer of “pets” and to give written 24 hours in advance of “any changes” regarding pets is invalid. The condition was modified to “keep[ing] the probation informed of the presence of dangerous, potentially dangerous, vicious, or mischievous animals on the premises of defendant’s residence.” (I) HCC

Duxbury, Brett -- People v. Raya, E039923 -- LIOs, Sentencing Trial court prejudicially erred in failing to instruct sua sponte on simple assault as a lesser included offense of assault with a deadly weapon. Also 1) trial court errroneously imposed a 25 year to life, rather than a 20 year determinate, term for a Penal Code section 12022.53, subdivision (c) enhancement; 2) two section 12022.53, subdivision (d) enhancements stricken because the jury returned defective verdict forms without finding the defendant personally discharged a firearm causing great bodily injury; 3) 30 year to life term for doubled section 186.22, subdivision (b)(4)(B) enhancement stricken for same reason. (I) RBB

McLaughlin, Robert -- In re Jewelee E., E040179--Indian Child Welfare Act
Appellant argued, and respondent conceded, the Indian Child Welfare Act notice requirements were not met where only some of the tribes were noticed, insufficient but available family information was provided on the notice, the notices were sent certified not registered mail as required, and only portions of the ICWA notices, return receipts and responses of the Bureau of Indian Affairs and the tribes were filed with the juvenile court. (A) CAG

Dodd, Karen – In re MacKenzie W., E040535 – ICWA. Order terminating parental rights is reversed for compliance with the ICWA. (I) LKH.

Buchanan, Vicki - People v. Nilsson Lopez, E040553 -- Probation Conditions.
Over the objection of defense counsel, trial court imposed a probation condition that appellant "[k]eep the probation officer informed of place of residence, cohabitants and pets, and give written notice to the probation officer twenty-four (24) hours prior to any changes . . . ." The Court of Appeal remanded the case to the trial court with instructions to strike the term "pets." The trial court is permitted to modify the terms of probation to include a condition narrowly tailored to address legitimate concerns about dangerous dogs or animals. (A) LKH

DeLaSota, Richard, In re Marvin R., E040798, Topic: Delinquency/Dispo
Attorney General conceded that the trial court failed to set the maximum term of confinement for juvenile delinquent, so matter remanded to the juvenile court with directions to do so. (A) CFS

Barry, Leslie; Williams, Nicole – In re Katrina S., E040992 Failure to comply with ICWA notice provisions. Court found failure to comply with ICWA notice provisions required a limited reversal. Department ordered to comply with ICWA and to file all required documentation with the juvenile court. Once the juvenile coiurt finds there has been substantial compliance with the notice requirements, it shall make a finding with respect to whether the child is an Indian Child. If there is a determinative response that the child is not an Indian child, then the judgment terminating parental rights shall be reinstated. (I) LAR

Mack, Jennifer; Chandler, Kate - In re K.B., E041045, ICWA notice Termination of parental rights reversed where there was insufficient evidence in record to establish proper notice was given. (I) MCR

Koryn, Sylvia --- People v. Gonzales, G036609 --- Parole Revocation Fine Attorney General conceded and Court of Appeal agreed that trial court violated ex post facto principles in imposing parole revocation fine where appellant's crime occurred well before the authorizing statute (Pen. Code, § 1202.45) was effective. (I) CBM

Buckley, Stephen -- People v. Alejandro A. Barretto, G036895 -- Calculation of restitution amount. Court of Appeal agreed with appellant that restitution amount that included cost of video surveillance system installed prior to appellant's thefts was in error. Restitution amount was modified to exclude $7,576.99 for cost of videotape surveillance system. (I) LLF

January, 2007

Hennessey, Patrick; Petermann, Conrad – People v. Lewis et al., E031035 – Inherently Dangerous Felony
Court of Appeal reversed two second degree felony murder convictions in which the predicate felony was reckless evasion of police (Veh. Code, § 2800.2). Reversal was required by People v. Howard (2005) 34 Cal.4th 1129, which held reckless evasion is not an "inherently dangerous felony." (I) NFA

