The unpublished opinions from the following cases can be viewed by visiting the Judicial Council Web site. The unpublished opinions remain on the Judicial Council Web site for 60 days from the date of the filing of the opinion.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 2008

Barry, Leslie and Hook, William — In re Antonio A., D052620 — Indian Child Welfare Act (ICWA)
Termination of parental rights case was reversed for lack of ICWA notice. (I) CAG

Harris, Donna — In re Michael T., D052510 — Sufficiency of Evidence
Arson and felony vandalism counts reversed, because there was insufficient evidence the minor aided and abetted other youths who torched playground equipment. (I) RBB

Frizzell, Doris — People v. Schlitz, D052453 — Out-of-State Prior Convictions
This is an appeal from a re-sentencing. In the first appeal, the Court of Appeal reversed true findings on appellant’s strike priors, one in Riverside and the other in Nevada. The prosecution retried the Riverside prior, the court found it true, and appellant was re-sentenced. The sentence included a one-year prison prior enhancement based upon appellant’s Nevada conviction. On appeal, appellant argued the Nevada conviction did not qualify as a prison prior, because it did not constitute a prior conviction under California law. The Attorney General’s Office argued the issue had been waived, because it was not raised in the first appeal. The Court of Appeal disagreed, finding the one-year term constituted an unauthorized sentence. The court further concluded the Nevada conviction did not qualify as a prior conviction under California law and ordered the prison prior dismissed and the one year term stricken. (I) LKH

Wenzell, Lewis — People v. Bailey, D051913 — Penal Code Section 654
Attorney General conceded and Court of Appeal agreed the trial court violated Penal Code section 654 when it imposed concurrent sentences both for appellant’s grand theft conviction and for his insufficient funds check conviction, which affected the same victim and occurred during the same time period. Stay for punishment on the insufficient funds check conviction ordered by the Court of Appeal. (I) CBM

Hinkle, Stephen — People v. McKenzie, D051744 — Search and Seizure
Officers’ warrantless entry into defendant’s home not justified under the community caretaking/emergency aid exception, where officers had only suspect outside of house, no other occupant of the house seemed to be in distress, and there was no evidence to support a reasonable belief that property was being damaged. (I) MCR

Blair-Loy, David — People v. Flores, D051215 — Probation Condition
Because the trial court’s order to pay probation supervision, presentence investigation costs, and attorney fees listed in the order granting probation could be construed to require payment as a condition of probation, appellant’s request to strike the order was granted. (I) MCR

Hernandez, Julie — People v. Garibay, D048929 — Enhancements
Trial court erred by staying rather than striking two great bodily injury enhancements (Pen. Code, § 12022.7, subd. (a)), because these enhancements do not apply to vehicular manslaughter convictions. (I) RBB

Kessler, Daniel — People v. Chavouan, D052679 — Custody Credits
Reversed and remanded. Trial court erred in failing to order at least 60 days of custody credits earned while appellant was in a residential treatment facility, because the conditions of the program were sufficiently restrictive to be the equivalent of custody in a penal institution. Trial court was to order the 60 days and to determine whether appellant was entitled to more than 60 days. (I) AMJ

Lee, Konrad — In re Kenneth S., Jr., D053130 — Visitation
Trial court improperly denied father’s modification petition without a hearing under Welfare and Institutions Code section 388 and erroneously sent case to family court for a new visitation order. Father’s petition requested unsupervised visits in his children’s legal guardianship case. Juvenile court initially resumed jurisdiction over the case, but ultimately denied father’s petition and terminated jurisdiction without an evidentiary hearing. Court of Appeal found dependency court must make visitation order under dependency guardianship, when trial court resumed dependency jurisdiction and found father made a prima facie showing on his modification petition. (I) LLF

Barry, Leslie — In re T.P., E045354 — Visitation
Father challenged the juvenile court’s failure to specify the frequency and duration of parental visitation after it selected a plan of guardianship with the grandmother and terminated dependency jurisdiction. The respondent department conceded error. The Court of Appeal directed the juvenile court to specify the frequency and duration of parental visits with the minors and affirmed the judgment in all other respects. (I) CAG

Farber, William — People v. Murguia, E045221 — Unauthorized Sentence
The Court of Appeal ordered the minute order and abstract of judgment corrected to reflect a middle term sentence of three years for counts 3 and 4, and two years for counts 5 and 6, contrary to a middle term six years which was imposed for each. (I) LKH

Farber, William — People v. Jokinen, E044864 — Invalid Plea
Although all the parties thought the crime appellant admitted as part of the plea agreement was a felony, it was actually a misdemeanor. Given this reality, the court’s imposition of a felony sentence (both for the substantive offense and the prison priors) was unauthorized and in excess of its jurisdiction; the judgment is reversed. Further, the trial court failed to establish an adequate factual basis for the plea where it never inquired of defendant or defense counsel as to the factual basis, defense counsel never stipulated to a document that provided an adequate factual basis, the plea form did not provide any factual basis, no probation report was prepared in the case, and the appellate record contained neither a police report nor a preliminary hearing transcript. (I) CBM

Ward, Paul — People v. Estes, E043929 — Abstract of Judgment
Appellant argued, the People conceded, and the court agreed that inclusion of a prior prison term on the abstract must be stricken, where the trial court imposed a serious enhancement for the same prior and properly did not impose the prior prison term. (I) HCC

Crawford, James — People v. Morales, E042723 — Judge’s Comment on Evidence
In this case, identity was the only issue. When the jury reported it was deadlocked, the judge commented on the evidence, noting, for example, that one victim had made an identification in court, that she was certain of the identification, that she appeared to be believable, and any discrepancies in the testimony or in the photo lineup had plausible explanations. The jury returned a guilty verdict soon thereafter. The Court of Appeal concluded that the trial court’s comments were not fair, neutral, or objective and conveyed the trial court’s belief of guilt. Reversed and remanded. (I) HCC

Wass, Valerie — People v. Alberti, E042060 — Abstract of Judgment
Court agreed with appellant that oral pronouncement of judgment established no term was imposed for prison prior, thereby requiring correction of abstract of judgment and minute order. Respondent had argued minute order and abstract should be corrected to reflect that one-year term for prison prior was imposed but stayed. (I) JLP

Fabian, Carl — People v. Gonzalez, E041719 — Lesser Included Offense
The Court of Appeal agreed with appellant’s argument that a conviction of grand theft of a firearm must be reversed, when that theft was one of three thefts upon which appellant’s robbery conviction could be based. (I) APJ

Johnson, R. Charles — People v. Ramirez, E045479 — Protective Order Stricken
The Court of Appeal agreed with appellant’s argument that a protective order pursuant to Penal Code section 1203.097 cannot stand when a defendant is sentenced to prison. However, because Penal Code section 273.5, subdivision (i), was effective at the time of appellant’s guilty plea and now permits such a protective order even when the defendant is sentenced to prison, the Court of Appeal remanded the case to allow the trial court to exercise its discretion under that statute. (I) APJ

Cochran, Janette and Williams, Nicole — In re A.C., G040540 — Continuation of Services
In this published decision, respondent parents received six more months of reunification services at a 6 month review hearing and the juvenile court found there was a substantial probability that the children would be returned to parental custody at the 12 month review. Minors unsuccessfully appealed both rulings, contending that the children had been previously removed from mother and then placed with father and that this time period should count against the parents in terms of receiving more time to reunify. Appellate court held that time limits for reunification under Welfare and Institutions Code section 361.5 start to run when a child is removed from all parental custody at the dispositional hearing, not when child is placed with a noncustodial parent pursuant to Welfare and Institutions Code section 361.2 (I) ACS.

Sheehy, Kevin — People v. Calera, G039456 — Sufficiency of Evidence
Conviction for Penal Code section 186.22, subdivision (a), Street Terrorism, reversed for insufficiency of the evidence. (I) MCR

Beckham, Sylvia — People v. Bergeron, G039414 — Custody Credits
Clerical error was corrected to add 711 days of presentence custody credit. (I) NFA

Kahn, Judith — People v. Cruz, G039278 — Custody Credits
Appellant argued, the Attorney General conceded, and the court agreed that appellant was entitled to four additional actual days of custody credits. (I) HCC

Capriola, William — People v. Villalpando, G039266 — Probation Condition
Probation condition that defendant not be in the presence of any person under the age of 18 modified as being unconstitutionally vague and overbroad. Condition ordered modified to add a knowledge requirement and to avoid limitations on benign contact with minors, that he not “associate” with them. (I) PED

Prince, Diana — In re K.W., E045868 — ICWA
Case reversed for compliance with ICWA noticing requirements, because Department of Children’s Services sent notice containing a misspelling of the paternal grandmother’s name. (I) CAG

Schorr, Steven — People v. Woosley, E045496 — Abstract of Judgment
The abstract incorrectly reflected two counts of conviction as premediated murder rather than unpremeditated murder, and the third count incorrectly listed first degree attempted murder rather than premeditated attempted murder. (I) AMJ

Clark, Grace — In re M.C., G040573 — Welfare and Institutions Code section 388
A father’s Welfare and Institutions Code section 388 petition requested the court revisit its jurisdiction and disposition orders, because (a) the father was not properly notified of the jurisdiction and disposition hearings, and (b) recent evidence provided by a therapist indicated the petition allegations made by father’s two daughters were prompted by the mother coaching the young girls to say bad things about their father. The juvenile court denied a hearing on the petition, finding it was untimely, because the father had not raised these challenges at an earlier review hearing. The Court of Appeal reversed holding the Welfare and Institutions Code section 388 petition was not, in this instance, subject to a time limit. Further, the juvenile court failed to consider whether the petition made a prima facie case. The Court of Appeal had no problem concluding the petition met the prima facie standard and ordered the juvenile court on remand to conduct a hearing on the petition. (A) LMF

NOVEMBER 2008

Hennessey, Patrick — People v. Daly, D052920 — Unlawful Detention
Court of Appeal reversed appellant’s conviction because it found the police officer lacked a reasonable suspicion that appellant was engaged in criminal activity at the time appellant was detained and therefore, the detention was illegal and all evidence should have been suppressed. (I) BCT

Gardner, Cliff — People v. Gonzalez, G038773 — Improper Enhancement
The Court of Appeal agreed with appellant’s argument that the 10-year gang enhancement cannot be imposed when the defendant is sentenced to a life term. Thus, the court struck four such enhancements in favor of 15-year minimum parole eligibility on the relevant counts. (I) APJ

Prince, Diana (Father) and Jarvis, Michelle (Mother) — In re K.S., G039963 — Reasonable Services
Parents each appealed the trial court’s finding reasonable services had been offered and order terminating family reunification services. (1) Depending upon when the reasonable services determination is made, there is a different burden of proof: the clear and convincing standard at the 6-month or 12-month review, and the preponderance of the evidence standard at the 18-month review. The appellate court rejected the county’s assertion the nature of the services determination was made at the 18-month review hearing as a result of multiple continuances because the case had not been continued under Welfare and Institutions Code section 366.21, subdivision (g)(1) and the juvenile court had made no previous findings at a section 366.21, subdivision (f) hearing. (2) There was no substantial evidence to support the juvenile court’s finding the parents were offered reasonable services because neither the social worker, the therapist (agency’s own service provider), nor the reunification plan put the parents on notice that they had to admit they caused the minor’s injuries in order to be reunited with the minor. (I) CBM

Wallingford, Jerome — People v. Alves, D052452 — Parole Revocation Fine
Appellant argued, the Attorney General conceded, and the Court of Appeal agreed that the trial court erred in imposing a parole revocation fine because it does not apply to a life sentence without the possibility of parole. (I) AMJ

Hinkle, Stephen — People v. Duckett, D052143 — Penal Code Section 654
Trial court directed to prepare amended abstract, because appellant was entitled to a stay on the possession conviction where the trial court had initially ordered a stay although later described it as a concurrent term. (I) AMJ

Harguindeguy-Cox, Marianne — People v. Robles, D051344 — Aiding/Abetting Instructional Error; Multiple Sentencing Errors
Court of Appeal reversed three convictions for trial court’s prejudicial failure to give aiding and abetting instruction. Also, Court of Appeal found trial court erred in failing to award conduct credits, failing to recognize discretion to give concurrent rather than consecutive sentence, and failing to address section 654 concern with regard to carjacking and robbery against same victim (I) JLP

Boyce, Robert — People v. Gudino, D051344 — Aranda-Bruton
The fact co-defendant’s statements putting appellant at the scene of the crime were introduced created Aranda-Bruton error that resulted in gross unfairness, which was not harmless beyond a reasonable doubt; also, it was the result of ineffective assistance of counsel. (I) JLP

Frizzell, Doris — People v. Ojito, D049765 — Hearsay (Adoptive Admission)
Defendant was convicted of multiple counts stemming from a gang drive-by shooting in which he was the alleged shooter. A passenger in defendant’s car, Lucero, gave police a version of events inculpating defendant. At the preliminary hearing, the testifying officer recounted Lucero’s statements. Weeks later, defendant wrote a letter to an acquaintance in which he referred to Lucero as a “rat.” At trial, Lucero was unavailable as a witness. The trial court allowed a police officer to testify and recount Lucero’s statements to the jury on the theory defendant’s labeling Lucero a “rat” after listening to her purported statements at the preliminary hearing amounted to an adoptive admission of those statements. The Court of Appeal reversed, holding that defendant’s labeling Lucero a “rat” amounted to a disparaging reference to her cooperation with police, but was not an express or implicit adoption of the truth of her statements. (I) NFA

Mazur, Janice — People v. Shack, D051068 — Violation of Plea Agreements
Defendant entered into a plea agreement to admit robbery and various enhancements. There was “no deal” with the prosecution as to sentencing; however, the trial court twice told defendant the maximum sentence would be 20 years, to which the prosecution did not object. At sentencing, the court imposed 25 years. On appeal, the Court of Appeal held: 1) no certificate of probable cause was needed because defendant’s attack of the 25-year sentence was an attack on the sentence, not the validity of the plea; 2) the 25-year sentence violated the plea agreement, which included the court’s stated maximum of 20 years, to which the prosecution did not object; and 3) the appropriate remedy was to allow defendant to withdraw his guilty plea (which was the remedy defendant sought). (I) NFA (I)

Weaver, Eric — People v. Courtney, D051311 – Lesser Included Offense
Appellant’s conviction for false imprisonment by violence (Pen. Code, §§ 236, 237, subd. (a)) is reversed, because it is a lesser included offense of kidnap for sexual penetration (Pen. Code, §§ 209, subd. (b)(1), 289). The Attorney General conceded false imprisonment by violence was a lesser included offense, but argued that the false imprisonment conviction was based upon a different act. The Court of Appeal rejected this argument, relying in part on the prosecutor’s argument, and concluded both convictions were based on the same facts: restraining the victim during the sexual assault. (I) MCR

Evans, Suzanne — In re C.C., D052733 —Indian Child Welfare Act (ICWA)
Welfare and Institutions Code section 224.3, subdivision ( c ) requires the social worker to contact the Bureau if Indian Affairs, State Department of Social Services, and the tribes in which the child may be a member and any other person who reasonably can be expected to have information about the child’s Indian status. The 2004 ICWA notice in the prior dependency was lacking the additional information from the parent for this dependency and was inadequate. (I) CAG

Schitt, Melissa — In re Mario M., D052692 — Restitution Fine
Imposition of Victim Restitution fine reversed where it was imposed ex parte by the court without the client or his counsel being present. Case remanded for a new restitution hearing. (A) PED

Lankford, Valerie (Minor) — In re Angelica V. D053225 — Beneficial Relationship Exception
Both the minor and the social services agency appealed the juvenile court’s decision to apply the beneficial parent/child relationship exception. The child had never lived with her parents, and in applying the exception, the juvenile court made a statement which suggested it misunderstood who bore the burden of proving the exception. The appellate court concluded the juvenile court’s finding was not supported by substantial evidence. The evidence did not demonstrate the benefits of the parent/child relationship outweighed the benefits of adoption, or that the child would suffer detriment if her relationship with her mother ended. (I) LMF

Lankford, Valerie — In re Elijah P., D053184 — Adoptability (Changed Circumstances)
Finding of adoptability reversed where changed circumstances indicated minor no longer had prospective adoptive parents. (I) PED

Brownell, Gordon — People v. Gallo, E042551 — Instructional Error
Second degree murder conviction reversed, because the trial court refused to instruct the jury on involuntary manslaughter. The error was prejudicial because there was sufficient evidence that appellant caused his 90-year old father’s death unintentionally, but during the commission of an assault and battery that was not inherently dangerous. It was reasonably probable if the jury had been instructed on involuntary manslaughter, the jury would have found him guilty of that rather than second degree murder. The case was remanded with directions that if the People fail to retry appellant in a timely manner, then the conviction is reduced to involuntary manslaughter and appellant should be resentenced accordingly. (I) BCT

Cha, Kazoua — People v. Brumfield, E044628 — Credits
Appellant successfully sought one additional day of presentence credit, which he had been denied due to a calculation error. The Attorney General conceded the error. (A) NFA

Dodd, John — People v. Carter, E045009 — Probation Conditions
Gang-related probation conditions prohibiting defendant from being on any school campus and from wearing gang dress modified to add knowledge element, so that defendant is prohibited from knowingly being on any school campus or knowingly wearing gang dress. (I) RBB