Ulibarri, Patricia – In re Ny Nourn, D046347 – Ineffective Assistance of Counsel/Battered Women’s Syndrome (BWS)
Published reversal. Judgment vacated based on ineffective assistance of counsel, where counsel failed to investigate possible defenses based on BWS, mental state and/or duress defense showing that defendant was actually and reasonably in imminent fear for her life. In addition to failing to have client evaluated for possible BWS (despite flags for this syndrome and his own lack of knowledge of BWS), he presented no evidence on these defenses (thus justifying court's refusal to instruct on duress), instead relying on an undeveloped defense theory with no expert testimony or evidence (essentially presenting a "sympathy" defense, based on appellant’s statements to police, which might have persuaded jury to find second-degree murder but giving them nothing to rely on legally). Although duress is not generally a defense to murder, it can be where, as here, the prosecution's theory is aiding and abetting a predicate or target offense where the murder was a natural and probable consequence of that predicate offense. Further, the evidence could have refuted the requisite intent to aid and abet an assault. (I) DLN

Stralla, Ava – People v. McDonald, D046881– Striking Enhancement
When the trial court imposed a five-year prior serious felony enhancement, it stayed the one-year prior prison term for the same prior. The Court of Appeal ordered the enhancement stricken. Also, errors in the abstract of judgment were ordered corrected. (I) HCC

Lanahan, John – In re Player, D047042 – Prison Credits
Petitioner, a prison inmate, was removed from a credit-qualifying work assignment as a result of a disciplinary finding that was later vacated. He was not reassigned for credit-qualifying work until almost two years later, and he did not receive any favorable behavior points on his annual reclassification reviews for two years, although he was awarded "S" time under prison regulations. The court held that the inmate was entitled to relief, noting that although "S" time technically referred to excused worktime for purposes of calculating sentence credits, it would not be logical or fair to deny the inmate the favorable behavior points. The court concluded that relevant regulations referred to the period of a review, which, in most cases, was one year, comprised of two six-month periods; if such one-year period was interrupted through no fault of the inmate, the entire period had to be considered continuous for that annual review. The interpretation of the regulations by the Department of Corrections and Rehabiliation (DOCR) that an inmate had to be in an assigned position at the beginning of any six-month review period to be able to earn favorable behavior points for that period was not reasonable. The court granted relief and directed the DOCR to award the inmate favorable behavior points for average or above performance for each period for which he had received "S" time credit and to review the inmate's designation, program, placement, and privileges in light of his new classification score. (I) HCC

Frizzell, Doris – People v. Duran, D047059 – Prison Prior
One-year prison term enhancement imposed under section 667.5, subdivision (b) is stricken, where the appellant had already been ordered to serve a five-year term under section 667, subdivision (a) for the same prior. (I) LKH

Fabian, Carl - In re Carlos Escamilla, D047579 - Claim for Recovery of Personal Property Department of Corrections appealed superior court’s grant of defendant's in pro per habeas petition in which he sought a remedy for loss of personal property. Court of Appeal agreed with defendant to treat his petition as one for mandamus and, as such, his claim was not barred for failure to present it in compliance with the Tort Claims Act as a claim for money or damages. Successive petitions doctrine did not bar this third petition, because the doctrine applies only to habeas petitions challenging a defendant's conviction or sentence. (I) AMJ

Schaefer, Laura – In re Rafael G., D047909 – Juvenile Disposition
The case was reversed and remanded to the juvenile court with directions to exercise its discretion to set the minor's maximum term of physical confinement under the facts and circumstances of the case pursuant to Welfare and Institutions Code section 731, subdivision (a), to declare whether count 3 (assault) is a felony or misdemeanor; and to stay the term of commitment imposed on count 3 pursuant to Penal Code section 654. In addition the court was directed to amend the commitment order to show a $100 restitution fine and that count 2, robbery, was a felony. (I) BCT

Stevenson, Theresa – People v. Hashi, D047994 – Pre-sentence Custody Credits
50 additional days of pre-sentence conduct credit awarded. (A) MRR

Williams, Nicole – In re Jesse P., D048623 – Notice and ICWA
Court of Appeal reversed dispositional orders after finding that appellant, an alleged father, was deprived of due process when he was not provided the notice required under Welfare and Institutions 316.2, subdivision (b). The court found that the violation was not harmless despite appellant's incarceration, because the record is not clear about the length of appellant's prison sentence and there is evidence of a bond between appellant and child. The court further found a violation of the Indian Child Welfare Act. (I) APJ

Nichols, Diane – People v. Redman, D048112 – Fees
As Attorney General conceded, trial court erred in ordering appellant to pay for appointed counsel fees without providing him notice or a hearing on his present ability to pay pursuant to Penal Code section 987.8, subdivision (b). (Staff)

Benedict, Amanda – People v. Johnson, D048849 – Coram Nobis
Pro per coram nobis proceeding remanded to the trial court for further proceedings as a petition for writ of habeas corpus. The petition was incorrectly filed by petitioner as a coram nobis and denied by the trial court. Rather than dismissing the appeal, the Court of Appeal remanded to the trial court. (I) DKR

Rollo, Sharon – In re Robert A., D048994 – ICWA
Reversal of an order under Welfare and Institutions Code section 387, where no notice was given to the tribes under ICWA. Although the Agency attempted unsuccessfully to augment the record with ICWA notices from a half-sibling's case, those documents had not been filed in this case and were not considered by the juvenile court judicial officer. A footnote pointed out that the augment request did not include a finding by the court in the half-sibling's case that the notice met ICWA requirements. Moreover, the court rejected the Agency's attempt to bootstrap this case to the half-sibling's case for ICWA purposes to find the error harmless. ICWA notices in separate dependency cases are not fungible evidence. (I) CAG

DiGrazia, Lisa – In re Virginia T., D049029 – Visitation and ICWA
Visitation order improperly delegates to the guardians the authority to determine the frequency and duration of father's visits. Remand is also ordered for compliance with ICWA notice provision, because notice to tribe did not include required and available family information and the Agency failed to file a proof of service of ICWA notice to the tribe. (I) DKR

Lankford, Valerie (Father-appellant), Hook, William (Minor) – In re Khalil H., D049229 – ICWA
Pursuant to a stipulation of the parties, the judgment reversed and remanded to the juvenile court with directions to properly notice any identifiable Native American tribes and the BIA in accordance with the ICWA. If the minor is determined not to be an Indian child, the juvenile court shall reinstate its previous findings and orders. (I) LKH

Mallinger, Kathleen (mother); Fabian, Carl (minor) – In re Trinity F. D049303 – ICWA The parties entered into a stipulated reversal and a limited remand was ordered on the ICWA notice issue. In this case, the minor had previously been a dependent in 2002. The parties agreed the trial court erred in 2006 when it relied on the 2002 finding that ICWA did not apply without a thorough review of the 2002 documentation and further inquiry was mandated in 2006. (I) BCT

Jones, Sharon – People v. Moore, E032142 – Search and Seizure
The judgment was conditionally reversed and the matter remanded to the trial court with directions to conduct a new suppression motion at which the prosecution may present evidence justifying the search under People v. Sanders (2003) 31 Cal.4th 318, or under any other alternate grounds contained in appellant's original moving papers or the prosecutor's original opposition thereto. (In the original suppression motion, the police officers were unaware of appellant's parole search condition.) If the trial court denies the suppression motion, then the judgement shall be reinstated and affirmed in all other respects. (I) LAR

Vento, Christine; Shulman, Corinne – People v. Armster et al., E038151 – Penal Code section 654
Appellants’ 25 years-to-life sentences for conspiracy to commit murder are stayed pursuant to section 654 in view of their life sentences for attempted murder. (I) LKH

King, Nancy – People v. Ross, E038158 – Errors in Abstract of Judgment
Two mistakes ordered corrected: (1) Minute order and abstract stated robbery term was to be served consecutively, but the court had ordered it to run concurrently; (2) Parole revocation restitution fine had been ordered for a case were defendant was sentenced to life without possibility of parole, so appellate court ordered the restitution fine stricken. (I) CFS

Stanton, Marta – People v. Thompson, E038781 – Penal Code section 654
Affirmed as modified. The trial court erred in sentencing defendant for being a felon in possession of a handgun and being a felon in possession of ammunition. Here, the ammunition was loaded into the firearm. (A) AMJ