Nichols, Diane — People v. Rodriguez, E043031 — Dual Conviction
Appellant was convicted of both continuous sexual and aggravated sexual assault and specific abuse which occurred within the period of the continuous sexual abuse. Because the two charges should have been charged in the alternative such that appellant cannot be convicted of both, the Court of Appeal reversed and vacated the continuous sexual abuse conviction. (I) HCC

Marshall, Marilee — People v. Castaneda, E043503 — Probation Eligibility
The trial court mistakenly concluded appellant was presumptively ineligible for probation, and then denied probation. The Court of Appeal remanded for a new sentencing hearing, where the court will properly exercise its discretion. (I) NFA

Eskenazi, Lauren — People v. Rojas, E042917 — Insufficient Evidence
The true finding on the prison prior enhancement is reversed due to insufficient evidence and remanded to the trial court for further proceedings. (Mod-A) AMJ

Whatley, Jerry — People v. Garcia, E037490 — Dual Use
Appeal from resentencing following remand in light of Black II and Towne. Although Court of Appeal did not find Cunningham or federal constitutional error in the trial court’s selection of the upper term on count 1, it found error for relying on the same factor in imposing the upper term and the three-year prior drug conviction enhancement. Error was not harmless because record did not support the trial court’s finding on other factors as matters of fact. Case remanded for resentencing. (I) AMJ

Missakian, Elizabeth (Aguilar), Brandes, Elisa (Ramirez), and Bostwick, James (Torres) — People v. Aguilar et al., E037490 – Instructional Error; Double Jeopardy; Credits
The weight enhancement for each defendant relating to count 3 is reversed, because the jury was instructed on alternative theories, one which was legally invalid, and the record affirmatively established a reasonable probability that the jury based its true findings solely on the invalid theory. Double jeopardy bars retrial, because there is insufficient evidence to support the enhancements based on the only legally valid theory. Next, the sentence minute order incorrectly reflects that the defendants received consecutive sentences on counts 2 and 3 and must be corrected to reflect a stay. As to Aguilar, the abstract fails to reflect any credits and must be corrected to reflect a total of 1,053 days. (I) AMJ

Kassman, Martin — People v. Perez, E043078 — Pena Code Section 654
Court of Appeal ordered sentences stayed, pursuant to Penal Code section 654, for the following: 1) Penal Code section 273.5 violation , when appelalnt sentenced for Penal Code section 245 violation based on same conduct; 2) Penal Code section 69 violation, where appellant sentenced for Penal Code section 243 violation which was part of indivisible course of conduct; and 3) Penal Code section 459 violation, where appellant sentenced for Penal Code section 211 violation based on indivisible course of conduct. (I) JLP

Hillberg, Marylou — People v. Watkins, E044737 — Violation of Plea Agreement
Appellant entered into a plea wherein it was agreed she would receive an 8 year, 4 month sentence. The court subsequently erred when it imposed a 12 year prison term, in contravention of the agreement. Appellant’s sentence reduced to conform to the plea agreement. (I) CBM

Farber, William — People v. Amezola, E045665 — Credits
Court ordered the superior court clerk to correct the sentencing minute order and abstract of judgment to reflect the appropriate custody credits and forward a corrected copy of the abstract to the Department of Corrections and Rehabilitation. (I) BCT

Wingate, Elizabeth — In re R.R., E045971— ICWA
The Court of Appeal reversed for insufficient notice under ICWA, where the maternal and paternal grandparents names and addresses were known but not included in the notice. (I) CAG

Serobian, Liana — In re A.W., E045358 — ICWA
The judgment terminating parental rights was reversed in this case due to the department’s failure to include any information regarding the minors’ maternal family (who were known and available) in notices sent to the Cherokee Tribe. The mother claimed Cherokee heritage, but then denied Indian heritage when completing the JV-190 form. The Court of Appeal rejected the department’s argument that it was entitled to rely on the mother’s JV-190 form. The court noted that because the father claimed Indian ancestry, notice had to be given any way, and the regulations require such notice to include information about Indian and non-Indian ancestors. The court concluded it was not harmless error, because the mother claimed, and continued to claim, Cherokee heritage (mother filed a companion petition for writ of habeas corpus which included the maternal grandmother’s declaration that her family possessed Cherokee ancestry). The court ordered a limited remand. (A) LMF

Duxbury, Brett Harding — P v. Ruiz, E044016 — Penal Code section 654
The Court of Appeal agreed with appellant’s argument that his sentence for robbery must be stayed pursuant to Penal Code section 654 when he is already being punished for kidnap for robbery based upon the same course of conduct. (I) APJ

Williams, Rex — People v. Mendez, E043254 — Penal Code Section 654
Defendant was sentenced consecutively for assaulting his stepfather with a knife and making a criminal threat against him during a single fracas. The Court of Appeal found there was a single criminal intent, and therefore Penal Code section 654 required the sentence for the threat count be stayed. (I) NFA

Kessler, Daniel — People v. Darrett, E043221 — Insufficiency of Evidence
The Court reversed appellant’s conviction for failing to update his annual sex offender registration. Penal Code section 290, subdivision (a)(1)(D) requires annual registration for offenders who have an address in California at which they regularly reside. Here, appellant was a long-distance truck driver, and the prosecution failed to establish that appellant regularly resided in California. (I) BCT

De La Sota, Richard — People v. Lovan, G039458 — Insufficiency of Evidence
Court found insufficient evidence to support appellant’s conviction for transportation of contraband, where appellant was found sitting in a parked car and he had methamphetamine in his possession. There was no evidence showing how the methamphetamine found in appellant’s possession got there or whether appellant ever moved or transported it. (I) CBM
Ting, Allison — People v. Mosley, G038279 — Sex Offender Registration
Court of Appeal struck discretionary sex offender registration requirement, under equivalent of Penal Code section 290.006, because appellant was not afforded right to jury determination beyond a reasonable doubt of necessary factual finding for imposition of requirement in violation of Apprendi. In reaching this holding, Court of Appeal significantly found sex offender registration requirement, which now includes strict residency restrictions, punitive. (I) JLP

Jauregui, Anna — People v. Piedra, G039286 — Unauthorized Sentence Orders
Remanded for resentencing. The order suspending count 2, which left open the possibility that appellant could be subject to future penalties on this offense, was unauthorized because appellant was not eligible for probation and prison had been imposed on count 1. Minute order and abstract of judgment must be corrected to reflect the lower amount of restitution orally pronounced by the court. (S) AMJ

Beckham, Sylvia — People v. Alva, G039630 — Ineffective Assistance of Counsel
Counsel filed a opening brief in the direct appeal with a companion petition for writ of habeas corpus. Both matters were consolidated. The Court of Appeal granted the petition, finding that trial counsel was ineffective in advising the client to admit his prior conviction for Penal Code section 244 qualified as a strike and serious felony prior. Appellant pleaded guilty in 1997 to a violation of section 244, based on his conduct in throwing a “caustic liquid” on another person. However, Penal Code section 1192.7, subdivision (c)(30) makes it a serious felony to “throw[] acid or flammable substances, in violation of Section 244.” Appellant argued the 1997 conviction did not qualify as a serious felony because there was no evidence the client threw acid or a flammable substance. The Court of Appeal agreed, reversed, and remanded the case for re-sentencing. (I) LKH

OCTOBER 2008

Dressner, Tracy — People v. Becker, D049585 — Right to Counsel.
Defendant represented himself at trial. Prior to sentencing, he requested counsel to prepare a motion for new trial and for sentencing. Court of Appeal concluded trial court erred in refusing to reinstate counsel at the new trial/sentencing hearings. However, Court found error harmless beyond reasonable doubt as to the new trial motion, but did find sentencing error. Hence, remanded for new sentencing hearing. (I) LAR

Jones, Rebecca; Romero, Lynda — People v. Cortez and Fausto, D049716 — Sentence Remand
Sentencing remanded where the trial improperly sentenced defendants for conspiracy to commit murder, where they were not convicted of this offense, but rather for conspiracy to commit assault with a deadly weapon or force likely to produce great bodily injury. (I) MCR

McGill, Martha — People v. Moore, D051123 — Cunningham
Reversal for remand and resentencing of firearm enhancement, where court chose upper of three terms in violation of Cunningham. Court held amendment of Determinate Sentencing Law did not amend Penal Code section 1170.1, subdivision (d), and thus, did not apply to enhancements. (I) JLP

Weiss, Lizabeth — People v. Stier, D051505 — Unlawful Detention
Motion to suppress erroneously denied where police officer’s placement of handcuffs on appellant during detention was not reasonably necessary, because appellant’s height alone was not a sufficient threat to officer safety (I) DKR

Cannon, Gregory — People v. Reeder, D051601 — Unauthorized Sentence
Court of Appeal reduced misdemeanor sentence on Penal Code section 647 conviction from 272 days to 180 days, because higher sentence is unauthorized under Penal Code section 19. (I) DKR

Torres, Tonja — People v. Guerrero, E041820 — Penal Code Section 654
A jury convicted defendant of manufacturing methamphetamine and made 15 true findings that the crime occurred in a structure in which a child under the age of 16 was present for each individual child who was present. The trial court imposed two years consecutive for 13 of the enhancements. In an earlier appeal by the co-defendant, the Court of Appeal ordered all but one such enhancements stayed. The appellate court took judicial notice of its disposition of this issue in the codefendant’s case, concluded that section 654 applied to such an enhancement, and that the trial court erred in imposing more than one enhancement under Health and Safety Code section 11379.6. Therefore, 12 of the 13 terms were stayed pursuant to section 654. (I) HCC

Boyce, Robert — People v. Thompson, D052430 — Improper Sentencing
Appellant was originally granted probation, with imposition of sentence suspended. Probation was later revoked. The revocation court mistakenly concluded the original sentencing court had imposed the upper term, suspending execution in favor of a grant of probation. Based on this mistaken premise, the revocation court purported to execute the upper term sentence it thought had previously been imposed. Court of Appeal held the revocation court had failed to exercise its discretion in selecting the upper term and remanded for resentencing. The court also ordered the preparation of an updated probation report. (I) NFA

Hart, Mark — People v. Anderson, E041505 — Felony Murder; Special Circumstances; Fines
Defendant was convicted of first degree murder with special circumstances based on the killing of his girlfriend’s mother in her home. Witnesses testified appellant admitting killing the victim in order to prevent her from reporting appellant’s involvement of an earlier robbery. However, money was taken during the burglary, and one witness testified appellant said he intended to kill and steal from the victim. Jurors were instructed that first degree murder could be based on either premeditation or on felony murder, with burglary being the underlying felony. The special circumstances, both of which were found true, were murder during a burglary and murder to prevent a witness from testifying. Appellant argued, and the Attorney General conceded, that it would violate the merger doctrine for jurors to base a finding of felony murder or the burglary special circumstance on appellant’s intent to kill the victim. The Attorney General conceded the burglary special circumstance had to be reversed. However, the Attorney General argued the first degree murder verdict and the prevent-a-witness-from-testifying special circumstance should be upheld, the jury’s true finding on the prevent-a-witness-from-testifying special circumstance established the murder was premeditated, the first degree murder verdict could be upheld on the premeditation theory, and the prevent-a-witness-from-testifying special circumstance could be upheld because it was unaffected by the merger problem. The Court of Appeal disagreed, explaining that the special circumstance finding appellant killed the victim to prevent her from testifying did not establish they found the killing was premeditated. The court reversed the murder conviction. The court noted that on retrial the prosecution could seek to prove first degree murder either based on premeditation or on felony murder, with theft as the underlying felony. (I) NFA

Haggerty, Edward — People v. McKinney, E041254 — Penal Code Section 654
Concurrent term for false imprisonment should have been stayed pursuant to Penal Code section 654 because offense occurred during the same course of conduct as the corporal injury on a cohabitant count. (I) RBB

Johnson, R. Charles — People v. Adair, D052912 — Dual Use
Appellant argued, Attorney General conceded, and the Court of Appeal agreed that trial court erred in imposing a one-year prison prior term enhancement because it was based on the same prior conviction as the serious felony prior enhancement. (I) AMJ

Capriola, William — People v. Richardson, E042915 — Parole Restitution Fines
Revocation court erroneously increased amount of parole revocation fine and restitution fine imposed by original sentencing court. Court of Appeal remanded, holding that a revocation court may not increase the amount of these fines imposed by the original sentencing court. (I) NFA

Tetreault, Nancy — People v. Luchie, E043945 — Penal Code Section 654
Appellant argued, Attorney General conceded, and the Court of Appeal agreed that the trial court should have stayed, under Penal Code section 654, the sentence on the felon in possession of ammunition conviction because possession of the ammunition, which was loaded in a firearm, was incidental to possession of the firearm conviction. (I) AMJ

Williams, Nicole — In re A. P., E043874 — Juvenile Adjudication
The children appealed after a dependency petition was dismissed. Trial counsel for the minors objected to the agreement between the agency and the parents to dismiss the petition and undertake a program of voluntary supervision. The 13-year-old daughter alleged she had been sexually abused by her father between the ages of 8 and 10. When making its ruling, the trial court did not make express findings, the children’s attorney’s concerns were not put on the record, insufficient evidence supported the dismissal, and on the record before the Court of Appeal, it could not be determined the welfare of the children was not compromised by the court’s rulings. The Court of Appeal found that the children had standing to appeal and did not forfeit the right to challenge the order. (I) CAG

Bauguess, Susan — People v. Sanchez, E043872 — Striking Enhancement
Appellant argued, Attorney General conceded, and the Court of Appeal agreed that the trial court should have stricken rather than merely stayed a prior drug conviction enhancement. (I) HCC

Mazur, Janice — In re Hill, E043639 — Parole Suitability Hearing
Granting of habeas corpus writ upheld on appeal and trial court is directed to enter an order vacating the denial of petitioner’s parole and conduct a new parole suitability hearing. Parole board’s initial determination of unsuitability was not supported by “some evidence” that petitioner would pose an unreasonable risk of danger to society if released from prison as interpreted by two recent California Supreme Court decisions, i.e., In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241. (I) (PED)

Kassman, Martin — People v. Fisher, E043073 — Penal Code Section 654; Striking Enhancement
A jury convicted appellant of multiple counts including kidnaping (§ 207, subd. (a)), attempted robbery (§§ 664/211), and burglary (§ 459). The trial court sentenced appellant to concurrent sentences on each of these crimes. On appeal, appellant argues and the Court of Appeal agrees that the sentence for attempted robbery (§§ 664/211) and burglary (§ 459) must be stayed pursuant to section 654. In addition, the court strikes the enhancement for use of a deadly weapon under section 12022, subdivision (b)(1) because it is an element of the assault with a deadly weapon conviction (§ 245, subd. (a)(1)). (I) LKH

Breakey, Lise — People v. Spicer, E044024 — 654
Appellant argued, Attorney General conceded, and the Court of Appeal agreed that the trial court erred in not staying sentencing for possessing a controlled substance when defendant also was convicted of transporting the controlled substance. (I) JLP

Mallinger, Kathleen — In re Ashley C., E044605 — Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Reversal after the Court of Appeal stated that the lack of a child custody proceeding in the home state doesn’t mean the home state is not the home state of the family for UCCJEA purposes. The jurisdictional and dispositional orders were void. A void order cannot support a subsequent order; therefore, all proceedings founded upon it, including the termination of parental rights, are equally worthless. But, the reversal is limited to a call by the juvenile court to the home state court; if the home state court declines jurisdiction, all orders commencing with the jurisdiction order will be reinstated. If the home state accepts jurisdiction, all orders beginning with the jurisdiction order are reversed. (I) CAG

Duxbury, Brett — People v. Haltom, E044597 — Credits
Court of Appeal ordered correction of miscalculated conduct credits. (I) LAR

McPartland, Michael — People v. Robinson, E044563 — Lesser Included Offense
Carjacking conviction reversed, because it is a necessarily included offense of kidnapping in the commission of carjacking. (I) (PED)

Schwartzberg, Richard — People v. Morgan, E044319 — Lesser Included Offense
Conviction for resisting arrest (Pen. Code, § 148) stricken because it is a lesser included offense of resisting an executive officer (Pen. Code, § 69). (I) MCR

Lampkin, David — People v. Lewis, E045480 — Laboratory Fees
Health and Safety Code section 11372.5, subdivision (a) laboratory analysis fee reduced from $283 to $163 because trial court made error in computation. (I) RBB

Rollo, Sharon — In re E.K., et al., E045065 — Indian Child Welfare Act (ICWA)
Court of Appeal agreed with mother’s claim that the evidence did not support the trial court’s finding that ICWA did not apply, because the record did not indicate that agency provided adequate notice to the pertinent Indian tribes. Judgment conditionally reversed and matter remanded to the trial court for limited purpose of complying with ICWA. (I) LAR

Finch, Dabney — People v. Gamino, E044695 — Attorney’s Fees
Trial court failed to give defendant adequate notice and a hearing regarding the court’s order defendant pay attorney fees, pursuant to Penal Code section 987.8. Further, the court did not have a hearing to determine defendant’s ability to pay. Case remanded for trial court to conduct a proper hearing to determine ability to pay. (A) LAR

Torres, Steven — People v. Ventura, G039544 — Unauthorized Sentence
10-year gang enhancement ordered to be deleted as it does not apply where violent felony is punishable by imprisonment for life (Defendant received a term of 15 years to life for deliberate and premeditated attempted murder. (I) LAR

Harvie, Linda — In re Michael P., G039416 — Deferred Entry of Judgment
Judgment affirmed and remanded to the juvenile court for proceeding consistent with Welfare and Institutions Code section 790, because the juvenile court and the prosecutor erred when they failed to consider minor for deferred entry of judgment program where he was eligible.. (I) MCR