Gambale, Jennifer A. – People v. Gamez, E038933 – Penal Code section 654 Stay
Attorney General conceded and Court of Appeal agreed that a 16-month consecutive sentence for transporting cocaine should be stayed pursuant to Penal Code section 654. The case was remanded to allow trial court to decide whether a previously stayed prison prior should be stricken or imposed. (A) APJ

Frizell, Doris M. – People v. Simon (E038945) – Discharge of Juror
Reversal ordered where trial court abused its discretion by discharging hold out juror for allegedly refusing to deliberate. (I) PED

Lathrop, Stephen – People v. Sutton, E038982 – Sentencing Enhancements
Court of Appeal struck two enhancements: a weapon use enhancement (Pen. Code, § 12022, subd. (b)(1)), on the ground weapon use was an element of the substantive offense of assault with a deadly weapon and a great bodily injury enhancement (Pen. Code, § 12022.8), on the ground the same enhancement was imposed duplicatively on two counts. (I) NFA

Torres, Steven – People v. Adame, E039298 – Penal Code section 654
Defendant was convicted of attempted robbery with enhancements for deadly weapon us and great bodily injury, as well as assault with a deadly weapon, with an enhancement for great bodily injury. Jury found true four prison priors and a five-year prior. Defendant had been apprehended by the father of the owner of a discount store as he attempted to leave with several sweatshirts; the victim grabbed for a sweatshirt, but defendant suddenly stabbed him in the neck. The trial court sentenced defendant to the upper term for the assault with a deadly weapon, and to one-third the midterm for the attempted robbery, plus enhancements. (I) CFS

Fuller, Victoria E.; Popper, Jamie; DuNah, Patrick – In re Eric P, E039321 -- Gang Enhancement
Penal Code section 186.22, subdivision (b)(1) gang enhancement reversed due to insufficient evidence that the offense was committed for a gang purpose or benefit. (A/Staff) PED

Furness, Laura – People v. Charette, E039412 – Lesser Included Offense
Attorney General conceded and Court of Appeal agreed that appellant's conviction for petty theft with a prior conviction must be reversed, because it is a lesser included offense of robbery. (Staff)

Popper, Jamie – People v. Villarreal, E039569 – Insufficient Evidence of Out-of-State Strike/Victim Restitution
First, Attorney General conceded and Court of Appeal agreed that insufficient evidence existed that appellant's prior robbery conviction from Texas was a California strike. Second, Attorney General conceded and Court of Appeal agreed that the trial court erred in ordering direct restitution related to a charge dismissed after a mistrial. (Staff)

Perez, Shawn – People v. Wood, E039971 – Probation Condition
Probation condition requiring the defendant to give the probation officer written notice of any pets stricken because it violates all three criteria set forth in People v. Lent (1975) 15 Cal.3d 481. (A) RBB

Eskenazi, Lauren – In re Valentin T., E040398 – Gang Registration
Gang registration requirement as a condition of probation ordered stricken due to insufficient evidence of gang affiliation; however, case remanded for taking of further evidence on issue. (A) PED

Jog, Anita -- People v. Badillo, E040428 -- Sentencing Remand The Court of Appeal remanded for re-sentencing where the trial court failed to select the count with the greatest penalty as the principal term and imposed an upper rather than mid-term sentence on the selected principal term based upon a mistaken understanding about the sentencing ranges for the counts of which appellant was convicted. Remanded also because trial court failed to stay a sentence pursuant to Penal Code section 654 and imposed a specific enhancement upon the wrong count. In addition, trial court ordered to correct abstract of judgment to reflect oral pronouncement of $200 fines rather than $4,200 fines. (Staff)

Pfeiffer, Rich; Buckley, Christian – In re Kathleen T., E040783 – Dependency, Notice/Attendance
Court reversed for failure to properly notice three siblings, all of whom were 10 and over, of their right to attend the Welfare and Institutions Code section 366.26 hearing. Also, court failed to inquire as to why the children were not present at the hearing as required by Welfare and Institutions Code section 366.26, subdivision (h)(2). (I/A) ACS

Rehm, Linda S. – In re Alex S., E040944 – ICWA
Reversal of the termination of parental rights for lack of notice under ICWA where the record did not contain any documents showing the Department of Public Social Services had complied with notice requirements. While the Department conceded it did not comply with the technical requirements of the Indian Child Welfare Act, it disagreed the case should be reversed to the jurisdictional hearing. The court agreed, holding the case should be remanded to give proper notice, and after 60 days if there is a determinative response, the court shall find in accordance with the response. If no response is received, the court shall find the child is not an Indian child. [Note: The opinion did not say that the juvenile court shall then reinstate the termination of parental rights.] (A) CAG

Rollo, Sharon – In re Amber P., E040985 – Dependency Visitation
Visitation order reversed for failure to specify duration and frequency of father's visits with his daughter who was in a guardianship with relatives. (I) ACS

Rollo, Sharon – In re Stephanie M., E041246 – ICWA
Reversed following the filing of a stipulation by the parties that the Riverside County Department of Social Services failed to comply with the notice requirements under ICWA. (I) AMJ

Rankin, David – People v. Miller, G033762 – Suppression of Evidence/Traffic Stop
Upon transfer from California Supreme Court for reconsideration in light of People v. Moore (2006) 39 Cal.4th 168, the Court of Appeal again reverses appellant's conviction on the ground that his suppression motion was wrongly denied because the traffic stop was unreasonable, and again refuses to remand for a new hearing on the ground that the evidence is clear that the officer stopped appellant exclusively because of alleged suspicious behavior. (S)

Menaster, Jackie – People v. Galland, G034189 – Suppression of Evidence
Published reversal. This is the second appeal in this underlying case involving a suppression motion. In the first appeal, the Court of Appeal reversed and remanded the case to allow the trial court to conduct an in camera hearing pursuant to the guidelines set forth in People v. Hobbs (1994) 7 Cal.4th 948. On remand, the trial court conducted a Hobbs in camera hearing, and again denied the suppression motion and motion to quash the search warrant. In this case, the entire affidavit supporting probable cause for the search warrant was sealed, but not retained in the court records as a sealed document. Instead, the affidavit was retained by the Buena Park Police Department, but was destroyed prior to, or during, the pendency of the appeal process. Later, an unsigned copy of the "alleged" affidavit was found in the District Attorney's file. Needless to say, the Court of Appeal was not happy with the trial court's handling of this case as it could not authenticate the "found" affidavit. As such, the court held that appellant's right to due process was violated. Therefore, in the second appeal, the Court of Appeal reversed the judgment and remanded to allow appellant to withdraw his guilty plea. The court ordered that "any evidence discovered as the result of the search warrant executed in this case is inadmissible against Galland at any trial or other hearing." (A) BCT

Riggs, Brent – People v. Arther, G036218 – Exclusion of Evidence
Court of Appeal reversed the judgment and remanded for a new trial after finding that the trial court abused its discretion in excluding evidence which might have shown appellant could afford the large amount of marijuana he possessed without needing to sell it. Specifically, the trial court excluded Western Union receipts which had been offered to show that appellant received money from his grandfather. Appellant testified he would bring in the receipts which would show he was given an amount sufficient to help him fund his $8,000 per month marijuana habit despite his $400 per week paycheck. The trial court's subsequent exclusion of the receipts, because they were from the months before rather than the month of appellant's arrest, might have made appellant look untruthful and prevented him from supporting his testimony. (A) APJ

Menaster, Jackie – People v. Winell, G037027 – Credits
Affirmed as modified, and remanded with directions. The trial court erred in calculating defendant's presentence custody credits using Penal Code section 2933.1, rather than Penal Code section 4019. The trial concluded that defendant's offense was a violent felony; however, because the punishment for the Penal Code section 12022.7, subdivision (a), enhancement was stricken, the underlying assault offense could not be considered a violent felony under Penal Code section 667.5. (I) AMJ

Costain, Charlotte E. – People v. Cage, G036772 – Deadly Weapons
Conviction for assault with a deadly weapon reversed and great bodily enhancement stricken, because bare hands are not a deadly weapon as a matter of law. (A) DNN

Hancock, Carl – People v. Patrick Horner, G036907 – Plea to Nonexistent Count
Appellant's plea to a count that had previously been dismissed was erroneous. Attorney General conceded error. Court of Appeal reversed judgment on the count and remanded to the court with directions to vacate the judgment on that count. (I) MCR