Wenzell, Lewis — In re J.S., G039221 — Probation Conditions
Probation condition ordering that minor’s associates must be approved by the probation officer or the parents/guardian is unconstitutionally vague (without a knowledge requirement) and overbroad (reaching people such as grocery clerks, mail clerks and health care providers). The condition is modified to read: You are not to associate with anyone know to be disapproved of by probation or your parents/guardian. Probation condition ordering that minor not to possess any wireless communication devices is unconstitutionally overbroad, because it is not narrowly tailored to any improper activity. The condition is modified to read: You are not to use any beepers, pagers, cell phones, or any other cordless device for any unlawful purpose or to communicate with fellow gang members or associates or anyone known to be disapproved of by probation or your parents/guardian.
(I) CBM

Lathrop, Stephen; Olsen, Nancy — People v. Noreiga & Briones, G039184 — Penal Code Section 654
Appellants argued, the Attorney General conceded, and the Court of Appeal agreed that sentence for robbery should have been stayed pursuant to Penal Code section 654, when appellants were also sentenced for carjacking. (I) HCC

Duxbury, Brett — People v. Montiel, G038925 — Abstract of Judgment
Abstract of judgment ordered corrected to reflect custody credits. (I) HCC

Rudasill, Denise — People v. White, G038820 — Right to Counsel
At the outset of appellant’s trial for felony threat to a public official, appellant moved to relieve his retained attorney and hire another. The trial court erroneously applied the standard for a motion for new appointed counsel under People v. Marsden (1970) 2 Cal.3d 118; applying that standard, the trial court denied the motion. The Court of Appeal found the motion to retain new counsel should have been granted, and the error was not harmless beyond a reasonable doubt. Reversed. (I) NFA

Schwartzberg, Richard — Sabatasso v. Superior Court, G039906 — Release of Money
Writ proceeding where petitioner argued he was entitled to Penal Code section 2713.1 release money ($200) when paroled but held by another law enforcement agency for civil commitment evaluation, instead of released into the community, and Court of Appeal agreed. (I) JLP

Schwartzberg, Richard — Parsons v. Superior Court, G039980 — Prisoner Rights
$200 allowance for paroled prisoner under Penal Code section 2713.1 was erroneously withheld from defendant who was transferred to another law enforcement agency and held for evaluation and possible trial under the Sexually Violent Predator Act. (I) RBB

SEPTEMBER 2008

Peterson, Christy — In re Dylan E., D052329 — Custody of Minor
Where, by the time of the disposition hearing, the mother had made good progress in therapy, completed parenting classes, had appropriate visits with her 15 year old child, had prepared for the child’s return by contacting an individual therapist, a tutor, and a family therapist, arranged to have the child return to high school, and the child acknowledged his shortcomings and wanted to return home while working on them, the juvenile court erred in not returning the child to mother’s custody. (I) CAG

Hinkle, Stephen — People v. Sinclair, D051823 — Instructional Error (Lesser Included Offense)
In appeal after jury conviction of assault by force likely to cause great bodily injury, trial court’s error in not sua sponte instructing on lesser offense of simple assault is prejudicial where jury found great bodily injury enhancement not true. (I) DKR

Robinson, Warren — People v. Reyes, D051725 — Custody Credits
Trial court erred in extending defendant’s waiver of good time credits at initial probation revocation proceeding, following which probation was reinstated, to his second revocation, following which a state prison sentence was imposed. Defendant was entitled to 32 days of conduct credit. (I) RBB

Cohen, Howard — People v. Salcido, D050330 — Two Dismissals
The People charged appellant, an inmate in prison, with nonviolent felonies in assaulting a guard. The original complaint was dismissed, after the People erroneously objected to a preliminary hearing while appellant was incompetent. A second complaint, alleging the same nonviolent offenses, resulted in the granting of a Penal Code section 995 motion, based on error by the magistrate at the preliminary hearing on the second complaint. The People then filed a third complaint, alleging the same nonviolent felonies. When appellant moved to dismiss pursuant to Penal Code section 1387, the People indicated their intention to add a serious bodily injury enhancement so as to render the felonies violent and take advantage of Penal Code section 1387.1. Based on the People’s intention, the superior court denied the motion to dismiss. The Court of Appeal, in a published opinion, reversed with directions to dismiss with prejudice. The court held that since two dismissals of nonviolent felonies had occurred, the exception permitted by section 1387.1 did not apply, and further noted that even at the time of the third motion to dismiss, the People had not yet taken the opportunity to charge a violent felony. (S) HCC

Pritz, Danalynn — People v. Teague, D049618 — Ineffective Assistance of Counsel (IAC)
This case began as a direct appeal in Division Two in May, 2005 and was eventually transferred to Division One. After a drawn out struggle to obtain information from trial counsel (which eventually included the intervention of Division Two), appellate counsel filed a companion petition for writ of habeas corpus alleging IAC based, in part, on trial counsel’s failure to interview an available witness who would have impeached the testimony of the complaining witness in this domestic violence case. The Court of Appeal ordered an evidentiary hearing (which appellate counsel conducted) and, after reviewing the referee’s findings of fact, determined that the potential witness would have been highly useful to the defense and that trial counsel’s failure to call her resulted in fundamentally unfair proceedings. The Court of Appeal vacated the judgment and remanded the case for further proceedings. (I) APJ

Vogelmann, Monica (Father); Hook, William (Minor) — In re Julian M., D052865 — Adoptibility & Post Judgment Evidence
In this appeal from a Welfare and Institutions Code section 366.26 hearing where the juvenile court terminated parental rights, the Court of Appeal reversed the termination order, finding insufficient evidence that Julian was adoptable. Julian became a dependent of the court in the fall of 2001. For the next year and a half, he was unsuccessfully placed in five foster care homes. When reunification services failed, the court deemed Julian not adoptable, and he was placed in a group home. Julian’s behavior problems continued, and in February 2007, he was placed with a prospective adoptive home. The section 366.26 hearing was held a year later, but the home study had not been completed. The parents’ request to continue the hearing was denied, and the juvenile court terminated parental rights. Reversing, the Court of Appeal concluded the assessment report was inadequate to support the adoptability finding and expressed concern that rights were terminated while the home study was still pending. The Court of Appeal also denied the Agency’s motion to augment the record with post judgment evidence that the home study has since been approved. (I) LKH

Wass, Valerie — In re Jonathan T., E043805 — Due Process
In an opinion certified for partial publication, the court held that Penal Code section 213, subdivision (a)(1)(A), operates as an enhancement. The juvenile petition in this case did not charge minor with the enhancement of acting in concert. Minor did not admit acting in concert. Accordingly, the court concluded minor’s due process rights were violated, and his maximum confinement time must be modified to reflect the maximum confinement time for first degree robbery, which is six years. (I) BCT

Klaif, Leonard — People v. Lucero, E043671 — Modification of Probation Condition
The Attorney General conceded and the Court of Appeal agreed that two conditions of probation required modification. Condition prohibiting association with probationers and parolees must be modified to include a “knowledge” requirement. Condition prohibiting “negative contact” must include what is meant by negative contact (i.e., “harassing, annoying, molesting, threatening, injuring, intimidating, attacking, battering, assaulting, stalking, destroying personal property of, unlawfully taking the personal property of, disturbing the peace of, or blocking the movements of”). (I) APJ

Williams, Rex — People v. Faz, E043111 — Confrontation; Unavailability
Trial court’s error in allowing prosecution to admit preliminary hearing testimony of victim violated appellant’s right to confrontation. Judgment reversed with directions to conduct hearing on whether appellant forfeited right to confront the victim by threats and whether the victim was unavailable to testify at trial. (I) DKR

Miller, Gerald— People v. Howard, E041932 — Insufficiency of Evidence of Prior Strike
Appellant argued his 1994 conviction for aggravated assault was not a prior serious or violent felony for purposes of the three strikes law, because the jury found he did not personally use a firearm. Court agreed that abstract, along with transcript of sentencing hearing from 1994, showed appellant was not convicted of use of a weapon. Consequently, the record provided insufficient evidence that appellant’s prior conviction for aggravated assault constituted a strike, and the court modified allegation from true to not true. (Unfortunately, the modification did not result in relief, since appellant had two other strikes in addition.) (I) LLF

Matulis, Jean — People v. Adams, E041501 — Instructional Error
Two convictions for sexual battery were reversed, because the lower court’s jury instruction pursuant to People v. Mayberry (1975) 15 Cal.3d 143 limited the instruction to other charged sex offenses. The error was prejudicial, because the jurors were compelled to conclude from the instruction given that the Mayberry defense did not apply to sexual battery as a matter of law. (I) BCT

Gilbert, Stephen — People v. Samuels, E039203 — IAC
Appellant filed a writ of habeas corpus arguing his retained trial attorney provided IAC by convincing him not to take an offered plea agreement for nine years. At trial, attorney offered no defense and stipulated to two of the three elements of the charged offense of escape. Appellant was ultimately sentenced to 26 years to life. The Court of Appeal held appellant established a prima facie case for relief by showing that the judge would likely have approved the nine-year plea agreement and the sole reason he refused the agreement was advice by his attorney. The case was returned to the Superior Court for further inquiry. (I) LLF

Williams, Rex — People v. Battershall, E043910 — Cunningham Error
Remand for re-sentencing where court imposed upper term for great bodily injury enhancement in violation of Blakely/Cunningham. (I) PED

Tavano, Joe — In re Andrew D., E045227 — Indian Child Welfare Act (ICWA)
As conceded, the Department of Public Social Services failed to give sufficient notice under ICWA. (I) CAG

Dodd, John — In re Michael R., E045178 — Felony/Misdemeanor Determination
Matter remanded to superior court to allow it to exercise its discretion to declare one of appellant’s “wobber” offenses to be a misdemeanor or a felony. (I) PED

Bostwick, James — People v. Lucero, E044755 — Penal Code Section 654
Affirmed with directions. Court of Appeal and Attorney General agreed that Penal Code section 654 stay applied to the two counts of assault, because they were based on the same conduct as the two counts of elder abuse. (I) AMJ

Dodd, Karen — In re Jacob E., No. E044639 — Insufficiency of Evidence
Appellate court reversed jurisdictional findings having to do with domestic violence as it pertained to father. Court held no substantial evidence supported findings as there was no evidence father ever abused his children or that he engaged in domestic violence with their mother in their immediate presence. (I) ACS

Bauguess, Susan — People v. Campuzano, E044629 — Restitution Fines
Court of Appeal held the lower court made three computational or clerical errors in the restitution fines imposed at the initial sentencing when probation was granted and also when it revoked probation and imposed a prison term. The amount of restitution fines imposed pursuant to Penal Code sections 1202.4, subdivision (b)(1), 1202.44, and 12022.45 were reduced from $220 each to $200 each. (I) BCT

McPartland, Michael — People v. Clinton, E044128 — Restitution Fine
After an appeal which resulted in reduced charges and remand for resentencing, the trial court again imposed a restitution fine of $10,000, over defense objection based on appellant’s inability to pay. The People conceded error. The Court of Appeal agreed that the trial court erred in not considering the alleged inability to pay and remanded for a new restitution hearing. (I) HCC

Williams, Nicole — In re M. Martin, E045230 — Insufficiency of Evidence
In Mother’s appeal from jurisdictional findings concerning two sons and daughter, as to the boys, the findings were affirmed; as to the daughter, the finding was reversed, because there was insufficient evidence that her continued custody with mother posed substantial danger to her physical and emotional health. (I) AMJ

Menaster, Jackie — People v. Milligan, G03946 — Sex Offender Registration; Retroactivity
In a published opinion, the Court of Appeal held residency limitations and GPS monitoring requirements from Sexual Predator Punishment and Control Act: Jessica’s Law from 2006 cannot be applied retroactively and, consequently, appellant is not subject to these restrictions. (I) LLF

Cava, Dennis — People v. Dignam, G039399 — Penal Code Section 1538.5
The Court of Appeal reversed the trial court’s denial of a suppression motion and remanded the case to allow appellant an opportunity to withdraw his guilty plea. The issue below was whether the encounter between appellant and police was consensual or a detention. The Court of Appeal found a detention based upon the police conduct in blocking appellant’s vehicle with their own two vehicles. The Attorney General did not argue there was reasonable suspicion to support a detention and the Court of Appeal found on its own that the record did not reveal a basis for reasonable suspicion. (I) APJ

Nalls, Christopher — In re Brian F., G039353 — Probation Condition
Attorney General conceded and Court of Appeal agreed a probation condition needed to be modified to specify that minor cannot have contact with a person who he knows is a member of a gang and tagging crew. (I) JLP

Schwartzberg, Richard — People v. Montoya, G039078 — Probation Condition
Judgement is modified to strike payment of costs of probation as a term or condition of probation. Superior Court did not verbally order costs of probation, and minute order incorrectly included payment of probation costs. (I) AMJ

AUGUST 2008

Clark, Grace — In re Cristian A., D051211 — Penal Code section 654
Court of Appeal and Attorney General agreed that count 2, sexual battery, must be stayed pursuant to Penal Code section 654, because this offense and the count 1 assault with intent to commit rape were part of a singe course of conduct with a single intent. Maximum time reduced from seven years to six years. Dissent (McDonald, J.) agreed with appellant that the evidence was insufficient to support the count 1 offense. (A) AMJ

Rudasill, Denise — People v. Bolton, D050721 — Conflict of Interest; Speedy Trial; Self-Representation
Full reversal where trial court relieved counsel a few days before trial, when counsel asserted conflict of interest, and defendant then chose to represent himself because he did not want to give up speedy trial rights. Court of Appeal found error because conflict of interest had not been established, and removing counsel just before trial led to situation where defendant had to choose between right to counsel and right to speedy trial. (I) JLP

Truax, Chris — People v. Bacon, D050282 — Sexually Violent Predator (SVP)
Trial court erred when it granted People’s petition to convert the defendant’s previous two-year SVP commitment to an indeterminate term under Proposition 83 without affording defendant a new trial. (I) RBB

Johnson, Dean — People v. Valdez, E042769 — On-Bail Enhancement
The on-bail enhancement ordered to be stricken as appellant was subsequently convicted of a misdemeanor, rather than a felony. (I) LAR

Crawford, James — In re James C., D051599 — Probation Condition
The minor, a United States citizen, was found to be a ward of the court after being arrested for attempting to smuggle undocumented immigrants across the border. Juvenile court placed minor on probation on the condition that the minor be returned to his legal guardians and be sent to Tijuana, Mexico, and not be allowed to come back into the United States. Court of Appeal found the probation condition to be both unreasonable and unconstitutional. (I) LAR

Gold, Neale — In re Yvonne W., D052204 — Sufficiency of Evidence of Detriment
Appellant-mother argued child should have been returned to her at the 18-month review hearing, because the San Diego County Health and Human Services Agency failed to prove substantial risk of detriment to the child simply because she objected to the shelter where her mother lived. Court of Appeal agreed and found lack of housing or poverty was not evidence of detriment. Court of Appeal further denied the agency’s motion to dismiss as moot since the child was subsequently returned to mother’s custody. (A) LLF

Chucas, Terry — In re Xavier R., et al., D052599 — Indian Child Welfare Act (ICWA)
Court of Appeal reversed for failure to comply with the notice provisions of ICWA when San Diego County Health and Human Services Agency failed to mail ICWA notices to the tribal chairperson. Two of three tribes responded that the minors were not Indian children, but the lack of a response from third tribe required proper notice to the appropriate tribal person. Limited remand allows superior court to reinstate order to terminate parental rights if no tribe intervenes. (A) LLF

Capriola, William — People v. Brown, E041770 — Penal Code section 654
Imposition of sentences for both resisting a peace officer with force or violence (Pen. Code, § 69) and resisting a peace officer and removing the officer’s firearm (Pen. Code. § 148, subd. (c)) violates Penal Code section 654. (I) RBB

Power, Richard — People v. Congiardo, E044452 — Penal Code section 654
Court agreed abstract of judgement needed to be corrected to reflect the trial court imposed a sentence of five years pursuant to section 667, subdivision (a) rather than section 667.5, subdivision (b). Court also agreed that the sentence on count three - burglary count - should have been stayed pursuant to section 654. The trial court had imposed consecutive sentences on count one - attempted murder conviction - and count three (burglary). Since the burglary was the means of committing the attempted murder, the conviction should have been stayed pursuant to section 654. (I) LAR

Kaiser, Donna; Braden, Julie — In re Esperanza C., D051521 — Relative Placement
Published opinion. Orders denying a Welfare and Institutions Code section 388 petition and termination of parental rights reversed, where Court of Appeal found the juvenile court has jurisdiction to review the agency’s denial of a criminal record exemption under Welfare and Institutions Code section 361.4, subdivision (d)(2).) (I) MCR

Lathrop, Stephen — People v. Cantu, E043039 — Sufficiency of Evidence
The evidence was insufficient to support a verdict first degree murder. The prosecutor had relied solely on the fact that the victim was stabbed 44 times to establish premeditation and deliberation. Court of Appeal held the intent to kill in this case could have arisen either from a preconceived plan or from a sudden frenzy, and there was no evidence of planning or motive. Judgement modified by reducing the degree of the crime of murder to second degree murder. (I) LAR

Nelson, Laurel — People v. Green, E043108 — Prior Prison Term
People conceded and Court of Appeal agreed that only one enhancement pursuant to Penal Code section 667.5, subdivision (b), is proper, where only one prison term was served for two offenses. (I) HCC

Riggs, Brent; Chandler, Kate — In re Morgan D., E044224 — ICWA
Termination of parental rights reversed to provide adequate ICWA notice and make further ICWA inquiries pursuant to Welfare and Institutions Code section 224.3. (M-A, I) JLP

Levy, Richard — People v. Renteria, G039048 — Restitution; Fines
Court erred in imposing a parole revocation fine as appellant was sentenced to life in prison without the possibility of parole. (I) LAR

Williams, Rex — People v. Saludes, G038284 — Prior Conviction; Credits
After jury trial, in a bifurcated proceeding, appellant admitted he suffered a prior assault conviction, but no evidence was admitted that he used a deadly weapon or caused great bodily injury. Thus, there was insufficient evidence that he suffered a prior “serious” felony conviction. The Court of Appeal vacated the nine year sentence and remanded for further proceedings. Further, appellant was entitled to additional presentence credits because the credits were erroneously computed pursuant to Penal Code section 2933.1 and he was not convicted of any violent felonies. (I) BCT

Kanefield, Teri — In re T.P., G040235 — ICWA
Social Services Agency failed to properly notice the tribes where the notices misspelled the mother’s name (“Hanna” instead of “Hannah”), listed the maternal grandparents’ address as “N/A,” even though the child was placed with them, and failed to interview the maternal grandfather about his possible Native American heritage. Social services conceded the issue. (A ) CAG

Buckley, Stephen — People v. McHenry, E044594 — Probation Condition
Court found there was no evidence the offense of resisting an officer was gang related. Thus, the gang registration probation condition was stricken as not legally supported. (I) BCT

Crawford, James — In re Debacco, E044696 — Restitution
Court of Appeal struck $5,000 Penal Code section 1202.4, subdivision (b) restitution fine imposed six years after judgment when the Department of Corrections and Rehabilitation sent a letter to the trial court informing the court it had neglected to impose such a fine. (I) RBB

Kanefield, Teri — In re Leanna L., et al., E044955 — ICWA
Court of Appeal ordered limited remand to notify specific tribes and the Bureau of Indian Affairs with additional information about the child’s paternal family that was available and omitted in the original notice. If no tribe identifies the child as an Indian child the order terminating parental rights will be reinstated. (A) LLF

Fitzer, Richard L. — People v. Anderson, E041325 — Ineffective Assistance of Counsel
The Court of Appeal issued an order to show cause, returnable to the superior court, on the issue of whether trial counsel provided ineffective assistance in failing to file a suppression motion. Although the record does not show that the suppression motion would have been successful, the Court of Appeal found that trial counsel’s reason for not filing a motion is not supported by the record and an evidentiary hearing may be needed to determine whether petitioner’s Fourth Amendment rights were violated. (I) APJ

Nelson, Laurel — People v. Estrada, D050551 — Custody Credits
Attorney General conceded and the Court of Appeal agreed that (1) appellant was entitled to one more actual day of presentence custody credit and (2) the trial court had improperly limited the conduct credits to 15% under Penal Code section 2933.1 because appellant had not been convicted of a violent felony listed in Penal Code section 667.5, subdivision (c). Appellant’s conduct credits were recalculated under the formula set forth in Penal Code section 4019. (I) CBM

Stralla, Ava — People v. Payne, D050747 — Sufficiency of Evidence
The Court of Appeal reversed two of appellant’s convictions for burglary and robbery, finding insufficient evidence of aiding and abetting where evidence showed only that appellant had been involved in other robberies with the perpetrator and engaged in a discussion with perpetrator at the Marie Callendar’s where appellant was employed just before the perpetrator returned to the restaurant and robbed the closing manager. (I) APJ

Waldemar Halka — People v. Bryant, D050957 — Jury Instructions
One count of failure to register as sex offender reversed where court could not conclude jury verdict was based on legally sufficient theory. (I) PED

Tavano, Joseph — People v. Battles, D051397 — Inadmissible Evidence
Appellant was convicted of attempted residential burglary (Pen. Code, §§ 664/459/460), residential burglary (Pen. Code, §§ 459/460), and two counts of delaying an officer (Pen. Code, § 148, subd. (a)). During the prosecution’s rebuttal case, it offered evidence that appellant had convicted of residential burglary in 2002. Court of Appeal reversed, finding the 2002 burglary should have been excluded, and stating: “A review of these facts establishes that the only similarity between the 2002 offense and the current one is that both were residential burglaries.” (Italics original.) (I) LKH

Williams, Rex — People v. Putter, E044460 — Probation Condition
“Association” condition of probation modified to include specific knowledge requirement. (I) APJ

JULY 2008

Koryn, Sylvia — People v. Gray, D049925 — Lesser Included Offense
Attorney General conceded and court reversed kidnapping conviction, where jury also convicted appellant of kidnapping for robbery, because kidnapping is necessarily included offense of kidnapping for robbery. (I) JLP

Cox, Marianne — People v. Blanco, D049359 — Strikes
Juvenile adjudication for attempted robbery using a kitchen knife does not constitute a strike because there is insufficient evidence the knife was concealed, a requirement under Welfare and Institutions Code section 707, subdivision (b)(18) and Penal Code section 12020, subdivision (a). (I) RBB

Owen, Thomas (Zingsheim); Gordon, Laura (Maxwell); Keiser, Susan (Murphy) — People v. Zingsheim et al., D049189 — Blakely; Restitution
Sentencing on the robbery count reversed as violative of Cunningham, Blakely, and Apprendi, and the matter remanded for resentencing as set forth in Sandoval. Because there is no way to determine whether the trial court would have imposed the same sentences had it know that the facts it had found in aggravation could not properly be used to impose the upper term, the Court of Appeal vacated the total sentence imposed for each defendant to open up the full array of discretionary sentencing choices for resentencing. Also, matter remanded for new restitution hearing for all appellants as the trial court had omitted one defendant (who did not appeal) from one of the victim restitution awards. Finally, as to appellant Maxwell only, the true finding imposed for a prior serious felony conviction under section 667, subdivision (a)(1) was stricken, because the prior had been reduced to a misdemeanor for all purposes and thus could not qualify as a enhancing prior serious felony conviction. (I) LAR

Grove, Kimberly — People v. Andrews, D048766 — Cunningham
Court of Appeal found prejudicial violation of Cunningham v. California (2007) 549 U.S. 270 where trial court relied upon non-recidivist factors to impose upper terms sentences on some counts in this life-without-possibility of-parole case. Rather than remand for re-sentencing, the Court of Appeal reduced the sentences to mid-term sentences, because the reduction would have no effect on length of term and might only affect prison classification. (I) APJ

Koryn, Daniel — People v. Thomas, D050286 — Probation Condition
Restitution fine of $895 payable to El Cajon Police Department reversed where there was no indication trial court made any findings regarding defendant’s ability to pay same. (I) PED

Curnow, Roger — People v. Roman, D050285 — Discharge of Juror
Jury foreman reported to judge that Juror #1 was causing a deadlock. After several interviews from different jurors, it was discovered that while juror #1 would listen to fellow jurors, he would not agree with them and continued to vote the opposite. The trial court dismissed the juror and replaced him with an alternate; the new jury convicted appellant. Court of Appeal reversed, finding the evidence was clear that juror #1 was not refusing to deliberate, but instead disagreed with the majority’s view. (I) LAR

Schooley, Wilson — People v. Sonnier, D051748 — Penal Code Section 654; Restitution Fine
Following People v. Le (2006) 136 Cal.App.4th 925, 931, the reviewing court found that the trial court had erred when it calculated the restitution fine under Penal Code section 1202.4 using a count which had been stayed under Penal Code section 654. Case remanded for recalculation of restitution and parole revocation fines. (I) CBM

Cannon, Greg — People v. Roque, D051305 — Unauthorized Sentence
Appellant pleaded guilty to evading an officer and causing serious bodily injury (count 1, Veh. Code, § 2800.3, subd. (a)) and driving under the influence causing injury (count 3, Veh. Code, § 23153, subd. (a)). As to count 3, appellant admitted additional enhancements including that he caused serious bodily injury (Pen. Code, § 12022.7, subd. (a)). The court sentenced appellant to six years, eight months in prison, consisting of the lower term of three years on count 1, plus consecutive terms of eight months for count 3 and three years for the great bodily injury enhancement under Penal Code section 12022.7, subdivision (a). Court of Appeal agreed that the full consecutive term of three years for the great bodily injury enhancement was unauthorized, and the trial court should have imposed one-third of the three year term instead. The matter was remanded to the trial court for re-sentencing. Upon remand, the trial court is free to re-consider the entire sentencing scheme; it is not limited to reducing the time imposed for the great bodily injury enhancement. (I) LKH

Crooks, Gary — People v. Muzguiz, D050843 — Lesser Included Offense
Attempted sexual penetration by foreign object conviction reversed, because it is lesser to conviction for sexual penetration by foreign object. (I) DKR

Harguindeguy-Cox, Marianne — People v. Armenta, D050571 — Exclusion of Evidence
Court of Appeal reversed and remanded to allow retrial of knife use allegation based upon finding that trial court erroneously excluded the admission of an unavailable witness that he had been the stabber. (I) APJ

Boire, Richard — People v. Wooley, D050459 — Motion to Withdraw Plea; Ineffective Assistance of Counsel
Judgment reversed and case remanded to the trial court for the limited purpose of permitting the court to rule on the merits of Wooley’s request to withdraw his plea based on ineffective assistance of counsel. Pursuant to a plea agreement, Wooley pleaded guilty to an attempted kidnapping charge (Pen. Code, §§ 644, 207, subd. (a)) and admitted he had previously been convicted of a serious felony prior (Pen. Code, § 667, subd. (a)(1)). Shortly after, Wooley moved to withdraw the plea, but the court denied the motion, finding Wooley had waived his right to effective assistance of counsel. Wooley was sentenced to the agreed upon sentence, seven years and six months in state prison. On appeal, Wooley argued that the trial court erred in denying the motion to withdraw the plea. The Court of Appeal agreed, finding Wooley had not waived his right to effective assistance of counsel, and reversed for the motion to be heard. (I) LKH

Gold, Neale — In re S.B., D052202 — Termination of Parental Rights; Indian Child Welfare Act (ICWA)
Counsel successfully argued the juvenile court erred in not applying the beneficial relationship exception under Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i), and that there was error in the ICWA noticing. This case becomes one of only three published reversals for failure to apply the exception. The court’s holding, that parents do not have to prove they have a primary attachment to the child is significant; the court noted instead the focus is on whether there is “substantial positive emotional attachment” between the child and parent. The court rejected the argument that any harm the child may suffer from severance of the relationship can be ameliorated over time and with an attachment to primary parent figure. The court also rejected the notion that the trial court could base its decision to terminate in part on the caretaker’s willingness to continue visits. The court noted such a promise is unenforceable. The case also was remanded for proper ICWA noticing. (A) LMF

Braden, Julie — In re M.P., D052398 — ICWA
Judgment terminating parental rights reversed with a limited remand to re-notice Cherokee and Iroquois tribes under ICWA. County conceded error in that all of the tribes were not provided proper notice. (I) LMF

Forrey-Baker, Lelah — In re T.V., D052269 — ICWA
The mother claimed she had Cherokee Indian heritage. The social worker interviewed the mother’s sister who said the family had only Aztec Indian heritage. Consequently, the social worker did not send out any notices to the Cherokee tribes. The Court of Appeal concluded this was reversible error, because the sister’s information did not invalidate the information the mother gave to the social worker. Thus, the failure to notice the Cherokee tribes was prejudicial error. (A) LMF

De La Sota, Richard — People v. Velasco, E042604 — Weapon Enhancement
Attorney General conceded and the Court of Appeal agreed that the enhancement for personally using a deadly or dangerous weapon must be stricken, because use of a deadly weapon is an element of the substantive offense of assault with a deadly weapon. (I) LLF

McPartland, Michael — People v. Gonzalez, E042407 — Firearm Use Enhancements
Penal Code section 12022.53, subdivision (c) enhancement stricken because it cannot be imposed in addition to another section 12022.53 enhancement unless the defendant personally used or discharged the firearm, and the trial court erroneously instructed the jury in response to a question it could rely on aider and abettor principles in so determining. (I) RBB

Eskenazi, Lauren — People v. Rumley, E042311 — Probation Duration
Judgment modified to provide appellant’s period of probation is reduced from 48 months to 36 months, since the maximum period of probation for a misdemeanor offense is three years under Penal Code section 1203a. (A) LAR

Bauguess, Susan — People v. Moore, E042674 — Strikes
Prior juvenile adjudication for assault with a deadly weapon does not qualify as a strike because the defendant was only 15 at the time of the offense. (I) RBB

Teran, Diana — People v. Stuart, E043761 — Consecutive Sentencing.
Sentence reversed in part and remanded for the limited purpose of allowing court to exercise its discretion pursuant to Penal Code sections 1170.12, subdivisions (a)(6) and (7) and 667. subdivisions(c)(6) and (7) to determine whether to impose concurrent or consecutive sentences on all counts based on the criteria and limitations set forth in California Rules of Court, rule 4.425. (I) LAR

Brownell. Gordon — People v. Gaustad, E043470 — Sentencing
Sentence remand after trial court erroneously concluded Penal Code section 1170.15 conviction (dissuading a witness by force) requires a consecutive term; the section actually requires that if a consecutive rather than concurrent sentence is imposed, it be imposed full term. (I) RBB

Ballentine, Jean — People v. Powells, E043345, E044844 — Guilty Pleas; Three Strikes
Defendant entered into a four-case plea agreement, including the admission of two Strikes based on Texas burglaries, providing for a total sentence of 100-years-to-life. Subsequently, appellant became aware that his Texas burglaries did not qualify as Strikes in California because the offenses were non-identical. Defendant filed a pro per habeas corpus petition in one of the four cases and eventually obtained an order from the Court of Appeal finding ineffective assistance by defense counsel in advising defendant to admits the priors; as a remedy, the court ordered a sentence reduction but did not otherwise set aside the plea agreement. After resentencing, the People appealed and asked that the plea be set aside in all four cases, with no limit on the People’s right to re-prosecute. The Court of Appeal appointed appellate counsel, who responded to the People’s appeal and filed a new habeas corpus petition asking that the sentence in all four cases be reduced to eliminate the invalid Texas priors, but that the plea otherwise not be set aside. The Court of Appeal rejected the claim of ineffective assistance as to the three cases addressed for the first time in the new petition. The court concluded its finding of ineffective assistance in the first habeas proceeding was not law of the case or collateral estoppel because “new facts” had come to light. However, the court concluded it would be inconsistent and “unacceptable” to allow the remaining Three Strikes sentences to stand having invalidated the Three Strikes sentence in one of the four cases. Accordingly, the court reversed and vacated all four judgments and remanded the cases to the trial court with an order that the People be permitted to re-prosecute, but that the ultimate total sentence could not exceed that provided by the original plea agreement. (I) NFA

Lampkin, Daniel — People v. Harral, E042918 — Ex Post Facto.
Appellant was sentenced in 2007 and the trial court applied the current amended version of the One Strike law, rather than the law in effect when appellant committed the offenses. Appellant’s sentence thus constituted an ex post facto violation, and matter remanded to trial court for resentencing. (I) LAR

Ballantine, Jean — People v. Mendoza, E042899 — Dual Convictions; Unauthorized Sentences; Jury Trial Waiver; Insufficiency of Evidence
Appellant was convicted of first degree burglary (Pen. Code, §§ 460/459 [count 1]), petty theft with a prior (§§ 666/484 [count 2]), and receiving stolen property (Pen. Code, § 496 [count 3].) After a bifurcated bench trial, the trial court found true the gang allegations attached to all three counts, and the strike prior allegation. In the first opinion, the Court of Appeal reversed the receiving stolen property conviction finding the theft and receipt (counts 2 & 3) involved the same property. The court corrected the sentence on count 1 to reflect the middle term of four years in state prison. The trial court stated that it was imposing the middle term, but calculated it as 8 years, rather than four years. Finally, the court further reversed the true findings on the gang allegations because there was no express waiver of the jury trial. The remand included instructions to strike the gang allegations and modify the sentence. Because the gang allegations were being stricken, the Court of Appeal declined to address the insufficiency issue. The Attorney General’s Office filed a petition for rehearing, arguing appellant can be retried on the gang enhancement. The government further argued the Court of Appeal should address the sufficiency argument raised in the opening brief. The opinion filed following the People’s petition for rehearing remained the same with one exception. The Court of Appeal found the evidence insufficient to support the gang enhancements. Specifically, there was not substantial evidence appellant committed the burglary for the benefit of the gang. The gang enhancements were dismissed. (I) LKH

Klaif, Leonard — People v. Valle, E043840 — Dual Convictions; Unauthorized Sentences; Jury Trial Waiver; Insufficiency of Evidence
Appellant was convicted of first degree burglary (Pen. Code, §§ 460/459 [count 1]), petty theft with a prior (Pen. Code, §§ 666/484 [count 2]), and receiving stolen property (Pen. Code, § 496 [count 3].) After a bifurcated bench trial, the trial court found true the gang allegations attached to all three counts. The Court of Appeal agreed the theft conviction must be reduced to misdemeanor petty theft and directed the superior court to modify the sentencing minute order accordingly. The court also reversed the receiving stolen property conviction finding the theft and receipt (counts 2 & 3) involved the same property and reversed the true findings on the gang allegations because there was no express waiver of the jury trial. Finally, the court concluded the evidence was insufficient to support the gang enhancements. Specifically, there was not substantial evidence appellant committed the burglary for the benefit of the gang. Thus, the gang enhancements were dismissed. (I) LKH

Bauguess, Susan — In re Linda N., E044210 — Felony/Misdemeanor Determination
Respondent conceded and Court of Appeal agreed that juvenile court failed to expressly exercise its discretion to determine whether the wobbler offense in this case is a felony or misdemeanor. Case remanded for proper determination. (I) APJ

Staley, John — People v. Diaz, E044193 — Weapon Enhancement
Sentence for the weapons use enhancement attached to assault with a deadly weapon count must be stricken. (I) LAR

Hill, Melissa — People v. Carlton, E044048 — Serious Felony Enhancement
Trial court erred in imposing two consecutive five-year enhancements for the two prior serious felony convictions as the two convictions were not brought and tried separately. Also, court erred in imposing one year four months on attempted vehicle theft count rather than eight months (the sentence for attempts being one-half the term of imprisonment prescribed upon a conviction of the offense attempted). (I) LAR

Cannon, Gregory — People v. Beville, E043921 — Custody Credits
Trial court failed to give three days actual and two days good conduct credit. (I) LAR

Lathrop, Stephen — People v. Vallejo, E043889 — Gang Enhancements
Trial court erred in imposing 10 year gang enhancement under Penal Code section 186.22, subdivision (b)(1)(C) rather than a 5 year enhancement under subdivision (b)(1)(B) where defendant was found guilty of a serious rather than a violent felony. (I) RBB

Williams, Nicole — In re Ramiro A., E044531 — Visitation
In this juvenile dependency appeal, mother argued, and the county conceded, the juvenile court improperly denied mother visitation, because it ordered that mother have visits when she was released from incarceration, yet it failed to make a finding that visitation with mother while incarcerated was detrimental to the minor. Noting the social services agency’s concession, the court remanded the case to juvenile court for purposes of determining whether in-person visits would be detrimental to the children. (I) LMF

McLaughlin, Robert — In re A.M., E044982 — ICWA
This mother’s appeal of termination of parental rights resulted in an ICWA reversal due to both the court’s and the department’s failure to make adequate inquiry of the mother (she was not asked to complete the former JV-130 form), and of the maternal relatives regarding Indian heritage. The court also reversed for failure to send the proper notice to the tribes the mother identified. Mother identified four tribes, but then later conceded she did not know where her Indian heritage came from. The department sent notice to only the Bureau of Indian Affairs (BIA), but none to the four identified tribes, and the notice provided the BIA did not contain all of the know information known to the department. (I) CAG

Shevelson, J, Courtney — People v. Paz, G038184 — Instructions
Trial court gave modified jury instructions that erroneously suggested defendant could be convicted of premeditated murder based solely on a finding her companion perpetrated that offense. Under the evidence, appellant could have been properly convicted as an aider and abettor, and the jury was instructed on aiding and abetting. However, the murder instructions, as modified, permitted jurors to forgo the aiding and abetting theory and convict instead based solely on her companion’s commission of the murder. The Court of Appeal found the error was prejudicial and reversed the first degree murder conviction. (I) NFA

Ting, Allison — People v. Kilpatrick, G037563 – Verdict Forms; Jury Inquiry
Full reversal (after initial opinion affirmed judgment and counsel filed a petition for rehearing) where verdict forms failed to distinguish between greater and lesser offenses and court improperly responded to the jury’s questions about the forms. The complete failure to instruct on the great bodily injury enhancement exacerbated the prejudice. (I) CBM

Torres, Steven — People v. King, G036836 — Penal Code Section 654
Where appellant murdered a robbery victim and there was no evidence that appellant either intended to kill other than to facilitate the robbery or accomplish any other goal or was predisposed to violence for its own sake, sentences for robbery and burglary ordered stayed. (I) HCC

Hart, Mark — People v. Osorio, G036221 — Gang Enhancements
Gang enhancement under Penal Code section 186.22, subdivision (b)(1)(C) improperly imposed where sentence on underlying robbery was stayed. (I) RBB

Dwyer, John — People v. Gallardo, G039319 — Discharging Retained Counsel
Convictions reversed and remand for new trial because trial court treated an eve of trial request to discharge retained counsel under standards applicable to discharge of appointed counsel. When defendant moves to discharge retained counsel, Marsden standards are not applicable, and use of such standards to deny defendant’s request requires reversal. (I) DKR

Christiansen, Mark — People v. Becerra, G038851 — Sentencing
Sentence reversed and case remanded for new sentencing hearing because two counts should have been stayed, the trial court imposed the incorrect gang enhancement, consecutive sentencing was done incorrectly, and no reasons were given for imposing the upper term. (I) DKR

Acaldo, Linda — People v. Tran, G038805 — Penal Code section 1026.5 [NGI Extensions]
Case remanded to trial court to determine whether there was good cause for the district attorney’s delay in filing a petition to extend an NGI commitment. (I) RBB

Levy, Richard — People v. Nguyen, G038716 — Parole Revocation Fine
The Court of Appeal and the Attorney General agreed that the trial court erred in imposing a parole revocation restitution fine, because appellant was sentenced to life with out parole and the fine only applies to cases in which sentence includes a period of parole. (I) AMJ

Ward, John — People v. Tenorior, G038225 — Insufficiency of Evidence
Insufficient evidence supported the jury’s finding appellant’s crimes were committed for the benefit of a gang based solely on the perpetrator’s criminal history and gang affiliations. (See In re Frank S. (2006) 141 Cal.App.4th 1192.) Appellant acted alone, there was no evidence anyone else at the scene was a gang member, there was no showing the crimes occurred within gang territory, and there was no showing appellant bragged about the incident or tried to intimidate any witness. (I) CBM

Robinson, Warren — People v. Gomez, G039355 — Cunningham
Court of Appeal remanded for resentencing because imposition of upper term violated Cunningham v. California. The court could not unquestionably say the error was harmless because it could not say the jury would have found the aggravating factors found by the trial court, i.e., the sexual motivation of the offense, or vulnerability of the victims beyond a reasonable doubt. (I) BCT

Kording, Niccol — In re Andrew F., G039862 — ICWA
Counsel argued, and the Social Services Agency conceded, inadequate investigation of mother’s Indian heritage and inadequate notice to the tribes required reversal. (I) CAG

Bostwick, James — In re Richard F. — Insufficiency of Evidence
Counsel argued and Court of Appeal agreed that minor’s possession of a hammer did not constitute possession of a weapon under Penal Code section 12020, subdivision (a)(1), despite minor’s statement that he had brought it to school for self-defense, because the applicability of the statute depends upon the nature of the object not the possessor’s intent. (I) APJ

Schuck, John — In re Casey I., G039520 — Sex Offenses
People conceded and court agreed that minor’s Penal Code section 288 offenses (counts 1-5) occurred within the same charged period of time and with the same victim as a Penal Code section 288.5 charge (count 6) and further agreed that minor could not be convicted on counts one through five as well as count six. Because the juvenile court did not clearly vacate either the continuous sexual abuse charge or the charges for the underlying acts, the court reversed in part and remand the case to the juvenile court for adjudication pursuant to Penal Code section 288.5, subdivision (c). (I) HCC

Jarvis, Michelle — In re Karlee M., G039485 — ICWA
Remand ordered to comply with ICWA, because notice was not provided to minor’s suspected Indian tribe and the Bureau of Indian Affairs. (I) DKR

Bacon, Ellen — In re Priscila, G039898 — Termination of Parental Rights
By the 18 month review hearing, mother had completed all of the services required by the case plan, but was unable to find adequate housing for her and the children. The juvenile court terminated reunification services and set the case for a termination hearing. Parental rights were later terminated because mother had not found suitable housing. In a published opinion, Court of Appeal reversed the order terminating parental rights and remanded the case for a new hearing. The juvenile court was ordered to determine whether “legally sufficient grounds independent of poverty currently exist such that it would be detrimental to place the children in mother’s care.” If it is not detrimental, the children shall be returned to mother. Otherwise, the court shall renew reunification services, and assist mother in obtaining low-income housing. (I) LKH

JUNE 2008

Polsky, David — People v. Contreras, D049192 — Sentencing
Court agreed gang enhancements should have been stricken, not stayed. (I) LAR

Pfeiffer, Richard — In re Armstrong, D051629 — Parole
Governor reversed Board of Prison Terms’ decision to release petitioner on appeal. Trial court granted petition for writ of habeas corpus for release. Attorney General appealed. Court of Appeal affirmed trial court’s decision Governor's reversal lacked evidentiary basis and ordered immediate finality of opinion. (I) JLP

Morrison, Maria — People v. Roberts, E042192 — Sufficiency of Evidence
Court of Appeal found insufficient evidence of Penal Code section 290, subdivision (a)(1)(A) violation for failing to register in city of new location, because evidence did not establish appellant moved to a new location within California (it established he had moved to Montana). (I) JLP

Rich, Renee — People v. Loften, D050660 — Sentencing.
Trial court failed to exercise an informed sentencing discretion regarding possible California Rehabilitation Center commitment for appellant. (A) LAR

Shetty, Siri — People v. Villegas, D050662 — Victim Restitution Fine
Attorney General conceded and Court of Appeal agreed that trial court erred in ordering victim restitution for damage which did not result from a crime of which appellant was convicted. Under People v. Lai (2006) 138 Cal.App.4th 1227, 1249, when a defendant is sentenced to state prison, restitution under Penal Code section 1202.4, subdivision (f) is limited to losses caused by the criminal conduct for which the defendant was convicted. (I) CBM

Pfeiffer, Rich — In re Viray, D050934 — Parole
Prisoner petitioned for habeas corpus after Governor reversed finding by Board of Parole Hearings that petitioner was suitable for parole. In a published decision, Court of Appeal granted the writ and ordered petitioner be paroled. A majority of the court found the applicable standard of review was whether “some” evidence, or a “modicum” of evidence supported the Governor’s finding petitioner’s release posed an unreasonable risk to public safety. The court agreed with cases holding that the Governor’s finding of unreasonable risk could be based entirely on the facts of the commitment offense. However, the court disagreed with cases holding that such finding could be based on the finding the offense was more egregious than minimally necessary to commit the offense. Instead, the majority held the proper inquiry is whether the offense was more egregious than the typical such offense, and the ultimate inquiry is whether the facts of the offense support the finding parole would pose an unreasonable safety risk. One justice concurred in the result, but disagreed as to both the standard of review and the proper inquiry regarding the facts of the commitment offense. The concurring justice found that the standard of review was whether “some” or a “modicum” of evidence supported the Governor’s finding of any proper factor disfavoring parole. Where that factor was the egregiousness of the offense, the concurrence stated, the proper inquiry was whether the offense was more egregious than minimally necessary to convict. (I) NFA

Wenzell, Lewis — People v. Taylor, D051037 — Suppression of Evidence
Case remanded for trial court to make factual determination whether the defendant voluntarily provided his driver license to the police or the police seized it, and to grant the suppression motion if the latter, and deny it if the former. (I) RBB

Haggerty, Edward — People v. Adams, D051393 — Restitution Fines
Judgment modified. Attorney General and Court of Appeal agreed that trial court erred in imposing restitution fines in a higher amount when he was sentenced to prison following revocation of probation, because the court had already imposed $200 restitution fines when appellant had pleaded guilty and was placed on probation. (I) AMJ

Weaver, Eric — In re Max M., D051558 — Sufficiency of Evidence
The Court of Appeal found that knowledge is a requirement of possessing a knife on school grounds, and the prosecution provided no evidence minor knowingly possessed the knife in his backpack (minor claimed he did not know and juvenile court stated it did not believe knowledge was a requirement before making a true finding). True finding reversed. (I) APJ

Baugess, Susan — People v. Riley, E043043 — Probation Revocation Fine
Trial court erred in imposing a $220 probation revocation fine under Penal Code section 1202.44, where the restitution fine imposed under Penal Code section 1202.4 was only $200. Even though the court had imposed a $20 administrative fee on top of the Penal Code section 1202.4 fine, that additional amount cannot be included in the Penal Code section 1202.44 fine, which is limited to the equivalent of the restitution fine.
(I) CBM

Robinson, Warren — In re Anthony M., D052421 — Modification of Judgment
The lower court dismissed a gang allegation (Pen. Code, § 12031, subdivision (a)(2)(C)), but the minute order incorrectly reflected a true finding on the allegation. Court of Appeal modified the judgment to reflect the dismissal of the Penal Code section 12031, subdivision (a)(2)(C) allegation attached to count 3. (I) LAR

Milcetic, Maryann (mother), Lee, Konrad (father), St. Julian, Andrea (minor) — In re Claudia E., D052169 — Dependency Declaratory Relief
Declaratory relief is available in dependency cases in the context of a child welfare agency not complying with statutory time requirements for the filing of supplemental petitions. (I) CAG

Rubin, Andrew and Cohen, Howard — In re Carter, E041740 — Involuntary Statements; Sufficiency of the Evidence
Attorney Rubin prepared and filed the pleadings. ADI staff attorney Cohen orally argued the case. Judgment reversed, because the minor’s statements to the police were the product of coercion and, hence, involuntary, and the evidence was insufficient to support the true finding on the petition. (I) AMJ

Benedon, Douglas — People v. Sisneros, E042862 — Pet Condition; Parole Fine
Reversal to modify overbroad pet condition and to modify parole revocation fine that was $20 greater than restitution fine. (I) JLP

Nelson, Laurel — People v. Aguilar, E042949 — Sufficiency of Evidence
The trial court’s true finding of a strike prior after a bench trial is reversed for insufficient evidence. Appellant’s admissions in the probation report should not have been considered by the trial court to determine the truth of the strike and the remaining record of the prior conviction did not establish that the force-likely assault qualified as a strike by the use of a deadly weapon or infliction of great bodily injury on a non-accomplice. The Court of Appeal remanded for resentencing or a new trial on the prior, at the prosecution’s election. (I) DKR

Jog, Anita P. — People v. Badillo, E043522 — Resentencing
The Court of Appeal held that appellant’s right to be present at his resentencing (after an earlier successful appeal) was violated where the record shows no evidence that appellant was notified of the hearing or properly waived his right to be present. The violation was not harmless beyond a reasonable doubt, because the trial court made discretionary decisions at the resentencing (making a sentence — onsecutive which had previously been concurrent) which were harmful to appellant. (S) APJ

Peabody, Jennifer — People v. Munoz, E043690 – Probation Term
Appellant was convicted of misdemeanor offenses and placed on probation. Respondent conceded and Court of Appeal agreed the trial court erred in placing appellant on probation for a term of five years, since Penal Code section 1203a limits probation to a maximum of three years for misdemeanor convictions. (A) BCT

McKim, Joana — People v. Espinoza, E044145 — Prior Prison Term
Trial court imposed both a five-year serious felony prior (Pen. Code, § 667, subd. (a)) and a one-year prison prior (Pen. Code, § 667.5, subd. (b)), where the priors were based upon same offense. Court of Appeal struck the one-year prior. (PED)

Rehm, Linda (for guardian); Lee, Konrad (for minor) — In re R.D., E044391 — Transfer Out of Dependency Case
Los Angeles Department of Children and Family Services transferred out this case to San Bernardino where the child lived with his legal guardian. Among other things, San Bernardino failed to properly conduct a hearing in transferring the case back to Los Angeles. The guardian and the minor joined with the brief by Los Angeles DCFS. The Court of Appeal reversed for a new hearing in a published decision. (I) CAG

Shors, Susan — People v. Angel, G038815 — Sufficiency of Evidence
Two counts of kidnapping to commit robbery and two counts of kidnapping for ransom reversed for insufficiency of the evidence as there was a single abduction followed by a continuous period of detention. (I) PED

Matsumoto, Ellen — People v. Gomez, G038446 — Statute of Limitations
People conceded and court agreed where defense objected to instruction upon unlawful sexual intercourse as a lesser included offense of aggravated sexual assault of a child, conviction was precluded by the three-year statute of limitation as to that offense, and the conviction on that count was dismissed. (I) HCC

Margolis, Gideon and Schwartzberg, Richard — People v. Lais — G036205 – Sufficiency of Evidence
Several counts reversed for lack of evidence because the prosecutor failed to make the requisite showing or because the continuing nature of appellant’s conduct in holding himself out to be an attorney precluded conviction on multiple counts involving the same victim. In addition, appellant’s representation of clients from other states is insufficient as a matter of law to support conviction. Case remanded for re-sentencing. (I) PED/CMS

Bostwick, James — People v. Montes, G039089 — Receiving Stolen Property
Attorney General conceded and Court of Appeal agreed that appellant could not be convicted of both robbery and receipt of the same stolen property. The court reversed the conviction for receiving stolen property. The court also agreed appellant was entitled to one additional day of credit. (I) BCT

Nalls, Christopher — In re Michael S., G039728 — Penal Code Section 654
Attorney General conceded and court agreed that appellant could not be sentenced on both the vandalism offense and the graffiti tool offense, because they were part of a single, indivisible, transaction sharing the same objective. Sentence reversed and remanded for resentencing. (A) BCT

Blake, Christopher — People v. Garcia, G039572 — Insanity Commitment.
Court agreed trial court incorrectly determined the maximum term of commitment pursuant to Penal Code section 1026 (appellant was committed to Patton). The term is to be reduced by 16 months, because section 654 prohibits a separate punishment for the false imprisonment offenses in this case, where they were carried out solely to facilitate the assault on the victims, and, therefore, a separate punishment is prohibited. (I) LAR

Tobin, Amy — In re Melanie S., G039497 — Indian Child Welfare Act (ICWA)
Respondent conceded inadequate ICWA notice was given. (A) CAG

Nordin, Kenneth — People v. Berg, G039210 — Penal Code Section 654
Judgment modified to stay two counts under Penal Code section 654 and the abstract of judgment ordered corrected to reflect a stayed Penal Code section 12022.7, subdivision (a) enhancement. (I) BCT

Beckham, Sylvia Whatley — People v. Suarez, G039156 — Sufficiency of Evidence/ Accomplice
Accessory conviction reversed for insufficient independent evidence that corroborated an accomplice’s testimony connecting defendant to the offense. (I) RBB

Lee, Konrad (mother), Pfeiffer, Rich (father) — In re Baby Girl S., G039802 — Mootness
Appeal by the Orange County Social Services Agency challenging the juvenile court’s decision to grant mother reunification services. Mother had failed to reunify with four other children and as a result, the Agency asked the court to deny her services. Respondent Mother filed a motion to dismiss the appeal as moot (father joined), because by the time the appeal was decided, the issue would be moot, because mother will have already received the reunification services at issue. The Court of Appeal agreed and dismissed the case as moot. (I) LMF

Clark, Grace — In re Kevin D., G039047 — Sufficiency of Evidence
Court of Appeal reversed a true finding of felony vandalism (Pen. Code, § 594) due to insufficient evidence of damage over $400. As a result, it also reversed a true finding on a gang charge (Pen. Code, § 186.22, subd. (a)) due to the lack of proof of felonious conduct. Evidence of damages was insufficient wheret the only evidence came from the owner of the vehicle who provided a guess as to potential repair costs. The Court of Appeal found the juvenile court erred in permitting such testimony. (A) JLP

MAY 2008

Stanton, Marta — In re Joseph D., E043008 — Juvenile Sentencing
Court of Appeal remanded for new juvenile disposition where trial court did not comply with the requirement of Welfare and Institutions Code section 702 that the court expressly find as to a juvenile’s “wobbler” offense whether it is a felony or a misdemeanor.
(I) NFA

Margolis, Gideon — People v. Lynch, D050239 — Lesser Included Offense; Penal Code Section 654
1) False imprisonment conviction reversed as a necessarily included offense of kidnaping; 2) case remanded for trial court to determine whether criminal threats were an indivisible part of kidnaping and thus subject to Penal Code section 654. (I) RBB

Cox-Harguindeguy, Marianne — People v. Haiman, D048789 — Prior Bad Acts Evidence
Court of Appeal reversed lewd act conviction and 80-years-to-life sentence based on erroneous admission of evidence of prior sexual conduct. Defendant was tried for committing a lewd act on a child who was an overnight guest in his home. Pursuant to Evidence Code section 1108, the prosecution introduced extensive and detailed testimony of appellant's former stepdaughter and her friend that appellant molested them when they were children. The prosecution also admitted a significant portion of appellant's massive child pornography collection, including a downloaded video of a child being molested in a fashion very similar to the act for which appellant was on trial. The Court of Appeal found the admission of this evidence was more prejudicial than probative under Evidence Code section 352, largely because of the extent and detail of the prior victim testimony and the showing of the video. The court concluded the evidence amounted to "overkill" and that appellant was “essentially tried as a sex offending monster with the propensity to commit the charged sex offense rather than for what he did.” The court applied the Chapman federal constitutional standard of prejudice and concluded the error was not harmless beyond a reasonable doubt. (I) NFA

Nelson, Laurel — People v. Alsayad, D048930 — General vs. Specific Charges
Court reversed in part because appellant was improperly charged with six counts of the felony of procuring or offering a false or forged document, when he should have been charged with the more specific misdemeanor offense of making a false statement to the DMV. (I) AMJ

Norris, Ronda — People v. Groce, D049244 — New Trial Motion
The Attorney General conceded, and the Court of Appeal agreed, the trial court erred in refusing to consider a motion for new trial which appellant attempted to file at his sentencing hearing. The Court of Appeal conditionally reversed the judgment to give appellant an opportunity to file the new trial motion that he sought to file at his sentencing hearing, and for the trial court to consider and rule on this motion. In the event a new trial is not ordered and the judgment is reinstated, the appeal shall be reinstated and consolidated with the appeal (if any) from the trial court’s denial of the new trial motion. (I) HCC

Shudde, Athena — People v. Johnson, D049357 — Parole Restitution Fine
The Court of Appeal agreed with appellant’s argument that the $400 parole restitution fine imposed in this case violates ex post facto principles when the offense occurred in 1991 before the operative date of the authorizing statute, Penal Code section 1202.45. (I)APJ

Blake, Christopher — People v. Smith, D049993 — Jury Instructions; Collateral Estoppel.
In a published opinion, the court reversed appellant’s DUI conviction on jury instruction/collateral estoppel grounds. Appellant was initially tried for driving under the influence of alcohol (“generic” DUI) and driving with blood alcohol of .08% or more (“per se” DUI). In the first trial jurors acquitted on per se DUI and hung on generic DUI. In a retrial of the generic DUI charge, the prosecution was permitted to introduce evidence appellant’s blood alcohol was .17% after his arrest, and jurors were given the standard instruction (CALCRIM No. 2110) that a finding defendant drove with blood alcohol of .08% or more creates a presumption the defendant was under the influence. The Court of Appeal reversed, holding that under principles of collateral estoppel the first jury’s acquittal on the per se (.08% or more) DUI charge: 1) precluded giving CALCRIM No. 2110, the .08% presumption instruction; and 2) required jurors be instructed to presume appellant’s blood alcohol was not .08% or more at the time he drove. The court, however, found the prosecution was permitted to reintroduce the evidence of appellant’s .17% blood alcohol after his arrest. (I) NFA

Pfeiffer, Rich — In re Abraham, D050029 — Parole
Habeas corpus granted after Board of Parole Hearings found petitioner unsuitable for parole. Court of Appeal found the key factor relied on by the Board, i.e., that the crime was “callous,” was inapplicable to petitioner, because he aided the crime but did join in the callous conduct committed by other perpetrators. The court remanded the case to the Board with an order to hold a new hearing and urged the Board to consider petitioner’s model behavior as a prisoner in determining whether he posed an unreasonable risk to the public. (I) NFA

Larson, Eric — People v. Baltazar, D050137 — Juvenile Strike Priors
Sentence reversed and matter remanded for re-sentencing where court enhanced defendant’s maximum sentence with a prior juvenile strike prior conducted without a jury trial as required by the Sixth Amendment to the United States Constitution. (I) PED

Blair-Loy, David — People v. Benavides, D050233 — Search and Seizure
Trial court erred in denying appellant’s motion to suppress evidence, where exigency ceased after appellant’s arrest and subsequent search of his living quarters, in a converted, detached garage was unreasonable. Appellant’s mother’s consent to search her house did not authorize the search of the garage, because mother had no apparent authority to consent to the search of that detached building. Error was prejudicial, because there was a question whether a pellet gun or a revolver was used, resulting from the significant discrepancy in the description of the implement. (I) CBM

Robinson, Warren — People v. Carignan, D050301 — Penal Code Section 654
Defendant was sentenced consecutively for assault and inflicting corporal injury on a cohabitant based on evidence appellant choked, punched, and kicked the victim in various rooms of her home. Court of Appeal held Penal Code section 654 required one of the counts be stayed because the evidence, taken together with the jury instructions and the prosecutor’s argument, presented a single, continuous criminal act, and the record did not establish jurors relied on discrete acts for the two counts. (I) NFA

Rudasill, Denise — People v. Lavalley, D050435 — Search and Seizure
Judgment reversed and case remanded to the trial court with directions to conduct a new hearing pursuant to Penal Code section 1538.5, subdivision (i) and to permit the defense to introduce evidence regarding the police radio recording which was not available to the defense when the suppression motion was heard and ruled upon. (I) BCT

Castillo, Irma — People v. Vega, E041953 — Three Strikes
Strike prior reversed because no evidence was presented appellant personally inflicted great bodily injury. (I) RBB

Blake, Christopher — In re Patrice S., D051341 — Juvenile Sentencing
Juvenile was committed to Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ) for a maximum period of 3 years, 8 months and ordered to submit to AIDS testing pursuant to Health and Safety Code section 121060. The Court of Appeal reduced the maximum term to 3 years, 6 months to correct a calculation error. The court also remanded the case for the juvenile court to determine 1) whether probable cause supported the AIDS testing requirement, and 2) whether to exercise its discretion to recall the DJJ commitment pursuant to Welfare and Institutions Code section 733 and 733.1 (enacted after the minor’s commitment) on the ground the minor’s offenses were not among those listed in section 707, subdivision (b). (I) NFA

Evans, Suzanne (Father); Vogelmann, Monica (Mother); Trop, Neil (Minor) — In re Deisha G., D052100 — Indian Child Welfare Act (ICWA).
Judgment terminating parental rights is reversed and the juvenile court is directed to comply with the notice provisions of ICWA. If after proper notice and inquiry is made, a tribe does not intervene, the court shall reinstate the judgment. Here, notice was sent to the proper tribes, but contained incomplete information regarding the minors’ family history. The Agency had frequent and ongoing contact with paternal relatives who could have provided that information. Court found there was no evidence of reasonable inquiry or notice as required by ICWA. (I) LKH

Matsumoto, Ellen — People v. Hale, E039013 — Penal Code Section 654
Defendant was sentenced consecutively for kidnaping for rape and making a criminal threat based on evidence he said at the outset of the rape, "If you scream, I'll shoot you." The Court of Appeal found the sentencing court had failed to determine whether the kidnaping and the threat were committed with a single criminal intent, which would preclude separate punishment under Penal Code section 654. Remanded for the sentencing court to make this determination. (I) NFA

Boyce, Robert — People v. West, E041559 — Cunningham-Sandoval
Court of Appeal reversed upper term sentence for Cunningham error where it could not find the error was harmless. (I) NFA

Baugess, Susan (Aguirre); Owen, Thomas (Martinez) — People v. Aguirre et al., E041835 — Sufficiency of Evidence; Penal Code Section 654; Cunningham-Sandoval
Court of Appeal reduced grand theft to petty theft where there was insufficient evidence a stolen air compressor exceeded $400 in value. The court also stayed the sentence for vehicle taking pursuant to Penal Code section 654 where the vehicle was taken in a burglary for which appellant was separately sentenced. Finally, an upper term sentence was reversed and remanded for Cunningham error. (I) NFA

King, Nancy — People v. Tovar, E041954 — Sufficiency of Evidemce
Attorney General conceded and Court of Appeal agreed evidence was insufficient to support “one-strike” enhancements based on finding forcible sex offenses occurred during a first degree burglary. (Pen. Code, § 667.61, subd. ((e)(4).) Appellant committed the offenses against a hotel housekeeper in a room from which the last guest had checked out and which no new guest had booked. Accordingly, the room was not “inhabited.” The court reversed appellant’s sentence of 50 years to life and remanded for resentencing. (I) NFA

Olsen, Nancy — People v. Acosta, E042057 — Impermissible Dual Convictions
Defendant was wrongly convicted of both robbery and receiving stolen property based on the same property. (I) RBB

Bronson, Phillip — People v. Shepherd, E042231 — Penal Code Section 654
Attorney General conceded and Court of Appeal agreed that sentence for corporal injury to former cohabitant should have been stayed in case where sentence was imposed for burglary arising from single course of conduct. (I) JLP

Miller, Gerald — People v. Whitaker, E042630 — One-Strike Law Sentencing
Attorney General conceded and Court of Appeal agreed that trial court erred in imposing both an indeterminate term under Penal Code section 667.61 and a determinate term under Penal Code section 1170.1 for the same counts of conviction. Appellant was subject to the mandatory sentence under Penal Code section 667.61, subdivision (b) for both counts of conviction; he could not be sentenced additionally to determinate terms on each count. Determinate sentences for each count ordered stricken. (I) CBM

Lathrop, Stephen — People v. Ratcliffe, E042634 — Serious Felony Enhancement
Court of Appeal ordered one of the two serious felony five year priors stricken, because the two priors were not brought and tried separately. (I) LKH

Williams, Rex — People v. Figueroa, E042989 — Penal Code Section 654
Trial court erred by failing to stay either the driving under the influence of alcohol charge or driving with a blood-alcohol level of or exceeding .08% charge. Because each count carries the same sentencing range, court chose to stay the driving under the influence conviction. (I) CBM

Buckley, Stephen — In re Jose R., G038942 — Sufficiency of Evidence; Probation Conditions
True finding for street terrorism (Pen. Code, § 186.22, subd. (a)) reversed, because no evidence minor promoted or furthered any felonious conduct. Vague probation conditions prohibiting association with gang members and wearing gang clothing, jewelry, and insignia modified to add knowledge requirement. (I) DKR

Mack, Jennifer (MOther) — In re Danyale L., E043520 — ICWA
Order terminating parental rights is vacated, and the matter remanded to the juvenile court with directions to order compliance with the ICWA notice provisions. If, after proper inquiry and notice, no response is received from a tribe indicating the child is an Indian child, all previous findings and orders shall be reinstated. (I) LKH

Brooks, Philip (Appellant L. Gonzales) & Gilbert, Steven (Appellant R. Gonzales) – People v. Gonzales, et al., E044225 – Restitution Hearings
Court vacates the $19,763.98 restitution order where the order was made without providing either defendant with a hearing and notice of a hearing. Counsel for appellants had orally waived the client’s presence at any future restitution hearing. However, here, no notice was given to the appellants and no hearing was set. The court further found that a written waiver was required before the court could proceed without the defendants being personally present. (I) LKH

Tetreault, Nancy — People v. Hernandez, G038145 — Statute of Limitations
Attorney General conceded and Court of Appeal agreed that several convictions (counts 2, 3, 5, and 6) must be reversed, because the prosecution was untimely as it exceeded the statute of limitations of three years. (I) BCT

Stralla, Ava — People v. Gueras, G038305 — Penal Code Section 654
Although convictions of both burglary and receiving stolen property taken during the burglary are permissible, the sentence imposed for receiving stolen property should have been stayed per Penal Code section 654. (I) RBB

Klaif, Leonard — People v. Camacho, G038447 — Search and Seizure
Attorney General conceded and Court of Appeal agreed the trial court erred in denying appellant’s suppression motion based on mere knowledge of probationary status without knowledge of search condition and remanded for further proceeding on the issues of the legality of the detention and consent. (I) AMJ

Hinkle, Stephen — In re Nohl A., G038813 — Juvenile Sentencing
Trial court abused its discretion in failing to hold hearing to determine whether entry of judgment should be deferred. (I) RBB

Ballantine, Jean — People v. Novorr, G039196 — Probation Condition
Attorney General conceded and Court of Appeal agreed that probation condition not to associate with people disapproved by probation officer is unconstitutional for omitting a knowledge requirement. (I) JLP

Schorr, Steven — People v. Mito, D049921 — Prior Bad Acts Evidence
Conviction for committing a lewd act on a child reversed, where admission of a prior conviction for rape of a woman was erroneously allowed into evidence under Evidence Code sections 1101, subdivision (b) and 1108. Court of Appeal found the prior convictions were too dissimilar to the charged offenses and were inflammatory. (I) MCR

McKim, Joanna — People v. Munoz, D050426 — Sentence Modifications
The Court of Appeal, following Bracamonte (2003) 106 Cal.App.4th 704, modified the judgment by striking certain firearm and prison prior enhancements that the trial court had stayed. (I) APJ

Wilson, Sachi — People v. Olson, D050709 — Exclusion of Defense Evidence
Trial court improperly excluded appellant’s proffered evidence that he had received permission from an unidentified manager at Fry’s to take wooden pallets. Contrary to the trial court’s conclusion, the evidence was not hearsay; rather, it was an operative fact (see People v. Fields (1998) 61 Cal.App.4th 1063, 1068-1069) and presented a complete defense to the theft charge which would show the lack of any specific intent for the charged crime. (See, e.g., People v. Navarro (1979) 99 Cal.App.3d Supp. 1, 10-11.) The error was prejudicial under Chapman, because the pallets had been taken from an unlocked location and appellant immediately complied with the officers’ orders to stop, making no effort to evade them. (A) CBM

Hennessey, Patrick — People v. Hernandez, E042912 — Lesser Included Offense
Appellant argued, the People conceded, and the Court of Appeal agreed that since appellant had pleaded guilty to vehicular manslaughter without gross negligence while intoxicated, conviction of driving under the influence while causing an injury, a lesser included offense of the manslaughter, must be reversed. (I) HCC

Barry, Leslie (Minors) — In re William B., G039351 — Reunification Services; Writ of Supersedeas.
Counsel represented 10- and five-year-old minors challenging court’s grant of reunification services to mother. The removal of the minors had been the third removal from parents for drug use since 2001, amidst repeated attempts by parents to remain sober. The juvenile court relied on minors’ apparent love for their mother as the basis for more reunification services. Court of Appeal held the juvenile court, as part of its analysis of the best interest of the children, must find “some reasonable basis to conclude” reunification is possible before services can be offered when services need not be offered. (Welf. & Inst. Code, § 361.5, subd. (b).) Parents fell within the exception for history of extensive and chronic use of drugs or alcohol. (§ 361.5, subd. (b)(13).) Court reversed order providing mother with services, affirmed order denying father’s services, and ordered trial court to set a section 366.26 hearing “as soon as practicable.”
Attorney successfully filed writ of supersedeas to stay 12-month review hearing scheduled for the day after oral argument for the appeal. (I) LLF

Cannon, Gregory — People v. Arias, D051214 — Penal Code Section 654; Abstract of Judgment
Court of Appeal agreed with appellant that three sentences ordered concurrent must be stayed under Penal Code section 654 and that abstract of judgment reflecting a $720 security fee should be corrected to reflect a $320 security fee. (I) JLP

Braden, Julie — In re G.E., D052054 — ICWA
Mother claimed Indian heritage, and Agency, despite court order to do so, made no further inquiries of other relatives re: names of tribes or family members. Agency conceded and parties stipulated to an immediate issuance of the remittitur. Case reversed and remanded with directions to the agency to conduct an ICWA inquiry, to provide notice to the applicable Indian entities, and for the juvenile court to proceed in conformance with the ICWA. (I) LLF

Dodd, John — People v. Willis, E040684 — Sufficiency of Evidence
Appellant was convicted in four counts of robbery. The sole evidence connecting appellant to two of the robberies (of ATMs) was that co-defendant’s car was used in a number of robberies, including the two other robberies (of video stores) for which other evidence connected appellant. However, the similarities between the ATM and video store robberies was generic only, while there were several differences. Respondent argued that appellant’s denial of participation in any robbery at all was circumstantial evidence of guilt, but the Court of Appeal concluded such reasoning was speculative and reversed the ATM robberies for insufficient evidence. (I) HCC

Moller, Richard Jay — People v. Machuca, E041521 — Sentencing
Court of Appeal struck and made concurrent various enhancements to conform the sentence to the judgment pronounced at sentencing. The Attorney General conceded the errors. (I) NFA

McPartland, Michael B — People v. Delacruz, E043082 — Penal Code Section 667.61
Attorney General conceded and Court of Appeal agreed that trial court erred in imposing two concurrent life terms, rather than one life term, where two sex offenses were committed against same victim on same occasion. (I) JLP

Kording, Nicole (Father) and Pfeiffer, Rich (Mother) — In re Kenesha E., G039103 — ICWA
ICWA notice omitted too much information known to the social workers and necessary to give the tribes information to determine whether to intervene, to be deemed in substantial compliance with the ICWA law. Specifically, the notices omitted father’s place of birth and his and mother’s aliases and former addresses – information which appeared in the appellate record but not on the ICWA notices. Further, the notices contained no information about the paternal grandparents and great-grandparents or about the maternal grandparents, not even their names, from whom Indian ancestry was claimed.
Termination of parental rights reversed to allow proper notice under the ICWA. Although father raised this issue, reversal of termination of parental rights also applies to mother. (I) CBM

APRIL 2008

Milcetic, Maryann (Mother); Williams, Nicole (Father) — In re Valerie W., D051056 — Inadequate Assessment Report; Adoption. Published opinion. The adoptability assessment report was inadequate under the statute. The report did not include results of genetic and neurological testing results of one child who had significant medical issues and that undermined the basis for determination that the adoptive parent was capable of meeting the child’s needs. Also, the report merely assessed one of the caregivers, when the Agency intended to allow a joint adoption by a mother-daughter pair for which the trial court would need to address any legal impediment. (I) CAG

Jauregui, Anna — People v. German, E041100 — California Rehabilitation Center; Fines; Abstract of Judgment
Remanded because trial court abused its discretion in denying appellant's request for CRC, which was also contrary probation's recommendation for referral for possible commitment to CRC; for correction of the abstract of judgment to show that the second case is to run concurrent, not consecutive, and to reflect that the convictions in the first case were sustained by jury trial, not guilty plea; and for deletion of fines not verbally ordered by the trial court and for consideration of whether or not to impose fines. (S) AMJ

Crooks, Gary — People v. Jackson; D049784 — Cunningham-Sandoval
Matter remanded on the substance offense pursuant People v. Sandoval; and also remanded for resentencing on the firearm enhancement (see People v. Lincoln). (I) LAR

Buckley, Stephen — In re Gabriel R., D050705 — Sufficiency of Evidence
True finding minor carried a concealed firearm within a vehicle under his control reversed because minor did not control the vehicle; three other true findings reversed because there was insufficient evidence the minor knowingly carried or possessed a firearm or ammunition. (I) RBB

Hernandez, Michael — People v. Reyes, D051597 — Search and Seizure.
Court of Appeal found that roving border patrol stop was without reasonable suspicion when the only identifying information from an anonymous driver was that he saw two individuals run from behind a bush toward a U-Haul truck stopped on the side of the freeway. (A) LLF

Gold, Neale — In re Kailey M., D051796 — Visitation Orders
Court partially reversed visitation orders that were unclear as to whether visits between father and daughter were to be supervised or unsupervised. (A) ACS

McPartland, Michael — People v. Wooten, E040555 — Abstract of Judgment
Abstract of judgment is corrected to reflect the oral pronouncement. Court of Appeal orders an amended abstract be filed reflecting appellant’s stayed sentence on count 2. (I) LKH

Cava, Dennis — People v. DeWitt, E042548 — Penal Code Section 1202.5 Fine
Because appellant was convicted of only attempted robbery, which is not a crime enumerated under Penal Code section 1202.5, the fine ordered pursuant to that section, as well as its attendant penalties, constituted an unauthorized order; fine stricken. (I) CBM

Ward, Paul — People v. Arnold, E041257 — Penal Code Section 654
Sentence for criminal threats stayed under Penal Code section 654, as it was based on same threats as appellant's conviction for dissuading a witness.
(I) MCR

Klaif, Leonard — People v. Lopez, E041414 — Serious Bodily Injury Enhancement
Court of Appeal found insufficient evidence appellant personally inflicted great bodily injury for enhancement to apply in group beating situation with only vague testimony that appellant was part of group. (I) JLP

McPartland, Michael — People v. Sanchez, E041694 — Custidy Credits; Sentencing
Judgment ordered modified to reflect additional presentence custody and conduct credits to which defendant was entitled and to correct the imposition of a seven-year minimum term. (I) AMJ

Tetreault, Nancy — People v. Pacheco, E042269 — Penal Code Section 654
Court of Appeal stayed the life term for the false imprisonment conviction because it was committed to facilitate the sexual assault. (I) BCT

Flenniken, William, Jr — People v. Moore, E042424 — Custody Credits
Because attempted robbery is not a violent felony under Penal Code section 2933.1, limiting credits to 15% was erroneous, and section 4019 credits applied. (I) LAR

Ting, Allison — People v. Martinez, E042427 — Forgery; Probation Conditions.
In opinion certified for partial publication, Court of Appeal reversed a second conviction for forgery, holding only one conviction proper for one forged instrument with two signatures. In unpublished portion, court modified several probation conditions, i.e., (1) carrying probation conditions and providing to police [modified to only keep available and offer to known officer in course of duties], (2) advising future employers of conviction [modified for duration of probation and before employment], and (3) avoiding access to similar documents [modified only to trust deeds]. (I) LLF

Staley, John — People v. Jones, E043355 — Abstract of Judgment
Abstract of judgement corrected to properly reflect sentence in one case to be served concurrently with sentence in other case. (I) LAR

DeVito, Cara — People v. Alcantar, E042602 — Abstract of Judgment
Attorney General conceded and Court of Appeal agreed that the abstract of judgment erred in its indication the enhancement associated with the principal count was stayed rather than stricken. Correction ordered. (I) CBM

Moller, Richard — People v. Peter Gallegos, E042639 — Abstract of Judgment.
Court of Appeal ordered the abstract of judgment corrected to delete reference to a 25 years- to-life term for the Penal Code section 667.61, subdivisions (a) and (d) priors.
(I) LKH

Wrubel, Sharon — People v. Cross, E042897 — Sentencing
Remanded so court can consciously exercise its discretion pursuant to Penal Code section 69 to dtermine whether to run case consecutively or concurrently to defendant’s prior case. (I) PED

Capriola, William — In re Lee M., E043041 — Probation Conditions
Attorney General conceded and Court of Appeal agree that terms of probation involving association with certain people must be modified so that “known” is replaced with “he knows” to ensure that appellant knows the status of the people with whom he is not supposed to associate. (I) APJ

Flenniken, William — People v. Villa, E043134 — Penal Code Section 654
Trial court erred in imposing a concurrent term for assault by means likely to cause great bodily injury (count 1). The term is ordered stayed pursuant to section 654 as appellant’s intent and objective in committing the assault was the same when he committed battery with serious bodily injury (count 2). (I) LKH

Buckley, Christian — People v. Simms, E043488 — Three Strikes
Attorney General conceded and Court of Appeal agreed that trial court misunderstood its discretion when it denied appellant’s request to strike his strikes and that remand for new sentencing hearing was necessary. (I) DKR

Ballantine, Jean — People v. Hector, E043613 — Penal Code Section 654.
Court of Appeal held section 654 applied when appellant pleaded guilty to possession of a firearm by a felon and possession of a short-barreled shotgun when appellant possessed only one weapon. The court agreed that conviction for both counts was proper, but the sentence on the second count must be stayed, because possession of the same weapon constituted a single act. (I) LLF

Lee, Konrad — In re R.M., E043650 — Indian Child Welfare Act (ICWA)
The court conditionally reversed the order terminating parental rights and remanded on a limited basis for the Department to comply with proper notice requirements of the ICWA. (I) BCT

Kording, Niccol — In re Angel C., E043656 — ICWA
Court of Appeal reversed for failure to provide adequate notice pursuant to (ICWA. Agency failed to ask maternal grandmother about birthplaces of likely relatives with Indian heritage, i.e., maternal grandfather and great-grandparents. Court rejected County Counsel's argument that the agency substantially complied with notice and rejected its harmless error argument, stating it was based on speculation. (I) LLF

Riggs, Brent (Mother) – In re Daemon L., E043735 – ICWA.
Order terminating parental rights is reversed, and matter is remanded to the juvenile court for compliance with ICWA. (I) LKH

Williams, Nicole — In re Monique T., E044366 — ICWA
County Counsel conceded and Court of Appeal agreed with limited remand to trial court to confirm compliance with notice requirements of the ICWA. If children are not Indian children, trial court will reinstate termination of parental rights. (I) LLF

Schaefer, Laura — People v. Clancy, G036667 — Sufficiency of Evidence
Child sexual molestation count reversed, because minor’s testimony insufficient to support conviction. (I) DKR

Schuck, John — People v. Nesbitt, G039369 — Restitution Fines
Attorney General conceded and Court of Appeal agreed that trial court improperly imposed a second restitution fine of $200 pursuant to Penal Code section 1202.4 following a probation violation hearing after already imposing same fine at sentencing. Abstract to be amended to show only one restitution fine. (I) LLF

Beckham, Sylvia — People v. Grajeda, G038185 — Probation Violation
Appellant was sentenced to a term of 13 years after he violated probation. The trial court stated it had no option since the 13-year term had been previously imposed with execution suspended. The Court of Appeal held the trial court failed to exercise its discretion because it had the option of reinstating probation. The Court of Appeal ordered the case remanded for a new sentencing hearing at which the trial court must (1) order, obtain, and review a probation report, and (2) exercise its discretion in making a sentencing choice. After remand, if the trial court orders the previously suspended 13-year sentence executed, then appellant shall be entitled to credit for all time spent in the Delancey Street program. (I) BCT

Ward, John — People v. Tenorio, G038234 — Jury Trial Waiver
Attorney General conceded and Court of Appeal agreed that trial court erred by failing to take appellant’s personal waiver of his right to a jury trial before it proceeded to hear the evidence and determine appellant’s guilt. Judgment reversed and case remanded for retrial. (I) CBM

Bronson, Phillip — People v. Yorba, G038293 — Probation Conditions
Court of Appeal directed the trial court to modify two probation conditions to include the following italics language: "do not be present in any establishment where you know or reasonably should know the primary items for sale are alcoholic beverages" and "do not associate with anyone you know or reasonably should know is disapproved of by your Probation Officer." (I) LLF

Rollo, Sharon — In re Elizabeth M., G038729 — Visitation
Court of Appeal reversed a termination of jurisdiction judgment containing an order reducing father's visitation for which father had no notice and for which no supporting evidence for the reduction had been presented. (I) CAG

Buckley, Stephen — People v. Gonzalez, G038635 — Lesser Included Offense
Defendant’s conviction for street terrorism (Pen. Code, § 186.22, subd. (a)) reversed because it is a lesser included offense of carrying a loaded firearm in public while being an active gang member (Pen. Code § 12031, subd. (a)(1), (2)(C).) (I) MCR

MARCH 2008

Scott, Patricia — People v. Monroe, D048740 – Penal Code Section 654
Concurrent sentences for assault with intent to commit oral copulation and assault with intent to commit rape could not be imposed where the defendant was also sentenced for the completed acts. (I) RBB

Wrubel, Sharon — People v. Webb, D049792 — Parole Revocation Fine.
Parole revocation fine stricken as an ex post facto violation when the authorizing statute’s enactment (1995) post-dates the 1989 offense. (I) APJ

Brisbois, Patricia — People v. Hernandez, D050152 — Impeachment
In case involving possession for sale and transportation of methamphetamine, trial court prejudicially erred in refusing to sanitize defendant’s conviction for possession of heroin for sale. (I) RBB

Vandeveld, Darrell — In re Irwin G., D050549 — Multiplicious Offenses; Felony Determination
Wardship order set aside and matter remanded to juvenile court with directions to (1) strike the true finding on the receiving a stolen vehicle count where the juvenile was also convicted of driving or taking a vehicle; (2) recalculate the minor's maximum potential term if warranted; and (3) designate whether the vehicle theft offense is a felony or a misdemeanor. (A) PED

Bostwick, James — People v. Lynch, D050756 — Sentencing
Case remanded to the trial court for re-sentencing where the court failed to properly pronounce sentence. (I) LKH.

Benedict, Amanda (minor’s counsel); Hook, William (mother’s counsel); Vogleman, Monica (father’s counsel) — In re Jon H., D051326 — Dependency Stipulated Reversal.
In 2000, the San Diego County juvenile dependence court appointed a guardian for the minor Jon. In 2001 it terminated jurisdiction. In 2006 Jon became a ward of the San Diego County juvenile delinquency court; the dependency court vacated the guardianship order, appointed new guardians, and terminated jurisdiction. Jon’s delinquency case was transferred to Riverside County where the new guardians reside. In 2007, biological parents filed a Welfare and Institutions Code section 388 petition in the dependency court seeking removal from the new guardians’ home and placement with mother. The court summarily denied the petition. The parents appealed. During the course of this appeal, the minor ran away and came to the office of minor’s counsel, Amanda Benedict. Ms. Benedict filed a minor’s letter brief indicating the minor’s deteriorating mental health and the need for court intervention. The parties then filed a stipulated reversal with directions to vacate the order denying the section 388 petition and transfer the case to Riverside County. The Court of Appeal accepted the stipulation. (I) LAR

Lampkin, David — People v. Garcia, E040647 — Penal Code Section 654
Court of Appeal ordered a stay of sentence on two counts which the trial court had ordered to run concurrent. All offenses were committed in the course of a single struggle with police officer. (I) APJ

Torres, Tonja — People v. Garcia, E041261 — Sentencing
Appellant was convicted of three new serious felonies and admitted he had previously suffered a prior serious felony conviction. The trial court correctly imposed three five-year terms (one for each new serious felony prior), but erred in imposing a fourth 5-year term which was not tied to any new particular count. (I) LKH

Scott, Patricia — People v. Ponce, E041285 — Sentencing
Remanded for resentencing in this sexual assault case. The trial court erred in selecting count 2 as the principal count and in imposing the upper term on that count. It also erred in imposing full, consecutive terms on counts 5 to 8, because it is not clear what sentencing scheme the court relied on (Pen. Code, § 667.6 or § 1170.1) and whether the court perceived the consecutive sentences as being discretionary or mandatory. (I) AMJ

Staley, John — People v. Singh, E041484 — Suppression of Evidence (Pen. Code, § 1538.5)
Court of Appeal agreed with appellant that the trial court erred in denying his motion to suppress evidence and the error was prejudicial. Charged with being a felon in possession of a firearm, appellant had moved to suppress the gun found in his parents’ garage. The trial court denied the motion based on a finding appellant lacked standing. The court also found that there was sufficient justification for the warrantless search. The Court of Appeal rejected both findings and also determined that the admission of the gun was not harmless beyond a reasonable doubt, despite fact that eyewitnesses testified to seeing appellant with a gun. (I) APJ.

Bernstein, David — In re Christopher R., E041979L — Juvenile Disposition
Attorney General conceded, and Court of Appeal agreed, that the lifetime sex offender registration provision of Penal Code section 290 was inapplicable to minor. A non-forcible oral copulation of a person under 18 was found true. The court agreed with minor that the mandatory provision of the registration statute (Pen. Code, § 290, subd. (b)(1)) is inapplicable to the offense of non-forcible oral copulation, and that the discretionary provision of the statute (Pen. Code, § 290, subd. (a)(2)(E)), while applicable to non-forcible oral copulation, is inapplicable to juvenile offenders. Accordingly, minor’s registration requirement was reversed. (A) NFA

McPartland, Michael — People v. Dixon, E042428 — Sentencing
Court of Appeal and People agreed that trial court erred in imposing a term for personal use of a firearm enhancement under Penal Code section 12022.53, attached to the spousal rape conviction, because the court used that circumstance to sentence defendant under the "One Strike" alternative sentencing provisions. (I) AMJ

Ward, Paul — In re Joe C., E043949 — Probation Conditions
Probation terms forbidding association with “known” narcotics users and “known” parolees, probationers, and gang members modified to specify that they be known as such to the juvenile (i.e., addition of scienter element); term requiring physician to give written notice to probation officer before prescribing controlled substance modified to require minor to give notice to probation officer within a reasonable time following the presecription; term requiring parents to attend parenting program modified to require joint participation of minor with parents in such program. (I) RBB

Rehm, Linda — In re Sydney P., E043954 — Indian Child Welfare Act (ICWA)
Reversal for failure to adequately inquire and give notice under ICWA. Mother was raising inadequate inquiry/notice of the father who did not appeal. Therefore, the Rebecca R. decision was distinguishable. (I) ACS

Erickson, Kristin — People v. Moon, G037729 — Cunningham
Upper term sentence reversed and remanded, because the judge made his own factual finding to support the upper term. (I) MCR

Stanton, Marta — People v. Bell, G038222 — Sentencing
Trial court erred when it ordered four of the prison priors to "run concurrent" with the sentence. Court of Appeal ordered the priors to be stricken. (A) LAR

Mack, Jennifer — In re Paulina D., G038886 — Dependency Disposition Court reversed, finding that the evidence was insufficient to support removal of mother’s four youngest children from her custody. (I) ACS

Williams, Nicole — In re Leonard G., E044289 — Termination of Parental Rights
Both appellate counsel for respondent stepfather and the minor agreed that trial court erred by numerous due process violations of the rights of the biological father. (I)(ACS)

FEBRUARY 2008

Kraft, Rudy — People v. Hubbs, D048607 — Sexually Violent Predator (S.V.P.) Proceedings; Ineffective Assistance of Counsel
S.V.P. commitment reversed because trial counsel’s failure to obtain an expert denied appellant his right to present a defense based on expert witness testimony. (I) RBB

Fabian, Carl — People v. Morreo, D048690 — Three Strikes Sentencing
Sentence reversed and matter remanded where the trial court's comments, in the context of the overall sentencing record, indicated that it did not understand that it possessed discretion to choose among the lower, middle, and upper terms on a carjacking offense, and was not required “by reason of the two-strike prior allegations having been found true” to impose an upper term, in determining proper Three Strikes sentence. (I) HCC

Frizzel, Doris — People v. Lopez, D049356 — Lesser Included Offense Attorney General and Court of Appeal agreed that the conviction of false imprisonment in count 11 must be stricken, because it is a lesser included offense of the kidnapping conviction, and the corresponding enhancements must also be stricken. (I) AMJ

O'Laughlin, Shawn — People v. Lewis, D050765 — Prison Prior
Attorney General and Court of Appeal agreed that stay of prior was in error and that the superior court intended to strike. Judgment modified to strike the prison prior. (I) AMJ

Willis Newton, Joanne — In re. Julia S., D050982 — Indian Child Welfare Act (ICWA).
Court reverses judgment declaring child free from father’s custody and control (Fam. Code, § 7822) for ICWA inquiry and notice, where trial court made no inquiry whether child was Indian child and where appellate counsel provided declaration suggesting Indian heritage. (I) JLP

Pfeiffer, Richard — In re Vasquez, D051055 — Parole
Petitioner had been convicted of second degree murder. The Governor had reversed a decision by the Board of Parole Hearings finding him suitable for release on parole, when the Governor had found premeditation. In a 2-1 decision, the appellate court concluded there was no evidence to support the Governor’s ultimate conclusion that petitioner was unsuitable for parole because he currently posed an unreasonable risk to public safety and therefore grant the requested relief. (I) HCC

Cannon, Gregory — People v. Griffin, D051138 — Direct Victim Restitution
Attorney General conceded and Court of Appeal agreed that the trial court erred in imposing direct victim restitution award for the “stolen” telephone, where appellant pleaded guilty to falsely reporting placement of a bomb and falsely reporting an emergency. Because the owner of the telephone was not a direct victim of the crimes admitted, the court’s order was improper. Direct victim restitution award is stricken. (I) CBM

Braden, Julie — In re Joseph A., D051151 — Mootness
Agency appealed order arguing that court erred by continuing jurisdiction after child was placed in Louisiana and Louisiana refused to monitor case. Court of Appeal dismissed based on mootness, because trial court subsequently terminated jurisdiction. (I) LLF

Jones, Sharon — People v. Turner, E041114 — Prior Serious Felony
Attorney General conceded and Court of Appeal agreed appellant’s two prior serious felony convictions stemmed from single criminal proceeding and were not “brought and tried separately.” Court struck one of the five-year enhancements. (I) LLF

Shorago, Alisa — People v. Boyd, E041446 — Custody Credits
Attorney General conceded and Court of Appeal agreed that trial court erred in denying appellant all presentence custody credits due to his murder conviction. Penal Code section 190, subdivision (e) only limits a defendant’s post-sentencing, not presentencing, credits. And, while section 2933.2 prohibits receipt of work or conduct credits, appellant is still entitled to actual presentence custody credits under Penal Code section 2900.5. (I) CBM

Popper, Jamie — People v. Williams, E041851 — Marsden; Penal Code Section 654
Judgment reversed for post-trial Marsden hearing, where defendant wrote letter to court asking for new trial and then made specific claims challenging attorney’s representation at sentencing hearing, but where court did not hold Marsden hearing. Also, 16-month consecutive term for making false bomb threat ordered stayed pursuant to Penal Code section 654, where defendant also was sentenced for a criminal threat 422 based on single statement. (S) JLP

Ballantine, Jean — People v. Mendoza, E042899 — Dual Convictions; Jury Trail Waiver
Appellant was convicted of first degree burglary (Pen. Code, §§ 460/459 [count 1]), petty theft with a prior (§§ 666/484 [count 2]), and receiving stolen property (Pen. Code, § 496 [count 3].) After a bifurcated bench trial, the trial court found true the gang allegations attached to all three counts, and the strike prior allegation. The Court of Appeal reversed the receiving stolen property conviction finding the theft and receipt (counts 2 & 3) involved the same property. The court further reversed the true findings on the gang allegations, because there was no express waiver of the jury trial. The remand includes instructions to strike the gang allegations and modify the sentence. Finally, the court corrected the sentence on count 1 to reflect four years in state prison. The trial court stated that it was imposing the middle term, but calculated it as 8 years, rather than four years. (I) LKH

Rollo, Sharon — In re M.M., E043519 — ICWA
The Court of Appeal accepted the parties' proposed stipulation for reversal with directions in this second appeal based on failure to comply with ICWA. (I) APJ

Wass, Valerie — People v. Reilly, G037401 — Sufficiency of Evidence
Conviction for grand theft by employee (Pen. Code, § 487, subd. (b)(3)) reversed, where the was no substantial evidence defendant was still employed by company at the time of the theft. (I) MCR

Wass, Valerie — People v. Acosta, G037655 — Sufficiency of Evidence
Court found the evidence insufficient on count 2, transportation of methamphetamine. Appellant was a passenger in a parked car where drugs were discovered, but the officers did not observe the car moving, i.e., no movement of the drugs. In addition, the drugs found in the lining of appellant's jacket did not support the transportation charge, because there was no evidence that appellant had moved the drugs located in his jacket from one place to another. (I) BCT

Khoury, Charles — People v. Huerta, G037696 — Multiplicious Offenses
Appellant was convicted of numerous offenses including multiple counts of kidnapping. Appellant argued, the Attorney General conceded, and the court agreed that because there was a single incident and a single victim, there was only one count of kidnapping. (I) HCC

Jog, Anita — People v. Pham, G037843 — Penal Code Section 654
The case was remanded for re-sentencing in accordance with Penal Code section 654 in this two-strike case where the trial court erred in believing Penal Code section 667 precluded application of Penal Code section 654. The Court of Appeal ordered that at least one of the consecutive sentences must be stayed. (S) APJ

Bauguess, Susan — People. V. Delgado, G037932 — Plea Bargain Defendant’s sentence ordered reduced by two years, where trial court imposed a sentence on two prior prison term enhancements in violation of defendant’s plea agreement. (I) PED

White, Catherine — People v. Nguyen, G037940 — Severance
The Court of Appeal agreed with appellant’s arguments that the two counts in this case, simple possession of cocaine and misdemeanor assault, were not from the same class of crimes and were not connected in their commission. The Court of Appeal also found that the evidence of each offense was not cross-admissible. The Court of Appeal accordingly found that the trial court erred in denying a motion to sever the charges. While the Court of Appeal did not deem the failure to be prejudicial to the convictions, it did find that the mis-joined charges resulted in appellant being unfairly deemed ineligible for Proposition 36 treatment. The case has been remanded for severance of the charges and consideration of a Proposition 36 disposition. (I)/APJ

O'Laughlin, Shawn and Staley, John — People v. Graham and Graham, G038342 — Penal Code Section 654
Term for second degree burglary ordered stayed when the burglary ripened into an Estes robbery for which the principal term was imposed. (I) HCC

Rehm, Linda — In re Brenda M., G038857 — Self-Incrimination
Father invoked Fifth Amendment right against self-incrimination at the jurisdiction-disposition hearing. Court found father could not invoke right because Welfare and Institution Code section 355.1, subdivision (f), provided adequate protection. When father refused to testify, court imposed sanction precluding father from presenting any evidence or cross-examining any witness. Court of Appeal reversed jurisdiction order and remanded the matter to the trial court. (I) LLF

JANUARY 2008

Cilli, Gregory — People v. Roberts, D048212 — Sentencing
Attorney General conceded and Court of Appeal agreed the trial court erred in imposing on appellant a 10-year no-contact order as to the victim, because it was not authorized by Penal Code section 136.2. (I) BCT

Martin, Arthur — People v. Rodriguez, D049261 — Lesser Included Offenses
Carjacking conviction reversed as a lesser included offense of kidnapping for carjacking; false imprisonment conviction reversed as a lesser included offense of kidnapping. (I) RBB

Mazur, Janice — People v. Knight, D049481 — Sufficiency of Evidence
Reversal of true finding on Penal Code section 12025, subdivision (b)(2), because insufficient evidence appellant knew gun was stolen. Reversal made felony count a misdemeanor. (I) CMS

Dain, Anthony — People v. Ford, D050147 — Sentencing
Appellant's 10 year sentence for the gang enhancement is vacated, and a 15 year minimum parole eligibility term imposed under Penal Code section 186.22, subdivision (b)(5). In addition, the direct victim restitution order is modified to be joint and severable with defendants, and a corrected abstract of judgment is ordered. (I) LKH

Marshall, Gregory — People v. Contreras, D050395 — Blakeley/Cunningham
Court of Appeal reversed upper term sentence on Blakeley/Cunningham grounds and remanded for resentencing. (I) NFA

Riggs, Brent — In re R. B., D050749 — Indian Child Welfare Act (ICWA); Standing
The Court of Appeal reversed an appeal brought by the mother, rejecting the Health and Human Services Agency’s arguments that 1) mother had no standing to appeal the lack of inquiry into father’s American Indian heritage, 2) mother forfeited the issue, 3) it was harmless error (father’s African American heritage did not negate the necessity for inquiry), 4) standard of review was substantial evidence (whether the court performed a mandatory duty is reviewed under abuse of discretion), and 5) reasonable inference could be made from social worker's reports that inquiry was made (clear from evidence that the ICWA findings in report dated back to those made on behalf of mother as father had not appeared yet). (A) CAG

Staley, John — In re William G. III, D050950 – Maximum Period of Confinement & Probation Condition
Court of Appeal ordered remand for trial court to add knowledge requirement into probation condition prohibiting unsupervised association with minors under 12 and to delete maximum period of confinement from minute order, because maximum period should not have been set where minor was placed on probation without removal from the home. (I) JLP

Levy, Richard — People v. Barajas, E039512 — Homicide Instructions
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

Christiansen, Mark — People v. Noriega, E040123 — Right to Counsel
In a published case, where the trial court disqualified appellant’s public defender and the entire public defender’s office based on a perceived conflict involving a past client who could be a witness, the trial court abused its discretion in removing the public defender and the office over appellant’s objection and his proffered waiver of any conflict and without taking any less drastic option, the removal violated appellant’s right to counsel under the state Constitution, and the error was reversible per se. (I) HCC

Lathrop, Stephen (appellant Guevara), Dodd, John (appellant Martinez) — People v. Martinez & Guevara, E040764 — Sentencing
Appellants’ sentences for attempted murder on count 1 modified to indeterminate life terms, subject to the minimum parole eligibility in Penal Code section 3046, subdivision (a)(1), plus 20 years for the gun enhancement. The additional 15-year consecutive sentences for the gang enhancement allegations in count 1 are stricken. (I) HCC

Miller, Gerald — People v. Santos, E041713 — Enhancements; Sentencing
1) Great bodily injury enhancement reversed because injury was “extremely trivial”; 2) court cited unacceptable factors in imposing an upper term. (I) RBB

Bronson, Phillip — People v. January, E041905 — Prior Prison Term
Appellant argued, Attorney General conceded, and the court agreed and stayed imposition of a one-year enhancement for a prior prison term (§ 667.5, subd. (b)), which was improperly imposed, because the same conviction for which he received the prison term was used as the basis for a five-year enhancement under section 667, subdivision (a)(1). (People v. Jones (1993) 5 Cal.4th 1142.) (I) HCC

McKim, Joanna — People v. Johnwell, E014853 — Sentencing
Multiple sentencing errors and errors related to findings on enhancements and priors corrected. (I) PED

Duxbury, Brett — People v. Leach, E042178 — Out of State Strike Prior
Attorney General conceded and Court of Appeal agreed that there was insufficient evidence that Louisiana prior robbery conviction was a Strike prior under California law. (I) JLP

Lee, Konrad (father); Milcetic, Maryann (mother); Barry, Leslie (mother) — In re Maria R., E042969 — ICWA
Order terminating parental rights is reversed and remanded for the limited purpose of determining whether ICWA applies. (I) PED

Kross, Jeffrey — People v. Ochoa, E043376 — Sentencing.
Attorney General conceded and Court of Appeal agreed: (1) the trial court erred in imposing a $1,600 restitution fine at sentencing, rather than the $800 restitution fine imposed when appellant was originally granted probation, and (2) imposition of the $1,600 fine pursuant to Penal Code section 1202.44 violates ex post facto where the underlying offense occurred prior to the statute’s enactment. In addition, the appellate court ordered the abstract of judgment corrected to include appellant’s pre-sentence custody credits. (I) LKH

Williams, Rex — People v. Castro, E043385 — Probation Condition
Court erred in imposing a probation condition which required the appellant to obtain a credit report for the Social Security number that he admitted fraudulently using. (I) LAR

Klein, S. Lynne (father), Chirco, Donna (mother) — In re Gabriella M., E043609 — ICWA
Where no certified mail receipts or any responses from the Bureau of Indian Affairs (BIA) and the Blackfeet Tribe were filed with the juvenile court as to two of the subject minors and BIA requested more information as to a third minor, the Department did not adequately comply with the notice requirements of ICWA as to the first two minors; further, notice as to the third minor, while sent to BIA, was not sent to the tribe. Also, the juvenile court made its determination that ICWA did not apply in less than the required minimum 60 days from the date notice was sent. However, here, only a conditional remand was ordered to ensure compliance. (I) HCC

Popper, Jamie — People v. Scarpinato, G036776 — Prison Prior; Ability to Pay
Court of Appeal reversed prison prior due to insufficient evidence, where trial counsel and trial court stated on record prison prior issue was resolved, but where appellant had only admitted he had a different prior from the same case and where evidence had not been presented that he served a prison term. Court also reversed order that appellant pay cost of probation report because of a denial of a hearing regarding the ability to pay, where counsel requested a finding appellant was unable to pay and the court responded by stating appellant was able to pay because he could work in prison. (S)

McGill, Martha — People v. Crissinger, G038031 — Sentencing (Sex Offenses)
Although the evidence in this case was more than sufficient to support a verdict appellant had engaged in lewd acts against each of his sons on numerous separate occasions within the time periods charged in counts 1 through 3 (the elder son) and 6 through 8 (the younger son), it is equally sufficient to support the conclusion that he engaged in two separate counts of lewd acts against his elder son on any one occasion, and that he engaged in three separate counts of lewd acts against his younger son on any one occasion. Consequently, it was impossible to discern whether the jury found appellant guilty of committing lewd acts against his elder son on more than two separate occasions in counts 1 through 3, or whether it found him guilty of committing lewd acts against his younger son on more than one occasion in counts 6 through 8. Therefore, the trial court erred in simply assuming, for purposes of sentencing, that the jury reached the former conclusion, i.e., separate occasions. Based on the language of former Penal Code section 667.61, the appellate court ordered remand for resentencing on those counts. (I) HCC

Pfeiffer, Rich — In re Jai C., G038913 – Presumed Father/Reunification Services
Reversal of termination of presumed father’s parental rights based on failure to provide him with reunification services. Juvenile court ordered to consider whether return of child to father would be detrimental and, if so, order the agency to develop a case plan and provide services to father. (I) ACS